Madras High Court
Sri Muthukumaran Educational Trust vs The Secretary To Government on 13 August, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
In the High Court of Judicature at Madras Dated : 13-8-2014 Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN Writ Petition No.19253 of 2014 and M.P.Nos.1 to 3 of 2014 Sri Muthukumaran Educational Trust, rep.by its Managing Trustee Mr.A.N.Radhakrishnan ... Petitioner Vs 1.The Secretary to Government, Ministry of Health and Family Welfare Department Government of India, Nirman Bhavan New Delhi-110101. 2.The Medical Council of India, rep.by its Secretary, Pocket - 14, Sector - 8, Dwarka, Phase-I, New Delhi-110077. ... Respondents 3.K.M.Krishnan ... Petitioner in MP.No.3/ 2014/proposed party PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order dated 11.7.2014 bearing No.U.12012/693/2014-ME(P-II) on the file of the first respondent, quash the same and consequently direct the first respondent to grant renewal of permission to the petitioner's institution for the academic session 2014-2015 for the fifth batch of admission of 150 students in the first year MBBS course. For Petitioner : Mr.G.Masilamani, SC for Mr.T.Meikandan For Respondent-1 : Mr.Haja Mohideen Gisthi For Respondent-2 : Mr.V.P.Raman For Proposed Party in M.P.No.3 of 2014 : Mr.Karthik Ganesh ORDER
The petitioner has come up with the above writ petition challenging an order of the Central Government refusing to grant 4th renewal of permission (admission of 5th batch) to their medical college.
2. Heard Mr.G.Masilamani, learned Senior Counsel appearing for the petitioner, Mr.Haja Mohideen Gisthi, learned Central Government Standing Counsel for the first respondent, Mr.V.P.Raman, learned counsel for the second respondent and Mr.Karthik Ganesh, learned counsel for the proposed party.
3. The petitioner was established as a public charitable trust in the year 1984 and it established several educational institutions claiming linguistic minority status. It was granted permission under Section 10A of the Indian Medical Council Act, 1956 for starting a medical college from the academic year 2010-11 with an annual permitted intake of 150 students. The first renewal for the admission of second batch of students was granted for the academic year 2011-12, the second renewal (admission of third batch) was granted for the academic year 2012-13 and the third renewal (admission of fourth batch) was granted for the academic year 2013-14.
4. For the academic year 2014-15, the Medical Council of India (hereinafter referred to as the MCI) issued a circular on 9.10.2013 inviting applications. The petitioner submitted their application on 23.10.2013.
5. After a gap of four months and 12 days, the inspection team deputed by the MCI carried out a surprise inspection on 5th and 6th March 2014. On the basis of the report submitted by the inspection team, the Executive Committee of the MCI passed a resolution dated 16.4.2014, rejecting the request for renewal on the ground that there were certain deficiencies. The resolution of the Executive Committee was conveyed by the MCI to the Central Government by a communication dated 28.4.2014. Upon coming to know of the said communication from the website of the MCI, the petitioner submitted a compliance report to the Central Government on 13.5.2014.
6. The copy of the communication dated 28.4.2014 of the MCI to the Central Government was forwarded to the petitioner by the Central Government on 28.5.2014. In the meantime, MCI considered the compliance report of the petitioner dated 13-5-2014 and sent a letter dated 12.6.2014 to the Central Government rejecting the compliance report and reiterating its earlier decision not to renew permission for the academic year 2014-15.
7. By a communication dated 17.6.2014, the Central Government forwarded to the petitioner, a copy of the MCI's letter of reiteration dated 12.6.2014. Immediately, the petitioner submitted a second compliance report on 18.6.2014 to the Central Government. An additional compliance report was also submitted by the petitioner on 23.6.2014.
8. Since there was no communication from the Central Government thereafter, the petitioner filed a writ petition in W.P.No.17154 of 2014 on 30.6.2014, seeking the issue of a Writ of Mandamus to direct the respondents to consider the compliance reports. This Court ordered notice in the said writ petition returnable by 4.7.2014.
9. In the meantime, the petitioner received a communication dated 4.7.2014 calling upon them to appear for a personal hearing on 7.7.2014. Therefore, the representative of the petitioner appeared before the Secretary to Government on 7.7.2014.
10. Thereafter, the first respondent passed an order dated 11.7.2014 refusing to grant renewal for the academic year 2014-15. The copy of the said order was furnished to the learned counsel for the petitioner on 15.7.2014. Therefore, the petitioner withdrew W.P.No.17154 of 2014 with liberty to challenge the order of the Central Government.
11. Thereafter, the petitioner has come up with the above writ petition challenging the order of the Central Government dated 11.7.2014 rejecting their request for the fourth renewal (admission of 5th batch of students).
12. Before proceeding further, it is necessary to take note of the deficiencies pointed out by the inspection team, which conducted a surprise inspection on 5th and 6th March 2014. Therefore, the resolution passed by the Executive Committee dated 16.4.2014, which extracted the deficiencies pointed out by the inspection report and which forms part of the recommendation dated 28-4-2014 made by the Medical Council to the Central Government, is extracted as follows :
"The Executive Committee considered the Council Assessor report (5th and 6th March 2014) and noted the following :
1. Seven out of nine senior Residents in General Surgery have not been considered as their names were not found in any OT list of previous months after their appointment and they had no residence proof as per MCI requirement. Four of them were absent at 11 AM attendance also.
2. Resultantly, there is shortage of Residents as 8.4% (i.e 17 out of 143) as detailed in report.
3. Planning permission application is still under consideration of Chennai Metropolitan Development Authority and is not yet approved.
4. Clinical material is inadequate on the day of assessment. OPD attendance was 620 and bed occupancy was 60%.
5. Histopathological & Cytopathological workload are inadequate.
6. On the day of assessment, there were only 2 patients each in SICU & RICU. There was no patient in PICU.
7. Other deficiencies as pointed out in the inspection report."
13. Assailing the order of the Central Government and the recommendation made by the MCI, Mr.G.Masilamani, learned Senior Counsel appearing for the petitioner raised the following contentions :
(i) The inspection team pointed out seven deficiencies after their inspection dated 5th and 6th March 2014. But, none of these deficiencies except two are relatable to the parameters laid down in proviso (b) of Regulation 8.3.(I). Therefore, the rejection of the request for renewal on the basis of the alleged deficiencies, which are not traceable to the said provision, is contrary to law.
(ii) Even out of the two deficiencies that are relatable to proviso (b) to Regulation 8.3.(I), one was within the tolerance limit stipulated by proviso (b) and hence, it could not have weighed with the MCI to reject the application for renewal.
(iii) The remaining one deficiency that relates to the bed occupancy ratio, could not have tilted balance against the petitioner, especially when the daily average for the last one year as indicated in Col.2.6 of the inspection report showed that the average bed occupancy was more than the prescribed limit. In any case, the bed occupancy in ICCU was not taken into account, as seen from paragraph 2.5 of the report.
(iv) The respondents were in error in not taking note of the pendency of the application made by the petitioner for regularisation of their constructions.
(v) The order of the Central Government is vitiated by non application of mind, since it takes note of only one compliance report dated 13.5.2014 submitted by the petitioner and does not take note of the subsequent compliance reports.
(vi) The opportunity of personal hearing contemplated under Section 10A(4) of the Act turned out to be an empty formality and the impugned order was based upon irrelevant considerations, ignoring relevant considerations. Under Section 10A(4) of the Act, the Central Government is obliged to point out deficiencies to the college and allow them to rectify the same. Therefore, the first respondent ought not to have imposed upon the petitioner, the extreme penalty of refusing renewal for one full academic year just on account of a very few insignificant and unimportant alleged deficiencies.
(vii) The refusal of renewal is also contrary to public interest especially in respect of an existing college, which is a minority institution. 75 out of the total permitted intake of 150 seats are filled up by the State Government and hence, larger public interest, apart from the interests of the institution, will suffer due to refusal;
(viii) In respect of Government colleges, the respondents have taken a different view, thereby creating a discrimination. Hence, the impugned orders are liable to be set aside.
(ix) The refusal to grant renewal for a full academic year is an extreme penalty completely disproportionate to the deficiencies complained. What the respondents are obliged to see is whether there was substantial compliance or not.
14. In response to the above contentions, it is contended by Mr.V.P.Raman, learned counsel for the second respondent that the proviso to Regulation 8.3.(I) cannot be viewed in isolation and that the provisos do not actually permit any dilution of the standards prescribed by the Regulations. Therefore, the learned counsel for the second respondent contends that everyone of the deficiencies pointed out by the inspection team is of significance and that therefore, the refusal to grant renewal was valid. The learned counsel also submitted that the deficiencies pointed out by the inspection team with respect to bed occupancy and non availability of patients in certain departments are not without significance. The standards of imparting medical education in an institution, depend entirely upon the availability of patients and the functioning of the departments. Therefore, the learned counsel appearing for the second respondent submitted that there was nothing wrong in the recommendation of the MCI.
15. Before proceeding to consider the rival submissions, I should also take note of one more aspect. A person, by name K.M.Krishnan has come up with an application for impleading himself as a party to this writ petition contending that the petitioner never had any approval from any authority, either Chennai Metropolitan Development Authority or the Local Panchayat for putting up a construction and that by producing a fabricated document and a false approval number to the MCI, the petitioner obtained the first letter of permission from the Central Government in the year 2010-11. The points raised in the impleading petition and the response of the writ petitioner, will be taken up by me while dealing with the contention relating to building plan approval.
16. Let me now take up the grounds of attack of the petitioner to the impugned order one after another.
CONTENTION (i):
17. The first contention of the writ petitioner is that the inspection team pointed out seven deficiencies after their inspection dated 5th and 6th March 2014 and that except two of them, the others could not be traced to the parameters laid down in proviso (b) of Regulation 8.3.(I). Therefore, the first contention is that the rejection of the request for renewal, on the basis of deficiencies, which have no bearing upon the grant of fourth renewal, was contrary to the Regulations.
18. In order to test the correctness of the above contention, it is necessary to see Regulation 8.3.(I). Hence, it is extracted as follows :
"Regulation 8.(3).(I) of Medical Council of India Establishment of Medical College Regulations, 1999 (Amended upto April 2010) :-(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.
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 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. (4) The Council may obtain any other information from the proposed medical college as it deems fit and necessary.
*As per the terms of Notification published on 16.04.2010 in the Gazette of India.
RECONSIDERATION Wherever the Council in its report has not recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. The Council shall, thereafter, submit its report in the same manner as prescribed for the initial report."
19. A careful perusal of the above Regulation would show that the permission to establish a medical college and admit students can be granted initially for a period of one year and renewed on yearly basis subject to verification of the achievements of annual targets. The process of renewal of permission will continue till such time the establishment of the medical college and the expansion of the hospital facilities are completed and a formal recognition is granted. This is what the substantial part of Regulation 8.3.(I) stipulates.
20. What is stipulated by the main part of Regulation 8.3.(I) is circumscribed by two provisos. The first proviso relates to second renewal (admission of third batch) and the second proviso relates to the third renewal (admission of fourth batch). Both these provisos deal with two requirements namely (a) the existence of teaching faculty and/or Residents; and (b) the bed occupancy ratio. While the first part of the proviso under Clause (a) prescribes a tolerance limit upto 30% in so far as the deficiencies of teaching faculty and/or Residents is concerned, the second part of the proviso under clause (b) restricts the tolerance limit only upto 20% in so far as the very same deficiency is concerned. Similarly, Clause (a) prescribes a tolerance limit upto 40% in so far as bed occupancy is concerned. But, Clause (b) restricts the tolerance limit in respect of bed occupancy only upto 30%. Thus in essence, a greater tolerance limit is prescribed for the second renewal than for the third renewal in respect of the above 2 requirements.
21. In the light of the language of both clauses of the Proviso to Regulation 8.3.I, the contention of Mr.G.Masilamani, learned Senior Counsel for the petitioner is that an application for third renewal (admission of fourth batch) cannot be rejected, except for two deficiencies namely a deficiency of teaching faculty and/or Residents of more than 20% and a deficiency relating to bed occupancy being more than 30%.
22. But I do not think that such an interpretation is either warranted or borne out by the proviso to Regulation 8.3.(I). This is due to the fact there are actually 2 sets of Regulations, which operate in the field. The first is the "Minimum Requirements for 150 MBBS Admissions Annually Regulations, 1999", as amended by the Notification dated 15.7.2009. A careful look at these Regulations would show that every medical college with an annual permitted intake of 150 students should have about 21 departments. Under Regulation 4 of these Regulations, such a college should have accommodation for teaching and technical staff and equipment for each department as given in Schedules I, II and III annexed to those regulations. Schedule I contains requirements relating to accommodation both in the medical college and in its associated teaching hospitals. These requirements are prescribed department-wise and hospital-wise. Schedule II to these regulations lists out the staff requirements in respect of each of the departments. Schedule III provides the number and nature of the equipment to be in place in each of the departments of the college. Thus, it is seen from the 1999 Regulations that they prescribe standards relating to (i) accommodation; (ii) staff requirements; and (iii) equipment.
23. Apart from the aforesaid 1999 Regulations, there is also another set of regulations known as 'Establishment of Medical College Regulations, 1999". These Regulations, as amended by the Notification dated 30.7.2009 with effect from 16.4.2010, stipulate under Regulation 3 that no person shall establish a medical college except after obtaining prior permission from the Central Government by submitting a scheme as annexed to these regulations. The scheme for obtaining permission contains several stipulations such as (i) eligibility criteria; (ii) qualifying criteria; (iii) form and procedure; (iv) application fee; (v) registration; (vi) evaluation by the MCI; (vii) report of the MCI; and (viii) grant of permission. It is only in these second set of regulations namely Establishment of Medical College Regulations, 1999 as amended with effect from 16.4.2010, that Regulation 8.3.(I) relied upon by the learned Senior Counsel for the petitioner is found.
24. In other words, the second set of regulations (of which Regulation 8.3.(I) is a part), by themselves do not lay down the minimum standards, except certain requirements such as (i) that the applicant should be a society or a public religious or charitable trust or a company or an autonomous body promoted by the Central or State Government or a University; and (ii) that the institution should be located in a single plot of land measuring not less than a specified extent.
25. Keeping the above aspects in mind, if we now turn to Regulation 8.3.(I), it will be clear that the said regulation has a main part and four provisos, as we have already seen. The main part of the regulation states that permission to establish a medical college and admit students can be granted initially for a period of one year and that it would be renewed on yearly basis subject to the verification of the achievements of annual targets. To the main part of Regulation 8.3.(I), there are four provisos. The first proviso under Clause (a) relates to second renewal (admission of third batch). The second proviso under Clause (b) relates to third renewal (admission of fourth batch). Both clauses (a) and (b) deal only with two specific items namely (i) deficiency of teaching faculty and/or Residents; and (ii) a bed occupancy ratio. Both of them merely stipulate the tolerance limit in respect of two essential requirements. They do not deal with the other requirements meaning thereby that they do not dilute or dilate the other stipulations contained in the 1999 Regulations.
26. But proviso (b) under Regulation 8.3.(I) of the second set of regulations namely, "Establishment of Medical College Regulations", is sought to be read by the petitioner as restricting all the stipulations contained in the first set of Regulations namely, "Minimum Requirements for 150 MBBS Students Annually Regulations, 1999". This is not permissible in law.
27. In other words, there are two fallacies in the fist contention of the petitioner. The first is that proviso (b) is sought to be read by the petitioner as restricting the requirements of the main part of the Regulation. The second fallacy is that the petitioner is seeking to read this proviso found in one set of Regulations, into another set of Regulations.
28. In my considered view, the proper method of interpreting the proviso (b) to Regulation 8.3.(I) is to hold that in respect of two requirements namely bed occupancy and availability of teaching Faculty/Residents, a tolerance limit is prescribed, enabling the Central Government to exercise a discretion, if the deficiencies in respect of those two requirements are within the permissible limits. In respect of other requirements, the Regulations do not stipulate any tolerance limit at all. If we do not understand and interpret Regulation 8.3.(I) in this fashion, we will only be diluting standards, contrary to the very object of the Indian Medical Council Act and the aforesaid Regulations, to maintain higher standards in the field of Medical Education. It is not permissible for this Court to adopt an interpretation that will dilute those standards.
29. The need to maintain standards prescribed by MCI, hardly requires any emphasis. Therefore, any interpretation that would subserve the maintanance of standards is to be preferred, to an interpretation that would dilute them. A passage from the decision of the Supreme Court in MCI vs. State of Karnataka (1998) 6 SCC 131, may usefully be quoted as follows:-
".......A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study.........."
Therefore, the first contention of the petitioner is rejected.
CONTENTION NO.(ii) & (iii) :-
30. The second contention is that out of the two deficiencies that are relatable to the proviso (b) of Regulation 8.3.(I), one was within the tolerance limit and hence, it could not have weighed with the MCI to reject the application. The third contention is that the other deficiency that related to the bed occupancy ratio, was both factually incorrect and also could not have resulted in the rejection of request for renewal.
31. As a matter of fact, there is no dispute about the fact that the deficiency relating to availability of Faculty/Residents was within the tolerance limit prescribed by the Regulations. The shortage was only 8.4%. But in so far as bed occupancy is concerned, it was beyond the tolerance limit.
32. But it does not mean that the said deficiency could not have tilted the balance against the petitioner. A careful look at proviso (b) would show that both the requirements are to be taken together. They are not disjunctive of each other. Though proviso (b) uses words "and /or", a proper reading of proviso (b) would be to take both of them as conjunctive.
33. The requirement relating to bed occupancy ratio, cannot be diluted at all. The students of Medicine learn more from the patients than from the books. It is better to make them learn, even while they are students, rather than allowing them to learn from patients, after they become full fledged professionals. This is why the Regulations prescribe bed occupancy ratio even for the initial permission. The permitted annual intake of a college itself is fixed based upon the number of beds available in the associated hospitals. Therefore, there cannot be a dilution of standards relating to the bed occupancy ratio.
34. The finding of fact relating to bed occupancy ratio is also challenged by the petitioner on the ground that the daily average for the last one year as indicated in column 2.6 of the inspection report showed that the bed occupancy ratio was good. Moreover, the bed occupancy in the ICCU, according to the petitioner, was not taken into account, as seen from the column 2.5 of the report. Therefore it is contended that the findings are perverse.
35. I have carefully considered this submission. At the outset it should be pointed out that a finding of fact recorded by an inspection team, is not open to challenge before this Court in a writ petition under Article 226 of the Constitution. It is not justiciable.
36. In any case, the petitioner sent a compliance report on 13.05.2014 to the inspection report, claiming that the daily average OPD attendance was recorded as 931 in column No.2.6 of the inspection report and that the bed occupancy at the end of the day was not counted. When this compliance report was sent by the Central Government to the Medical Council of India, the Medical Council of India gave its response to the Central Government by their letter dated 12.06.2014. The response of the Medical Council of India to this contention was as follows:-
"As per assessor (AII) report on page 13 the assessors have mentioned OPD timings as 8.30 am to 4.30 pm & Dean has also signed. It is thus confirmed that the data (OP + IP) must have been recorded during those hours and thus the contention of the college does not hold true it is an afterthought. "
37. Therefore, today I cannot adjudicte upon this factual dispute. Moreover, the contention that the daily average as reflected by the records on a random verification was 931 and that it should have been taken into account, cannot be accepted. If what is reflected by records is sufficient, then there is no need for a surprise inspection. The very requirement of a surprise inspection, is on account of the unreliability of the records and the need to cross check. Therefore, the second and third contentions, cannot be accepted.
CONTENTION NO.(iv):
38. The fourth contention of the petitioner relates to the deficiency relating to the failure of the petitioner to obtain planning permission. The claim of the petitioner is that at the time when the buildings were constructed, the Local Body namely Panchayat alone had power to grant planning permission and that subsequently the Panchayat was divested of the power. Therefore, it is claimed by the petitioner that after construction, they were forced to apply to the Chennai Metropolitan Development Authority for regularisation. The application for regularisation is actually pending.
39. I have carefully considered the fourth contention of the petitioner. According to the petitioner, the first letter of permission for starting the Medical College was granted from the academic year 2010-11. Despite contending that they had obtained permission from the local Panchayat, the petitioner have not furnished any detail (1) as to when they obtained planning permission from the Local Authority and (2) as to when they completed construction. From the papers furnished by the petitioner, it appears that the students of the college sent a letter to the Medical Council on 02.06.2013 complaining of the failure of the petitioner to obtain planning permission. In response, the Medical Council of India addressed letters dated 01.08.2013 and 13.11.2013 to the Member Secretary, CMDA, requesting him to furnish details as to whether the college and hospital buildings were approved or not and as to whether a notice for demolition had already been issued.
40. By a letter bearing No.C3(s)/10863/2013-(1) dated 04.12.2013, the CMDA informed the Medical Council of India that the planning permission application submitted by the petitioner on 8/10.07.2013 seeking approval of the regularisation of the existing Engineering College, Medical Collage and Hospital and Arts College buildings was under process.
41. It is seen from the said letter dated 04.12.2013 sent by the CMDA to the Medical Council of India that the petitioner-trust runs (i) engineering colleges (ii) medical colleges and hospitals and (iii) Arts and Science colleges and that they never obtained building plan approval for any of the buildings of any of the institutions run by them. They appear to have submitted a planning permission application to the CMDA for the first time only on 8/10.07.2013, which was actually nearly after three years of the commencement of the college. What is shocking is that all the buildings put up by the trust, were without the approval of CMDA. The planning permission application dated 10.07.2013 referred to in column No.1, of the letter of the CMDA dated 04.12.2013 was perhaps submitted after the students sent a complaint dated 02.06.2013 to the Medical Council.
42. Another letter dated 04.03.2014 sent by the CMDA to the petitioner college, contains information which is much still more shocking. In this letter, the CMDA had indicated that the petitioner applied for planning permission for the first time on 08.07.2013 and that the CMDA called for certain particulars by a third letter dated 16.12.2013. One of the documents that the petitioner appears to have submitted to the CMDA is a letter from the Public Works Department for re-routing of a channel. In other words, the college appears to be located not only in land which is owned entirely by the trust which runs the petitioner college but also in a land which happens to be a public water course. I do not know how the Public Works Department could give no objection certificate for re-routing a channel, especially in the light of the special enactment in the State namely the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007. But the case of the petitioner trust is not the only one in the state. Statistics show that many engineering colleges/medical colleges/deemed universities in the State are located partly in lands encroached by them. Yet the courts helplessly show mercy on them on the ground that the lives of students are inextricably intertwined with the fate of these institutions.
43. The communication exchanged between the petitioner and the CMDA and the Medical Council of India discloses (1) that the petitioner never obtained any approval for the construction of the buildings; and (2) that some pockets of land on which the petitioner college is located, are actually Government Poramboke lands in which there is actually a water course. In such circumstances, I wonder how the Government can even grant regularisation, unless they violate the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act 2007.
44. At this juncture, it is also necessary to consider the application filed by one K.M.Krishnan in M.P.No.3 of 2014, seeking to implead himself as a party to the writ petition. In the documents that the proposed party has filed, there is a reply given by the Public Information Officer of the CMDA on 15.12.2009, indicating that no planning permission was granted to the buildings put up by the petitioner. Yet another document filed by the proposed party, is an assessment form in Part-A of the Medical Council of India, allegedly downloaded from the website of the MCI. In the said form, the petitioner is alleged to have written to the Medical Council of India that the construction of their buildings was approved by the CMDA by order No.TN/CMDA/HB: 2077 dated 2008. If the petitioner had actually furnished such an approval number to the Medical Council of India, they are guilty of misrepresentation and fraud. The impleading petitioner has also filed in his typed set of documents, a stop work notice issued by the CMDA on 09.05.2011 and a demolition notice issued by the CMDA on 25.04.12.
45. Unfortunately, the petition for impleading along with the documents referred to above were filed at the last minute, during the course of hearing of the writ petition. Therefore, the petitioner did not have adequate time to respond.
46. But even without the documents furnished by the impleading petitioner, three things are very clear namely (a) that the petitioner never had any approval from any authority including the Local Panchayat; (b) that some of the lands over which the college has been put up, are poramboke lands belonging to the Government; and (c) that there is a water course in some pockets of the lands over which the petitioner college has come up. These facts are found even from the very documents filed by the petitioner. I am unable to believe that the petitioner obtained approval of the Panchayat, at a time when the area did not come within the purview of the CMDA. If that is so, the petitioner ought to have filed a copy of the approval granted by the Panchayat. Moreover, in the affidavit filed in support of the writ petition, the petitioner has not made a positive assertion that they had obtained building plan approval from the Local Body. Therefore, it is clear that the entire edifice of the institution is built on foundations of illegality, from out of which, 150 men professing a noble profession are sought to be produced year after year.
47. The deficiency relating to non-approval of the building plan, cannot be ignored in view of the fact that the very continued existence of the buildings depends upon the fate of the application for regularisation. This is not a simple case of approval for the regularisation of buildings put up without planning permission. It is a case of construction on poramboke lands and construction on a water course. Therefore, the Medical Council of India was justified in taking serious note of this deficiency.
CONTENTION NO.(v):
48. The fifth contention of the petitioner is that the Central Government is guilty of non-application of mind. According to the petitioner, only one compliance report dated 13.05.2014 was taken note of by the Central Government in their impugned order and that the subsequent compliance report dated 18.06.2014 was not taken into account. Therefore, the petitioner contends that the impugned order is vitiated by the non-application of mind.
49. But I do not think that the above contention can be upheld. The Medical Council of India sent a detailed response dated 12.06.2014 to the compliance report of the petitioner dated 13.05.2014. It is only in reply to the response of the Medical Council of India dated 12.06.2014 that the petitioner sent another compliance report dated 18.06.2014. What was sent on 18.06.2014 was only a rejoinder to the response of the Medical Council dated 12.06.2014.
50. Similarly, what was sent on 23.06.2014 was also only a set of objections. Given the time limit within which the Central Government was to dispose of such cases after granting opportunity of personal hearing under Section 10A(4), it is impossible for the Central Government to write detailed judgments. The fact that the original resolution of the Executive Committee of the Medical Council, the compliance report dated 13.05.2014 and the response of the MCI dated 12.06.2014 were taken into account, is sufficient to show application of mind. Hence, the fifth contention is rejected.
CONTENTION NO:(vi):
51. The sixth contention is that the opportunity of personal hearing contemplated under Section 10A(4) turned out to be an empty formality and that the impugned order was passed on irrelevant considerations. According to the petitioner, the Central Government is obliged under Section 10A(4) to point out deficiencies to the petitioner and give them time to rectify the same and that without doing so, the respondents imposed the extreme penalty of refusal of renewal for one full academic year.
52. But the above contention does not appeal to me. The material on the basis of which the Medical Council of India decided to recommend refusal, are sufficient for the Central Government to arrive at the decision that they have done in this case. The petitioner was granted an opportunity of personal hearing. Though the last part of sub-section (4) of Section 10A enables the Central Government to give a chance to the institution to rectify the defect, it is not to be understood as mandatory for the same academic year especially when the time schedule is tight. First, there is no room for such interpretation in view of the strict time schedule which the respondents are legally obliged to adhere. Second, some of the deficiencies in this case could not have been rectified at all in this academic year, before the time schedule fixed by the Supreme Court. Therefore, the petitioner cannot now claim that an opportunity could have been granted to them to rectify the defect.
53. Coming to the time schedule, Mr.G.Masilamani, learned Senior Counsel appearing for the petitioner furnished a useful tabulation, indicating the time schedule prescribed by the Supreme Court in Mridul Dhar (Minor) Vs Union of India [2005 (5) SCC 65] as well as Priya Gupta Vs State of Chattisgarh [2012 (7) SCC 433]. The said tabulation is extracted as follows to highlight the futility of any exercise either in allowing the petitioner to rectify the deficiencies this year or in remitting the matter back for a fresh consideration at this point of time :
" Letter of Permission/Renewal Schedule as provided in Mridul Dhar & Priya Gupta:-
Sl. No Stage of Processing Last Date 1 Receipt of Applications by Central Government From 1st August to 31 st August 2 Receipt of Applications by MCI from Central Government 30th September 3 Recommendations of MCI for issue of letter of intent 31st december 4 issue of letter of intent by Central Government 31st January 5 Receipt of reply from applicant 28th February 6 Receipt of letter by MCIfrom central Govt. for considering the issue of letter of permission 15th march 7 Recommendations of MCI to Central Government 15th June 8 Issue of letter of permission by Government 15th July
54. The above time schedule is now over. It is true that in quite a few cases, this court as well as the Delhi High court had issued directions, beyond the time schedule prescribed by the Supreme court. It is also true that the Special Leave Petitions filed against such orders were dismissed by the Supreme court. But all those cases such as -
(i) the order dated 10-6-2011 of the Delhi High court in Shree Chhatrapati Shivaji Education Society vs. Medical Council
(ii) the order dated 7-8-2013 of the Division Bench of this court in The Board of Governors vs. Tagore Medical College
(iii) the order dated 14-8-2013 of the Division Bench of this court in Madha Medical College vs. Union of India and
(iv) the decision of the Supreme court in Royal Medical trust vs. Union of India 2013 (12) SCALE 145, were decided, before the strict mandate now issued by the Supreme court in its order dated 19-5-2014 in Lipika Gupta that any violation of the time schedule would tantamount to contempt of court. This fact, coupled with Supreme court's dismissal of the petition for extension of time filed by the Government, on 31-7-2014, is a clear signal that no court shall enable any statutory authority to do anything that would tantamount to violation of the order of the Supreme court. If a High court has no respect for the time schedule fixed by the Supreme court and if a High court issues directions to statutory authorities to violate the orders of the Supreme court, there could be no redemption for the system.
CONTENTION NO.(vii):
55. The seventh contention is quite interesting. According to the petitioner, it is a minority institution, which has an annual permitted intake of 150 students, out of which 75 seats are to be allotted for being filled up through the single window counselling by the State Government. Therefore, it is contended by the petitioner that the refusal to grant renewal will deprive 150 meritorious students to gain admission this year into a medical course and that 75 students who would otherwise get allotted by the State Government to the petitioner college would also lose.
56. The above contention is certainly attractive, even if not sustainable. While on the one hand refusal to grant renewal goes contrary to public interest, the grant of renewal to an institution which does not qualify for the same is also contrary to public interest. Rather than allowing 150 bright students to undergo medical education in an institution which has deficiencies, it would be better to direct such institutions to pull up the socks and first set their houses in order. The public interest served by denying renewal to an institution which has deficiencies, is far greater than the public interest that would be served by granting renewal.
CONTENTION NO:(viii) :
57. The eighth contention is about discrimination between the Self-Financing Colleges and Government Colleges. The petitioner has pleaded in their affidavit that some of the Government Colleges also have deficiencies, but they have been granted renewal.
58. But I do not think this contention is legally sustainable. At the outset, if a statutory authority has permitted an illegality to go unnoticed in one institution, it is no ground for the Court to perpectuate the illegality in other institutions, on the ground of equality in illegality.
59. In any case, the Government institutions stand on a totally different footing. All the Government Institutions are capable of being tamed. Therefore, the special treatment meted out to Government Institutions, even if true, cannot be a ground for extending the benefit to the Self-Financing Institutions.
CONTENTION NO:(ix):
60. The ninth contention of the petitioner is that the refusal of renewal amouted to an extreme penalty completely disproportionate to the deficiencies complained. According to the petitioner, the respondents are actually obliged to see whether there was substantial compliance or not and that if there was substantial compliance, the respondents cannot impose the extreme penalty.
61. Relying upon the decision of the Supreme Court in Om Kumar vs. Union of India, (2001(2) SCC 386, Mr.G.Masilamani, learned Senior Counsel for the petitioner contended that the concept of proportioality has always been applied by the Indian Courts, with a view to maintain a proper balance between the adverse effects which an administrative order may make, on the rights, liberties or interests of persons, keeping in mind the purpose that they intend to serve. In this case, the respondents have refused renewal of permission to the petitioner college for the academic year 2014-15, jeopardising both private interest as well as public interest. The Regulations of the MCI stipulates hundres of requirements, all of which have been fulfilled by the petitioner. Therefore, it is contended by the learned Senior Counsel that on account of a few minor discrepancies, the extreme penalty of refusal of renewal cannot be imposed.
62. The learned Senior Counsel also relies upon the decision of the Supreme Court in Maharashtra Land Development Corporation vs. State of Maharashtra, (2011)15 SCC 616), to drive home the point that the decision taken by the respondents would pass neither the test of reasonableness (Wednesbury Principle) nor the test of proportionality. Therefore, the learned Senior Counsel contended that the impugned orders are liable to be set aside.
63. But at the outset, I am unable to accept that the refusal of the respondents to grant renewal amounted to a penalty. The principles of reasonableness and proportionality, that are applicable to administrative and Legislative action which are punitive in nature, cannot be applied to an administrative action refusing to renew permission and that too on account of non-fulfilment of prescribed standards. The projection of the case of the petitioner as though an extreme penalty has befallen upon them, is not acceptable. In so far as Wednesbury Principle is concerned, it is, even according to Professor Wade, on the terminal decline even in England.
64. If the respondents had passed an order cancelling even the permission granted in the first instance, then it would be a case of imposition of penalty. In such a case, the lives and career of four batches of students numbering 600 would have also been in peril. The mere refusal to grant 4th renewal to enable the petitioner to admit one batch of 150 students in the first year of the MBBS Course during the academic year 2014-15, cannot be equated to a penalty.
65. The principle of proportionality is inapplicable to cases where standards of education are involved. A student who had secured distinction in five out of six papers but had failed in one paper by a margin of one mark cannot claim that the ultimate result is completely disproportionate to his deficiency. Therefore, the 9th contention cannot also be accepted.
66. It is claimed by the learned Senior Counsel for the petitioner that there was substantial compliance with the Regulations and that therefore on the basis of the decision of the Supreme Court in Al-Karim Educational Trust vs. State of Bihar (1996) 8 SCC 330), the impugned orders are liable to be set aside. But the said contention cannot stand in the light of the 1999 Regulations. Even if there was one deficiency beyond the tolerance limit prescribed by Proviso (b) to Regulation 8.3.(I), the Central Government was obliged to reject the request for the renewal. This is the mandate of the regulations. Al-Karim arose out of peculiar circumstances where the Court came to the conclusion that affiliation was withheld unreasonably and that every time new deficiencies were pointed out after the old ones were removed. Even in Al-Karim, the Supreme Court pointed out in para 11 that the importance of fulfilling the essential pre-requisites stipulated by the Medical Council cannot be diluted. Therefore, the theory of substantial complaince has no application especially when the deficiencies pointed out are very serious in nature.
67. Mr.G.Masilamani, learned Senior Counsel for the petitioner also assailed the impugned orders on the ground that they are vitiated by malice in law. Relying upon the decisions of the Supreme Court in Smt. S.R.Venkataraman vs. Union of India (1979)2 SCC 491) and in Kalabharathi Advertising vs. Hemant Vimalnath Narichania, (2010)9 SCC 437, the learmed Senior Counsel contended that the act of the respondent was a wrongful one, without just cause.
68. But the above contention is misconceived. Legal malice or malice in law is something which is done without lawful excuse or for an unauthorised purpose. In the case on hand, the respondents have pointed out deficiencies with reference to the standards and requirements prescribed by the Regulations. Therefore, the act done by the respondents is neither without lawful excuse nor for an unauthorised purpose. The surprise inspection conducted by the assessors of the Medical Council, the recommendation made by them to the Central Government and the order passed by the Central Government are all for the authorised purpose of considering the request of the petitioner for renewal. Hence the last contention of the petitioner also deserves the very same fate as the other contentions.
V.RAMASUBRAMANIAN, J RS/GR
69. In view of the above, I find no justifiable reason to interfere with the decision of the Central Government. Hence the writ petition is dismissed. There will be no order as to costs. Consequently, M.P.Nos. 1 and 2 of 2014 are dismissed. The petition for impleading M.P.No.3 of 2014 is dismissed, in view of the fact that the petitioner is neither a necessary nor a proper party to the writ petition.
13.08.2014 Index:Yes/No Internet:Yes/No RS/GR To
1.The Secretary to Government, Ministry of Health and Family Welfare Department Government of India, Nirman Bhavan New Delhi-110101.
2.The Medical Council of India, rep.by its Secretary, Pocket - 14, Sector - 8, Dwarka, Phase-I, New Delhi-110077.
PRE DELIVERY ORDER IN W.P.No.19253 of 2014 & M.P.Nos.1 to 3 of 2014