MEDICAL COUNCIL OF INDIA versus N.C. MEDICAL COLLEGE & HOSPITAL & ORS. on 13 September 2018

MEDICAL COUNCIL OF INDIA

v.

N.C. MEDICAL COLLEGE & HOSPITAL & ORS.

(Civil Appeal No. 9519 of 2018)

SEPTEMBER 13, 2018

[ARUN MISHRA AND INDIRA BANERJEE, JJ.]

Education/Educational Institutions:

Medical College – Recommendation of Medical Council ofIndia (MCI) to Central Government not to renew permission foradmitting students for academic session 2018-2019 – Writ petitionchallenging the recommendation – High Court by interim order dated29.5.2018 directed Central Government to grant permission toCollege by 31.5.2018 – Central Government by G.O. dated31.5.2018 granted permission in compliance of the order dated29.5.2018 subject to outcome of the writ petition – Subsequentlythe order dated 29.5.2018 was set aside by Supreme Court by itsorder dated 4.7.2018 – High Court allowed the writ petition relyingon the G.O. dated 31.5.2018 passed by Central Government – Onappeal, held : The G.O. dated 31.5.2018 issued by CentralGovernment was a conditional order and was passed in complianceof the interim order dated 29.5.2018 – The interim order dated29.5.2018 was also subsequently set aside by Supreme Court videits order dated 4.7.2018 – Thus, the order of High court lacksjudicial propriety and also tantamounts to ignoring the effect oforder dated 4.7.2018 – Court cannot sit in appeal over report ofthe assessors – In view of the deficiencies found by theassessors, permission could not have been accorded for thesession 2018-2019.

Allowing the appeal, the Court

HELD: 1. The impugned order of High Court is notsustainable. The High Court had issued a mandatory interimdirection on 29.5.2018 to Central Government to accordpermission by 31.5.2018. It was not open to High Court to relyupon order dated 31.5.2018, which was a provisional order passedin compliance of the interim order dated 29.5.2018, said order

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Awas set aside by this Court. Once the order has been set aside,the order of Government of India dated 31.5.2018 which waspassed pursuant to order dated 29.5.2018 could not have beenrelied upon by the High Court to allow or to dispose of the writapplication holding that Central Government has tacitly acceptedthe claim of the college. Thus, the order passed by the HighBCourt lacks judicial propriety and also tantamounts to ignoringthe effect of the order dated 4.7.2018 passed by this Court.[Para 15] [12-F; 13-B-C]

2. The college was given permission by the OversightCommittee of this Court for the session 2016-2017. It was aCconditional permission as deficiencies existed at the given time.The Government of India as well as MCI on their own, did notgrant permission at any point of time in view of the reports ofinspections which were undertaken time and again during thelast three years. [Para 16] [13-D]

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3. The observations made by the High Court thatcorrespondence by MCI indicated that certain deficiencies havebeen removed. The High Court has also referred to the websitecontents of the college to hold the deficiencies of the faculty tobe 4-5% i.e., within permissible limit. The aforesaid reasoningsEand exercise done by the High Court is not in accordance withlaw. As a matter of fact, when certain deficiencies have beenpointed out and paper compliance thereof has been reported bythe college that cannot by itself be said to be enough and it cannotbe presumed that by reporting paper compliance, it can beassumed that in fact compliance had been made. Once theFcompliance report has been submitted that has to be verified bymaking inspection and when it has been carried out and variousother deficiencies have been found, they have to be taken intoconsideration and could not have been ignored as done by theHigh Court. [Para 17] [13-E-H]

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4. The Court cannot sit in appeal over the report of theassessors. On the one hand, the High Court has doubted thereport of inspection and for that relied on the self-serving contentsof the website of the college. There is nothing to vouch for theauthenticity of the website information. It is not what the H

institution asserts on website but what is actually found oninspection, that has to be considered by the court. The deficiencyof faculty has been culled out in the inspection report in detail.Report of the assessors cannot be faulted; the court cannot sit inappeal over it and cannot go into the disputed facts.[Para 18 and 20] [14-A-B; 15-E]

Medical Council of India v. Kalinga Institute of MedicalSciences (KIMS) & Ors.(2016) 11 SCC 530 : [2016] 4SCR 403 – relied on.

5. In the instant case fair opportunity has been given andthe reasons in detail were mentioned by the assessors and MCI.It was a case of repeated inspections having been made. In viewof deficiencies found, permission could not have been accordedfor session 2018-19. [Para 21] [16-E-F]

Kanachur Islamic Education Trust (R) v. Union of India& Anr. (2017) 15 SCC 702 – referred to.

6. In the present case, the date in the time schedule forgranting permission etc. under the MCI Regulations by whichdate admissions etc. are to be granted, are over. Therefore, it isnot possible to issue directions at this juncture for the session2018-2019. [Para 22] [16-F-H; 18-B]

Ashish Ranjan & Ors. v. Union of India & Ors.(2016) 11 SCC 225 ; Medical Council of India v. RajivGandhi University of Health Sciences & Ors.(2004) 6SCC 76 : [2004] (3) SCR 1119 ;Medical Council ofIndia v. JSS Medical College & Anr.(2012) 5 SCC628 : [2012] 1 SCR 136 ;Dental Council of India v.Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli &Ors. (2017) 13 SCC 115 ;Ponnaiyah RamajayamInstitute of Medical Sciences v. Union of India & Anr.(2017) 16 SCC 719 – referred to.

Case Law Reference

[2004] 3 SCR 1119referred to[2012] 1 SCR 136referred to Para 10Para 10

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9519

of 2018

From the Judgment and Order dated 07.08.2018 of the HighCourt of Punjab and Haryana at Chandigarh in C.W.P. No. 13366 ofC2018.

Vikramjit Banerjee, ASG, Vikas Singh, Sr. Adv., Prateek Bhatia,Dhawal Mohan, Ms. Deepeika Kalia, Gaurav Sharma, Shubhendu Anand,G. S. Makker, Ms. Anindita Barman, S.K. Gupta, Ms. Priyanka Das,Ms. Rajee Mehrotra, Ms. Priya Mishra, Ankit Goel, Advs. for theDappearing parties.

The Judgment of the Court was delivered by ARUN MISHRA, J. 1. Medical Council of India (in short, ‘theMCI’) is in appeal as against the judgment and order passed by the HighECourt allowing the writ petition of the medical college to admit 150 studentsfor the academic year 2018-19 and in view of G.O. dated 31.5.2018passed by the Government of India granting permission subject to theoutcome of the writ petition in view of mandatory interlocutory orderdated 29.5.2018 requiring the Government of India to accord approvalto the college by 31.5.2018, though the said interlocutory order datedF29.5.2018 also permitting provisional admissions was set aside by thisCourt in Civil Appeal No.6001 of 2018.

2. The case has a chequered history. After the N.C. MedicalCollege had obtained Essentiality Certificate and affiliation of theUniversity and thereafter the conditional permission of the OversightGCommittee enabled it to admit 150 students in the academic session2016-2017.

3. Pursuant to the letter dated 11.8.2016 of the OversightCommittee, the MCI took a verification inspection on 7/8.11.2016 and inview of the deficiencies noticed by the Inspectors, recommendation wasH

made to the Central Government to debar the college to admit studentsfor two academic sessions 2017-2018 and 2018-2019. The BankGuarantee was ordered to be encashed. The recommendations of theMCI were accepted by the Government of India vide its order dated10.8.2017.

4. In the year 2015, on 9/10.12.2015 inter alia the deficiency offaculty was found to be 87.7%, shortage of Residents 100%; in all 22deficiencies were found. On 1.4.2016 again inspection was carried out.The deficiency of faculty was found to be 84.61%, shortage of residents81.9%, OPD was found non-operational, bed occupancy was zero, in all13 deficiencies were found. The Government of India accepted therecommendations made by the Executive Council of the MCI on13.5.2016. However, the Oversight Committee gave conditional permissionto remove deficiencies. Letter of permission dated 20.8.2016 was issuedfor academic session 2016-17.

5. Again after fresh assessment MCI considered the matter in itsmeeting on 22.12.2016 and noted various deficiencies inter alia that offaculty 27.69%, residents’ shortage 36.95%, bed occupancy 46%, therewas no ICCU, in all 13 deficiencies were noted. MCI on 26.12.2016informed the Government of India and recommended that the college bedebarred from admitting students for two academic sessions 2017-2018and 2018-2019. Appellant was called for personal hearing by Governmentof India on 17.1.2017. Thereafter, report was forwarded to the OversightCommittee vide letter dated 14.5.2017. The Oversight Committeerecommended that opportunity of hearing be given to the college whichwas afforded on 29.5.2017. The recommendations of Committee madeafter hearing were accepted by MCI and the college was debarred videletter dated 9.6.2017 from admitting students for two academic sessionsi.e. 2017-2018 and 2018-2019.

6. The petitioner filed W.P. No.432/2017 in this Court in whichthis Court directed the Central Government to consider afresh the materialon record after giving opportunity of hearing to the college to the extentnecessary. Thereafter, petitioner was again granted opportunity of hearingon 3.8.2017 by Government of India and Hearing Committee. In view ofa large number of deficiencies, the decision was reiterated by Governmentof India to debar the college for two years and also to permit MCI toencash the bank guarantee of Rs.2 crores.

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A7. On 9.10.2017, this Court directed fresh inspection to be carriedout for the year 2018-2019. The MCI in compliance of order dated9.10.2017 carried out the inspection assessment on 17.11.2017 and18.11.2017. Deficiencies of faculty were found to be 9%, shortage ofresidents 10.2%, in all, 18 deficiencies were noted by inspectors.

B8. This Court vide order dated 17.1.2018 directed MCI andGovernment of India to consider the case for the year 2018-2019 by31.3.2018. On 19.1.2018 college was given an opportunity of hearing.College submitted certain documents. On the basis of documents, collegewas informed on 9.2.2018 by MCI that as per documents there were 13deficiencies which were required to be removed. The college submittedCthe reply, that was considered by Sub-Committee of MCI on 5.3.2018.Appellant again filed a compliance letter dated 15.3.2018 pointing outthat certain deficiencies have further been removed. MCI carried outthe inspection on 13.4.2018 in order to verify the compliance that wasreported by the college by submitting documents, again followingDdeficiencies were found:

1. “Deficiency of faculty is 9% as detailed in the report.

2. Shortage of Residents is 28.57% as detailed in the report.

3. 0n random verification, 14 Residents were found to be notEstaying in the Residents’ hostel.

4. Engineering college girls _Kajal Sharma, Anju, Sapexh & Pallavi– are staying in room nos. 303, 310 & 316 allotted to juniorResidents.

5. IN SR hostel, Room 315 was allotted to Annu Khatri. SR,FO.G; however on verification it was found that wife of Dr. AbuSiddiq, Asst. Prof. of Pharmacology was staying.

6. List of faculty & Residents joined or promoted after lastassessment was not produced.

7. OPD data as given by the Institute are inflated whenGcorrelated with investigations being carried out.

8. Bed Occupancy at 10 a.m. on day of assessment as 50%.

9. Patients: 32 patients were not considered in departments ofSurgery, Medicine, Psychiatry, TBCD, Orthopedics, GeneralMedicine:H

·Patient Balkishna admitted in female medical ward withcomplaints of muscle pain, Rash (there was no rash).

·Mrs. Dhanpati IP no. 70318262 admitted in female ward forCataract operation, with controlled diabetes.

·Pt. Shantidevi IP no. 50418176 admitted for controlled Diabetesand no complaints.

·Patient Renu IP no. 120418621 admitted with diagnosis ofObesity.

·Patient Aminaben IP no. 1204181621 without any symptomswith diagnosis of Anemia.

·In Psychiatry Department patient Deepak IP no.030418314 wasadmitted from 3rd April with complaints of Anxiety.

·Patient IP no.03041840 was admitted for mild depression.·Another patient was admitted for alcohol withdrawal tremors.

·In female psychiatry ward patient Santro was admitted withmild depression.

·In TB Chest ward Pt. Sube Singh was having only mildweakness and burning sensations on tongue.

·Patient Savitri Devi was admitted for COPD but no symptomswere seen.

·In Surgery ward patient Parveen IP no. 120418317 wasadmitted with complaints of Mild.

·Patient Aminaben was kept after laparoscopic Cholecystectomydone on 4[th] April having no symptoms.

·Pt. Santosh was indoor for Excision Biopsy for Breast lump fordressing only.

·Patient Mrs. Suman No.10041833 admitted with Diagnosis ofUreteric stone but USG was normal.

·Pt. Sunita No.03041837 was operated for laparoscopicCholecystectomy on 4th April and kept without any symptoms.

·Patient Seema IP no. 2803182 ureteric stone removal kept for 4days without any symptoms.

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8SUPREME COURT REPORTS

·APt. Angrejo 260318432 was kept after laparoscopicCholecystectomy done on 4[th] April without any symptoms.

·Patient Saroj IP no. 24031878 was kept after ureteric stoneremoval for 8 days without any symptoms.

·Patient Azar admitted in male surgical ward complained ofBburning all over the body and no surgical complaints.

·Patient Tejbir Singh operated for Inguinal hernia kept since 3[rd]April without any complaints.

·Patient Ramesh IP 10041828 admitted with very small umbilicalChernia, which patient did not complain of.

·Pt. Paleram 1304187 admitted with very small umbilical hernia,which the patient did not complain of.

·Another patient Paleram had incision and draingage of smallabcess.

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·Patient Mr.Nanu admitted with diagnosis of BPH had no USGdone although he was admitted on 7lh April.

·In Orthopedics patient Ritesh was admitted with small handinjury.

·EPatient Kidara 0204183 was admitted since 2[nd] April withdiagnosis of Cervical Spondylosis, on asking. the patient com-plaint of kneelpain.

·Patient Sunii admitted without any Diagnostic X Ray.

·Total 32 such patients were not counted.

F·Hence 32 patients were deducted out of 182 admitted patients.So bed occupancy is calculated at 150 patients.

10. There were only 6 Major & 4 Minor Operations on day ofassessment.

G11. There was NIL Normal Delivery on day of assessment.

12. CT Scan is not available.

13. In many wards, Demonstration rooms are non-functional &not furnished.

H14. Other deficiencies as pointed out in the assessment report.”

On consideration of report of assessors, the Executive Committeeof MCI decided to recommend to Central Government not to renew thepermission for academic session 2018-2019. On 4.5.2018, a decisionwas taken by the Oversight Committee to approve the decision of theExecutive Committee.

9. At the aforesaid stage even before the decision was taken byGovernment of India W.P. [C] No.13366/2018 came to be filed in theHigh Court of Punjab & Haryana at Chandigarh, in which interlocutoryorder was passed by the High Court on 29.5.2018.The High Courtdirected provisional admissions for current year i.e. 2018-2019 andmandatory interim directions to Government of India to grant permissionto College by 31.5.2018. Following interim order was passed by theHigh Court:

“We permit the provisional admission for the current Session2018-19 but subject to the following condition:- The MCI shall conduct the inspection as indicated above withina period of 2 weeks from today and in case the College is stillfound deficient, it shall apprise the college within one week of itsinspection so that they can make the college compliant with respectto the latest inspection of the MCI.

MCI would then again conduct an inspection within a periodof one week of the compliance report submitted by the College,to ensure no deficiency.

Report in this regard would also be submitted to the Court bythe next date of hearing. The students shall be put on notice whilegranting them admission about the pendency of the instant writpetition. The petitioner institute shall also furnish an undertakingthat they would abide by all the conditions required by the MCI inthis regard.

The UOI shall issue necessary Letter of Permission by31.05.2018.

To come up on 11.07.2018 for further proceedings.”

10. The aforesaid interlocutory order was questioned in this Courtin C.A. No.6001/2018. This Court on 4.7.2018 allowed the appeal andorder dated 29.5.2018 was set aside. It was noted by this Court that A

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Ainspection was taken repeatedly, deficiencies were found, scheme wasnever approved by the MCI and Central Government. It was onlybecause approval accorded by this Court mandated Oversight Committee,college was permitted to make admissions for the academic year 2016-17 and thereafter a decision was taken to debar the college for twoyears. On physical verification in compliance of the order passed by thisBCourt, again deficiencies were found and when the matter was pendingat the level of Central Government, writ petition was filed in whichaforesaid interim direction was passed. This Court relying upon thedecisions in Medical Council of India v. Rajiv Gandhi University ofHealth Sciences & Ors. (2004) 6 SCC 76, Medical Council of IndiaCv. JSS Medical College & Anr.(2012) 5 SCC 628, Medical Council ofIndia v. Kalinga Institute of Medical Sciencess (KIMS) & Ors. (2016)11 SCC 530 and Dental Council of India v. Dr. Hedgewar SmrutiRugna Seva Mandal, Hingoli & Ors. (2017) 13 SCC 115 observedthat the High Court was not at all justified in passing interim directions.D11. Thereafter, the High Court by yet another interim order directedfresh inspection to be made by MCI within seven days during thependency of the writ petition in the High Court. Against the said interimorder also SLP was filed by MCI in this Court and vide order dated30.7.2018 in SLP [C] No.19405/2018, this Court observed that the HighCourt should have taken a call whether further inspection was requiredEat the time of hearing of the case finally as inspection report was not tobe considered by the High Court. This Court directed that the matter bedecided finally. Thereafter by impugned judgment and order, allowingthe writ petition, has been passed by the High Court. High Court hasrelied upon the order dated 31.5.2018 passed by Central GovernmentFthough it was passed pursuant to the mandatory interim direction issuedon 29.5.2018 and was subject to ultimate outcome of writ application bythe High Court. The High Court has held that since the CentralGovernment has granted permission and there is candid acceptance ofthe claim of petitioner by the Government, the petition had been allowed.Following is the operative portion of the order passed by High Court:G

“During the course of hearing the Government granted itsapproval to the College but observed it is conditional, withoutspecifying any of them. For the purpose of reference, the relevantportion of the communication dated 31.5.2018 is extractedherebelow:

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”i. This permission is valid for one year and for admitting only onebatch of 150 MBBS seats during the academic year 2018-19.Admission in next batch of students for the year 2019-20 will bemade only after renewal permission of the Central Govt.

ii. Admissions made in violation of the above conditions will betreated as irregular and shall be liable for action under lMC Act1956 & Regulations made thereunder.

iii. The aforesaid permission shall be subject to further orders tobe passed by Hon’ble High Court of Punjab & Haryana in thisWrit Petition.

4. The permission is further subject to the conditions stipulated bythe Hon’ble High Court in the interim order dated 29.5.2018.”

This exposes them equally to a charge of arbitrariness andalso betrays that the left hand knows not what the right is doing.We are thus of the opinion that the impugned orders debarring thecollege for making admission for two academic sessions andencashment of Bank guarantee suffer from the vice of arbitrarinessand deserve to be set aside.

In view of the fact that the Government has granted anapproval to the College for the academic session 2018-19 whichwas, however, made subject to the orders passed by this Court,we are of the opinion that in view of the candid acceptance of theclaim of the petitioner by the Government, instant petition deservesto be disposed of.”

12. The High Court has also taken into consideration thecorrespondence and compliance reports which were filed by the collegeand has considered the contents of even what was placed on the websiteas information by the college as to the strength of its faculty. As per that,the deficiency was of three members i.e. 4.6% as such the report ofMCI assessors that the deficiency was 9.2% has been rejected. HighCourt has observed that once the compliance report was submitted andin response thereto MCI had written that still there were few specificdeficiencies, the High Court inferred that in view of the letter of MCI,other deficiencies had been removed. As such the fresh inspection reportfinding out the new deficiencies has been discarded. High Court has A

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Aalso observed that due and proper opportunity has not been given to thecollege.

13. It was urged by learned senior counsel on behalf of MCI thatthe High Court has virtually tried to sit in appeal on the report of assessors.The deficiencies were found by a team of inspectors consisting ofBindependent persons of repute, there was nothing to doubt its correctness.Permission accorded by Government of India on 31.5.2018 could nothave been relied upon by the High Court. Even the self-serving websitecontents ofthe college, have been taken into consideration for ignoringthe report of the inspectors. High Court has committed illegality whileallowing the writ application. The impugned order is liable to be set aside.CLearned counsel has relied upon decisions of this Court in Ashish Ranjan& Ors. v. Union of India & Ors. (2016) 11 SCC 225 and PonnaiyahRamajayam Institute of Medical Sciences v. Union of India & Anr.(2017) 16 SCC 719.

14. On the other hand, learned senior counsel appearing on behalfDof the college, made an endeavor to convince this Court that report ofthe assessors based on inspection dated 13.4.2018 deserves to bediscarded. Deficiencies of faculty and residents were not there and assome of them reported late and few were on leave, the members offaculty and residents have been excluded by the assessors onEimpermissible grounds. Bed occupancy was also adequate. Patients werewrongly excluded. There was normal delivery on the date of inspection.Anyhow or somehow deliberately the deficiencies have been culled outin the inspection report. Thus, the decision of the High Court isappropriate and does not call for interference.

F15. After hearing the learned counsel, we are of the opinion thatorder of High Court is not sustainable. It is apparent from impugnedjudgment and order that High Court has totally ignored and overlookedthat order dated 29.5.2018 passed by it had been set aside by this Courtin CA No.6001/2018. The High Court had issued a mandatory interimdirection on 29.5.2018 to Central Government to accord permission byG31.5.2018, it was not open to High Court to rely upon order dated31.5.2018, which was a provisional order passed in compliance of theinterim order dated 29.5.2018, said order was set aside by this Court inC.A. No.6001/2018 as it was not legally permissible to pass such order.Nothing more need be said about the interim order. Once the order hasHbeen set aside, the order of Government of India dated 31.5.2018 which

was passed pursuant to order dated 29.5.2018 could not have been reliedupon by the High Court to allow or to dispose of the writ applicationholding that Central Government has tacitly accepted the claim of thecollege. It was wholly impermissible act and it virtually gave premiumto the college on the basis of the interim order that was set aside by thisCourt. The High Court gravely erred in law to rely upon the verypermission granted by Government of India under an interim mandatoryorder dated 29.5.2018, which could not have been passed and was setaside. The Government of India has clearly mentioned in the order dated29.5.2018 that the permission was subject to condition stipulated by theHigh Court in interim order dated 29.5.2018. High Court could not haveacted upon it as that is clearly derogatory to order of this Court dated4.7.2018 passed in C.A. No.6001/2018.Thus, the order passed by theHigh Court lacks judicial propriety and also tantamounts to ignoring theeffect of the order dated 4.7.2018 passed by this Court.

16. It is apparent that the college was given permission by theOversight Committee of this Court for the session 2016-2017. It was aconditional permission as deficiencies existed at the given time. TheGovernment of India as well as MCI on their own did not grant permissionat any point of time in view of the reports of inspections which wereundertaken time and again during the last three years.

17. The observations made by the High Court that correspondenceby MCI indicated that certain deficiencies have been removed. TheHigh Court has also referred to the website contents of the college tohold the deficiencies of the faculty to be 4-5% i.e., within permissiblelimit. The aforesaid reasonings and exercise done by the High Court isnot in accordance with law. As a matter of fact, when certain deficiencieshave been pointed out and paper compliance thereof has been reportedby the college that cannot by itself be said to be enough and it cannot bepresumed that by reporting paper compliance it can be assumed that infact compliance had been made. Otherwise, it would become easy toreport paper compliance in no time without doing it actually in the hospital/college. As a matter of fact, there has to be actual verification ofauthenticity of such claim in the inspection. Once the compliance reporthas been submitted that has to be verified by making inspection andwhen it has been carried out and various other deficiencies have beenfound, they have to be taken into consideration and could not have beenignored as done by the High Court.

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A18. On the one hand, the High Court has doubted the report ofinspection and for that surprisingly relied on the self-serving contents ofthe website of the college. There is nothing to vouch for the authenticityof the website information. It is not what the institution asserts on websitebut what is actually found on inspection, that has to be considered by thecourt and while exercising judicial review it is settled law that courtBcannot sit in appeal over the report of the assessors as observed inMedical Council of India v. Kalinga Institute of Medical Sciences(KIMS), (2016) 11 SCC 530 thus :

“21. A perusal of the decision of the High Court clearly indicatesthat it considered the latest report of the Inspection Team as if itCwas hearing an appeal against the report. In doing so, the HighCourt went into great details on issues relating to the number ofteaching beds in the hospital, the limitations in the OPD Department,the number of units available in the subjects of General Medicine,Pediatrics etc., bed occupancy, number of Caesarean sections,Ddiscrepancy in data of major and minor operations, computerizationin the institution, number of patients in the ICU, number of staticX-ray machines, deficiency of examination halls, lecture theatres,library, students hostel, interns hostel, playground etc. etc. Surely,this was not within the domain of the High Court in exercise of itsjurisdiction under Article 226 of the Constitution.E

22. The High Court did not appreciate that the inspection wascarried out by eminent Professors from reputed medical institutionswho were experts in the field and the best persons to give anunbiased report on the facilities in KIMS. The High Court underArticle 226 of the Constitution was certainly not tasked to minutelyFexamine the contents of the inspection report and weigh themagainst the objections of KIMS in respect of each of its 18 items.In our opinion, the High Court plainly exceeded its jurisdiction inthis regard in venturing into seriously disputed factual issues.”

19. It was contended on behalf of college that deficiency of facultyGhas been found to be 9% as given in the report of MCI. In fact, therewas no deficiency. Two faculty members were on leave. Theappointments of two more faculty members were under process. Theresidents’ doctors shortage has also been found to be 28.57%. CT scanmachine was stated to be under installation. Bed occupancy was found H

at 10 a.m. at 50%, 32 patients were excluded as they were not genuineas per the assessors for reasons given in the report. Major and minorsurgeries were found to be very less. College contended that patientswere genuine and adequate surgeries were done. Other deficienciesfound on inspection have also been disputed by the college.

20. In our opinion, the contentions are baseless, the deficiency offaculty has been culled out in the inspection report in detail. There wasdeficiency of 9 members of teaching faculty and deficiency of 14 residentdoctors out of a total of 49. Some girls getting engineering educationwere found to be staying in the residents’ hostel. Duty roster of facultyand Residents was not produced till 2.00 p.m. List of faculty and Residentsjoined after the last assessment was not produced. In many wards,demonstration rooms were not functional and non-furnished. It wassubmitted that certain members of faculty reported late on that day andone member suffered fracture and brother of another member was illwho breathed his last on the same day. Even if 2 incumbents on leaveare excluded still there was shortage, 11.00 a.m. time was fixed inguidelines so as to make the assessment. The Faculty Members cametoo late, cannot be a ground to find fault with the report of the assessorswhich has to be undertaken as per norms fixed for them. At the time ofinspection, the Faculty should be present otherwise in a few hours anynumber of members can be arranged, otherwise very purpose ofinspection would be defeated. Be that as it may. Report of the assessorscannot be faulted; the court cannot sit in appeal over it and cannot gointo the disputed facts.

21. In Kanachur Islamic Education Trust (R) v. Union of India& Anr. (2017) 15 SCC 702 it has been observed that affected partyshould be given an opportunity to meet the case effectively and thepassing of just decision supported by reasons is part of fair hearing. It isthe duty of the adjudicator to ensure fairness in procedure and action,the Court observed:

“21. No endeavour whatsoever, in our comprehension, hasbeen made by the Respondents and that too in the face of anunequivocal direction by this Court, to fairly and consummatelyexamine the materials on record in details before recording a finaldecision on the issue of confirmation or otherwise of the LOPgranted to the Petitioner’s college/institution as on 12.09.2016.

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ATrue it is that the Regulations do provide for certain norms ofinfrastructure to be complied with by the applicant college/institution for being qualified for LOP depending on the stagesinvolved. This, however, does not obviate the inalienable necessityof affording a reasonable opportunity of hearing to the person orthe college/institution concerned vis-à-vis the scheme forBestablishment of a college before disapproving the same. Themanner in which the Respondents, in the individual facts of theinstant case, have approached the issue, leads to the inevitableconclusion that the materials on record do not supportdeterminatively the allegation of deficiency, as alleged. TheCRespondents having failed to persuasively establish the saiddeficiencies, as noted in the impugned order dated 10.08.2017,inspite of opportunities available including the one granted by thisCourt, such a determination cannot be sustained in the facts andcircumstances of the case. We are of the considered opinion thatin view of the persistent defaults and shortcomings in the decisionDmaking process of the Respondents, the Petitioner’s college/institution ought not to be penalised. Consequently, on an overallview of the materials available on record and balancing all relevantaspects, we are of the considered opinion that the conditional LOPgranted to the Petitioner’s college/institution on 12.09.2016 forEthe academic year 2016-17 deserves to be confirmed.”

There is no dispute with the aforesaid proposition. However, inthe instant case fair opportunity has been given and the reasons in detailwere mentioned by the assessors and MCI. It was a case of repeatedinspections having been made. In view of deficiencies found permissionFcould not have been accorded for session 2018-19.

22. Yet for another reason we do not propose to interfere. InAshish Ranjan v. Union of India, (2016) 11 SCC 225, this Court hasreferred the time schedule for granting permission etc. under the MCIRegulations by which date admissions etc. are to be granted thus:G“1.(i) These Regulations may be called the ‘Regulations onGraduate Medical Education, 2015.

(ii) They shall come into force from the date of their publication inthe Official Gazette.

2. In the ‘Regulations on Graduate Medical Education, 1997’,HAppendix E shall be replaced as under:

MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE& HOSPITAL [ARUN MISHRA, J.]

A

TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE

Note 1.- All India Quota Seats remaining vacant after last date for joining, i.e. 9th August will be deemed to be converted into state quota.

A2. Institute/college/courses permitted after 31[st] May will not beconsidered for admission/allotment of seats for current academicyear.

3. In any circumstances, last date for admission/joining will not beextended after 31[st] August.”

B

The aforesaid dates are over, as such, in the instant case, it is notpossible to issue directions at this juncture for the session 2018-2019.In view of the deficiencies and the law enunciated by this Court in theaforesaid decisions, the High Court has clearly exceeded its power whileallowing the writ application, passing of repeated interim orders wasCalso not warranted.

23. Thus, unhesitatingly we have no option except to set aside thejudgment and order passed by High Court. At the same time, it would beopen to the college to apply for the next academic year 2019-2020 bydepositing requisite fees etc. Thus, we allow the appeal and set asideDthe judgment and order passed by the High Court.

No costs.

E

Kalpana K. Tripathy

Appeal allowed.

F

G

H