MEDICAL COUNCIL OF INDIA versus LORD BUDDHA EDUCATIONAL SOCIETY & ORS. on 9 October 2018

[2018] 12 S.C.R. 923

MEDICAL COUNCIL OF INDIA

v.

LORD BUDDHA EDUCATIONAL SOCIETY & ORS.

(Civil Appeal No.10352 of 2018)

OCTOBER 09, 2018

[ARUN MISHRA AND VINEET SARAN, JJ.]

Establishment of New Medical College Regulations, 1999 –Regulation 8(3)(1)(a) – When attracted – Government of India aftergranting hearing to the College in question, passed order dated14.08.2017 reiterating its earlier decision to debar the college –Writ petition filed by College before Supreme Court – Supreme Courtvide order dated 13.11.2017 directed the Medical Council of India(MCI) to consider the application of College for renewal ofpermission for the academic year 2017-18 to be valid for theacademic year 2018-19 and to process the same in accordance withlaw – MCI again carried out inspection, gross deficiencies werefound and recommended to the Central Government not to grantrenewal of permission for admitting third batch of 150 MBBSstudents for the academic year 2018-19 and also to invokeRegulation 8(3)(1)(a) of the 1999 Regulations – Government ofIndia granted opportunity of hearing to the College and requestedMCI in view of the documents of compliance filed, to consider thesame and to review the decision – College filed writ petition – HighCourt directed MCI to take decision within 5 weeks – OversightCommittee considered the matter and observed that once Regulation8(3)(1)(a) had been invoked, it was impermissible for the Council/Government of India to consider the compliance reported by theCollege – Writ petition filed by College – High Court directed theCentral Government to take decision within 10 days – CentralGovernment vide order dated 31.05.2018 decided not to grantrenewal of permission for admission for the academic year 2018-19 – Writ petition filed by College, allowed by High Court inter aliadirecting the College to submit compliance – On appeal, held:Regulation 8(3)(1)(a) provides that if the deficiencies of teachingfaculty and/or residents are found to be more than 30% and/or bedoccupancy less than 50%, College shall not be entitled to make

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Athem good and compliance of deficiencies will not be consideredfor issuance of letter of permission for same academic year – TheCollege in question was well-aware that in view of the grossdeficiencies found, an opportunity could not have been granted inview of Regulation 8(3)(1)(a) – College had filed successive writapplications in the High Court but did not pray for fresh inspectionBknowing fully well that the MCI and the Oversight Committee haddecided and again reiterated their decision that due to grossdeficiencies found as per Regulation 8(3)(1)(a), complianceverification could not have been made – When Supreme Courtpassed order on 13.11.2017, it was observed that inspection shouldCbe carried out and College should be given an opportunity to makecompliance of deficiencies – In concluding portion it was observedthat the decision has to be in accordance with law – Supreme Courtnever decided the question that in case deficiencies were found tobe gross as contained in Regulation 8(3)(1)(a) whether the saidRegulation has to be ignored – No case for quashing order datedD31.05.2018 made out – Judgment and order passed by the HighCourt set aside.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1.1 In view of the gross deficiencies found, noEcompliance verification could have been made in view ofregulation 8(3)(1)(a). It was already a case of conditionalpermission which was granted subject to removal of deficienciesand in successive inspections, it was found that the college wasnot compliant and had not removed the deficiencies. WhenSupreme Court passed order on 13.11.2017, no doubt about itFwas observed that inspection should be carried out and collegeshould be given an opportunity to make compliance of deficiencies.In concluding portion it was observed that the decision has to bein accordance with law. This court never decided the question incase deficiencies were found to be gross as contained in regulationG8(3)(1)(a) whether the said regulation has to be ignored. Theobservations which were made by this court were obviously basedupon the main provision which requires an opportunity to be givenunless the deficiencies are such which can be termed to be“gross” as contemplated in proviso (a) to regulation 8(3)(1)(a)that has been amended. [Para 23] [942-G-H; 943-A-B]H

1.2 Regulation 8(3)(1)(a) provides that if the deficienciesof teaching faculty and/or residents are found to be more than30% and/or bed occupancy less than 50%, College shall not beentitled to make them good and compliance of deficiencies willnot be considered for issuance of letter of permission for sameacademic year. The College had filed successive writ applicationsin the High Court of Delhi in 2018 but did not pray for freshinspection in terms of the order passed by this Court knowingfully well that the MCI and the Oversight Committee had decidedand again reiterated their decision that due to gross deficienciesfound as per Regulation 8(3)(1)(a), compliance verification couldnot have been made. It was incumbent upon the College to timelypress for the relief of considering compliance which it did notinsist and thereafter it was too late in the day to order it by theHigh Court vide impugned order dated 1.8.2018 passed by theHigh Court even if it was permissible. [Paras 24, 25] [943-C-D]

1.3 What this Court intended by passing the order on13.11.2017 was that the College be inspected afresh for theacademic year 2018-19 but it was not even in contemplation ofthis Court at the time what would be the nature of deficiencies tobe found on fresh inspection. The observation has to beconsidered only with respect to when deficiencies have been foundto be such, more than 30% of faculty and of residents and/or thebed occupancy is less than 50%, no further compliance verificationopportunity has to be given. The decision of this Court cannot betaken to be a decision with respect to it when deficiencies arefound to be gross where the proviso to Regulation 8(3)(1) comesinto play. The decision of this Court was based on the mainprovision that ordinarily an opportunity has to be given toremoving the deficiencies which are removable not falling withinthe aforesaid percentage in Regulation 8(3)(1)(a). Thus, Courtnever intended to bye-pass the provision of Regulation 8(3)(1)(a).It was not ordered that notwithstanding the provision of Regulation8(3)(1)(a), compliance opportunity is to be afforded. A decision isan authority for the question considered and decided. This Courthad not decided the aforesaid aspect nor was it germane as freshinspection had not been carried out by 13.11.2017. Thus, theobservations made by this Court cannot be taken to mean that A

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Athough deficiencies are found to be more than 30% of faculty andresidents and bed occupancy is 50% and notwithstanding theprovisions contained in Regulation 8(3)(1)(a), complianceopportunity should be given. Thus, the High Court has erred inlaw in considering purport of the order of this Court. [Para 26][945-A-E]

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1.4 Considering the nature of the deficiencies that had beenfound on fresh assessment and also the fact that the College hadin fact never been granted clear recognition by the Governmentof India or MCI, it was only on the insistence of the OversightCommittee appointed by this Court that conditional permission C

was granted and gross deficiencies were found. Thus, the Collegewas not entitled to any further indulgence; more so, in view ofRegulation 8(3)(1)(a). No case for quashing order dated 31.5.2018passed by the Government of India had been made out. Thejudgment and order passed by the High Court are thus liable to Dbe set aside. [Paras 27, 28] [945-F, G; 946-A-B]

Medical Council of India & Ors. v. Vedantaa Instituteof Academic Excellence Pvt. Ltd. & Ors. (2018) 7 SCC225 ;Medical Council of India v. Malla Reddy Instituteof Medical Sciences & Ors. Civil AppealENo.4812/2016 decided by Supreme Court on27.04.2016 ;Royal Medical Trust (Registered) & Anr.v. Union of India & Anr.(2015) 10 SCC 19 - referredto.

Case Law Refrence

F(2018) 7 SCC 225 referred toPara 13(2015) 10 SCC 19 referred toPara 24

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10352of 2018

GFrom the Judgment and Order dated 01.08.2018 of the HighCourt of Delhi at New Delhi in Writ Petition (C) No. 6656 of 2018.

Vikas Singh, Sr. Adv., Gaurav Sharma, Prateek Bhatia, DhawalMohan, Amandeep Kaur, Abhishek Srivastava, Advs. forthe Appellant.

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Maninder Singh, ASG, Pradeep Rai, Sr. Adv., J. S. Bhasin, NishantShokeen, T. Mahipal, Sanjai Kumar Pathak, Anmol Chandra, NalinKohli, Ms. Nimisha Menon, G. S. Makker, Advs. for the Respondents.

The Judgment of the Court was delivered by ARUN MISHRA, J. 1. The background of the case indicatesthat the College was established pursuant to the directive issued by theOversight Committee vide letter dated 20.8.2016. The negativerecommendation was made by the MCI to the Government of India.However, in view of the Oversight Committee’s letter dated 20.8.2016,conditional permission was granted by the Government of India to set upa medical college w.e.f. the academic year 2016-17 with an annual intakecapacity of 150 MBBS students. The conditions stipulated that duringthe subsequent inspection if it was found that the College was deficientthen the medical college shall be debarred for two academic years.

2. On 7/8.11.2016, the assessment was carried out by a team ofthe MCI to ascertain whether the College had complied with the conditionsimposed by the Oversight Committee and the Government of India videletter dated 20.8.2016 by removing the deficiencies. On consideration ofthe report of the assessors the Executive Committee of the MCI in itsmeeting held on 22.12.2016 found gross deficiencies in the College andit was observed that the College had failed to remove the deficienciesand to fulfill the conditions imposed and also failed to comply with theundertaking and as such on 26.12.2016 a recommendation was made todebar the College for two years i.e. 2017-18 and 2018-19 and to encashthe bank guarantee of Rs.2 crores furnished by the College.

3. The Government of India on due consideration of therecommendation of the Council made to it, accepted the recommendationand debarred the College for two academic years, and also permittedthe Council to encash the bank guarantee vide order dated 31.5.2017.

4. The College filed W.P. [C] No.1825/2017 in the High Court ofChhattisgarh and it was disposed of vide order dated 3.8.2017. The Courtdirected the Government of India to reconsider the case of the Collegeand decide the representation of the College by a reasoned order. Pursuantthereto, the Government of India again granted an opportunity of hearingto the College and passed a reasoned order on 14.8.2017 and the earlierdecision to debar the college from admitting students and to encash thebank guarantee was reiterated.

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A5. Aggrieved by the order dated 14.8.2017 passed by theGovernment of India, the College filed W.P. [C] No.776/2017 in thisCourt. This Court vide order dated 13.11.2017 directed the MCI toconsider the application for renewal of permission for the academic year2017-18 to be valid for the academic year 2018-19 and to process thesame in accordance with law.B

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6. Thereafter, pursuant to the order passed by this Court on13.11.2017 in the aforesaid writ petition, the Assessors of the MCI againcarried out the inspection on 5/6.12.2017. The report of the Assessorswas placed before the Executive Committee in its meeting held on14.12.2017. Gross deficiencies were found in the College with respectCto infrastructure, clinical material, teaching faculty, and other attendantphysical facilities etc. Hence, the Executive Committee of the Councilrecommended to the Central Government not to grant renewal ofpermission for admitting third batch of 150 MBBS students for theacademic year 2018-19 and also to invoke Regulation 8(3)(1)(a) of theDEstablishment of New Medical College Regulations, 1999 as thedeficiency of ‘teaching faculty’, residents and bed occupancy was foundmuch below the percentage prescribed in the said Regulations so as torenew them in the same academic year. The decision of the ExecutiveCommittee was considered by the Oversight Committee and thereafterthe Council considered the matter and sent its recommendations to theEGovernment of India on 6.1.2018. The Government of India granted anopportunity of hearing as is apparent from communication dated12.2.2018. The Government of India requested the Council in view ofthe documents of compliance filed by the appellant, to consider the sameand to review the decision.

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7. On 23.2.2018 the case of the College was placed before theSub-Committee of the Council in its meeting on 21.2.2018. Regulation18(3)(1)(a) of the Regulations of 1999 had been invoked against theCollege. The matter was then referred to the Oversight Committee videletter dated 23.2.2018. Before the final decision was reached, the CollegeGapproached the High Court of Delhi by filing W.P. [C] No.2022/2018.The High Court vide order dated 6.3.2018 disposed of the petition anddirected the MCI to take a decision within a period of 5 weeks.

8. The Oversight Committee considered the matter and vide letterdated 8.3.2018 approved the decision of the MCI and it was observed H

that once Regulation 8(3)(1)(a) had been invoked, as such it wasimpermissible for the Council/Government of India to consider thecompliance reported by the College.

9. The case of the College was placed before the ExecutiveCommittee of the Council on 24.3.2018. The Executive Committee inview of the decisions of this Court and considering the said Regulationdecided to reiterate the earlier decision to recommend to the CentralGovernment not to grant renewal of permission for the third batch of150 MBBS students for the academic year 2018-19. The decision of theCouncil was communicated to the Oversight Committee on 28.3.2018.Ultimately it was communicated to the Government of India vide letterdated 13.4.2018.

10. Before the Government of India could take the final call, theCollege filed W.P. [C] No.4897/2018 which was decided by the HighCourt vide order dated 8.5.2018 and directed the Central Government totake a decision in the case of the College within a period of 10 days. TheCentral Government after considering the recommendation passed anorder on 31.5.2018 and in view of the gross and serious deficienciesfound in the assessment report, decided not to grant renewal of permissionfor admission for the academic year 2018-19.

11. The College as against order dated 31.5.2018, filed W.P. [C]No.6656/2018. The High Court has allowed the same vide order dated1.8.2018 and has ordered the College to submit compliance and directedthe MCI to conduct an inspection of the College in order to reconsiderthe case for grant of renewal of permission for the academic year inquestion i.e. 2018-19.

12. The High Court has opined that in view of the direction in theorder passed by this Court on 13.11.2017 to grant opportunity to makecompliance and remove deficiencies, ought to have been granted. Thoughthis Court while passing the order did not consider the applicability ofRegulation 8(3)(1)(a), the direction was binding as no clarification wassought from this Court.

13. Shri Vikas Singh, learned senior counsel appearing on behalfof the appellant, has submitted that while this Court decided the matteron 13.11.2017, it was never intended to decide as to the applicability ofRegulation 8(3)(1)(a) as that was dependent upon the outcome of the A

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Ainspection to be made in future and, in ordinary course, an opportunity ofcompliance has to be given, subject to exception contained in the casescovered under the proviso to Regulation 8(3)(1). However, consideringthe nature of the deficiencies which were found in the inspections made,in compliance of the direction issued by this Court on 13.11.2017, it wasopen to take a decision in accordance with law and only in caseBdeficiencies were not so much gross as contemplated under Regulation8(3)(1)(a), an opportunity was required to be given to make complianceand not otherwise. He has relied upon the decisions of this Court inMedical Council of India & Ors. v. Vedantaa Institute of AcademicExcellence Pvt. Ltd. & Ors. (2018) 7 SCC 225 and Medical CouncilCof India v. Malla Reddy Institute of Medical Sciences & Ors. – C.A.No.4812/2016 decided on 27.4.2016.14. Per contra, on behalf of the respondents, it was contendedthat the direction of this Court was clear that an opportunity has to begranted to make compliance and the compliance reported ought to haveDbeen considered. Thus, there is a flagrant violation of the direction issuedby this Court, hence, no case for interference is made out as the order ofthe High Court directs only to comply with the direction issued by thisCourt.

15. What emerges from the factual scenario of the case is thatEthe College had never been granted permission by the MCI. TheGovernment of India was compelled to grant permission on the conditionalbasis that too in view of the direction issued by the Oversight Committee.As there were deficiencies and it was a case of conditional permission,thus deficiencies were required to be removed and thereafter in theinspection that was made in the year 2016 and again in 2017, it wasFfound that the College had not removed the deficiencies and did notfulfill conditions. After the Oversight Committee of this Court decided togrant conditional permission for the academic session 2016-17, theGovernment of India had to accept it as is apparent from thecommunication dated 20.8.2016. It was clearly a conditional permissionGby the Government of India’s order that in case the College was foundto be deficient in complying with conditions then it shall be debarred fortwo academic years. Such conditional permissions are not ordinarily tobe granted while a new College is required to be established. Nonetheless,it was granted in the wake of aforesaid facts and circumstances.

16. Thereafter, an assessment was carried out in view of theconditional permission on 26.12.2016 and serious deficiencies were foundin the College. Thus, a decision was taken by the Government of Indiaon 9.6.2017 to debar the College for 2 years and to encash the bankguarantee. The College filed a writ petition in the High Court ofChhattisgarh. It was directed by the High Court vide order dated 3.8.2017to reconsider and to decide the representation of the College. TheGovernment of India considered the recommendation, granted the hearingand reiterated its earlier decision vide order dated 14.8.2017.

17. Thereafter, a writ petition was filed directly in this Court underArticle 32 of the Constitution of India i.e. W.P. (C] No.776/2017 in whichon 13.11.2017 this Court has passed the following order :

“This writ petition under Article 32 of the Constitution ofIndia has been filed with the following prayers:-

(i) Quashing of the decision dated 14.8.2017 of the Ministry of Healthand Family Welfare, Government of India, directing the petitioner-institute not to admit students in the MBBS Course for the academicyears 2017-18 and 2018-19 and also authorising the respondentno.2-Medical Council of India (MCI) to encash the bank guaranteeof Rs. 2 crores submitted by the petitioner-institute.

(ii) Quashing of the recommendations dated 26.12.2016 made by therespondent no. 2-Medical Council of India (MCI) to the Ministryof Health & Family Welfare, Government of India, in respect ofthe petitioner-institute.

(iii) Issuance of directions to the respondent no.1-Union of India togrant first renewal permission for the academic year 2018-18 interms of the Oversight Committee’s recommendation dated14.5.2017, and also permit the petitioner-institute to admit 150MBBS students for the academic year 2017-18.

(iv) Issuance of directions to the respondent no. 1-Union of India toconfirm conditional Letter of Permission (LOP) in terms of theOversight Committee’s recommendations dated 14.5.2017 anddirections to the respondent no.2 – Medical Council of India notto encash the bank guarantee of Rs.2 crores.

The petitioners have also moved an application for direction(IA No.82637 of 2017), with the same prayer as mentioned atS.No. (iii) above.

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Heard learned counsel for the petitioners, Mr. Maninder Singh,learned Additional Solicitor for the respondent no.1-Union of Indiaand Mr. Gaurav Sharma, learned counsel for the respondent no.2-Medical Council of India.

Having heard learned counsel for the parties and keeping inview the recent decisions of this Court in Royal Medical Trustand Anr. vs. Union of India and Anr., [In WP [C] No.747/2017decided on 12.9.2017], Annai Medical College & Hospital andAnr. vs. Union of India and Anr., [In WP [C] No.525/2017 decidedon 14.9.2017] and Medical Council of India vs. Ananta CharitableEducational Society and Ors., [In SLP [C] No.17732/2017 decidedon 30.10.2017], it is directed that MCI shall allow the studentsadmitted in the petitioner-institute on the basis of conditional LOPfor the academic year 2016-17 to continue their studies. MCIshall send a team for inspection of the petitioner-institute as perschedule for the academic year 2018-19. The application filed bythe institution for the academic year 2017-18 for renewal shall betreated as an application for the academic year 2018-19. Ifdeficiencies are noted by the Inspection Team, the same shall bebrought to the notice of the institution, and it shall be granted libertyto remove the same within a specified time. Thereafter, the mattershall be placed before the Executive Committee of MCI. If anydeficiency is still required to be removed, the same shall be removedby the institution within a specified time, and if the institution is acompliant institution, the request for confirmation of LOP for theacademic year 2016-17 and renewal of permission for the academicyear 2018-19 may be dealt with appropriately.

The Ministry shall take a final decision within one month ofthe receipt of the recommendation from the MCI by taking theassistance of the Hearing Committee as constituted by theConstitution Bench of this Court in Amma Chandravati Educationaland Charitable Trust and Ors. vs. Union of India and Anr. [In WP[C] No.408/2017 decided on 18.7.2017] or other directions in thesaid decision and in accordance with law.

We further direct that until the final decision is taken by theMinistry and communicated to the institution, the Bank Guaranteeoffered by the institution in the sum of Rs.2 crores shall not be encashed by MCI but the institution shall keep the same alive. Ifthe Bank Guarantee has already been encashed by MCI in themeantime, the amount shall be refunded to the institution, whichshall furnish a fresh Bank Guarantee in the like amount to theMCI within two weeks from the date of receipt of the amount.

Mr. Gaurav Sharma learned counsel for the MCI would submitthat the petitioners will be required to pay the inspection fee if it isnot paid, for the inspection to be conducted in terms of this orderfor considering confirmation of LOP for the academic year2016-17 and renewal application for the academic year 2018-19.

In the event, the final decision of the Competent Authority ofthe Central Government is adverse to the institution, it will beopen to the institution to take recourse to such remedies as maybe permissible in law.

We further make it clear that the respondent no.2 shall treatthe renewal application submitted by the institution for the academicyear 2017-18 as having been made for the academic year 2018-19 and process the same in accordance with law with promptitude.

The writ petition and IA No.82637 of 2017 are disposed of inthe above terms, with no order as to costs.”

18. The inspection was carried out on 5/6.12.2017 by the Assessorsof the MCI in which various gross deficiencies were found. It is alsoapparent that the Executive Committee of the MCI after consideringthe assessment report dated 5/6.12.2017 recommended to the Ministryvide its letter dated 6.1.2018 to invoke Regulation 8(3)(1)(a) and therebyto disapprove the application filed on behalf of the College. The saiddecision of the Executive Committee was approved by the OversightCommittee on 3.1.2018. On the aspect of Regulation 8(3)(1)(a), theCollege was granted a hearing on 5.2.2018. On 12.2.2018 the Ministrydirected the MCI to consider the review and to make recommendations.The Sub-Committee of the MCI in its meeting on 21.2.2018 referred thematter to the Oversight Committee to consider the question of whetherverification assessment was required to be carried out.

19. Questioning the decision of the Executive Committee of MCIdated 6.1.2018, the College filed W.P. (C) No. 2022/2018 which wasdisposed of by the High Court of Delhi on 6.3.2018. Following is theorder passed by the High Court :

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A “Learned counsel for the petitioners submits that after therespondent No.2 had issued the impugned order dated 6.1.2018recommending disapproval of the renewal of permission to thepetitioner, respondent No.1 had granted a hearing to the petitioneron 5.2.2018 and upon hearing the petitioners, the respondent No.1had remitted the matter back to respondent No.2 with a requestBto review the application of the petitioner.

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Today, the learned counsel for the petitioner submits that for thepresent, he would be satisfied, if a direction is given to respondentNo.2 to review the case of the petitioner in a time-bound manner.He submits that keeping in view the deadline as laid down underthe Regulations and the decision of the Supreme Court, graveprejudice would be caused in case, the respondents do not take atimely decision.

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Learned counsel for the respondents, who appear on advancenotice, assure the Court that the decision on the review of theDpetitioner’s application will be taken by respondent No.2 within 5weeks in accordance with the Regulations as also the contents ofthe letter dated 13.2.2018 written by respondent No.1 to respondentNo.2.

The present petition is accordingly disposed of binding respondentNo.2 to the statement to decide the petitioner’s application within5 weeks.

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Needless to say that the present order, has been passed withoutprejudice to the rights and contentions of both the parties.

FIn case the petitioners are still aggrieved by any order passed bythe respondents, they may take legal recourse as permissible underlaw.”

It is apparent from the aforesaid order that in spite of the fact thatCollege was aware that in view of Regulation 8(3)(1)(a), fresh inspectionwas not to be carried out in view of the deficiencies found by the AssessorsGand the compliance could not have been considered, the College in theaforesaid writ petition pressed only the prayer for review in a time-bound manner. It did not insist that the compliance should be consideredas per orders of this Court; whereas the provisions of the aforesaidRegulations were already attracted.

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20. The Oversight Committee opined that compliance could nothave been considered in view of the gross deficiencies found as providedin Regulation 8(3)(1)(a), in the following manner, and the decision of theOversight Committee is extracted hereunder:

“In view of the provision of Regulation 8(3)(1)(a) of theEstablishment of Medical College Regulations, 1999 referredabove, wherein it is provided that “compliance of rectification ofdeficiencies from such an institute will not be considered forrenewal of permission in that Academic Year”, it is not permissiblein law for the Council to consider the compliance/representationsubmitted by the College.”

Thereafter the MCI had recommended disapproval of the renewalapplication for the academic year 2018-19.

21. It is apparent from the aforesaid that the petitioner was well-aware that in view of the gross deficiencies found, an opportunity couldnot have been granted in view of Regulation 8(3)(1)(a). The Collegefiled W.P. [C] No.4897/2018 which was decided by the High Court on8.5.2018. Following is the order passed by the High Court :

“Vide the present petition, the petitioners/Institutes have soughtto quash of the decision dated 24[th] March 2018 passed byrespondent no.2, recommending disapproval of the petitioners’application to respondent no.1 for renewal/permission of the thirdbatch of MBBS course (150 seats) for the Academic Year2018-19. The petitioners have also sought issuance of direction torespondent no.2, to accept the Scheme of the petitioners assubmitted for renewal of permission in respect of the aforesaidbatch and if necessary grant an opportunity to furnish complianceverification and, therefore, issue a letter of permission.

At this stage, learned counsel for the petitioners submits thatvide order dated 6[th] March 2018, this Court had recorded theundertaking of respondent no. 2/MCI to decide the petitioners’pending application and forward the same to respondent no.1 withinfive weeks. He submits that till date, the respondent no.1 has notinformed the petitioners about any decision of respondent no.2.

Ms. Arora, who appears on advance notice for the respondentno.1 submits that within ten days of receipt of the recommendations A

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Afrom respondent no.2, the respondent no.1 will pass a final orderdeciding the petitioners’ pending application.

On the one hand, Mr. T.Singhdev, learned counsel forrespondent no.2, submits that its recommendations in respect ofthe petitioners’ application have already been sent to respondentBno.1 on 13[th] April 2018 itself.

In view of the categoric statement made by learned counselfor the respondent no.2 that the recommendations have alreadybeen forwarded on 13[th] April 2018, the respondent no.1 is directedto take a final decision on the petitioners’ application within tendays from today.

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It is made clear that in case the respondent no.1 is still not inpossession of recommendations made by respondent no.2 vide itsorder dated 13[th] April 2018, respondent no.1 would be at liberty toseek immediately a fresh copy of the same from respondent no.2.

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Needless to say that the said final decision taken by respondentno.1, will be communicated to the petitioner who will be free totake legal recourse as permissible under law.

The petition and pending applications are disposed of in theaforesaid terms.”

EIt is apparent from the aforesaid order that the College again didnot insist that fresh inspection should be carried out and it may be permittedto comply with the deficiencies.

22. Pursuant to the direction issued, the Government consideredthe recommendations of the MCI and passed the impugned order onF31.5.2018 disapproving the scheme of the institution and declined to renewthe permission for admission of 150 MBBS students for the academicyear 2018-19. Following deficiencies were noted by the Government ofIndia :

“The Executive Committee of the Council considered theGassessment report (5[th] and 6[th] December 2017) carried out incompliance of the Order dated 13.11.2017 passed by the Hon’bleSupreme Court of India in Writ Petition (C) No.776/2017 filed byLord Buddha Educational Society & Anr. Vs. Union of India &Anr., and noted the following: - H

1. Deficiency of faculty is 21% as detailed in the report.

2. Shortage of Residents is 24.48% as detailed in the report.

3. In respect of Dr. Nitika Jain, morning & evening signatures arenot matching.

4. In respect of Dr. R.W. Kamble, appointment order is as Asst.Prof. of Tb & Chest but has presented as Senior Resident.

5. As many as 27 faculty & residents cannot be considered dueto reasons mentioned in detail in the assessment report.

6. Patients

A. In the department of Gen. Medicine of the 38 patients on 72beds with respective case files, 22 are invalid for UG teachingpurposes because of following reasons: 8 cases of fever withoutany investigative work up or relevant treatment, not actuallyrequiring hospitalization, 9 patients of hypertension without anyinvestigative work up or relevant treatment not requiringhospitalization, 1 patient of acidity not requiring hospitalization, 2patients of acute gastroenteritis without prescription of any IVfluids or relevant investigations and treatment suggesting thatpatient does not have an illness worth hospitalization, 1 patient ofrenal colic without any investigative evidence and relevanttreatment not requiring hospitalization, 1 with vague abdominalpain without any investigations and relevant treatment not requiringhospitalization. Of all these patients, 5 were admitted today andas many as 9 were admitted on 4.12.2017. Surprisingly the datesof admission as recorded on the case files did not match withwhat was told by the patients to the assessor when they wereasked by the assessor as to when they were admitted in thehospital. Many patients could not tell the exact date of admissionand looked up to either staff nurse or Medical Superintendent orthe Doctor or accompanying the assessor. All these observationssuggest non-genuineness of these patients. Admission dischargeregister had no proper entry like a diagnosis for so many cases.This leaves a Total of 16 valid patients to be counted as clinicalmaterial.

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B. In the Department of Pediatrics of the 20 patients on 24beds, 14 are invalid because of following reasons: - 10 beds hadno patients but case files were lying on the bed, 3 patients hadURI without any treatment or even an x-ray. 1 patient was ofUTI without any evidence on case file and any relevant treatment.1 patient Bhisma of operated PUJ was hospitalized for no validreason.

C. In the department of TB & Respiratory Medicine on the 8beds 6 patients were available on beds. Case file of none had anydiagnosis; all were receiving the same treatment in an injectableform asking to show the drugs, they were neither available neitherwith the patient nor in the ward with the sister or in the ward storesuggesting that entire thing is on paper and not genuine.

D. In the Department of Psychiatry on the 8 beds 6 patients wereavailable on beds, case files of none had any diagnosis; all werereceiving the same treatment in injectable form. On asking toshow the drugs, they were neither available neither with the patientnor in the ward with the sister or in the store suggesting thatentire things are on paper and not genuine.

E. In the Department of Dermatology of the 6 patients availableon 8 beds, all 6 had a diagnosis of scabies and appeared to bepersons from destitute homes/old age homes. On asking to showthe drugs being administered, no drug could be shown either withthe patient or with the sister at the nursing station or in the storeof the ward.

F. In the department of Gen. Surgery 42 patients were availableon 90 beds. Following 15 patients are not considered valid forcounting as follows: - 2 patient of UTI without any evidence oninvestigation or treatment not requiring hospitalization. 2 patientsof gastritis not requiring hospitalization. 1 patient Gayatri’s casefile showed the diagnosis of acute appendicitis on the front pageof the case sheet but inside it was written as diabetic foot examof her foot, it was found normal. 1 patient Minakshi’s attendanttold that she had been admitted for not being able to speak but onfile the diagnosis written was Hernia and on examination of thepatient by the assessor, no hernia anywhere was found. 1 patientDurpati was admitted as operated lipoma on 2.12.2017 but on examination by the assessor, no dressing or operated suturedincision or any dressing on the operated lipoma was found.1 patient Sunita Bai was admitted as operated fibroadenoma on2/12/17 but on examination by the assessor, no dressing or operatedsutured incision was found. 1 patient Pacho Bai had the symptomof headache on asking by the assessor but case file showed thediagnosis of Acute Appendicitis. 1 patient Hiteshwari had featuresof vague abdominal pain but diagnosis documented on case filewas lipoma and on examination, there was no lipoma. 1 patientKunj Rani was admitted with the diagnosis of hypertension insurgical ward (not a surgical patient). 1 patient Sridhar was admittedwith multiple joint pains in surgery wad (not a surgical patient).1 patient Lekhroo was admitted with pain elbow in surgery ward(not a surgical patient). 1 patient Chelliya Sahu was admittedwith osteoarthritis in surgery was (not a surgical patient). 1 patientNand Lal was admitted with backache in surgery ward (not asurgical patient).

G. In the department of Orthopedics of the 24 patients admittedon 30 beds, 9 are invalid for following reasons for UG teachingpurposes: - 6 were admitted with lumbar radiculopathy withoutand clinic investigative evidence suggesting they have beenadmitted to show increased count but actually do not have anillness worth hospitalization. They were lying comfortably andwere not prescribed appropriate treatment. 1 patient of claudicationwas admitted in ortho ward. 1 patient of claudication was admittedin Ortho ward. 1 patient of osteoarthritis and 1 of polyarthralgiawere admitted without a clinico-investigative evidence withoutany proper treatment.

H. In the department of ENT 6 patients on 10 beds, which 2 arenot be counted. 1 was admitted with acute pharyngitis withoutany clinical evidence and relevant treatment thus suggesting thatit did not require hospitalization and the other was a cataract patientadmitted in ENT.

I. In the department of OB & GYN, 25 patients were on 40beds. 10 Gynec patients and 15 obstetric patients. They can betaken as valid patients.

AB

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E

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[2018] 12 S.C.R.

A7. Most of the patients in General Medicine, Psychiatry, Skin &VD, Tb & Chest wards appeared to be brought from Destitutehomes/old age homes.

8. In view of the above, Bed occupancy of genuine patients was33% as detailed in the report at 10 a.m. on the day of assessment.

B

9. OPD attendance up to 2 p.m. on the day of assessment asverified by Assessors was 521 against the requirement of 750.

10. PNDT approval is not available for USG machines.

11. OPD: Various sections of OPDs are haphazard and spreadChere and there and are highly disorganized.

12. Data of Radiological & Laboratory investigators as submittedby the Institute appear to be inflated.

13. Casualty: Separate Casualty for O.G. is not available. DisasterTrolley, Crash Cart is not available.

D

14. ICUs: There was NIL patient in ICCU & 1 patient each inSICU, NICU/PICU on the day of assessment.

15. 2 Static X-ray machines are available against the requirementof 3.

E16. Lecture Theaters: Only 2 Lecture Theaters are availableagainst the requirement of 3. Arrangement is not proper as detailedin the report.

17. Students’ Hostels: Accommodation is available for 292 studentsagainst the requirement of 339.

F

18. Residents’ Hostel: Rooms on I floor are not furnished.

19. Anatomy department: Only 5 cadavers are available.

20. RHTC: It is actually a CHC and the Institute is only permittedto use it. The control is not with the Dean. All registers aremaintained by the staff of CHC and not by college staff. ActivitiesGunder National Health Programmes are done by the staff of CHC& not by the staff of the college.

21. UHC: Survey/MCH/Immunization/FP registers are notavailable. Specialists’ visits are not organized.

22. Website: Information uploaded is sketchy as detailed in thereport.

23. MEU: It is not available as per regulations.

24. Other deficiencies as pointed out in the assessment report.

The Executive Committee noted that Regulation 8(3)(1)(a)of the Establishment of Medical College Regulation (Amendment),2010 (Part II), dated 16[th] April 2010 and amended on 18[th] March2016 provides as under: - “8(3)(1) ….

(a) Colleges in the stage of Letter of Permission up to II renewal(i.e. Admission of the third batch)

If it is observed during any inspection/assessment of the institutethat the deficiency of teaching faculty and/or Residents is morethan 30% and/or bed occupancy is <50% (45% in North East,Hilly terrain etc.), compliance of rectification of deficiencies fromsuch an institute will not be considered for issue of Letter ofPermission (LOP)/renewal of permission in that Academic Year.”

In view of the deficiencies as noted above, the ExecutiveChairman of the Council decided to recommend to the CentralGovt. to invoke Regulation 8(3)(1)(a) of the Establishment ofMedical College Regulation, 1999 and disapprove the applicationof the Raipur Institute of Medical Sciences, Raipur, Chhattisgarhunder Chhattisgarh Ayush and Health Sciences University, Raipuru/s 10A of the IMC Act, 1956 for renewal of permission of MBBScourse 3[rd] batch (150 seats) for the academic year 2018-2019.”

The Government of India also considered Regulation 8(3)(1)(a)and the decisions are taken by the Oversight Committee and the MCIwhile passing the aforesaid order. The deficiency of the faculty was21%, shortage of residents was 24.48%, bed occupancy was found tobe 33%, OPD attendance was also found less than the requirement.There were other deficiencies of equipment’s and infrastructure as notedabove. Regulation 8(3)(1)(a) was clearly attracted which is extractedhereunder:

A

B

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G

“8. GRANT OF PERMISSION:

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G

“8. GRANT OF PERMISSION:

(3) (1). The permission to establish a Medical College and admitstudents may be granted initially for a period of one year and maybe renewed on yearly basis subject to verification of theachievements of annual targets. It shall be the responsibility ofthe person to apply to the Medical Council of India for purpose ofrenewal six months prior to the expiry of the initial permission.This process of renewal of permission will continue till such timethe establishment of the Medical College and expansion of thehospital facilities are completed and a formal recognition of theMedical College is granted. Further admissions shall not be madeat any stage unless the requirements of the Council are fulfilled.The Central Government may at any stage convey the deficienciesto the applicant and provide him an opportunity and time to rectifythe deficiencies.

Note: In the above clause, “six months” shall be substitutedby “as per latest time schedule”:

Provided that in respect of—

(a) Colleges in the stage of letter of permission up to IIrenewal (i.e. admission of third batch)

If it is observed during any inspection/assessment of theinstitute that the deficiency of teaching faculty and/or Residentsis more than 30% and/or bed occupancy is <50% (45% in NorthEast, Hilly terrain, etc.), compliance of rectification of deficienciesfrom such an institute will not be considered for issue of letter ofpermission (LOP)/renewal of permission in that academic year.”

23. In view of the gross deficiencies found, no complianceverification could have been made in view of Regulation 8(3)(1)(a). Itwas already a case of conditional permission which was granted subjectto removal of deficiencies and in successive inspections, it was foundthat the College was not compliant and had not removed the deficiencies.When this Court has passed an order on 13.11.2017, no doubt about itthat this Court has observed that inspection should be carried out andCollege should be given an opportunity to make compliance ofdeficiencies. In concluding portion it was observed that the decision has to be in accordance with law. This Court never decided the question incase deficiencies were found to be gross as contained in Regulation8(3)(1)(a) whether the said Regulation has to be ignored. Theobservations which were made by this Court were obviously based uponthe main provision which requires an opportunity to be given unless thedeficiencies are such which can be termed to be “gross” as contemplatedin proviso (a) to Regulation 8(3)(1)(a) that has been amended.

24. The effect the Regulations as well as the decision in RoyalMedical Trust (Registered) & Anr. v. Union of India & Anr. (2015)10 SCC 19 came up for consideration of this Court in Vedantaa (supra).Regulation 8(3)(1)(a) provides that if the deficiencies of teaching facultyand/or residents are found to be more than 30% and/or bed occupancyless than 50%, College shall not be entitled to make them good andcompliance of deficiencies will not be considered for issuance of letterof permission for same academic year. This Court held that complianceverification could not have been ordered in view of Regulation 8(3)(1)(a).The relevant observations in Vedantaa (supra) are extracted hereunder:

“10. Though Regulation 8(3)(1)(a) was challenged in the writpetition filed by Respondents 1 and 2, they did not press the relief.They restricted their challenge to the manner in which the inspectionwas done and for a direction to the appellant-Council to carry outa fresh inspection. The interpretation of Regulation 8(3)(1)(a) bythe High Court is patently erroneous inasmuch as the High Courtdid not take note of the proviso to Regulation 8(3)(1). Without aproper examination of the provision, the High Court fell in error inholding that Regulation 8(3)(1) (a) would be applicable only to theColleges seeking second renewal i.e. admissions of the third batch.Admissions up to the second renewal i.e. admissions to the thirdbatch would fall under Regulation 8(3)(1)(a). In other words, theproviso is not restricted only to second renewal cases. Even thefirst renewal is covered by proviso (a) to Regulation 8(3)(1) asthe language used is “up to second renewal”. We do not see anyconflict between Section 10-A (3) and (4) of the Act on one handand Regulation 8(3)(1)(a) on the other. Regulation 8(3)(1) (a) iscomplementary to Section 10-A of the Act. Fixing minimumstandards which have to be fulfilled for the purpose of enabling amedical College to seek fresh inspection would not be contrary to AB

C

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the scheme of Section 10-A. In fact, Regulation 8(3)(1) providesthat an opportunity shall be given to the Medical College to rectifythe defects. But, the proviso contemplates that certain minimumstandards are to be satisfied i.e. there should not be a deficiencyof teaching faculty and/or residents more than 30 percent and/orbed occupancy should not be less than 50%. This prescription ofstandards for availing an opportunity to seek reinspection is notultra vires either the Regulation or Section 10-A of the Act.

11. On perusal of the material on record, we are of the opinionthat the conclusion reached by the High Court regarding themanner in which inspection was conducted is also not correct.Bed occupancy at 45.30 percent on random verification was theclaim of Respondents 1 and 2. However, the inspection reportshows that out of the required minimum of 300 patients only 3were available at 10.00 am on 25th September 2017. This Courtin Medical Council of India v. Kalinga Institute of Medical Sciences,(2016) 11 SCC 530 has held that medical education must be takenvery seriously and when an expert body certifies that the facilitiesin a medical College are inadequate, it is not for the Courts tointerfere with the assessment, except for very cogent jurisdictionalreasons such as malafide of the inspection team, ex facieperversity in the inspection, jurisdictional error on the part of theM.C.I., etc. The submission relating to the cyclone being a reasonfor the number of patients being less is not acceptable. We are inagreement with the submission made on behalf of the Appellantthat the Resident Doctors are required to be in the hospital at allpoints of time.”

25. It is apparent that the College had filed successive writapplications in the High Court of Delhi in 2018 but did not pray for freshinspection in terms of the order passed by this Court knowing fully wellthat the MCI and the Oversight Committee had decided and againreiterated their decision that due to gross deficiencies found as perRegulation 8(3)(1)(a), compliance verification could not have been made.It was incumbent upon the College to timely press for the relief ofconsidering compliance which it did not insist and thereafter it was toolate in the day to order it by the High Court vide impugned order dated1.8.2018 passed by the High Court even if it was permissible.

26. What this Court intended by passing the order on 13.11.2017was that the College be inspected afresh for the academic year 2018-19but it was not even in contemplation of this Court at the time what wouldbe the nature of deficiencies to be found on fresh inspection. Theobservation has to be considered only with respect to when deficiencieshave been found to be such, more than 30% of faculty and of residentsand/or the bed occupancy is less than 50%, no further complianceverification opportunity has to be given. The decision of this Court cannotbe taken to be a decision with respect to it when deficiencies are foundto be gross where the proviso to Regulation 8(3)(1) comes into play. Thedecision of this Court is based on the main provision that ordinarily anopportunity has to be given to removing the deficiencies which areremovable not falling within the aforesaid percentage in Regulation8(3)(1)(a). Thus, Court never intended to bye-pass the provision ofRegulation 8(3)(1)(a). It was not ordered that notwithstanding theprovision of Regulation 8(3)(1)(a), compliance opportunity is to beafforded. A decision is an authority for the question considered anddecided. This Court had not decided the aforesaid aspect nor was itgermane as fresh inspection had not been carried out by 13.11.2017.Thus, the observations made by this Court cannot be taken to mean thatthough deficiencies are found to be more than 30% of faculty andresidents and bed occupancy is 50% and notwithstanding the provisionscontained in Regulation 8(3)(1)(a), compliance opportunity should begiven. Thus, the High Court has erred in law in considering purport ofthe order of this Court and the ratio of the decision in Vedantaa (supra)was clearly applicable in the case.

27. Considering the nature of the deficiencies that had been foundon fresh assessment and also the fact that the College had in fact neverbeen granted clear recognition by the Government of India or MCI, itwas only on the insistence of the Oversight Committee appointed by thisCourt that conditional permission was granted and gross deficiencieswere found. Thus, the College was not entitled to any further indulgence;more so, in view of Regulation 8(3)(1)(a), that too after the period ofgrant of sanction etc. was over and also the admissions. The High Courthas ignored the academic calendar also. In such facts and circumstances,the fresh inspection could have been directed for the academic year2018-19, and the fresh decision by the Government of India and theMCI.

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946SUPREME COURT REPORTS

A28. Resultantly, we find that no case for quashing order dated31.5.2018 passed by the Government of India had been made out. Thejudgment and order passed by the High Court are thus liable to be setaside and the appeal deserves to be allowed. The judgment and orderare set aside and the appeal is hereby allowed. Parties to bear their owncosts.

B

Divya Pandey

Appeal allowed.

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H