Madras High Court
Madha Medical College And Hospital vs Union Of India on 19 July, 2018
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.07.2018
CORAM
THE HON'BLE Mr. JUSTICE S.VAIDYANATHAN
W.P.No.17048 of 2018
and
W.M.P.Nos.20296 & 20297 of 2018
Madha Medical College and Hospital,
Represented by its Chairman
S.Peter ... Petitioner
Vs.
1. Union of India
Through the Ministry of
Health and Family Welfare
Represented by its Secretary
Nirman Bhawan, C Wing
New Delhi 110001.
2. The Medical Council of India
Represented by its Secretary
Pocket 14, Sector 8,
Dwarka Phase I,
New Delhi 110077. ... Respondents
Prayer : Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent, relating to the Orders dated 28.05.2018 bearing Reference No.MCI-34 (41) (RG-14) /2016-Med./111702 which is the recommendation of the 2nd respondent, and confirmed by Order dated 31.05.2018 bearing Reference No.U.12012/737/2014-ME-I [FTS.94178] passed by the 1st respondent continuing clause 8(3) (1) (d) and quash the said Orders and direct the respondents to renew permission to the petitioner college for the academic year 2018-19 and 2019-20.
For Petitioner : Mr.S.R.Raghunathan
For Respondent No.1 : Mr.B.Babu Monohar
For Respondent No.2 : Mr.V.P.Raman
O R D E R
The petitioner has come forward with this writ petition praying to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent, relating to the Order dated 28.05.2018 bearing Reference No.MCI-34 (41) (RG-14) /2016-Med./111702 which is the recommendation of the 2nd respondent, and confirmed by Order dated 31.05.2018 bearing Reference No.U.12012/737/2014-ME-I [FTS.94178] passed by the 1st respondent continuing clause 8(3) (1) (d) and quash the said Orders and direct the respondents to renew permission to the petitioner college for the academic year 2018-19 and 2019-20. aforesaid prayer.
2. The very same petitioner, in an earlier round of litigation, approached the Supreme Court with regard to an order passed debarring institution/not granting recognition for the academic years 2017-2018 and 2018-2019 and the relevant portion of the order passed by the Supreme Court in W.P.(Civil) No.674 of 2017, reads as under:
18. In taking this view, we are duly supported by a recent judgment rendered in IQ City Foundation v Union of India, by a bench of three learned Judges of the Court. Hon'ble Mr.Justice Dipak Misra (as the learned Chief Justice then was), speaking for the Court, held as follows:
On a reading of Section 19-A of the Act, Rules and the Regulations, as has been referred to in Manohar Lal Sharma (Supra), and the view expressed in Royal Medical Trust (Supra), it would be inapposite to restrict the power of the MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for compliance verification and the Assessors visit the College they shall only verify the mentioned items and turn a Nelson's eye even if they perceive certain other deficiencies. It would be playing possum. The direction of the Central Government for compliance verification report should not be construed as a limited remand as is understood within the framework of Code of Civil Procedure or any other law...
19. The facts which have been placed on the record before this Court would indicate that consistent opportunities have been granted to the petitioner to rectify the deficiencies which have been found in its infrastructure, resources and facilities. In the face of the deficiencies which have been found during the course of inspection, the petitioner cannot be allowed to admit students for the ensuing academic year. The court will lean against any interpretation which will result in the foisting of under prepared medical professionals on society.
20. At the same time, we are of the view that having regard to the facts which have transpired, the petitioner should be permitted to establish before MCI that it possesses the requisite infrastructure and has taken all necessary steps to remove the deficiencies which have been noted to exist. Such an exercise cannot be carried out in time for academic year 2017-18 since the last date for admissions has elapsed and the academic session commenced. Hence the petitioner cannot be permitted to participate in the counselling process for the ensuing academic year 2017-18. Any such exercise would necessarily have to be for the academic year 2018-19.
21. Hence, we allow the petitioner an opportunity to remove the deficiencies upon which MCI shall determine afresh as to whether it should be granted recognition in time for the commencement of academic year 2018-19. In the event that MCI comes to the conclusion that the petitioner has removed all deficiencies and meets the requirements of its regulations, MCI shall consider afresh the issue of recognition and the grant of permission for the academic year 2018-19. for that purpose, we direct that the bank guarantee of Rs.2 crores furnished by the petitioner shall be kept alive in the meantime.
3. The Apex Court, at the stage when the order was passed, held that there is no reason to interfere with the orders dated 31.05.2017 and 31.08.2017 and further held that an opportunity should be given and that whether the petitioner should be granted recognition for the academic year 2018-19 onwards have to be considered. The authority concerned, after considering the plea of the petitioner, had rejected the request of the petitioner and debarred the College for making fresh admission for the academic years 2018-19 and 2019-20.
4. The sum and substance of the issue on hand is with regard to Clause 8(3)(1)(c) and 8(3)(1)(d) of the MCI Establishment of Medical College Regulations, 1999.
5. The contention of the petitioner is that when there is an order debarring the Petitioner College from making fresh admissions for the academic years viz. 2017-18 and 2018-19, due to failure in complying with the governing conditions, the same was interfered with by the Apex Court and the reason for rejection was that there was no compliance with regard to Clause 8(3)(1)(c) of the Regulations mentioned supra. It is the further contention of the Petitioner that the 2nd respondent ought not to have passed the present order, which is subject matter of the Writ Petition on the ground that the Petitioner-College has not fulfilled the conditions.
6. According to the petitioner, Clause 8(3)(1)(d) would be made applicable, provided fake or fabricated document is produced. But, it is the case of the Petitioner that they have not employed a teacher with fake or forged documents. The two teachers, namely Dr.P.Elavarasi and Dr.S.Renuga were employed in Annai Medical College and that due to dislocation of the College, the students have been shifted to other college and that the said Teachers joined the College on 04.12.2017, and there is no reason to apply Clause 8(3)(1)(d) and debar the College for a period of two years without reviewing the permission/recognition with regard to the MBBS course. It is further submitted that when the petitioner had fulfilled the conditions, this Court is empowered to direct the respondents to grant permission to the College for the academic year in question.
7. The learned counsel appearing for the petitioner contended that the 2nd respondent has passed a detailed order taking note of the report given by the Executive Committee and certain defects have been identified. The statement that Annai Medical College was closed on 30.11.2017, is not correct and it continued to function even in the month of December and that the petitioner's name was shown. Further, two professors have been appointed on 02.12.2017 and that on the day of assessment, i.e. on 13th and 14th of November 2017, Annai Medical College was not closed, and the staff, namely Dr.P.Elavarasi and Dr.S.Renuga appeared in Annai Medical College. Learned counsel went on to contend that when the said staff were appointed for that academic year and the details pertaining to their appointment is available in the records of the petitioner/College, the 2nd respondent is not justified in passing the impugned order, directing the College not to admit the fresh batch of students in the academic years 2018-19 and 2019-20. The relevant portion of the Executive Committee Report, reads as follows:-
1.Deficiency of teaching faculty is 21.21%.
2.Shortage of Residents is 18.75%.
3.Dr.P.Elavarasi, Asst. Prof. of Physiology has also worked at Annaii Medical College in the same Academic Year and has been counted in the assessment on 13/14 November 2017. However, this fact has not been mentioned in the declaration form signed by the concerned faculty although has been shown in the experience column.
4.Dr.S.Renuga, Asst. Prof. of Microbiology has also worked at Annai Medical College in the same Academic Year and has been counted in the assessment on 13/14 November 2017. However, this fact has not been mentioned in the declaration form signed by the concerned faculty although has been shown in the experience column.
5.There were only 7 Major & 2 Minor Operations for the whole hospital on day of assessment.
6.There was NIL Normal Delivery on day of assessment.
7.ICUs: There were only 2 patients each in SICU, NICU/PICU on the day of assessment.
8.RHTC: Specialists' visits are not organized.
9.UHTC: Specialists' visits are not organized.
10.Other deficiencies as pointed out in the assessment report.
8. It is further submitted by the learned counsel for the petitioner that the names of the concerned Professors have been mentioned in the counter and it has been stated that PG.8 & 9 in the College should not be punished by denying admission to the two faculties and reiterated that the Committee Report extracted supra, is with reference to Clause 8(3)(1)(c) and not with regard to Clause 8(3)(1)(d). When all the defects pertaining to Clause 8(3)(1)(c) have been rectified, the 2nd respondent ought not to have rejected the Petitioner's request and passed the order depriving admission of students for the two academic years in question, when admittedly, there are no fake or fabricated documents.
9. It is further submitted by the learned counsel for the petitioner that the resignation letter submitted to Annai Medical College and the relieving order and the experience certificate are to be handed over to the 2nd respondent and that they can verify the same before taking a decision, more particularly, in the light of the statement made in paragraphs 11 and 12 of the counter and also in the light of Clause No.8(3)(1)(d), both of which reads as follows:-
11. It is submitted that respondent No.2 vide its letter dated 07.05.2018 informed that the compliance verification assessment of the petitioner college on the deficiencies pointed out in the assessment report dated 11th & 12th December, 2017 was carried out by the Council Assessors on 20.04.2018. The Executive Committee of the Council in its meeting held on 26.04.2018 considered the compliance verification assessment report dated 20.04.2018 alongwith previous assessment report dated 11th & 12th December, 2017 and decided to revoke the decision of application of clause 8(3)(1)(c) of Establishment of Medical College Regulation (Amendment), 2010(Part II) dated 16th April, 2010. It was further recommended to the Central Government to confirm the notification No.U-12012/33/2016-ME.I dated 08.09.2016 recognizing petitioner college for the award of MBBS degree (150 seats) granted by the Tamil Nadu Dr.MGR Medical University, Chennai u/s 11(2) of the IMC Act, 1956. The Executive Committee also decided to continue 8(3)(1)(d) of Establishment of Medical College Regulation, 1999 as applied by earlier by the committee in its meeting held on 04.01.2018 and decided to recommend to the Central Government not to permit of fresh batch of 150 MBBS students at the petitioner college for the academic year 2018-19 and 2019-20. It stated that the decision of the Executive Committee was approved by the Oversight Committee on 04.05.2018.
12. It is submitted that the petitioner college was granted hearing under section 10A(4) of the IMC Act, 1956 on 15.05.2018 in the Ministry of Health and Family Welfare by the Committee constituted by the answering respondent for this purpose. The Hearing Committee was of the view that not allowing admissions for two years after recognizing the college would be a disproportionate penalty as the college has been able to show that it did not intend to use any fake/forged documents. It further observed that the college should not be punished by denying admission for the omission by the two faculties. The committee also observed tha the Ministry may consider granting permission for admission of batch in 2018-19. Accordingly the answering respondent vide letter date 21.05.2018 referred back the matter to the respondent No.2 for review in light of the recommendations of the committee and the compliance submitted by the petitioner college.
8. Grant of Permission:
(3)(1). The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue 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.
10. Heard both parties and perused the materials available on record.
11. Admittedly, the Committee report referred to by the 2nd respondent, is not with regard to the non-compliance of Clause 8(3)(1)(c). Now the order is with regard to non-admission in respect of the academic year 2018-19. With regard to the violation of Clause 8(3)(1)(d) of the Regulation, it is useful to refer to a decision of this Court reported in MANU/TN/4201/2011 in Sri Venkateswaran Medical College, Hospital and Research Centre, Rep.by its Chairman Vs. Union of India, and Others, in which, this Court observed as follows:-
10. A perusal of Regulation 8(3)(1)(d) would show that an institute will not be considered for renewal of permission/recognition, if it is observed that the said institute found to have employed a teacher with faked or forged documents and have submitted the Declaration Form of such a teacher. Therefore, when once the forgery or action involving faking a document is found, an action would automatically follow under Regulation 8(3)(1)(d). In other works, in order to exercise such a power under the said regulation being a penal provision, there has to be a factual premise, that a document has been faked or forged. Applying the said provision to the facts of the case, it is clear that the petitioner has not indulged in the act of forging or faking the documents, and there is nothing on record to show that the original records have not been perused by the petitioner. It is also not the case of the assessment team that the original records of the two members of the teaching faculties were not available at the time of inspection. Therefore, merely because, two teachers, who formed part of the teaching faculty of some other institute, the same cannot be a ground to hold that the petitioner has created the documents, as if those teachers were working with the petitioner.
12. In the case on hand, there is no evidence to show that the documents are forged or fabricated. Though the argument of learned counsel for the petitioner that the two professors were working from 13th and 14th November 2017 at Annai Medical College, cannot be ruled out, but the fact mentioned before this Court is that the students from Annai Medical College have been shifted to another College. Whether the College continued to function beyond December 2017, need not be gone into in the present writ petition, as litigations with regard to Annai Medical College are pending.
13. Though the learned counsel for the petitioner vehemently contended that this Court is empowered to exercise judicial review and interfere with the impugned order and direct the grant of permission for the academic year 2018-19, as there are two views possible, with regard to the entry of the said Professors in the records, this Court directs the 2nd respondent to consider the case of the petitioner with regard to granting permission/approval for the academic years 2018-19 and 2019-20, which is the subject matter in question. After taking note of the experience letter and relieving letter and also other documents with regard to two professors, the 2nd respondent shall decide the issue on or before 30th July 2018.
With the above observations/direction, the Writ Petition is disposed of. Consequently, connected miscellaneous petitions are closed. No costs.
19.07.2018 Index: Yes Internet: Yes Speaking Order: Yes/No AT Note: Issue order copy on or before 23.07.2018 To
1. The Union of India Through the Ministry of Health and Family Welfare Represented by its Secretary Nirman Bhawan, C Wing New Delhi 110001.
2. The Medical Council of India Represented by its Secretary Pocket 14, Sector 8, Dwarka Phase I, New Delhi 110077.
S.VAIDYANATHAN.J, AT/aeb W.P.No.17048 of 2018 and W.M.P.Nos.20296 & 20297 of 2018 19.07.2018