Madhya Pradesh High Court
Rkdf Medical College Hospital And ... vs Union Of India on 21 July, 2017
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Writ Petition No. 8160/2017
Parties Name RKDF Medical College Hospital and
Research Centre
Vs.
Union of India and another
Bench Constituted Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Anurag Shrivastava
Judgment delivered by Hon'ble Shri Justice S.K. Gangele
Whether approved for Yes/No
reporting
Name of counsels for parties For petitioner: Shri Nidhish Gupta,
learned Senior Counsel with Shri
Amalpushp Shroti.
For respondent No.1 : Shri J.K. Jain,
learned Assistant Solicitor General of India.
For respondent No.2 : Smt. Indira Nair, learned Senior Advocate with Shri Prateek Dubey.
Law laid down Significant paragraph numbers (O R D E R) Pronounced on :21.07.2017
1. Petitioner has filed this petition for quashment of order dated 31.05.2017 and recommendation of MCI/respondent No.2 dated 31.01.2017. The petitioner further prayed a relief that mandamus be issued in favour of the petitioner to the effect that the petitioner college be permitted to admit 150 students in the MBBS course for academic year 2017-18.
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2. The petitioner is a Medical College Hospital and Research Centre. It is being run by a society registered under the provisions of M.P. Societies Registrikaran Adhiniyam, 1973. Central Government after considering scheme of the petitioner for establishment of medical college and taking into consideration the recommendations of MCI granted permission to the petitioner for establishment of medical college vide letter dated 09.07.2014 with intake capacity of 150 MBBS students annually from the academic year 2014-15. The petitioner college was inspected for grant of renewal of permission for admitting second batch of MBBS students for the academic year 2015-16, because up to final year i.e. five years for new medical college to admit students each and every year renewal of permission is necessary. An inspection was carried out by the assessors on 23rd and 24th February, 2015. The assessment report was placed before the Executive Committee of MCI and the Committee found certain deficiencies. The Committee noticed that deficiencies, in accordance with the resolution, were upto certain level. Hence, it was not necessary to provide opportunity to the petitioner to cure the deficiencies. Consequently, MCI/respondent No.2 recommended the Central Government not to renew the permission for admission of second batch of 150 MBBS students for the academic year 2015-16 in the petitioner college. The respondent No.2 further made a recommendation to debar the
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petitioner medical college for two academic years i.e. 2015-16 and 2016-17 in accordance with the Regulations 8(3)(1)(a) and 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. The petitioner institution made objections in regard to inspection and recommendations of the respondent No.2 before the Central Government. A personal hearing was provided to the petitioner institution and the Central Government vide letter dated 17.04.2015 made a request to the respondent No.2 to review/assess the scheme of the petitioner medical college.
3. The Executive Committee of the respondent No.2 in its meeting held on 29.04.2015 reconsidered the matter as well as the assessment report and the Committee had taken a decision to recommend the Central Government not to renew the permission in favour of the petitioner for admission of second batch of 150 MBBS students for the academic session 2015-16 and debar the petitioner college for two academic years. It was communicated to the Central Government and the Central Government accepted the recommendations of the respondent No.2 and held that the petitioner institution is not eligible to get renewal.
4. Being aggrieved by the aforesaid decision and order, the petitioner college filed a writ petition before this Court. It was registered as Writ Petition No.7521/2015. An interim order was passed in the aforesaid writ petition. Thereafter, the answering
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respondent filed a special leave petition before the Hon'ble Apex Court. The Apex Court set aside the interim order and observed that the petitioner can raise all the objections before the High Court. Finally, this Court vide order dated 01.07.2015 allowed the writ petition of the petitioner institution and set aside the recommendations of the respondent No.2 dated 29.04.2015 and 11.05.2015. The Court further directed the respondent to review/assess the case of the petitioner for yearly renewal in accordance with the communication of the Central Government dated 17.04.2015.
5. Against the aforesaid order, the answering respondent filed a Special Leave Petition (C) No.19513/2015. The Hon'ble Supreme Court directed the respondent to conduct inspection of the petitioner college and submit its report before the Hon'ble Supreme Court in a sealed cover on or before 21.09.2015. Thereafter, the special leave petition was dismissed. The Apex Court directed that the inspection report be placed before the Central Government and the Government shall provide a hearing to the petitioner medical college and take a decision in the matter. The Central Government constituted a committee to provide hearing to the petitioner college and the Central Government vide communication dated 28.09.2015 forwarded to the petitioner had taken a decision not to grant renewal permission to the petitioner college for admitting second batch of MBBS students.
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6. Against the aforesaid order, the petitioner institution filed an interim application before the Hon'ble Apex Court in Special Leave Petition (C) No.19513/2015. It was subsequently withdrawn.
7. Thereafter, the petitioner filed a writ petition before Delhi High Court. It was registered as W.P. (C) No.9663/2015. The High Court of Delhi vide order dated 09.10.2015 granted provisional permission to the petitioner to admit students for the academic year 2015-16 subject to decision of the writ petition. The respondent No.2 filed special leave petition before the Apex Court against the interim direction. The Hon'ble Apex Court quashed the interim order passed by Delhi High Court and directed the Court to decided the writ petition. The Delhi High Court vide order dated 29.12.2015 passed in W.P. (C) No.9663/2015 quashed the decision of the Central Government dated 28.09.2015 and directed the Government to take a fresh decision. The Central Government vide order dated 01.01.2016 again decided not to grant permission to the petitioner medical college to admit second batch of MBBS students. Thereafter, the respondent filed an appeal before the Division Bench against the order of learned single Judge.
8. The Central Government vide letter dated 21.09.2015 directed the respondent No.2 to provide the petitioner medical
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college a fresh hearing before taking action of debarring the petitioner institution from admitting students for two academic years. The Executive Council of respondent No.2 had taken a decision that the petitioner medical college is not eligible to be given any hearing, neither it can claim any opportunity of hearing as a matter of right. It was communicated to the Central Government vide letter dated 05.11.2015. Thereafter, again the Central Government directed the respondent No.2 to implement binding mandatory provisions of Regulation 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. The respondent No.2 requested the Central Government to consider the case of the petitioner again. Thereafter, again the Central Government vide letter dated 29.03.2016 directed the respondent No.2 to review/assess the case of the petitioner college.
9. The petitioner filed a writ petition against the impugned letter dated 29.03.2016 before this Court. It was registered as W.P. No.21223/2015. This Court vide order dated 11.05.2016 quashed the letter dated 29.03.2016 issued by the Central Government and directed the respondent No.2 to conduct an inspection of the petitioner medical College and submit the recommendation to the Central Government. This Court disposed of the aforesaid writ petition with the following directions:
"10. As a result, the impugned communication Annexure P-12 dated 29.03.2016, in our opinion,
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suffers from the vice of non-application of mind and of having invoked ground which is not available, if non- existing to attract Regulation 8(3)(1)(d). Hence, this communication deserves to be set aside and the parties must be relegated to the position as obtained on 29.03.2016 or prior to the issuance of impugned communication (Annexure P-12).
11. In this view of the matter, the appropriate course is that the Medical Council of India must undertake inspection of the College and submit its recommendation before 15.05.2016, which is the cut- off date. After such recommendation is submitted, the Government of India will be free to take decision in accordance with law while keeping in mind the observations made in the earlier decision of this Court, which has been upheld by the Supreme Court in Special Leave Petition No.19153/2015 decided on 22.09.2015.
12. The writ petition, therefore, must succeed on the above terms. As aforesaid, no other relief is pressed by the petitioner for the time being with liberty to pursue the same or other grounds raised in the writ petition, if and when occasion arises.
13. We make it clear that if in the inspection by the concerned Authority it is revealed that there is possibility of invoking Regulation 8(3)(1)(d), will be free to pursue that option in accordance with law.
14. Writ Petition disposed of accordingly."
10. Against the aforesaid order, MCI filed a special leave petition before the Hon'ble Apex Court. It was registered as Special Leave to Appeal (C) No. 14729/2016. The Supreme Court vide order dated 15.07.2016 directed MCI to conduct a fresh inspection of the petitioner-institution within a period of six weeks from the date of the order and submit a report/recommendations in a sealed cover. Thereafter, the aforesaid order was modified by the Hon'ble Supreme Court vide order dated 09.09.2016 with a direction that the matter be considered by the Oversight Committee and a decision be taken that whether the petitioner-institution should be allowed to
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admit students for the academic session 2016-17. The Hon'ble Apex Court passed the following order:
"On a reading of the document dated 12 th August, 2016 and the order dated 6th September, 2016, particularly paragraph 4.7 of the document dated 12 th August, 2016, we are of the view that it will be more appropriate if the matter is considered by the Oversight Committee and a decision is taken on the issue whether the respondent - RKDF Medical College Hospital & Research Centre should be allowed to admit students for the year 2016-17.
In taking a decision in this regard, the Oversight Committee is entitled to look at the two DVDs that have been filed before us and also to give a very brief hearing to the Medical Council of India and the respondent - RKDF Medical College Hospital & Research Centre. The Oversight Committee will take an independent view in the matter.
The petition stands disposed of in view of the above.
Pending applications are also disposed of. We make it clear that this direction will not be treated as a precedent in any other case and the order is being passed in the peculiar facts of this case in view of the fact that in our order dated 15 th July, 2016, we had observed as follows:
"Without prejudice to the rights and contentions of the Medical Council of India to the effect that a fresh inspection is not required once an order is passed under Regulation 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999, the Medical Council of India should conduct a fresh inspection of respondent No.1within a period of six weeks from today and submit a report recommendations in a sealed envelop to this Court."
As mentioned in that order itself, inspection will not be treated as a precedent since it is passed without prejudice.
We also make it clear that we have not expressed any opinion one way or the other on the contentions raised by either of the parties."
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11. Thereafter, the Oversight Committee vide order dated 27 th September, 2016 accorded approval to the petitioner-institution for renewal of permission to admit students in M.B.B.S. course for 150 seats subject to following conditions:
"6. After a careful consideration of the submissions made by the representatives of both parties, perusing the DVDs and taking into account the evidence submitted, OC decided as follows:
(i) The assessment report dated 20 July 2016 raises more questions than answers. It is not in the prescribed format and does not meet the reporting requirements of Assessors Guide. It has serious discrepancies and even the timings of commencement and conclusion of assessment indicated in the report are not free from serious doubt. The assessment report lacks credibility and does not inspire confidence. OC finds it imprudent to rely on such unworthy assessment report and it is rejected accordingly.
(ii) The college satisfied the conditions laid down in para 301 of approval letter of OC dated 12 August 2016 as indicated in para 5 above.
(iii) Approval is therefore, accorded to RKDF Medical College Hospital & Research Centre, Jatkhedi, Bhopal, Madhya Pradesh for Renewal of permission for MBBS course for 150 seats of 2nd Batch u/s 10A, of the IMC Act 1956 subject to the following conditions:
(a) An affidavit from the Dean/Principal and Chairman of the Trust concerned, affirming fulfillment of all deficiencies and statements made in the compliance report be submitted by the college to MHFW (by 27 September 2016),
(b) A bank guarantee in the amount of Rs.
2 crore in favour of MCI, which will be valid for 1 year or until the first renewal assessment, whichever is later. Such bank guarantee will be in addition to the prescribed fee submitted along with the application (by 27 September 2016).
(c) OC may direct inspection to verify the compliance submitted by the college and considered by OC, anytime after 30 September 2016. In default of the conditions (a) and (b) above, as
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applicable, and if the compliance are found incomplete in the inspection to be conducted after 30 September 2016, the college will be debarred from fresh intake of students for 2 years commencing 2017-18.
7. Approval contained in this letter is also subject to MHFW/MCI ensuring compliance of the Medical College with directive/ advisory communicated on 27 August 2016, on uploading of data of (i) faculty, clinical material, infrastructure etc. by the College on its website and (ii) details of admissions of students, respectively.
8. This issues with the approval of OC."
12. The Central Government vide letter dated 28.09.2016 granted conditional renewal permission to the petitioner college for admission of second batch of 150 MBBS students for the academic year 2016-17 subject to certain conditions as imposed by the Oversight Committee.
13. A team consisting Dr. Karabi Baral, Dr. Nimesh Verma and Dr. Ramakrishna Reddy N. conducted inspection of the petitioner institution for renewal of permission for the academic years 2017- 18 on 5-6.01.2017. The Committee conducted inspection from 11:30 AM to 2:00 O'clock in the after noon. The Committee noted following deficiencies:
"1. Deficiency of faculty is 5.26% as detailed in the report.
2. Shortage of Residents is 10.00% as detailed in the report.
3. OPD attendance was 647 against 900 required as per Regulations.
4. Bed Occupancy was 60.48% against 75% required as per Regulations.
5. There was NIL Normal Delivery & NIL Caesarean Section on day of assessment.
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6. There was only 04 Major Operations on day of assessment.
7. In Skin & VD ward, patients of Crack feet & Itching are admitted who can be treated on outdoor basis. In Paediatrics many children looking normal not meriting admission were admitted. In General Surgery & Orthopedics wards, a few patients did not merit admission.
8. Wards: Distance between 2 beds is <1.5 m in Paediatrics ward.
9. Date of Laboratory investigations as provided by institute are highly inflated.
10. Casualty: Ventilator is not available. There was only 1 patient in the Casually at the time of taking round.
11. ICUs: All patients operated on 05/01/2017 were placed in SICU/ICCU/MICU. There were only patients in PICU/NICU. There is no Ventilator in PICU/NICU.
12. Old CT Scan is not functional. New CT Scan is yet to be installed.
13. In respect of Dr. Rajiv Dalela, Asst. Prof. Orthopedics, details given in letter pad do not match D.F.
14. Other deficiencies as pointed out in the assessment report."
14. Learned Senior Counsel has submitted that the recommendations submitted by MCI to the Central Government and the order impugned passed by the Central Government of refusal to grant renewal to the petitioner institution is contrary to law. Mandatory provisions of Medical Council of India Establishment of Medical College Regulations, 1999 (hereinafter referred as 'the Regulations of 1999') have not been followed. The inspection was carried out on a gazetted holiday i.e. Guru Govind Singh Ji Jayanti. The names of the faculty members who were on leave or had gone to the Court or police station have not been included by the inspection team in the list of faculty members. The inspection was carried out from 11:00 AM to 2:00 PM
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contrary to the time fixed by MCI. The petitioner institution cured each and every deficiency. Actually, there was no deficiency and those facts have neither been considered by MCI nor the Central Government. Hence, the procedure adopted in the case of the petitioner for renewal is contrary to law. In support of his contentions, the learned Senior Counsel relied on the following judgments:
"A. Modern Dental College & Research Centre and others vs State of M.P. And others, (2016) 7 SCC 353;
B. Priyadarshini Dental College & Hospital vs Union of India, (2011) 4 SCC 623;
C. Paras Saklecha vs State of M.P. And other, I.L.R. (2016) M.P. 499 & D. Royal Medical Trust vs Union of India, (2015) 10 SCC 19 "
15. On the contrary, the learned Senior Counsel appearing on behalf of MCI has contended that the inspection was carried out by the experts and they have considered each and every aspect. The representative of the petitioner college/Dean was present at the time of inspection. He signed the reports. No objection was raised at the time of inspection. There was no necessity to provide opportunity to the petitioner institution to cure the defects. The petitioner institution was provided opportunity. Earlier, the institution made a representation before the Central Government. The Government has again considered the same and rejected it.
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There is no illegality in the impugned orders. The Court has limited scope of interference in experts report or opinion. The matter has been examined by the experts and it has not been found proper to grant renewal to the petitioner institution. No relief can be granted to the petitioner institution because the period of admission in medical college is already over and counseling is going on. In support of her contentions, learned Senior Counsel relied on the following judgments:
"A. Ashish Ranjan and others vs Union of India and others, Writ Petition (Civil) 76 of 2015 & B. Medical Council of India vs V. N. Public Health & Educational Trust & others, Civil Appeal No.3964/2016."
16. Before considering the rival submissions, in our opinion, it is necessary to consider the provisions and amended provisions of the Regulations of 1999. These regulations are statutory regulations made by MCI in exercise of powers conferred by Section 10A read with Section 33 of the Indian Medical Council Act, 1956 with the previous sanction of the Central Government.
17. Regulation 3 prescribes form and procedure. Regulation 8 is in regard to grant of permission. Regulation 8(3)(1) has been substituted by gazette notification dated 08.02.2016. It reds as under:
"The following shall be added:
"(3)(1). The permission to establish a medical college and admit students may be granted initially for
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a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.
PROVIDED that in respect of
(a) Colleges in the stage upto II renewal (i.e. Admission of third batch):
If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is < 60 %, such an institute will not be considered for renewal of permission in that Academic Year.
(b) Colleges in the stage from III renewal (i.e. Admission of fourth batch) till recognition of the institute for award of M.B;B.S. Degree:
If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is < 70 %, such an institute will not be considered for renewal of permission in that Academic Year.
(c) Colleges which are already recognized for award of M.B.B.S. degree and/or running Postgraduate Courses:
If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 10% and/or bed occupancy is < 80 %, such an institute will not be considered for processing applications for postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendation for
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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 along with direction of stoppage of admissions in permitted Postgraduate courses.
(d) Colleges which are found to have employed teachers with faked / forged documents:
If it is observed that any institute is found to have employed a teacher with faked / forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission / recognition for award of M.B.B.S. degree / processing the applications for postgraduate courses for two Academic Years - i.e. that Academic Year and the next Academic Year also.
However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 days after important religious and festival holidays declared by the Central/State Govt.
(2) The recognition so granted to an Undergraduate Course for award of MBBS degree shall be for a maximum period of 5 years, upon which it shall have to be renewed.
(3) The procedure for 'Renewal' of recognition shall be same as applicable for the award of recognition.
(4) Failure to seek timely renewal of recognition as required in sub-clause (a) supra shall invariably result in stoppage of admissions to the concerned Undergraduate Course of MBBS at the said institute."
18. Regulation 3(8)(3)(1)(d) prescribes that office of the Council shall ensure that such inspections are not carried out at least three days before, upto three days after important religious and festival holidays declared by the Central/State Government.
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19. In the present case, admittedly, the assessment was carried out on 5th & 6th January, 2017. The petitioner pleaded in the petition that 5th January, 2017 was holiday declared by the State Government on account of birthday of Guru Govind Singh Ji. The respondents denied the same fact. Learned Senior Counsel produced notification dated 30th December, 2016 issued by General Administration Department, State of MP. As per the aforesaid notification, 5th January, 2017 was declared as general holiday in the State of MP on account of birthday of Guru Govind Singh Ji. Hence, it was obligatory on the part of MCI not to carry out any inspection on 5th or 6th January, 2017 as per Regulation 3(8)(3)(1)(d) of the Regulations of 1999.
20. It is a fact that the petitioner institution did not raise this objection at the time of inspection, however, if there is statutory impediment and the action is in violation of statutory provisions, then the ground that objection was not raised cannot be accepted, as argued by the learned Senior Counsel appearing on behalf of respondent No.2-MCI.
21. Regulation 3(8)(3)(1)(d) further provides that the Central Government may at any stage convey the deficiencies to the petitioner and provide him an opportunity and time to rectify the deficiencies. In the present case, the Central Government did not provide opportunity to rectify the deficiencies. In our opinion, it
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was necessary for the Central Government to follow the aforesaid statutory provisions because proviso to the provision is not attracted in the present case in the background that the deficiencies pointed out are not covered as per the proviso of Regulation 8(3)(1), which prescribes that if the deficiencies are below certain norms, then the application for renewal of permission shall not be considered.
22. In the present case, the petitioner institution has submitted detailed representation to the Central Government mentioning the facts that there was no deficiency by the institution. The inspecting team did not consider the facts properly. However, the Central Government rejected the application for renewal without assigning reasons. It is only communicated to the petitioner by the Central Government that after granting an opportunity of hearing to the college with reference to the recommendations of MCI, the Government has taken decision to debar the petitioner college for two academic years and encash the bank guarantee. But, there is no consideration that the facts as pointed out by the petitioner have been considered by any authority. The petitioner pointed out following facts to the Government in regard to assessment report submitted by the experts.
23. The petitioner offered following explanation to the deficiencies pointed out by the assessors:
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1. Deficiency of faculty is 5.26% : The petitioner submitted that the faculty deficiency was 2.56%. It submitted following clarification in this regard:
1.1 Dr. Meena Khatri, Prof. OBGY Department was not accepted by the assessors. She was not counted at the time of head count. She was summoned by the Station House Officer, Bairagarh as a witness for a case and she had gone to police station with the permission of the Dean. She was present and attended the inspection on second day i.e. 6 th January, 2016. She submitted an application to the management for one day leave on 05.01.2017 and same was granted to her because Station House Officer, Bairagarh had summoned her to record her statement on 05..01.2017 in regard to an incident which had happened on 29.12.2016.
1.2. Dr. Manjunath, Assistant Professor, Pharmacology Department, was summoned by the Court on the first day of inspection. She was granted leave on 05.01.2017. Copy of the summon of witness issued by the Court dated 02.01.2017 was submitted by the petitioner in which it is mentioned that Dr. Manjunath was summoned for deposition on 05.01.2017.
1.3. Dr. Sarang Ghodki, Assistant Professor, Pharmacology Department was on leave because of his marriage on 23.12.2016.
1.4. Dr. Rajeev Dalela, Assistant Professor, Orthopedic Department was working in the medical
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college and he was practicing at his clinic in the evening hours. However, he was not counted.
2. Shortage of Residents is 10%: As per the clarification of the petitioner, there was no deficiency because the assessors did not count four junior residents who were on night duty and they reached at 11.05 AM before the assessors during head count. The duty roster was duly submitted. The residents were : Dr. Krishna Pal Singh, Psychiatry; Dr. Madhurima Singh, Orthopedics; Dr. Vijendra Gour, Ophthalmology and Dr. Anjali Dadu, OBGY Department. The petitioner made a request to the Government to appoint two Executive Magistrates to verify the facts. They have also verified the same facts and duty roster was duly assigned by the Medical Superintendent.
Dr. Pushpraj Singh Thakur, Senior Resident Orthopedic Department was present during head count before 11:00 AM. He signed the attendance sheet and thereafter, he left to record his statement in a case with the permission of the Dean. His summon was also submitted.
Dr. Praveen Rangari, SR Orthopedic Department and Dr. Shilpa Sharma, SR Psychiatry Department were on sanctioned leave by the Dean for personal reasons.
One SR Medicine and two JR Medicine, who were extra were not counted by the assessors.
The petitioner pleaded that there was no Deficiency.
3. OPD attendance was 647 against 900 required as per regulations: The petitioner offered explanation that routine time of hospital OPD was 9 AM to 4 PM. The assessors had counted 647 OPD patients at 2 PM, however, closing time was 4 PM. As per the record, OPD attendance was 922
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against 900 at 4PM. The petitioner submitted OPD list with CD and photographs.
4. Bed occupancy was 60.48% against 75% required as per regulations: As per the petitioner, total 371 patients were on bed on the date of assessment and the bed occupancy was 90.48%. It submitted CD of 371 admitted patients alongwith their names verified by two Executive Magistrates appointed by the Government of MP. The patients were transferred for investigation to department of Radio Diagnosis for X-Ray, USG and to the laboratories of pathology. All these patients were in queue at 10 AM for their respective tests. All surgical patients were in pre- operative ward. They were shifted thereafter. The patients admitted in ICU, ICCU, SICU, NICU, PICU were extra. Those patients were not counted.
5. There was NIL Normal Delivery and NIL Caesarean Operation on day of assessment: As per the petitioner, average delivery in the last three months was three per day; two normal and one caesarean. The Assessors had taken the date at 2PM, at that time, the females were in pre labor room and as per hospital record, there were two deliveries; one normal and one caesarean.
6. There was only 04 major Operations on day of assessment: As per the petitioner, as per record, there were 13 patients in the major OT and 33 minor operations in minor OT's. The data was given to the assessors and report is of 2 PM and surgeries were done till 4 PM, as per MCI norms.
7. In Skin and VD ward, patients of Crack feet & Itching are admitted who can be treated on outdoor basis. In
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Paediatrics many children looking normal not meriting admission were admitted. In General Surgery & Orthopedics wards, a few patients did not merit admission: As per the petitioner, this statement is vague, because it is the wisdom of the treating Physicians to admit and treat the patients. The petitioner submitted the list. The Assessors did not provide specific names of the patients, so it could be verified that whether they were normal or their admissions were not required. The petitioner offered explanation that in Pediatric ward it is difficult to put small children in the beds for long time. Some of the pediatric patients were in play area. Those patients could not be counted. The petitioner submitted a list.
8. Wards: Distance between 2 beds is <1.5 m in Paediatrics ward: The petitioner offered explanation that the distance between two beds was as per MCI norms. It was verified in previous MCI inspections.
9. Date of Laboratory investigation as provided by institute are highly inflated: As per the OPD attendance, all the laboratory investigations and Radiology investigations were conducted according to the advice of consultants. Assessors had also personally visited all departments, where investigation was going on and the date was computerized, hence, there is no possibility to inflate MRD data.
10. Casualty Ventilator is not available. There was only 1 Casualty Ventilator at time of taking round: The petitioner offered explanation that patients kept in casualty for two hours and CMO will call respective consultant. Five patients in casualty during round who were transferred
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to different wards as per their respective investigations. It submitted detailed information of the patients.
11. ICUs: All patients operated on 05/01/2017 were placed in SICU/ICCU/MICU. There were only patients in PICU/NICU. There is no Ventilator in PICU/NICU: As per the explanation offered by the petitioner, the hospital has 10 beded post operative ward in the operation theatre complex and needy patients were put in the surgical intensive care unit and as per hospital record, two patients were in PICU/NICU. There is no minimum requirement of patients to be admitted in PICU and NICU, as per MCI norms.
12. Old CT Scan is not functional. New CT Scan is yet to be installed: The petitioner offered explanation that new 16 slice CT scan machine was installed and it was functioning. The petitioner submitted purchase invoice and other documents of 16 slice CT scan machine.
13. In Respect of Dr. Rajiv Dalela, Asst. Prof. Orthopedics, details given in letter pad do not match D.F.: As per explanation offered by the petitioner, Dr. Rajiv Dalela had given undertaking to the Assessors that he was working full time in the petitioner institution, but, he was not counted. Undertaking and notarized affidavit of Mr. Dalela was produced.
24. There is no record that the explanation offered by the petitioner in regard to the deficiencies pointed out by the Assessors was considered by the Government. It has only been mentioned in the order impugned that after granting an opportunity of hearing to the college, the Government has taken a decision to debar the college for two academic years and encash
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the bank guarantee and not accord renewal. The letter dated 30 th March, 2017 issued by the Government of India to the petitioner mentions that the petitioner should submit its explanation of the deficiencies pointed out by MCI. It was obligatory on the part of the Government to consider the explanation as pointed out by the petitioner. Statutory regulations 8(3)(1) prescribes that the Government may at any stage convey the deficiencies to the applicant and provide him the opportunity in time to rectify the deficiencies. The regulation used the word 'to rectify the deficiencies', it means that Central Government had an obligation to provide opportunity to the petitioner to rectify the deficiencies.
The petitioner pointed out that there was no deficiency.
25. The Hon'ble Apex Court in the matter of Priyadarshini Dental College and Hospital vs Union of India and others, (2011) 4 SCC 623 has considered the object of grant of renewal of permission and held as under in regard to dental college:
"25. The need for renewal of permission emanates from the fact that a newly established college is not required to have in place, full complement of the teaching faculty and complete infrastructure in the first year itself. This is because, during the first year, the college will be catering only to a limited number of first year students. During the second, third and fourth and fifth years, the student strength will increase. If the permitted intake is 100, usually there will be 100 students in the first year, 200 students in the second year, 300 students in the third year, 400 students in the fourth year and 500 students in the fifth year. Thereafter, the strength may remain constant. As the strength increases
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gradually every year, correspondingly the infrastructure and faculty will have to be increased."
26. A three Judges Bench of the Hon'ble Apex Court in the matter of Royal Medical Trust (Registered) and another vs Union of India and another, (2016) 10 SCC 19 further held as under:
"25. As regards cases of renewal, it was laid down in Priyadarshini that the process of decision making for grant of fresh or initial permission for establishment of a new college is exhaustive and elaborate when compared to such decision making in regard to grant of renewal of permission for the four subsequent years. It was further stated that before grant of initial permission the aspects whether the institution would be in a position to offer the minimum standards of education in conformity with the Act and Regulations and whether the institution has adequate resources and whether the institution has provided or will be able to provide within the time limit specified in the Scheme all the required facilities and faculty are required to be considered and scrutinized very closely. On the other hand for the purposes of grant of renewal what is required to be considered is whether the prescribed faculty and infrastructure is available. Considering renewal cases on a parameter distinct and different from that relating to establishment of a new college for the first time, it was observed that the entire process of verification and inspection relating to renewal ought to be done well in time so that the existing colleges have adequate and reasonable time to set right the deficiencies or offer explanation to the deficiencies."
27. The Hon'ble Apex Court further held as under:
"31. The MCI and the Central Government have been vested with monitoring powers under Section 10A and the Regulations. It is expected of these authorities to discharge their functions well within the statutory confines as well as in conformity with the Schedule to the Regulations. If there is inaction on their part or non-observance of the time Schedule, it is bound to have adverse effect on all concerned.
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The affidavit filed on behalf of the Union of India shows that though the number of seats had risen, obviously because of permissions granted for establishment of new colleges, because of disapproval of renewal cases the resultant effect was net loss in terms of number of seats available for the academic year. It thus not only caused loss of opportunity to the students' community but at the same time caused loss to the society in terms of less number of doctors being available. The MCI and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various stages and time limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. In our view the Schedule must ideally take care of :
(A) Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfill these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfill the basic requirements would be considered at the next stage.
(B) Inspection should then be conducted by the Inspectors of the MCI. By very nature such inspection must have an element of surprise. Therefore sufficient time of about three to four months ought to be given to the MCI to cause inspection at any time and such inspection should normally be undertaken latest by January. Surprise Inspection would ensure that the required facilities and infrastructure are always in place and not borrowed or put in temporarily.
(C) Intimation of the result or outcome of the inspection would then be communicated. If the infrastructure and facilities are in order, the concerned Medical College should be given requisite permission/renewal. However if there are any deficiencies or shortcomings, the MCI must, after pointing out the deficiencies, grant
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to the college concerned sufficient time to report compliance.
(D) If compliance is reported and the applicant states that the deficiencies stand removed, the MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of the MCI and the Central Government. In cases where actual physical verification is required, the MCI and the Central Government must cause such verification before the deadline.
(E) The result of such verification if positive in favour of the Medical College concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned."
28. The respondent No.2/MCI in its reply pleaded that the court should not interfere with the expert opinion. It relied on the judgment of the Apex Court to the effect that the court should not interfere with the expert report. It is well settled principle of law that if the report of the expert is contrary to law or it is based on some irrelevant material on the basis of surmises and conjectures, the court can interfere with the expert report. In the present case, the assessment was carried out by the Assessors on a public holiday. The Assessors had also not followed the timing of inspection. As per the report, the inspection was to be done from 9 O'clock, but, the Assessors started inspection at 11 O'clock. The petitioner institution was not given opportunity to cure the defects, rather the explanation put forth by the petitioner
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institution, as stated above, has not been considered by the Central Government. The Hon'ble Apex Court has issued some instructions in para 31 in Royal Medical Trust (supra) quoted above in the order. In spite of that, surprise inspection was not carried out in a particular manner. Hence, in our opinion, the recommendation of MCI (Annexure P/22) to the Central Government and the decision of the Central Government (Annexure P/26) not granting renewal permission and debarring the petitioner institution for two academic years and forfeiture of security, are contrary to law. Hence, both the aforesaid orders are liable to be quashed.
29. Now, the next question is that what relief can be granted to the petitioner institution? The Central Government granted conditional renewal to the petitioner institution. Thereafter, the assessment was carried out by the Assessors' team. The deficiencies pointed out by the Assessors are within the limits of curable deficiencies. As per the statutory regulation and Section 10A of Indian Medical Council Act, it was the duty of the Central Government to provide an opportunity to the petitioner institution to cure the deficiencies. In the present case, the petitioner institution offered explanations that there was no deficiency, but, those explanations had not been considered by the Central Government. No reasons have been assigned that why the explanations offered by the petitioner institution are not proper?
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Prima facie, we are of the opinion that the petitioner institution offered sufficient explanations in regard to deficiencies. The Apex Court in para 31 of the judgment passed in Royal Medical Trust (supra), as quoted above, has specifically observed that in the event of disapproval of renewal cases, the resultant effect was net loss in terms of number of seats available for the academic year. It thus, not only caused loss of opportunity to the students community but at the same time caused loss to the society in terms of less number of doctors being available. It is also a fact that petitioner institution would not be in a condition to continue its courses. The right to establish and run an unaided private educational institution is recognized by Article 19(1)(g) of the Constitution. The Apex Court in the matter of Society For Unaided Private Schools of Rajasthan vs Union of India and another, 2012 (6) SCC 1, in para 251, has held in this regard as under:
"251. Right to establish and administer and run a private unaided educational institution is the very openness of personal freedom and opportunity which is constitutionally protected, which right cannot be robbed of or coerced against his will at the threat of non-recognition or non-affiliation. Right to establish a private unaided educational institution and to make reasonable profit is recognised by Article 19(1)(g) so as to achieve economic security and stability even if it is for charity."
30. Learned Senior Counsel appearing on behalf of the respondent No.2/MCI has submitted that this Court may not grant
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any relief in regard to renewal of permission to the petitioner institution to admit students. In support of her contention, she relied on the judgment of the Hon'ble Apex Court passed in Civil Appeal No.3964 of 2016 (Medical Council of India vs V.N. Public Health & Educational Trust & Ors). We have perused the facts of the aforesaid case. In the aforesaid case, the essentiality certificate issued by the Government of Kerala in favour of the trust was not valid. The Central Government decided to disapprove the application of the trust for establishment of a new medical college and accepted the recommendations of MCI. The High Court granted stay. In that context, the Hon'ble Apex Court has held that the schedule in accordance with the regulations fixed by MCI has to be adhered strictly. This is not the present case. In the present case, the petitioner institution was granted renewal for a period of one year to admit students on certain terms and conditions. After assessment, further action was to be taken. Earlier, the Central Government granted conditional renewal permission to the petitioner institution. The Hon'ble Apex Court mandated Oversight Committee and has granted approval to the petitioner institution to admit students for the academic year 2016-17. No assessment was carried out by MCI for the academic year 2016-17 for approval of renewal as directed by the Committee. MCI carried out an assessment for the third renewal, which is clear from the assessment report. The third renewal was
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not granted and it had taken decision to debar the college for two academic years i.e. 2017-18 and 2018-19. In our opinion, it would be just and proper that if the petitioner institution be granted permission to admit students of third year MBBS course for the academic sessions 2017-18, because as per the schedule the date of online registration on college level is 25.07.2017 to 10.08.2017 and that date is not over. The three Judges Bench of Hon'ble Apex Court in the Royal Medical Trust (supra) has clearly observed that deadline, namely, 30th of September for making admissions to the first MBBS course, as laid down by this Court must always be observed. The findings of the Hon'ble Apex Court in this regard are in para 33 of the judgment, which reads as under:
"33. The cases in hand show that the Central Government did not choose to extend the time limits in the Schedule despite being empowered by Note below the Schedule. Though the Central Government apparently felt constrained by the directions in Priya Gupta it did exercise that power in favour of Government Medical Colleges. The decision of this Court in Priya Gupta undoubtedly directed that Schedule to the Regulations must be strictly and scrupulously observed. However, subsequent to that decision, the Regulations stood amended, incorporating a Note empowering the Central Government to modify the stages and time limits in the Schedule to the Regulations. The effect of similar such empowerment and consequential exercise of power as expected from the Central Government has been considered by this Court in Priyadarshini. The Central Government is thus statutorily empowered to modify the Schedule in respect of class or category of applicants, for reasons to be recorded in writing.
Because of subsequent amendment and incorporation of the Note as aforesaid, the matter is now required to be seen in the light of and in accord with
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Priyadarshini where similar Note in pari materia Regulations was considered by this Court. We therefore hold that the directions in Priya Gupta must now be understood in the light of such statutory empowerment and we declare that it is open to the Central Government, in terms of the Note, to extend or modify the time limits in the Schedule to the Regulations. However the dead line namely 30th of September for making admissions to the first MBBS course as laid down by this Court in Madhu Singh and Mridul Dhar must always be observed."
31. In this view of the matter, in our opinion, the petitioner institution should be granted permission to admit students for 3 rd year MBBS course for the academic year 2017-18.
32. Consequently, the petition filed by the petitioner is hereby allowed. The impugned order dated 31.05.2017 (Annexure P/26) and the recommendation of MCI dated 31.01.2017 (Annexure P/22) are hereby quashed. It is ordered that MCI shall make an inspection to assess the eligibility of the petitioner institution for renewal in accordance with the Regulations of 1999 as early as possible. The petitioner institution be granted provisional permission to admit 150 students in first year MBBS course for the academic session 2017-18 on the same terms as earlier the Central Government granted permission in accordance with the order of the Oversight Committee. However, the admissions of the students are subject to final decision that may be taken by the Central Government. The petitioner institution be eligible for counseling of the students. The petitioner institution shall submit an affidavit as submitted earlier. It is further
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observed that MCI Assessors can take police protection at the time of inspection of the petitioner college so that fair assessment be carried out.
33. No order as to costs.
(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
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