IQ CITY FOUNDATION & ANR. versus UNION OF INDIA & ORS. on 6 February 2018

[2018] 2 S.C.R. 587

IQ CITY FOUNDATION & ANR.

v.

UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 502 of 2017)

FEBRUARY 06, 2018

[DIPAK MISRA, CJI, AMITAVA ROY ANDA. M. KHANWILKAR, JJ.]

Medical Council Act, 1956 – s.10-A – Petitioner-Collegesought renewal of permission for admission of 150 students in MBBScourse for the academic year 2017-2018 – Rejected by firstrespondent vide order dtd. 31.05.2017 – Writ petition filed bypetitioner for quashing of the said order and for issuing a directionto the said respondent to grant the permission sought by Petitioner– In view of the fact that the order passed by the first respondentwas not reasoned, Supreme Court inter alia directed it to afford afurther opportunity of hearing to the petitioner and thereafter takea decision – Petitioner-institution afforded an opportunity ofhearing – First respondent, considering the remarks of the HearingCommittee reiterated its earlier decision dtd. 31.05.2017 not to renewthe permission to admit MBBS students for the academic year2017-18 – Held: Hearing Committee, on verification of every aspect,found that the deficiency of faculty members was 15.9 and thedeficiency of Resident Doctors was 25.88 and, accordingly, it didnot recommend for renewal – First respondent, in its turn, observedthat the deficiency found was not compatible with the MCI guidelines– In such a situation, it is difficult to hold that there was anyperversity in the action of the authorities denying the renewal tothe institution – However, it is directed that the prayer for renewalshall be considered for the year 2018-19 and any bank guaranteethat has been furnished shall be treated as deposit for the inspectionand consideration for the next year, i.e. 2018-19 – Education –Constitution of India – Art.32.

Disposing of the writ petition, the Court HELD: 1.1 The petitioner-institution was afforded anopportunity of hearing by the Hearing Committee. The Central

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AGovernment, considering the remarks of the Hearing Committee,passed an order. The competent authority of the CentralGovernment, considering various aspects, had reiterated theorder. After the remand, the petitioner-institution filed certaindocuments before the Hearing Committee.[Paras 9-11, 13][594-D-E; 595-F-H]

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1.2 The Hearing Committee, on verification of every aspect,found that the deficiency of faculty members was 15.9 and thedeficiency of Resident Doctors was 25.88 and, accordingly, it didnot recommend for renewal. The Central Government, in its turn,observed that the deficiency found by the MCI was not compatibleCwith the MCI guidelines. In such a situation, it is difficult to holdthat there was any perversity in the action of the authoritiesdenying the renewal to the institution. Though the decision ofthe Central Government is approved, yet it is directed that theprayer for renewal shall be considered for the year 2018-19 andDany bank guarantee that has been furnished shall be treated asdeposit for the inspection and consideration for the next year,that is, 2018-19. [Para 15][596-E-H; 597-A-B]

Manohar Lal Sharma v. Medical Council of India andothers (2013) 10 SCC 60 : [2013] 9 SCR 325; MedicalECouncil of India v. Kalinga Institute of MedicalSciences (KIMS) and others (2016) 11 SCC 530 : [2016]4 SCR 403; Royal Medical Trust (Registered) andanother v. Union of India and another (2015) 10 SCC19 – referred to.

Case Law Reference

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CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)GNo. 502 of 2017.

Under Article 32 of the Constitution of India.

Mukul Rohatgi, Ajit Kumar Sinha, Vikas Singh, Sr. Advs., KunalVajani, Nikhil Rohatgi, Pranaya Goyal, Chiranjivi Sharma, AbhirathHThakur, Vipin Kumar, R. K. Rathore, G. S. Makker, Gaurav Sharma, Ms. Amandeep Kaur, Prateek Bhatia, Dhawal Mohan, Advs. for theappearing parties.

The Judgment of the Court was delivered by

DIPAK MISRA, CJI 1. The present writ petition, as thecircumstances would have it, witnesses a second verdict. The first onestwas disposed of by us on 1 August, 2017. At that time, we had notedthe facts to the effect that the petitioners had prayed for issue of a writof certiorari for quashment of the order dated 31.05.2017 passed underSection 10-A of the Indian Medical Council Act, 1956 (for brevity, ‘thestAct”) by the Secretary, Ministry of Health and Family Welfare, the 1respondent herein, and further issue a direction to the said respondent tothgrant permission to the petitioner-College for 4 renewal for the academicthyear 2017-2018 to facilitate admission of the 5 batch (150 students)MBBS Course.

2. The essential facts which have been noted in the earlier judgmentare that the Medical Council of India (MCI) had conducted an inspectionand granted the Letter of Permission (LOP) on 15.07.2013 for theestablishment of the new medical college at Burdwan, West Bengalwith an annual intake of 150 students with effect from the academicyear 2013-14. Vide letters dated 04.07.2014, 10.06.2015 and 15.12.2015,ndstrdnrenewals of permission for the 2rd (1 renewal), 3 (2 renewal) and 4th(3 renewal) batches of MBBS students at the petitioner-College forthe academic years 2014-15, 2015-16 and 2016-17 respectively weregranted by the respondent No. 1. On 06.07.2016, the petitioner-Collegethsubmitted its scheme along with the requisite fees for the 4 renewal forththe academic year 2017-18 which pertains to admission of the 5nd batchof 150 students in MBBS course. On 09.07.2016, the 2 respondentinformed the College that the assessment for renewal of permission forthe academic year 2017-18 would be undertaken by the Assessorsappointed by it at any time after 15.07.2016 and the petitioners wereasked to fill in the Standard Inspection Form A, Form B and DeclarationForm for the academic year 2017-18 and keep them ready for scrutinyat the time of assessment. There was also a direction for submission ofthe soft copies of the said Forms. As averred, the petitioners dulysubmitted a compact disc containing soft copies of Form A, Form B andndDeclaration Form and upon receipt of the necessary documents, the 2respondent constituted a team of Assessors and directed them to carryout the assessment inspection of the College. The inspection team, that A

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Ais, the Assessors, conducted a surprise inspection of the College on03.11.2016 and 04.11.2016. The Assessors pointed out certain deficienciesto the College and noted the same in the assessment report dated04.11.2016. It is put forth that in the Regular Inspection Report, theshortfall in Teaching Faculty and Resident Doctors were only 4.5% and3.50% respectively which were well within the prescribed limit. TwoBother deficiencies that were pointed out, as asserted, were completelyremediable and were duly remedied by the College. On 22.12.2016, theExecutive Committee of the respondent No.2 considered the AssessmentReport of the Assessors and decided to recommend to the respondentthNo.1 not to renew the permission to the College for the 4st renewal forCthe academic year 2017-18. It was also noted that the 1 respondent,by its letter dated 03.02.2017, communicated to the College therecommendation dated 28.01.2017 of the respondent No. 2 forthdisapproving the permission to the College for the 4 renewal for theacademic year 2017-18 and called upon the College to submit a detailedpoint-wise compliance with documentary evidence. The College wasDfurther intimated about the hearing that was to be held on 09.02.2017before the Hearing Committee. A team of representatives of the Collegeappeared before the Hearing Committee on the date fixed and submittedthe compliance report keeping in view the remarks and observationsmade by the Assessors of the respondent No. 2. In the second week ofEMarch, 2017, the petitioners received a copy of the order datedst01.03.2017 issued by the 1 respondent recording the recommendations/order passed by the Hearing Committee of the respondent No. 1 underSection 10-A(4) of the Act. The recommendation of the HearingndCommittee was to the effect that the deficiencies pointed out by the 2Frespondent were not such to warrant disapproval at that stage. Despitestthe aforesaid findings of the Hearing Committee, the 1 respondent,instead of taking a final decision, referred the matter back to therespondent No.2 to review the same in the light of the recommendations/findings of the Hearing Committee along with documents submitted bythe petitioners and to furnish its recommendation.Gnd nd3. On the earlier occasion, it was asserted that the 2 respondent,on 17.03.2017, constituted a team to carry out a Compliance VerificationAssessment of the College. The team of Assessors, instead of carryingout a compliance verification, conducted a regular inspection on21.03.2017 in a random manner and proceeded to make a different kind H

of assessment instead of limiting to their scope of reviewing thecompliance of the remarks/observations of the Hearing Committee. Atthis juncture, it was contended that though the Compliance InspectionReport was submitted, yet the Assessors required the College to submita representation and, accordingly, the College submitted the necessaryrepresentation to the respondent No. 2. The Assessors, as per the standof the petitioners, noted certain deficiencies in their ComplianceVerification. The Executive Committee of the respondent No. 2 held itsmeeting on 28.04.2017 but the minutes of the meeting were not uploadedon the official website of the respondent No. 2 until 29.05.2017 andwere not communicated to the petitioners.

4. On earlier occasion, it was submitted that the petitioner hadstapproached the 1 respondent on 20.5.2017 and submitted a detailedrepresentation with regard to compliance verification of the deficienciesfound by the assessors as pointed by the Respondent No. 2. Despite thestsame, the 1 respondent, vide order dated 31.5.2017, accepted thendrecommendation of the 2th respondent and rejected the scheme ofthpermission for the 4 renewal (Admission of the 5 batch of 150 studentsin MBBS course) for the academic year 2017-2018. It was urged thatthe order dated 31.5.2017 was communicated to the college on 30.6.2017.That apart, it was highlighted that the entire approach of the MCI wascontradictory to the Act and the Establishment of Medical CollegeRegulations, 1999 (for short, ‘the Regulations’) and further when theCentral Government had sent back the matter to the MCI to have arelook at certain aspects, it could not have proceeded for a freshcompliance inspection.

5. The contentions raised by the petitioners were opposed by theMCI. This Court, referring to the decisions in Manohar Lal Sharma v.Medical Council of India and others[1], Medical Council of India v.Kalinga Institute of Medical Sciences (KIMS) and others[2] and RoyalMedical Trust (Registered) and another v. Union of India andanother[3] and thereafter referring to Section 10-A of the Act and theRegulations, opined thus:- “29. On a reading of Section 10-A of the Act, Rules and theRegulations, as has been referred to in Manohar Lal Sharma 1 (2013) 10 SCC 60

2 (2016) 11 SCC 530

3 (2015) 10 SCC 19

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A(supra), and the view expressed in Royal Medical Trust (supra),it would be inapposite to restrict the power of the MCI by layingdown as an absolute principle that once the Central Governmentsends back the matter to MCI for compliance verification and theAssessors visit the College they shall only verify the mentioneditems and turn a Nelson’s eye even if they perceive certain otherBdeficiencies. It would be playing possum. The direction of theCentral Government for compliance verification report should notbe construed as a limited remand as is understood within theframework of Code of Civil Procedure or any other law. Thedistinction between the principles of open remand and limitedCremand, we are disposed to think, is not attracted. Be it clearlystated, the said principle also does not flow from the authority inRoyal Medical Trust (supra). In this context, the objectivity ofthe Hearing Committee and the role of the Central Governmentassume great significance. The real compliant institutions shouldnot always be kept under the sword of Damocles. Stability can beDbrought by affirmative role played by the Central Government.And the stability and objectivity would be perceptible if reasonsare ascribed while expressing a view and absence of reasonsmakes the decision sensitively susceptible.”

6. After so holding, the Court took note of the fact that the orderEpassed by the Central Government is not a reasoned one and in thatbackdrop, this Court directed:- “It is obligatory on its part to ascribe reasons. For the said purpose,we would like the Central Government to afford a furtheropportunity of hearing to the petitioners and also take the assistanceFof the newly constituted Oversight Committee as per the orderdated July 18, 2017 passed by the Constitution Bench in WritPetition (Civil) No. 408 of 2017 titled Amma ChandravatiEducational and Charitable Trust and others v. Union of Indiaand another and thereafter take a decision within two weeks.GNeedless to say, the decision shall contain reasons. We repeat atthe cost of repetition that the decision must be an informed one.”

7. To appreciate the controversy, we may first record the letterdated 21.3.2017 before the order of remand. The said letter written bythe petitioner to the MCI reads thus:- H

“In connection with the above subject I would like to submit thefollowing paragraph for your kind consideration.

rdth1. That during the last MCI inspection held on 3 and 4 Nov2016 our Faculty & Resident deficiency was 2.18 and 3.38respectively. However on 21.03.2017 surprise inspection and dueto their personal commitment they could not come by 11 AM andcould not appear before the assessors.

2. Secondly, the State NEET Post Graduate counseling and theDiplomat in National Board (DNB) counseling in process, manyof the senior and Junior Residents and few faculty members hadgone to KOLKATA for their counseling hence were not able toappear in the inspection conducted on 21.03.2017.

3. Thirdly most of these faculties and residents are working withus since long time and kind of documentary proof for the samecan be submitted, but because of the counseling they were unableto make it.

4. It will not be out of place to mention here that our faculties andresidents had gone to attend medical camps in suburban areas assuch they could not reach by 11 AM to appear before the assessors.

Hence their absence may kindly be considered to offset the facultyand resident deficiency.”

8. Another letter was issued on 10.4.2017. The relevant part ofthe said communication reads thus:- thrd“(3) That for our 4th renewal inspection we were inspected on 3& 4 November 2016 & a subsequent compliance inspection wasstconducted on 21 March, 2017.

st(4) That on 21 March when the surprise compliance inspectionwas conducted, few of our facility & residents were on deputationfor attending our regular Medical camps on the rural areas. Inview of the inspection these facilities & residents were calledback to the hospital & college but by the time they arrived thetime for signing the attendance sheet was over i.e. 11 a.m. Theywere denied signing in the attendance sheet and were notconsidered during the head count which lead to deficiency offaculty and residents – 15.99% and 25.88% respectively, even A

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Athough our deficiency was less than 5% for both categories in therdthinspection held on 3 and 4 November 2016.

nd(5) That on 22 March 2017 we also sent one representationletter along with photograph of few of our medical camps whichwere going on vide letter no IQMC/2016-17/09 dated 21/03/2017.BThe photographs are once again enclosed.

(6) That we are an established running medical college and hospitalwith more than thousand employees working having all the requisiteinfrastructure, faculties and residents and clinical materials as perthe council norms.”

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“Hence, it is requested that our faculty & resident deficiency onthe day of the inspection may kindly be considered sympatheticallythand permission may be accorded to us to admit the 5 batch of150 students and continue our services in Medical Education &DHealth Care Services.”

9. As the facts would show, the petitioner-institution was affordedan opportunity of hearing by the Hearing Committee which, thereafter,recorded the following findings:- “1. On detailed examination of the documents, the deficiency ofEthe faulty still persisting. Hence not acceptable.

2. The shortage of Residents is 25.88% (maximum acceptable is5%).

3. It has been recorded in the Minutes of the MCI meeting thatFthe Assessor resorted to only random checking of OPDs in justthree Departments, namely TB & Respiratory, ENT and PsychiatryDepartment and has arrived at a figure without counting the totalnumber of patients registered in all the Departments, which seemsunreasonable and inaccurate.

4. Student hostel: The college authorities are producing theChartered Architect Certificate on completion and occupancy ofthe hostel (to be verified).

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5. The Anatomy Department had the requisite number of mounted/unmounted specimens on the date of inspection and is being treatedas complied with.

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Conclusion: The deficiency of faculty found by assessor was15.9% and was accepted by the College. The reasons providedby the college for this deficiency are not compatible with MCIguidelines of acceptable leave. Also the deficiency of Residentswas 25.88%. Therefore, renewal is not recommended.”

10. The Central Government, considering the remarks of theHearing Committee, passed an order which is to the following effect:- “10. Now, therefore, in compliance with the above direction ofHon’ble Supreme Court, the Ministry granted hearing to the collegeon 22.08.2017. A Member of the newly constituted OversightCommittee also attended the Hearing Committee meeting. TheHearing Committee submitted its report to the Ministry with thefollowing conclusion:- The deficiency of faculty by assessor was 15.9% and wasaccepted by the College. The reasons provided by the Collegefor this deficiency are not compatible with MCI guidelines ofacceptable leave. Also the deficiency was 25.88%. Therefore,renewal is not recommended.

A copy of the Hearing Committee report containing theirobservations is enclosed.

11. Accepting the recommendations of the Hearing Committee,the Ministry reiterates its earlier decision dated 31.05.2017 not torenew the permission to admit MBBS students at IQ City MedicalCollege, Burdwan for the academic year 2017-18.”

11. Thus, it is demonstrable that the competent authority of theCentral Government, considering various aspects, had reiterated the order.

12. We have heard Mr. Mukul Rohatgi and Mr. P.S. Patwalia,learned senior counsel for the petitioners, and Mr. Ajit Kumar Sinha,stlearned senior counsel for the 1 respondent, and Mr. Vikas Singh, learnedsenior counsel along with Mr. Gaurav Sharma, learned counsel for thend2 respondent, MCI.

13. We may note here with profit that after the remand, thepetitioner-institution filed certain documents before the HearingCommittee on 22.8.2017.

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A14. The petitioner-institution also filed salary slips of the teachingfaculty and salary slips of Senior Resident Doctors and Junior ResidentDoctors before the Hearing Committee. The said documents have alsobeen brought on record. Paragraph 14 of the letter dated 22.8.2017 bythe petitioner-institution to the Secretary, Ministry of Health and FamilyWelfare, Government of India reads as under:-B

“It needs to be mentioned that our Teaching Hospital has receivedaccolades from a team of 7 International Doctors headed by Dr.Partha Sadhu and Dr. Klas Erik Kaspersson of “SMILE” and“INGA-International Foundation” who are carrying out a majorcamp for corrective surgery of Cleft Lip/Cleft Palate in our MedicalCCollege & Hospital from 16[th] August, 2017 to 24[th] August, 2017under the name and style called “OPERATION SMILE”. A totalof 87 corrective surgeries for Cleft Lip and Cleft Palate havealready been performed as of date in our Hospital during the saidperiod. The Operation Smile and INGA International FoundationDhave till date conducted more than 100 such camps and performedmore than 29,000 surgeries, Pan India. The said “SMILE” and“INGA- International Foundation” have issued a letter ofappreciation to our College and Hospital stating that it is rare tofind such outstanding “State-of-the-Art” Medical andinfrastructure facilities.”

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15. That apart, the details of OPD patients between 15.3.2017 to29.3.2017 have also been filed before the Hearing Committee as well asthis Court. The grievance that has been vehemently agitated is that, hadthe Hearing Committee scrutinized the documents and appreciated thestand of the institution in proper perspective, the opinion of the HearingFCommittee would have been quite different and as a corollary, the viewof the Central Government would have been guided in an affirmativeway in favour of the institution. The aforesaid submission, on a firstblush, looks quite attractive but, on a keener scrutiny, pales into totalinsignificance. We are disposed to think so inasmuch as the HearingGCommittee, on verification of every aspect, found that the deficiency offaculty members was 15.9 and the deficiency of Resident Doctors was25.88 and, accordingly, it did not recommend for renewal. The CentralGovernment, in its turn, observed that the deficiency found by the MCIwas not compatible with the MCI guidelines. In such a situation, it isdifficult to hold that there has been any perversity in the action of the H

authorities denying the renewal to the institution. Though we have giventhe stamp of approval to the decision of the Central Government, yet weare inclined to direct that the prayer for renewal shall be considered forthe year 2018-19 and any bank guarantee that has been furnished shallbe treated as deposit for the inspection and consideration for the nextyear, that is, 2018-19. Be it clearly stated, our opinion is restricted to thenon-granting of renewal for the year 2017-18 and not an expression ofopinion with regard to the consideration of the prayer for 2018-19.

16. The writ petition is accordingly disposed of without any orderas to costs.

Divya Pandey

Writ Petition disposed of.

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