Sikkim Manipal University And Anr vs Union Of India And Ors on 7 April, 2016

[Cites 17, Cited by 1]

Sikkim High Court

Sikkim Manipal University And Anr vs Union Of India And Ors on 7 April, 2016

1. Aggrieved by the act of the Respondent No.2 in not recommending recognition for four Post-Graduate disciplines WP(C) No.24 of 2015 3 Sikkim Manipal University and Another vs. Union of India and Others offered by the Petitioner No.2, being MD (General Medicine), MD (Paediatrics), MS (ENT) and MD (Psychiatry) and by the approach of the Respondent No.2, which according to the Petitioners is prone to Wednesbury unreasonableness and is in contravention of Orders passed by this Court in addition to being violative of Articles 14 and 19 of the Constitution of India, the Petitioners by filing the instant Writ Petition 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. Briefly adumbrated the facts are that the Petitioner No.2 is a Constituent Unit of the Petitioner No.1 which was started in 1999 in collaboration with and an as a Joint Venture Undertaking between the Government of Sikkim and the Manipal Education and WP(C) No.24 of 2015 4 Sikkim Manipal University and Another vs. Union of India and Others Medical Group. The Petitioner No.2 as per the requirement of Section 10A of the Indian Medical Council Act, 1956 (for short "the Act of 1956"), applied for grant of permission to start a Medical College with 150 Annual Admissions to the First Year MBBS Course. The Petitioner-College also established a five hundred bedded Hospital, the "Central Referral Hospital (CRH)" at 5th Mile, Tadong, Sikkim. Due to various reasons endemic to the area clinical material was insufficient for teaching and training students, for this purpose the State Government vide letter dated 26-03-2001, permitted the Petitioner No.2 to utilise facilities of its three hundred bedded STNM Hospital at Gangtok as an associate Hospital. This arrangement was reiterated vide Notification dated 15-03-2004 of the Government of Sikkim. Vide letter dated 20-08-1999, the Government permitted Specialists/Consultants of the STNM Hospital to associate/work on part time basis in the Petitioner-College, duly reiterated by letter dated 08-05-2003.

3. That in 2011-12 the First Batch of Post-Graduate students were admitted after obtaining due permission from the concerned authorities, in seven different specialisations with two seats each and a duration of three years each, viz., 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. This Writ Petition is confined to WP(C) No.24 of 2015 5 Sikkim Manipal University and Another vs. Union of India and Others the grant of recognition of four Degrees being (i) MD (General Medicine), (ii) MD (Paediatrics), (iii) MS (ENT) and (iv) MD (Psychiatry).

4. For the purpose of grant of regular recognition to the Post-Graduate Courses in terms of Section 11(2) of the Act of 1956, an inspection took place in April, 2014, Assessment Reports were prepared by the Inspectors and reviewed by the Post-Graduate Committee.

5. The Respondent No.2 vide communications made to the Petitioner-College in respect of each of the MD/MS Degree Specialisations, pointed out deficiencies in some and in others sought clarification. It is the case of the Petitioners that for the Degree Course of MS (ENT) deficiencies pointed out by the Respondent No.2 have been rectified and communicated to the Respondent No.2 vide communication dated 06-08-2015, to which no response has been received. That with regard to MD (General Medicine) after new deficiencies were enlisted subsequent to the previous alleged deficiencies being rectified, the Petitioner No.2 vide letter dated 05-10-2015 has submitted a further Compliance Report. Coming to the MD (Paediatrics) Course the deficiencies pointed out by the Respondent No.2 vide communication dated 11-09-2015 were rectified and Compliance Report submitted on 05-10-2015. On the question of MD (Psychiatry) Course pursuant to an inspection WP(C) No.24 of 2015 6 Sikkim Manipal University and Another vs. Union of India and Others conducted in April, 2015 the Petitioner No.2 received a communication for the first time from the Respondent No.2 dated 27-08-2015 pointing out certain deficiencies. Compliance Report was submitted by the Petitioner No.2 on 05-10-2015.

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

7. The Respondent No.2 while resisting the stance of the Petitioner-College 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 it is duly empowered under Section 33 of the Act of 1956 with prior Government approval to lay down requirements for conduct of Medicine Courses.

8. That the Respondent No.2 vide various communications to the Petitioner-College has requested them to furnish their compliance in order to process their case for recognition of the above-mentioned Post-Graduate Courses. That 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, the Respondent No.2 has recommended recognition of the said Courses to the Central Government. That in the case of Post-Graduate Courses of MD WP(C) No.24 of 2015 7 Sikkim Manipal University and Another vs. Union of India and Others (General Medicine), MD (Psychiatry), MD (Paediatrics) and MS (ENT) despite repeated opportunities the Petitioner-College has failed to rectify the deficiencies.

9. Advancing his arguments before this Court, Learned Senior Counsel for the Petitioners walked this Court at great length through the previous correspondence between the Petitioner No.2 and the Respondent No.2, being the history and the chain of events leading to the filing of the present Writ Petition. While reiterating the facts as laid down in the Writ Petition it was argued that the MCI knowing fully well of the arrangement between the State of Sikkim and the Petitioners for the purpose of sharing the teaching faculty, clinical materials as well as infrastructure of the two Hospitals, attempted at various points to exclude all of the above available at the STNM Hospital resulting in several litigations between the Petitioners and the MCI. Reference was made to the Judgment of this Court in WP(C) No.37 of 2011 decided on 27-04-2012 vide which this Court concluded that the MCI could not and ought not to have excluded the STNM Hospital for the purpose of arriving at any rational consideration or for reckoning deficiencies. An SLP(C) No.18313 of 2012 against this was preferred by the Respondent No.2 which is pending disposal.

10. Learned Senior Counsel further contends that in 2011- 12 the first Post-Graduate students were admitted in several WP(C) No.24 of 2015 8 Sikkim Manipal University and Another vs. Union of India and Others different 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 seven Courses referred to supra. In 2012- 13, three Post-Graduate Courses were commenced being MD (Physiology), MD (Psychiatry) and MD (Microbiology) with three students being permitted to MD (Physiology) and MD (Psychiatry) every year.

11. While referring to the four Courses under a cloud, the scheme of Section 10A(1)(b)(ii), 10A(2)(a), 10A(3), 10A(4) and 10A(7) of the Act of 1956 was explained and it was expostulated that the Central Government/Council having granted permission under Section 10A implied satisfaction that the factors laid down in Section 10A(7) were duly complied with. The purpose of Section 11 of the Act of 1956 which deals with recognition of medical qualifications granted by Universities or Medical Institutions in India was also dealt with in depth by Learned Senior Counsel. That, Regulation 6(2) as substituted by Notification published on 21-07-2009 specifies the points on which the Institution is to apply for recognition. 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 WP(C) No.24 of 2015 9 Sikkim Manipal University and Another vs. Union of India and Others 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 of 1956, allowing the MCI as per Section 20(1) to prescribe standards of Post- Graduate Medical Education in exercise of which power read with Section 33 of the Act of 1956 the MCI has framed the 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.

12. That the Hon'ble Apex Court in Dental Council of India vs. Subharti K. K. B. Charitable Trust and Another1 warned against arbitrary exercise of powers by bodies, such as the MCI for ulterior motive and that such acts 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 Others2. Reference was also made to the Ninety-Second Report of the Department-Related Parliamentary Standing Committee on Health and Family 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 isolation but part of a larger malaise. The observation in Mridul Dhar (Minor) (5) and Another vs. Union of India and Others3 WP(C) No.24 of 2015 10 Sikkim Manipal University and Another vs. Union of India and Others

1. (2001) 5 SCC 486

2. (1991) 4 SCC 54

3. (2005) 2 SCC 65 was referred to wherein the Hon'ble Apex Court while dealing with the questions of medical education and being aware of the continuous complaint against MCI/DCI opined 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 Another vs. Union of India and Another4 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 permissions.

13. Details of correspondence pertaining to the four Post- Graduate Degrees between the parties wherein the Respondent No.2 pointed out deficiencies, sought clarification and the steps taken by the Petitioner No.2 by way of supplying clarification and rectifying, was reiterated by Learned Senior Counsel.

14. It is prayed that this Court quash all Reports of Medical Council of India and grant the reliefs prayed for by the Petitioner No.2, 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.

WP(C) No.24 of 2015 11

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

4. Civil Appeal No.7953 of 2015 dated 24-09-2015

15. Per contra, Learned Counsel for the the Respondent No.2 advancing his arguments, while reiterating the averments made in its Counter-Affidavit submitted that the Post-Graduate Medical Education 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 Post-Graduate Committee 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.

16. That the Petitioner No.2 has consistently failed to rectify its deficiencies in relation to the Courses in question but where such deficiencies have been rectified, as in MD/MS (OBG), MD (Pharmacology) and MD (Community Medicine) it has been decided to recommend recognition for the said Degrees. That the Writ WP(C) No.24 of 2015 12 Sikkim Manipal University and Another vs. Union of India and Others Petition is premature and be dismissed as the decision pertaining to the Degrees are awaited.

17. 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 were satisfied with the quality education imparted by the University. It is prayed that this Court pass necessary orders, protect the interest and future of the intervenors in the interest of justice.

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

19. The crux of the matter as culled out from the pleadings and arguments is the stand of the Respondent No.2 to recommend not to recognise four Post-Graduate Degrees, i.e., MD (General Medicine), MD (Paediatrics), MD (ENT) and MD (Psychiatry), qualification granted by the Petitioner-College. The allegations against the Respondent No.2 by the Petitioners, inter alia, being that they have been arbitrary and whimsical in their functioning and the alleged deficiencies do not corroborate with the Report of the MCI Assessor which is generally favourable. That although the WP(C) No.24 of 2015 13 Sikkim Manipal University and Another vs. Union of India and Others deficiencies have been addressed in Compliance Reports, new deficiencies have been put forth by the Respondent No.2. Per contra it has been argued that the MCI is responsible for maintaining highest standards of medical education and has to regulate its observance, therefore, they have not been arbitrary but have been acting in the best interest of the society at large so that the people are not exposed to undertrained personnel.

20. Having considered all of the above, it is pertinent to point out that both the contesting parties are aware that this Court had in WP(C) No.37 of 2011 decided on 27-04-2012, vide a detailed Judgment, inter alia, ordered as follows;

"65. ...................................................................................

(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 Theatres, clinical materials, OPD attendance, etc. treating the STNM/ Government Hospital to be an associated Hospital of petitioner No.2 College.

......................................................................." Against this Judgment, the Respondent No.2 has preferred an SLP(C) being No.18313 of 2012 in which although notice was issued WP(C) No.24 of 2015 14 Sikkim Manipal University and Another vs. Union of India and Others by the Hon'ble Apex Court but the Judgment admittedly has not been stayed.

21. The parties are also aware that the Petitioner No.2 had preferred a Writ Petition being WP(C) No.30 of 2015 in this Court seeking to impugn letters dated 30-03-2015 and 14-05-2015. This Court had vide Judgment dated 07-10-2015 set aside the Assessment Report dated 30-03-2015 and the correspondence dated 14-05-2015. The relevant portion of the said Judgment is extracted hereinbelow:-

"19. ........................................................................................

(i) The assessment report dated 30.03.2015 and 14.05.2015 Annexures P19 and P25 are hereby set aside.

.............................................................................

(v) The inspection team in the process of inspection, shall inspect the entire facilities of the STNM Hospital. During the inspection, the team shall ensure the presence of competent representatives of the STNM Hospital.

(vi) The inspection of the Petitioner-College shall be limited to the deficiencies with respect to shortage of residents and bed occupancy ensuring an overall assessment on an average and, not on the basis of observations made on a single day.

(vii) The assessment shall be conducted in terms of the MCI guidelines for North Eastern States and Hill States, notified Tribal Areas, Union Territories, Andaman and Nicobar Island, Daman and Diu, Dadra and Nagar Haveli and Lakshadweep which stipulate that the required bed occupancy is 60%. It shall also apply the provision of the latest Notification prescribing minimum standard requirements for the Medical Colleges as amended upto March, 2014 and specifically upon the amended of Notification dated 01.07.2015 having come into force w.e.f.

01.07.2015.

............................................................................. WP(C) No.24 of 2015 15 Sikkim Manipal University and Another vs. Union of India and Others

(ix) The order of stay of this Court dated 26.05.2015 in CM Appl No.128 of 2015, as modified by the Hon'ble Supreme Court by its order dated 10.06.2015, shall continue to be in force until such time directions or orders to the contrary are passed.

Consequently the students admitted in terms of the order shall be permitted to continue with their studies subject to what shall transpire later."

Against this Judgment, the Respondent No.2 has also preferred an SLP(C) being No.34220 of 2015.

22. The Hon'ble Apex Court vide its Order dated 27-01-2016 in SLP(C) No. 18313 of 2012 (supra) ordered, inter alia, that an inspection be conducted in respect to the Petitioner No.1-University and the STNM Hospital to find out whether the infrastructure and other facilities including the teaching staff are sufficient/adequate for grant of recognition under Section 11(2) of the Act of 1956, ordering further that the inspection be done within a period of four weeks from the date of the Order. As on 14-03-2016, the inspection had been carried out and brought to the notice of the Hon'ble Apex Court, the matter is listed on 12-04-2016.

23. It is evident that the assailed Judgments of this Court being WP(C) No.37 of 2011 and WP(C) No. 30 of 2015 deal in pith and substance with the same question, i.e., allegations of inadequacy of the infrastructure and other facilities including the teaching faculty for grant of recognition of the MBBS Degrees and as a concomitant the Post-Graduate Degrees. It has been argued by Learned Senior WP(C) No.24 of 2015 16 Sikkim Manipal University and Another vs. Union of India and Others Counsel for the Petitioners that there is no reason why the present proceedings should be kept in abeyance till decision of the SLPs as this matter is concerned with Post-Graduate Degrees when the challenge in the SLPs is confined to the MBBS Degrees, however, it is necessary to point out here that the data collected during the inspection ordered by the Hon'ble Apex Court would be relevant for the matter at hand. Therefore, despite the above argument of the Petitioner No.2, as the matter is under consideration before the Hon'ble Apex Court and the outcome of the SLPs would have a direct bearing in this matter, I deem it appropriate to keep this matter pending, awaiting the decision of the Apex Court in the above SLPs.

24. Ordered accordingly.

25. The Registry is directed to list this matter as and when any communication is received in relation to the above noted SLPs. The Learned Counsel appearing for all the parties would also be at liberty to apprise this Court about the outcome of the SLPs by filing appropriate IA.

26. In the meanwhile, the students admitted in the Post- Graduate Courses as submitted by Learned Senior Counsel for the Petitioners in CM Appl No.127 of 2015 vide Order dated 29-05-2015, are allowed to continue their studies.

WP(C) No.24 of 2015 17

Sikkim Manipal University and Another vs. Union of India and Others Sd/-

( Meenakshi Madan Rai ) Judge 07-04-2016 Approved for reporting : Yes ds Internet : Yes

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