MEDICAL COUNCIL OF INDIA versus THE CHAIRMAN, S. R. EDUCATIONAL AND CHARITABLE TRUST & ANR. on 29 October 2018

[2018] 10 S.C.R. 1039

MEDICAL COUNCIL OF INDIA

v.

THE CHAIRMAN, S. R. EDUCATIONAL AND CHARITABLETRUST & ANR.

(Civil Appeal No. 10372 of 2018)

OCTOBER 29, 2018

[ARUN MISHRA AND VINEET SARAN, JJ.]

Education/Educational Institutions:

Medical Colleges – Denial of renewal permission/recognition – Propriety of – On inspection of colleges by MedicalCouncil of India (MCI) deficiencies found – Government of India/Hearing Committee directed MCI to review the recommendation andconsider the compliance reported – MCI declined to review itsrecommendation – Thereafter Government of India denied renewal/recognition – Writ petition challenging the denial – High Courtquashed the orders whereby permission was declined – Directed toadmit students to the Colleges for academic year 2018-19 – Alsodirected MCI to carry out inspection to verify rectification of thedeficiencies found at the time of earlier inspection – On appeal,held: For effective implementation of provision of s. 10A of MedicalCouncil Act, 1999 Regulations have been made – The Regulationsare binding with respect to availability of teaching faculty,infrastructural and other facilities – With the advancement of thebatches, this requirement becomes more rigorous – Therefore,recommendations made by Hearing Committee to review and considerthe compliance is not binding – Provisions of 8(3)(1)(a) and (b) arebinding upon the Hearing Committee/Government of India andMCI – In case there are gross deficiencies, more than prescribed inthe Regulation, for the concerned batch, then the complianceverification would not be considered in the same year – A decisiontaken by Union of India on the basis of recommendation of an expertbody regarding the inadequacy of facilities cannot be interferedwith lightly – Interference is permissible only when there arejurisdictional errors, ex facie perversity or mala fide – High Courthas gravely erred in law in quashing Government’s order, allowingthe admissions for academic session 2018-19 without there being

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Apermission by Government of India and recommendation of MCI –Such general directions without considering the provisions of theRegulations are illegal and unwarranted and on inspection decisionhas to be taken in accordance with law as per regulations – However,it would be appropriate that MCI and Government of India takedecision at an early date i.e. by the end of February or latest byBMarch and not by the end of the Scheduled date i.e. May –Establishment of Medical Colleges Regulations, 1999 – Regulation8(3)(1)(a) and (b) – Judicial Review.

Allowing the appeals, the Court

CHELD: 1. The Medical Council of India (MCI) has beenestablished in order to streamline the standard of medicaleducation. It has the power to supervise qualification and eligibilitystandards for admissions into medical institutions. [Para 22][1061-E]

DState of Kerala v. T. P. Roshna (1979) SCC 580; MedicalCouncil of India v. State of Karnataka (1998) 6 SCC131 : [1998] 3 SCR 740 – relied on.

2. For effective implementation of provisions of Section 10Aof the Indian Medical Council Act, 1956 requiring priorEpermission from the Central Government for the establishmentof medical colleges, regulations have been made in exercise ofpowers under Section 10A read with Section 33 of the Act.Consequently, the Establishment of Medical CollegesRegulations 1999 are binding with respect to availability ofteaching faculty, infrastructural and other facilities and with theFadvancement of the batches this requirement becomes morerigorous as there is more requirement in the faculty than thecollege is recognized after fulfillment of all the conditions asapparent from the provisions contained in the Regulations. Withthe aforesaid objective, the provisions contained in RegulationG8(3) have been carved out and amended in 2016. In case thereare gross deficiencies, more than prescribed in regulation forthe concerned batch then the compliance verification would notbe considered in the same academic year. [Paras 24-25] [1062- D-G]

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Dr. Preeti Srivastava v. State of Madhya Pradesh & Ors.(1999) 7 SCC 120 : [1999] 1 Suppl. SCR 249 – reliedon.

3. It is apparent from regulation 8(3)(1)(a) of Regulationsof 1999 that in the case of the third batch, if deficiencies ofteaching faculty and/or residents are found to be more than 30%and bed occupancy less than 50%, a college cannot be given anopportunity for compliance in the same year. In the case of the4[th] and 5[th] batch as provided in regulations 8(3)(1)(b), if thedeficiencies of teaching faculty and the residents is more than20% and bed occupancy is less than 65%, such college cannotbe given opportunity of reporting compliance during the sameacademic year. [Paras 14 and 15] [1056-A-B]

4. Considering the deficiencies in case of S.R. EducationalTrust, Regulation 8(3)(1)(a) was attracted. In Al-Azhar MedicalCollege and P. K. Dass Institute of Medical Sciences for 5[th] Batchdeficiencies found by the assessors were gross so as to attractthe provisions contained in amended Regulation 8(3)(1)(b). [Para16] [1056-C]

5. Therefore, the recommendations made by the HearingCommittee to review and to consider the compliance could notbe said to be binding. The provisions of the regulations 8(3)(1)(a)and (b) are binding upon the Hearing Committee/Government ofIndia and the MCI. It is only in a case when a report of theAssessors on the face of it, makes out that the same is incorrect,a reconsideration or review is called for. Otherwise, in the caseof gross deficiency, the yardstick contained in regulation 8(3)(1)(a)or (b) has to be applied by the Hearing Committee, Governmentof India or the MCI, as the case may be. It is not open to theGovernment of India/ MCI or Hearing Committee to depart in afew cases and in some other to take a different stand. They haveto scrupulously observe the provisions of regulations which arebinding on them. [Para 26] [1036-B-D]

Royal Medical Trust (Registered) & Anr. v. Union ofIndia & Anr. (2015) 10 SCC 19; Madha MedicalCollege and Research Institute v. Union of India & Anr.(2017) 15 SCC 791; I.Q.City foundation and Anr. v.Union of India & Ors. (2017) 16 SCC 249 – relied on.

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A6. It is high time for the MCI to ensure its functions welland eradicate all the loop-holes and decide the case within areasonable time and not to lend the colleges in a situation withno legal remedy available once case is decided at the fag end ofthe academic session on 31[st] May. It would be appropriate thatMCI and Government of India take a decision in all the cases atBan early date and not by the end of May 2018. The next academicsession has to commence from first of July of the Gregoriancalendar year as such at least 3-4 months’ time should be availableto seek judicial review of the action or re-inspection, if any, sowarranted by the MCI or Government of India. Once a petitionCis filed and even if in some cases the Court is inclined to grant arelief of re-inspection to a college, but due to the lapse of thetime schedule and the admissions having already been made, itis not considered appropriate to disturb the uniform schedule ofvarious Universities. It would be appropriate that the MCI, aswell as the Government of India, should take a final decision afterDinspection, by the end of February or latest by the end of March.[Para 28] [1063-G-H; 1064-A-B]

Medical Council of India v. Vedantaa Institute ofAcademic Excellence Pvt. Ltd. & Ors. (2018) 7 SCC225; Medical Council of India v. The Principal, KMCTEMedical College, and Anr. (2018) 9 SCC 766 – reliedon.

7. In the case of P.K. Dass Institute of Medical Sciences,as per the Assessors, the bed occupancy was 40.30% i.e. 262patients out of 650 patients which were required. Whereas collegeFclaimed that 493 indoor patients were there at 10.00 am on31.10.2017. There was 80% bed occupancy on 30-31.10.2017and 1.11.2017. The College has drawn support from the websiteportal. Whatever college says is not a gospel truth. There is nocase wherein college does not dispute the report of the AssessorsGand contend that there were no such deficiencies. It is clearlydisputed fact. Firstly, the report of the Assessors cannot be lightlydisbelieved. It is not open to examining the case set up by thecollege as facts found by Assessors are at great variance;secondly, in the judicial review, the report cannot be discardedrelying on data put up by the college on self-serving websiteH

portal. The High Court was right in discarding the explanationoffered by the colleges with respect to deficiencies. Even theHearing Committee with respect to the College did not doubtthe report of Assessors as to bed occupancy. It is not what theinstitution asserts on website but what is actually found oninspection, that has to be considered by the court and whileexercising judicial review it is settled law that court cannot sit inappeal over the report of the assessors. It was also observedthat at the time of inspection faculty should be present barringcertain exceptions otherwise the very purpose of the inspectionwould be defeated. The Report of the Assessors cannot be lightlyfaulted and the court cannot sit in an appeal and go into disputedfacts. There were other deficiencies too but due to the aforesaidgross deficiencies, the provisions of regulations 8(3)(1)(b) wereclearly attracted. [Paras 30-31] [1065-A-D, G-H; 1066-E-F]

Medical Council of India v. N.C. Medical College &Hospital and Ors. 2018 (9) JT 204; Medical Councilof India vs. Kalinga Institute of Medical Sciences(KIMS) & Ors. (2016) 11 SCC 530 : [2016] 4 SCR 403– relied on.

8. A decision taken by the Union of India on the basis of arecommendation of an expert body regarding the inadequacy offacilities in medical colleges cannot be interfered with lightly.Interference is permissible only when the colleges demonstratejurisdictional errors, ex facie perversity or mala fide. It is notopen to the court in judicial review to accept tenuous objectionsas to bed occupancy in the absence of mala fide. [Para 32] [1067-B-C]

Medical Council of India v. The Principal, KMCTMedical College, and Anr. (2018) 9 SCC 766 – relied on.

9. The High Court has gravely erred in law while passingthe impugned judgment and order in quashing Government’sorder, allowing the admissions for the academic session 2018-2019 without there being Government of India’s permission andthe recommendation of the MCI. The High Court has issueddirection for fresh inspection and thereafter the MCI to considerthe report after the grant of opportunity to remove defects if any.

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AFirstly, it could not have issued such a direction in view ofregulations and also the blanket direction that college should bepermitted to remove the deficiencies if any found. Deficienciescan be removed, if found, within the permissible limits as providedin regulation 8(3), not in a case Regulation 8(3)(1)(a) or (b) isattracted. Thus, such kind of general direction issued withoutBconsidering the provisions of the Regulations are wholly illegaland unwarranted and on inspection, the decision has to be takenin accordance with law as per regulations. [Para 33] [1067-C-F]

10. The case of D.M. Education and Research Institute ofMedical Sciences is of recognition and admission. For the purposeCof recognition, the Regulations of 1999 contains the provisionsin Regulation 8(3)(1) wherein the process of renewal of permissionwill continue till such time the establishment of the medical collegeand expansion of the hospital facilities are completed and a formalrecognition of the medical college is granted. Further admissionsDshall not be made at any stage unless the requirements of theCouncil are fulfilled. The Central Government may at any stageconvey the deficiencies to the applicant and provide him anopportunity and time to rectify the deficiencies. It is the stand ofthe MCI also that the matter of recognition is under considerationand shall be considered in terms of said regulation after givingEthe opportunity to make good deficiency. However, with respectto admissions in 2018-19, the recommendation was made not toadmit the students. [Paras 34 and 39] [1068-C-D; 1071-H; 1072-A-B]

11. It was clearly mentioned by the MCI in its letter datedF25.5.2018 that the matter could not be considered for renewal ofpermission for admission for the academic year 2018-2019, butcompliance of the medical college for the purpose of recognition/approval under Section 11(2) of the Act was under considerationof the MCI and compliance verification/assessment andGrecommendations of the MCI would be sent to CentralGovernment in due course of time. The matter was underconsideration before the MCI for recognition, renewal ofpermission for admission had been declined by the MCI on28.5.2018. Thereafter, the Government of India has passed theorder on 31.5.2018 declining admission for 2018-19. [Para 40]H[1072-D-F]

MCI v. CHAIRMAN, S.R. EDUCATIONAL ANDCHARITABLE TRUST

MCI v. CHAIRMAN, S.R. EDUCATIONAL ANDCHARITABLE TRUST

12. In view of the deficiencies of faculty and of bedoccupancy, the decision not to grant permission for admission inthe year 2018-2019 was appropriate. However, the compliancethat had been submitted by the college on 22.5.2018 will beconsidered for the purpose of recognition by the MCI as providedunder the regulation 8(3). Let the MCI consider the matter forthe purpose of recognition duly considering the complianceunfettered by the order passed by the Government of India on31.5.2018. The Government of India also to consider the matterof recognition in accordance with the law. Let the decision betaken by the respondents- MCI and Government of India asexpeditiously as possible. [Para 41] [1072-F-H]

Mridul Dhar v. Union of India (2005) 2 SCC 65 : [2005]1 SCR 380; Priya Gupta v. State of Chhattisgarh (2012)

(7) SCC 433 : [2012] 5 SCR 768 – relied on.

Swamy Devi Dayal Hospital & Dental College v. Unionof India & Ors. AIR 2014 SC 284 : [2013] 14 SCR 105;Priyadarshini Dental College and Hospital v. Union of India& Ors. 2011 AIR SCW 2383 : (2011) 4 SCC 623 : [2011]2 SCR 945; D.M. Education and Research Foundation

v. Union of India [2016 KHC 171] 5 – referred to.

Case Law Reference

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 10372of 2018

From the Judgment and Order dated 30.08.2018 of the HighCourt of Kerala at Ernakulum in W.P. (C) No. 19386 of 2018.

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C.A. Nos. 10373, 10374, 10375 of 2018.

Vikash Singh, Jaideep Gupta, Neeraj Kishan Kaul, HuzefaAhmedi, C. S. Vaidyanathan, Ajit Kumar Sinha, Sr. Advs., GauravSharma, Prateek Bhatia, Abhishek, Dhawal Mohan, Prasanna Mohan,CVishal Arun, G. Prakash, Jishnu M. L., Ms. Beena Prakash, DivyanshuSrivastava, Vivekananda Bomminneni, Varun Mathur, Hario Beeran,Usman Ghani Khan, Pallavi Pratap, Zulfiker Ali P. S, Radha ShyamJena, K. V. Mohan, George Jacob, K. V. Balakrishnan, Anirudh Gupta,Gaurav Sharma, Venkita Subramani T. R., P. Sreekumar, AmitSharma, Raghenth Basant, Mithun Verghis, Advs. for the appearingDparties.

The Judgment of the Court was delivered by ARUN MISHRA, J. 1. The Medical Council of India (for short,“the MCI”) is aggrieved by the judgment and order dated 30.8.2018passed by the High Court of Kerala at Ernakulam. The High Court hasEquashed the order passed by the Government of India declining to grantrenewal permission/ recognition to respondents – medical colleges. TheHigh Court has directed the Commissioner for Entrance Examinations,Government of Kerala to allot students to the colleges for the academicyear 2018-2019 immediately. The MCI has also been directed to carryFout the inspection to verify whether the colleges had rectified thedeficiencies found at the time of earlier inspection. In case they havenot done so, the MCI shall be at liberty to take appropriate action againstthem including the enforcement of the Bank Guarantees. At the sametime, it has been ordered that in case fresh deficiencies are detected, thecolleges shall be given the opportunity to rectify such deficiencies withinGa stipulated time.

2. The High Court has decided the petitions of the four collegesby the common order. Probably, High Court had felt that the question onwhich it decided the matters was common, however, the facts of eachand every college are different, the deficiencies found obviously varies H

and the order of the High Court is subject to further judicial review. Itwould have been appropriate for the High Court to decide the matter byseparate orders duly reflecting the facts of each case and the deficienciesfound. Clubbing of matters in the method and manner it had been donemay indicate non-serious approach. In three of the matters, questionwas that of admissions in the academic session 2018-2019 and in one ofthe matters, the question pertains to the grant of recognition as well asadmissions.

3. The High Court has observed that there are many seriousdeficiencies and the lack of patients would result in a lack of exposureof the students in so far as treatment of patients was concerned. Thedeficiencies, such as lack of teaching faculty, residents, lack of a sufficientnumber of surgical procedures, though, are of nature which would havea serious impact on the quality of education, the explanation offered bythe colleges on the deficiencies has not been found to be genuine toimpress the court. Notwithstanding the aforesaid observations, the HighCourt has proceeded to grant the relief to the medical colleges.

4. The colleges had contended that they had rectified thedeficiencies and the Hearing Committee had recommended the MCI toreview the case. Accordingly, the Central Government had required theMCI to review its earlier stand. However, the Executive Committee ofMCI refused to reconsider its earlier stand in view of the provisionscontained in the Regulations 8(3)(1)(a) of the Establishment of MedicalCollege Regulations, 1999 (for short, “the Regulations”). The MCIdeclined to review the order on the ground that the time for the MCI tosend its recommendations to Central Government had already expiredon 30[th] April 2018 and the schedule was required to be strictly adheredto.

5. The High Court had observed that opportunity of hearing wouldmean to make a representation. Timely assessment is integral to thescheme and such an opportunity is to be given not only when permissionfor the establishment of a new college is under consideration but even incases of subsequent renewal of such permission. The High Court hadreferred to the decisions in Swamy Devi Dayal Hospital & DentalCollege v. Union of India & Ors. AIR 2014 SC 284 and PriyadarshiniDental College and Hospital v. Union of India & Ors., 2011 AIRSCW 2383= 2011 (4) SCC 623. At the time of renewal what is requiredto be considered is whether the prescribed faculty and infrastructure is AB

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Aavailable. There is some difference between the renewal and theparameters prescribed for the establishment. The High Court has reliedupon the decision in D.M. Education and Research Foundation v.Union of India [2016 KHC 171] in which a Division Bench of the HighCourt of Kerala held that the principle of natural justice has to be strictlyadhered to. The stand taken by the MCI had been rejected and it wasBobserved that compliance once reported was required to be considered,thus, the MCI ought to have reconsidered the matter. In the cases, therecommendation to review had not been considered, lack of time couldnot be accepted as an excuse to deny the petitioner the right claimed towhich they were entitled.

C6. It was urged by learned senior counsel for the MCI that theHigh Court has failed to consider the provisions contained in the Regulation8(3)(1)(a) of the Regulations that was attracted in the matter of grant ofrenewal/ recognition. If upon assessment the deficiencies had been foundto be gross as provided in the aforesaid regulation, the college was notDentitled to seek liberty of compliance and further verification in the sameacademic year. The decision of this court in Medical Council of Indiav. Vedantaa Institute of Academic Excellence Pvt. Ltd. & Ors. 2018(7) SCC 225 though referred to in the judgment, has not been discussedbut, the decision of the Division Bench of the High Court has beenpreferred which was contrary to it. Similarly, the decision of this CourtEin Medical Council of India v. The Principal, KMCT MedicalCollege, and Anr. (Civil Appeal No.8429 of 2018) had not been advertedto. In the matter of D.M. Education and Research Foundation (supra)the compliance was reported by the college belatedly on 22.5.2018. Thus,considering the time schedule, it was not possible to make the inspectionFagain for verification of the compliance. Therefore, it was not legallypermissible to grant any relief for the academic session 2018-2019 tothe said college. However, it was the case of recognition where themain provision of regulation 8 (3)(1) was applicable. For recognition, itscase would be considered and admissions can be made only in the nextacademic session i.e. 2019-2020 if permitted.G

7. Shri Neeraj Kishan Kaul, learned senior counsel appearing onbehalf of the two of the colleges contended that when the Governmentof India/Hearing Committee had directed the MCI to review therecommendation and consider the compliance reported, the order wasbinding upon the MCI. It was necessary for the MCI to consider theH

compliance that was reported and to conduct a fresh inspection forassessment, in case, it was so required and thereafter to take decisionafresh. Declining to review the earlier recommendation clearly indicatethat there was non-application of mind and subsequently Government ofIndia erred in accepting the stand of the MCI declining to review andconsider the compliance. Thus, the High Court was fully justified topermit the colleges to admit the students subject to removal of thedeficiencies and liberty has been given to the MCI to inspect the collegesand in case of deficiencies still subsist, to take appropriate action.

8. Mr. C.S. Vaidyanathan, learned senior counsel appearing onbehalf of the respondent college - P.K. Dass Institute of Medical Sciencesvehemently contended that the report of the Assessors was absolutelyincorrect. The website portal of the college clearly indicated the numberof indoor patients occupying the beds in the hospital. The patients weremore than 500. The Assessors had wrongly reported the number ofindoor patients in their report. A large number of patients were in theoperation theatre, bathrooms, and other places. They have been illegallyexcluded. He further contended that somebody is required to considerall these factual aspects. The High Court has also not considered theexplanation offered. At some level, somebody is required to considerthe compliance. Assessors cannot be said to be the final arbiter in suchmatters when the report is ex-facie incorrect as apparent from theexplanation offered by the college. Thus, this court should look in thesame and grant the relief to the college discarding the report of theAssessor.

9. Shri Hufeza H. Ahmedi, learned senior counsel appearing onbehalf of D.M. Education and Research Foundation contended that thecase of the respondent falls for recognition and proviso (a) to Regulation8(3)(1) of Regulations was not attracted. The opportunity of compliancewas required to be given and by not giving opportunity the regulation hasbeen violated. Thus, the decision rendered by the MCI/Government ofIndia cannot be said to be appropriate. The MCI, thus, deserves to bedirected to take a decision afresh in the matter of college in question.No case for interference is made out in the matter of D.M. Educationand Research Foundation as the matter was with respect to therecognition-cum-admission.

10. When we consider the report of the Assessors, in the case ofS.R. Educational and Charitable Trust, the physical inspection was carried AB

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Aout on 6[th] and 7[th] November 2017. The question involved was of 3[rd]Batch of 100 students for the academic year 2018-2019. A large numberof deficiencies were found as observed in the order dated 31.5.2018passed by the Government of India:

1. Deficiency of faculty is 12.64% as detailed in the report.

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2. Shortage of Residents is 15.21 % as detailed in the report.

3. OPD attendance at 2 p.m. on the day of assessment is 575 againstthe requirement of 600.

4. Bed Occupancy at 10 a.m. on the day of assessment is 37%.

5. There was NIL Major Operation on the day of assessment.

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6. There was NIL Normal Delivery on the day of assessment.7.The workload of Histopathology was NIL on the day ofassessment.

8. OPD: Separate Registration counters for male/ female are notDavailable. Registration counters for OPD/ IPD patients are notseparate.

9. Audiometry room is not air-conditioned. Speech Therapy is notavailable.

10. Casualty: Separate Casualty for O.G. is not available.E

11. O.T.s: They are under renovation.

12. ICUs: There was NIL patient in SICU and only 1 patient inICCU and 2 patients each in MICU, PICU/ NICU.

13. Radiodiagnosis department: Only 1 Mobile X-ray machine isFavailable against the requirement of 2. Only 1 Static X-raymachine is available against the requirement of 2.

14. C.T. Scan is not available.

15. CSSD: Receiving and Distribution points are not separate.

16. Central Research Laboratory is not functional.

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17. Lecture Theaters: 2 Lecture Theatres are available against therequirement of 3.

18. Central Library: Students Reading room (Outside) is not furnished.2,968 books are available against the requirement of 3,000.

H19.Central Photography section is not available.

20. Students’ Hostels: They are shared with BDS students.

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21. Residents’ Hostel: It is not available.

22. Residential Quarters: NIL quarters are available for Non-teachingstaff.

23. Pathology department: Audiovisual aids are not available.BSpecimens are not available in the Museum. 4 ServiceLaboratories are not available.

24. Microbiology department: Audiovisual aids are not available. Themuseum is not available. 7 Service Laboratories were notavailable. Media Preparation facility, Autoclaving are not available.

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25. Pharmacology department: Audiovisual aids are not available.The museum is not available. Clinical Pharmacology laboratoryis not available.

26. Forensic Medicine department: Audiovisual aids are not available.Museum is not available. Cold storage is not available. Autopsyblock is under construction.

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27. Community Medicine department: Audiovisual aids are notavailable. Museum is not available. Practical Laboratory is notavailable. It is not furnished.

28. RHTC: Cold chain equipment is not available. Survey/ MCH/Immunization/ FW Register are not available.

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29. CME: There was no CME activity during the year.

30. Other deficiencies are as pointed out in the assessment report.

11. In the matter of Al-Azhar Medical College and Super SpecialtyHospital the Government of India in its order dated 31.5.2018 hasmentioned the deficiencies found by the Assessors in the inspection made,in the matter of renewal of permission for 5[th] Batch of 150 seats inMBBS course for the academic year 2018-2019. The deficienciesmentioned are extracted herein:

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1. Deficiency of faculty is 37.12% as detailed in the report.

2. Shortage of Residents is 100 % as detailed in the report.

3. Residents and Assistant Professors are drawing more salary thanProfessors and HOD. All Senior and Junior Residents have beenappointed with orders mentioning duty hours from 8 am to 4.30pm. Hence, they have not been counted as SR/JR.

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1052SUPREME COURT REPORTS

A4.OPD attendance up to 2 p.m. on the day of assessment is 592against the requirement of 1200.

5. Bed Occupancy at 10 a.m. on the day of assessment was 46.15%.

6. Patients:

(a) In Pediatric wards case sheets of 35 patients shows IVAntibiotics going on but on cross verifying with patients, relativesit was found that no injections were given. Also, none of suchpatients had IV Cannulas inserted hence they were not counted.

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(b) In Pulmonary Medicine Department, female ward 9 patientsChad a diagnosis of COPD, Bronchiectasis, Pneumonia etc. ontaking history and examining the patient, no corroborative clinicalfindings were found. Also, none of the patients had Chest X-rays done. Hence, they were not counted.

(c) In Orthopedics ward, 15 patients with complaints of NeckDPain, Leg pain under evaluation were not counted as they wereasymptomatic also did not have x-rays.

(d) In Ophthalmology female ward, 3 patients were kept with.diagnosis of corneal opacity. On examination, no such findingswere seen. Hence not counted.

E7.There were only 3 Major Operations on the day of assessment.

8. There was only 1 Normal delivery & NIL Caesarean Section onthe day of assessment.

9. Histopathology workload was only 4 & Cytopathology workloadwas 2. F

10. OPD: Plaster Cutting room is not available.

11. Casualty: Separate Casualty or O.G. is not available.

12. ICUs: There was only 1 patient in NICU & 2 patients each inPICU, SICU on the day of assessment. G

13. There was NIL issue of Blood on the day of assessment.

14. Residential Quarters: 24 quarters are available for faculty againstrequirement of 26.

15. Anatomy Department: Band Saw is not available.H

16. Physiology department: Mammalian Laboratory is not available.A

17. RHTC: Cold Chain equipment are not available. Immunization is not available.

18. Dean has refused to sign the assessment report.

The provision contained in Regulation 8(3)(1)(a) of the Regulationhad been invoked by the MCI and the decision had been taken not togrant permission for admission in the academic session 2018-2019.

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12. In the case of P.K. Dass Institute of Medical Sciences,Palakkad, Kerala the matter pertains to the renewal of permission foradmission of 5[th] Batch of 150 seats in MBBS course for the academicyear 2018-2019. On the basis of the report of the Assessors dated 31[st]October & 1[st] November 2017 the matter was considered and followingdeficiencies were noted:

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1. Deficiency of faculty is 9.2% as detailed in the report.

2. OPD attendance up to 2 p.m. is 1,060 against the requirement ofD1,200.

3. Bed Occupancy is 40.60 % at 10 a.m. on the day of assessment.

4. There were only 09 Major Operations on the day of assessment.

5. Central Kitchen: No register is available in the kitchen.

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

13. Regulation 8(3)(1)(b) of the Establishment of Medical CollegeRegulation (Amendment), 2010, had been applied by the MCI as thebed occupancy was less than 65%. As per the MCI, the compliance ofrectification of the deficiencies could not have been considered for renewalof the permission in the same academic year.

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14. Regulation 8(3) is extracted hereinunder:

“8. GRANT OF PERMISSION:

(1) The Central Government, on the recommendation of theCouncil for Letter of Permission, may issue a letter to set up anew medical college with such conditions or modifications in theoriginal proposal as may be considered necessary. This lettercan also include a clear-cut statement of preliminary requirementsto be met in respect of buildings, infrastructural facilities, medical G

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and allied equipment’s, faculty and staff before admitting thefirst batch of students. The formal permission may be grantedafter the above conditions and modifications are accepted andthe performance bank guarantee for the required sums arefurnished by the person and after consulting the Medical Councilof India.

(2) The formal permission may include a time-bound programfor the establishment of the medical college and expansion ofthe hospital facilities. The permission may also define annualtargets as may be fixed by the Council to be achieved by theperson to commensurate with the intake of students during thefollowing years.

The following shall be added:

8(3)(1). The permission to establish a medical college and admitstudents may be granted initially for a period of one year andmay be 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 purposeof renewal six monthsprior to the expiry of the initial permission.This process of renewal of permission will continue 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 thedeficiencies to the applicant and provide him an opportunity andtime to rectify the deficiencies.

8(3)(1)(a) Colleges in the stage of Letter of Permission up to IIrenewal (i.e.) Admission of the 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% inNorth East, Hilly Terrain, etc.) compliance of rectification ofdeficiencies from such an institute will not be considered forissue of Letter of Permission (LOP)/ renewal of permission inthat Academic Year.)

(b) Colleges in the stage of III & IV renewal (i.e. Admission offourth & fifth batch).

If it is observed during any inspection of the Institute thatthe deficiency of teaching faculty and/ or Residents is more than20% and/ or bed occupancy is <65%, compliance of rectificationof deficiencies from such an institute will not be considered forrenewal of permission in that Academic Year.

(c) Colleges which are already recognized for award ofM.B.B.S. degree and/ or running Postgraduate courses.

If it is observed during any inspection/ assessment of theinstitute that the deficiency of teaching faculty and/ or Residentsis more than 10% and/ or bed occupancy is < 70%, complianceof rectification of deficiency from such an institute will not beconsidered for issue of renewal of permission in that AcademicYear and further such an institute will not be considered forprocessing applications for Postgraduate courses in that AcademicYear and will be issued show-cause notices as to why therecommendations for withdrawal of recognition of the coursesrun by that institute should not be made for undergraduate andpostgraduate courses which are recognized u/s 11(2) of the IMCAct, 1956 along with direction of stoppage of admissions inpermitted postgraduate courses.

8(3)(1)(d): However, the office of the Council shall ensure thatsuch inspection are not carried out at least 2 days before and 2days after important religious and festival holidays declared bythe Central/ State Government.”

(2) The recognition so granted to an Undergraduate Course foraward of MBBS degree shall be for a maximum period of 5years, upon which it shall have to be renewed.

(3) The procedure for ‘Renewal’ of recognition shall be same asapplicable for the award of recognition.

(4) Failure to seek timely renewal of recognition as required insubclause (a) supra shall invariably result in stoppage of admissionsto the concerned Undergraduate Course of MBBS at the saidinstitute.”

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AIt is apparent from the aforesaid regulation that in the case of thethird batch, deficiencies of teaching faculty and/or residents are foundto be more than 30% and bed occupancy less than 50%, a college cannotbe given an opportunity for compliance in the same year.

15. In the case of the 4[th] and 5[th] batch as provided in regulationsB8(3)(1)(b), if the deficiencies of teaching faculty and the residents ismore than 20% and bed occupancy is less than 65%, such college cannotbe given opportunity of reporting compliance during the same academicyear.

16. Considering the aforesaid deficiencies in case of S.R.CEducational Trust, Regulation 8(3)(1)(a) was attracted. In Al-AzharMedical College and the college at Palakkad for 5[th] Batch deficienciesfound by the assessors were gross so as to attract the provisions containedin amended Regulation 8(3)(1)(b).

17. Regulation 8(3)(1)(a) came up for consideration in the case ofDVedantaa Institute (supra) and while upholding vires of the provisions,precluding opportunity of re-verification, this court has observed:

“10. Though Regulation 8(3)(1)(a) was challenged in the WritPetition filed by Respondent No. 1 and 2, they did not press therelief. They restricted their challenge to the manner in which theEinspection was done and for a direction to the Appellant-Councilto carry out a fresh inspection. The interpretation of Regulation8(3)(1)(a) by the High Court is patently erroneous in as much asthe High Court did not take note of the proviso to Regulation8(3)(1). Without a proper examination of the provision, the HighCourt fell in error in holding that Regulation 8(3)(1)(a) would beFapplicable only to the Colleges seeking second renewal i.e.admissions of the third batch. Admissions up to the secondrenewal i.e. admissions to the third batch would fall underRegulation 8(3)(1)(a). In other words, the proviso is not restrictedonly to second renewal cases. Even the first renewal is coveredGby proviso (a) to Regulation 8(3)(1) as the language used is “upto second renewal”. We do not see any conflict between Section10-A (3) and (4) of the Act on one hand and Regulation 8(3)(1)(a)on the other. Regulation 8(3)(1) (a) is complementary to Section10-A of the Act. Fixing minimum standards which have to befulfilled for the purpose of enabling a medical College to seek H

fresh inspection would not be contrary to the scheme of Section10-A. In fact, Regulation 8(3)(1) provides that an opportunityshall be given to the Medical College to rectify the defects. But,the proviso contemplates that certain minimum standards are tobe satisfied i.e. there should not be a deficiency of teachingfaculty and/or residents more than 30 percent and/or bedoccupancy should not be less than 50 percent. This prescription-of standards for availing an opportunity to seek reinspection isnot ultra 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 Respondent No. 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 Kalinga (supra) 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 arein agreement with the submission made on behalf of theAppellant that the Resident Doctors are required to be in thehospital at all points of time.”

18. In Medical Council of India vs. Principal, KMCT MedicalCollege and Anr. (Civil Appeal No.8429 of 2018) decided on August21, 2018, this Court has again considered the provisions of Regulations8(3)(1)(a) and the applicability of clause 8(3)(1)(c) and the submissionraised on the strength in Royal Medical Trust (Registered) & Anr. v.Union of India & Anr. 2015 (10) SCC 19. This Court after consideringthe decision in Madha Medical College and Research Institute v.Union of India & Anr. 2017 (15) SCC 791 and I.Q. City Foundationand Anr. v. Union of India & Ors. 2017 (16) SCC 249 observed thatthe recommendation of the Hearing Committee at best had the force of A

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Aobservation for conducting the review. Physical verification of compliancecan be done only by the MCI. The manner of verification of the compliancehas to be necessarily left to the appellant-MCI. The Court observed:

“14. The conclusion of the High Court that a second inspectionought not to have been conducted by the MCI is contrary to thelaw laid down by this Court in the judgments referred to supra.We are also not in agreement with the High Court that the MCIwas bound to comply with the direction issued by RespondentNo.2 and that a recommendation ought to have been made bythe Appellant without verification. It is relevant to note that theHearing Committee was prima facie convinced that thedeficiencies pointed out in the inspection conducted on 18th/19thSeptember 2017 appeared to have been rectified on the basis ofdocumentary evidence furnished by the College. Therefore, theHearing Committee suggested that the Appellant may reviewand make a revised recommendation without any need forcompliance verification.On the basis of such recommendationof the Hearing Committee, the matter was sent back to theAppellant by Respondent No.2. At best, the observation of theHearing Committee, as affirmed by Respondent No.2, is asuggestion.Remand of the matter to the Appellant -MCI forconducting a review is due to the fact that the physical verification B

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for compliance can be done only by the Appellant - MCI. Themanner of verification of the compliance has to be necessarilyleft to the Appellant -MCI.We are of the view that it is open tothe Appellant to choose the manner of compliance verification.Remand by the Government of India to MCI for a review does not place any restriction of verification to only the deficienciespointed out earlier. MCI is competent to conduct the inspectionregarding the compliance of the minimum standards as prescribedby the Regulations as well.”

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G19. In Royal Medical Trust (supra), the Court observed that whenverification is required, it should be before deadline fixed for taking adecision:

“31. ... ... ... (A) Initial assessment of the application at the firstlevel should comprise of checking necessary requirements such H

as essentiality certificate, consent for affiliation and physicalfeatures like land and hospital requirement. If an applicant failsto fulfil these requirements, the application on the face of it, wouldbe incomplete and be rejected. Those who fulfill the basicrequirements would be considered at the next stage. (B) Theinspection should then be conducted by the Inspectors of MCI.By very nature, such inspection must have an element of surprise.Therefore sufficient time of about three to four months ought tobe given to MCI to cause inspection at any time and suchinspection should normally be undertaken latest by January.Surprise inspection would ensure that the required facilities andinfrastructure are always in place and not borrowed or put intemporarily. (C) Intimation of the result or outcome of theinspection would then be communicated. If the infrastructureand facilities are in order, the medical college concerned shouldbe given requisite permission/renewal. However, if there are anydeficiencies or shortcomings, MCI must, after pointing out thedeficiencies, grant to the college concerned sufficient time toreport compliance. (D) If compliance is reported and the applicantstates that the deficiencies stand removed, MCI must causecompliance verification. It is possible that such compliance couldbe accepted even without actual physical verification but thatassessment be left entirely to the discretion of MCI and theCentral Government. In cases where actual physical verificationis required, MCI and the Central Government must cause suchverification before the deadline. (E) The result of such verificationif positive in favour of the medical college concerned, the applicantought to be given requisite permission/renewal. But if thedeficiencies still persist or had not been removed, the applicantwill stand disentitled so far as that academic year is concerned.”

20. There can be a statutory prohibition on fresh inspection. Samehas been created by amending regulation of 1999 in 2016. In MadhaMedical College and Research Institute (supra) this Court has observed:

“17. While considering the above submissions, we must make itclear at the outset that we are not impressed with the argumentthat MCI is prohibited from conducting a second or subsequentinspection. The purpose of inspection by an expert team of AB

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assessors is to verify whether a medical college has the requisiteinfrastructure and facilities including faculty, residents as well asclinical and nonclinical material. The basic purpose of theinspection is to verify whether the college possesses thewherewithal and resources to provide a quality legal educationconsistent with the statutory regulations which hold the field.The powers of MCI cannot be constricted by prohibiting it fromcarrying out another inspection, even if it were to come close onthe heels of an earlier inspection. As an expert statutory body,MCI may have legitimate reasons for seeking a reverification ofthe observations contained in a prior inspection. There may bereasons to doubt the genuineness of the picture which has beenmade out by the College during the course of an inspection. MCImay have prima facie reasons to believe that the actual possessionof resources and infrastructure is at variance with what wasportrayed before its team of assessors. MCI has been conferredwith statutory powers to protect the cause of medical education.MCI is a custodian of public interest and acts in trust for thewelfare of society. Access to medical care requires the presenceof qualified health professionals. Verification of the conditionswhich prevail in medical colleges is central to the role dischargedby MCI. Hence, it would be manifestly contrary to public interestto restrict the powers of MCI to carry out a fresh inspectioneven though in its considered decision, such an inspection isnecessary. This Court cannot sit in judgment over the wisdom ofan expert body and we find no basis to hold in law that there is aprohibition in carrying out a fresh inspection. In the absence of astatutory interdict, the court will not read such a restriction intothe powers of MCI. In these circumstances, we find no merit inthe submission.”

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21. In I.Q. City Foundation vs. Union of India (supra) the CourtGhas emphasized ‘objectivity’ in the decision-making process, it observed:

“31. On a reading of Section 10-A of the Act, Rules andthe Regulations, as has been referred to in Manohar Lal Sharma[Manohar Lal Sharma v. Medical Council of India, (2013) 10SCC 60: 6 SCEC 578], and the view expressed in Royal MedicalTrust [Royal Medical Trust v. Union of India, (2015) 10 SCC 19:

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7 SCEC 429], it would be inapposite to restrict the power of theMCI by laying down as an absolute principle that once the CentralGovernment sends back the matter to MCI for complianceverification and the assessors visit the college they shall onlyverify the mentioned items and turn a Nelson’s eye even if theyperceive certain other deficiencies. It would be playing possum.The direction of the Central Government for complianceverification report should not be construed as a limited remandas is understood within the framework of Code of Civil Procedureor any other law. The distinction between the principles of openremand and limited remand, we are disposed to think, is notattracted. Be it clearly stated, the said principle also does notflow from the authority in Royal Medical Trust [Royal MedicalTrust v. Union of India, (2015) 10 SCC 19 : 7 SCEC 429] . In thiscontext, the objectivity of the Hearing Committee and the role ofthe Central Government assume great significance. The realcompliant institutions should not always be kept under the swordof Damocles. Stability can be brought by affirmative role playedby the Central Government. And the stability and objectivity wouldbe perceptible if reasons are ascribed while expressing a viewand absence of reasons makes the decision sensitivelysusceptible.”

22. The MCI has been established in order to streamline thestandard of medical education. It has the power to supervise qualificationand eligibility standards for admissions into medical institutions, asobserved in State of Kerala vs. T.P. Roshna (1979) SCC 580:

“The Indian Medical Council Act, 1956 has constituted theMedical Council of India as an expert body to control theminimum standards of medical education and to regulate theirobservance. Obviously, this high-powered Council has power toprescribe the minimum standards of medical education. It hasimplicit power to supervise the qualifications or eligibility standardsfor admission into medical institutions. Thus, there is an overallinvigilation by the Medical Council to prevent sub-standardentrance qualifications for medical courses.”

23. In Medical Council of India vs. State of Karnataka 1998(6) SCC 131 the Court observed that the country does not want a half-baked medical professional to come out of the medical colleges. The AB

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Acollege should be well equipped with faculty and competent doctors.The Court has observed:

“A medical student requires grueling study and that can bedone only if proper facilities are available in a medical collegeand the hospital attached to it has to be well equipped and theBteaching faculty and doctors has to be competent enough thatwhen a medical student comes out, he is perfect in the scienceof treatment of human beings and is not found wanting in anyway. The country does not want half-baked medical professionalscoming out of medical colleges when they did not have full facilitiesof teachings and were not exposed to the patients and theirCailments during the course of their study. ………”

The Court has further observed that the regulations of the MCIare binding and mandatory. There cannot be any contrary Stateenactment. The said view was affirmed by this Court in Dr. PreetiSrivastava v. State of Madhya Pradesh & Ors. 1999 (7) SCC 120.D

24. For effective implementation of provisions of Section 10 A ofthe Indian Medical Council Act, 1956 (for short, “the Act”) requiringprior permission from the Central Government for the establishment ofmedical colleges, regulations have been made in exercise of powersunder Section 10 A read with Section 33 of the Act.

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25. Consequently, the regulations of 1999 are binding with respectto availability of teaching faculty, infrastructural and other facilities andwith the advancement of the batches this requirement become morerigorous as there is more requirement in the faculty than the college isrecognized after fulfillment of all the conditions as apparent from theFprovisions contained in the Regulations. With the aforesaid objective,the provisions contained in Regulation 8(3) have been carved out andamended in 2016. In case there are gross deficiencies, more thanprescribed in regulation for the concerned batch then the complianceverification would not be considered in the same academic year.GRegulation 8(3)(1)(a) shall be applicable to an institution which has beenestablished and is at the stage of second renewal of permission and incase deficiency of faculty and/or residents are found more than 30%and/or bed occupancy is found less than 50%, institute shall not be givenopportunity to rectify such deficiency in same academic year. In casediscrepancies are less, then the opportunity is afforded to makeHcompliance. In the case of recognition, an opportunity of compliance has to be given as per Regulation 8(3)(1), once recognition is denied noadmissions can be made.

26. Considering the aforesaid provisions and the deficiencies foundin the case of the aforesaid three medical colleges, we are of theconsidered opinion that the recommendations made by the HearingCommittee to review and to consider the compliance could not be saidto be binding. The provisions of the regulations 8(3)(1)(a) and (b) arebinding upon the Hearing Committee/Government of India and the MCI.It is only in a case when a report of the Assessors on the face of it,makes out that the same is incorrect, a reconsideration or review iscalled for. Otherwise, in the case of gross deficiency, the yardstickcontained in regulation 8(3)(1)(a) or (b) has to be applied by the HearingCommittee, Government of India or the MCI, as the case may be. It isnot open to the Government of India/ MCI or Hearing Committee todepart in a few cases and in some other to take a different stand. Theyhave to scrupulously observe the provisions of regulations which arebinding on them.

27. It is unfortunate that the High Court has made a passingreference to the decision of this Court in Medical Council of India v.Vedantaa Institute of Academic Excellence Pvt. Ltd. & Ors. (supra)and Medical Council of India v. The Principal, KMCT MedicalCollege, and Anr. (supra). It was incumbent upon the High Court inpith and substance to follow the mandate of Vedantaa Institute ofAcademic Excellence Pvt. Ltd. & Ors. (supra). The High Court hasrelied upon other judgments which were not based upon the considerationof the amended provisions of the regulation 8(3)(1). It could not haverelied upon its own decision of the Division Bench in D.M. Educationand Research Foundation v. Union of India (supra) which was clearlycontrary to the aforesaid decisions of this Court.

28. It is high time for the MCI to ensure its functions well anderadicate all the loop-holes and decide the case within a reasonable timeand not to lend the colleges in a situation with no legal remedy availableonce case is decided at the fag end of the academic session on 31[st]May. We are constrained to observe that it would be appropriate thatMCI and Government of India take a decision in all the cases at an earlydate and not by the end of May 2018. The next academic session has tocommence from first of July of the Gregorian calendar year as such atleast 3-4 months’ time should be available to seek judicial review of the AB

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Aaction or re-inspection, if any, so warranted by the MCI or Governmentof India. We find that once a petition is filed and even if in some caseswe are inclined to grant a relief of re-inspection to a college, but due tothe lapse of the time schedule and the admissions having already beenmade, it is not considered appropriate to disturb the uniform schedule ofvarious universities. In our opinion, it would be appropriate that theBMCI, as well as the Government of India, should take a final decisionafter inspection, by the end of February or latest by the end of March.

29. Now, we consider the submission raised by Mr. C.S.Vaidyanathan in the case of P.K. Dass Institute of Medical Sciences inregard to the correctness of the report of the Assessors as to theCoccupancy of the bed, wherein bed occupancy had been found to be40.60% at 10.00 am on the date of the inspection held on 31 Octoberand 1[st] November, 2017 for the purpose of renewal of permission foradmission of fifth batch of 150 seats in MBBS Course or 2018-2019.The provisions contained in Regulation 8(3)(1)(b) had been applied.DThe Executive Committee on 16.01.2018 considered the representationsdated 5.1.2018 submitted by the college, forwarded to it by the Ministry.The Hearing Committee had observed that attendance was counted till2.00 p.m. the college has explained the deficiency of faculty and deficiencyof attendance in OPD, however, it was observed that the submission ofthe college regarding bed occupancy was not entirely satisfactory. TheEcase was referred to the MCI for review including considering theimposition of Regulation 8(3)(1)(b). After considering the recommendationdecision was taken by the MCI, as the aforesaid regulation was applicable,the decision was taken not to renew the permission for admission of 5[th]Batch of MBBS course.F

30. It was further contended on behalf of the college that theperformance of the students and result of the examination was extremelygood and bed occupancy was more as shown on the college website.With respect to the bed occupancy, it was reported by the Assessor thatthere were 262 patients out of 650 required beds at 10.00 am on the firstGday. It was submitted by the learned senior counsel that there wereapproximately 500 patients admitted as indoor patients as apparent fromthe web portal of the college in question thus, the report of the Assessorswas absolutely incorrect and this aspect should be looked into by thisCourt. It was contended that the Assessors had counted patients availableon the beds at that time. Assessors did not count patients who wereH

under investigation procedures and operation theatre and those who werein the washrooms, pantry etc. As per the Assessors, the bed occupancywas 40.30% i.e. 262 patients out of 650 patients which were required.Whereas college claimed that 493 indoor patients were there at 10.00am on 31.10.2017. There was 80% bed occupancy on 30-31.10.2017and 1.11.2017. The learned senior counsel has drawn support from thewebsite portal.

31. We have no hesitation in rejecting the submission as it has nolegs to stand. Whatever college says is not a gospel truth. There is nocase wherein college does not dispute the report of the Assessors andcontend that there were no such deficiencies. It is clearly disputed fact.Firstly, the report of the Assessor cannot be lightly disbelieved. It is notopen to examining the case set up by the college as facts are found byAssessors are at great variance secondly, in the judicial review, the reportcannot be discarded relying on data put up by the college on self-servingwebsite portal. In our view, the High Court was right in discarding theexplanation offered by the colleges with respect to deficiencies. Eventhe Hearing Committee with respect to P.K. Dass Institute of MedicalSciences did not doubt the report of Assessors as to bed occupancy.This Court has considered the value of a website portal and such objectionsin Medical Council of India v. N.C. Medical College & Hospitaland Ors. (Civil Appeal No.9519 of 2018) decided on 13.9.2018 in whichthe decision of Medical Council of India vs. Kalinga Institute ofMedical Sciences (KIMS) & Ors. 2016 (11) SCC 530 has been referredto. The Court observed:

“18. On the one hand, the High Court has doubted the report ofinspection and for that surprisingly relied on the self-servingcontents of the website of the college. There is nothing to vouchfor the authenticity of the website information. It is not what theinstitution asserts on website but what is actually found oninspection, that has to be considered by the court and whileexercising judicial review it is settled law that court cannot sit inappeal over the report of the assessors asobserved in MedicalCouncil 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 ifit was hearing an appeal against the report. In doing so, the AB

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High Court went into great details on issues relating to thenumber of teaching beds in the hospital, the limitations in theOPD Department, the number of units available in the subjectsof General Medicine, Pediatrics etc., bed occupancy, numberof Caesarean sections, discrepancy in data of major and minoroperations, computerization in the institution, number of patientsin the ICU, number of static X-ray machines, deficiency ofexamination halls, lecture theatres, library, students hostel,interns hostel, playground etc. etc. Surely, this was not withinthe domain of the High Court in the exercise of its jurisdictionunder Article 226 of the Constitution. 22. The High Court didnot appreciate that the inspection was carried out by eminentProfessors from reputed medical institutions who were expertsin the field and the best persons to give an unbiased report onthe facilities in KIMS.The High Court under Article 226 ofthe Constitution was certainly not tasked to minutely examinethe contents of the inspection report and weigh them againstthe objections of KIMS in respect of each of its 18 items. Inour opinion, the High Court plainly exceeded its jurisdiction inthis regard in venturing into seriously disputed factual issues.”

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EIt was also observed that at the time of inspection faculty shouldbe present barring certain exceptions otherwise the very purpose of theinspection would be defeated. The Report of the Assessors cannot belightly faulted and the court cannot sit in an appeal and go into disputedfacts. There were other deficiencies too but due to the aforesaid grossdeficiencies, the provisions of regulations 8(3)(1)(b) were clearlyFattracted.

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32. In Medical Council of India v. The Principal, KMCTMedical College (supra) it was contended that the inspection was notproperly conducted. The submission had been rejected thus:

“15. We do not deem it necessary to deal with the submissionmade on behalf of the College regarding the inspection not beingproperly conducted. This Court has repeatedly said that a decisiontaken by the Union of India on the basis of a recommendation ofan expert body regarding the inadequacy of facilities in medicalcolleges cannot be interfered with lightly. Interference ispermissible only when the colleges demonstrate jurisdictional G

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errors, ex facie perversity or mala fide. [See:- Manohar LalSharma v. Medical Council of India 4 and Medical Council ofIndia v. Kalinga Institute of Medical Sciences (KIMS) 5 ]. Asno case is made out by the College for interference with theinspection report, we decline the request of Mr. Sibal for remandof the matter to the High Court.”

In our opinion, in view of the aforesaid legal position, it is not opento the court in judicial review to accept tenuous objections as to bedoccupancy in the absence of mala fide.

33. In view of the aforesaid discussion, we are of the consideredopinion that the High Court has gravely erred in law while passing theimpugned judgment and order in quashing Government’s order, allowingthe admissions for the academic session 2018-2019 without there beingGovernment of India’s permission and the recommendation of the MCI.The High Court has issued direction for fresh inspection and thereafterthe MCI to consider the report after the grant of opportunity to removedefects if any. Firstly, it could not have issued such a direction in view ofregulations and also the blanket direction that college should be permittedto remove the deficiencies if any found. Deficiencies can be removed, iffound, within the permissible limits as provided in regulation 8(3), not ina case Regulation 8(3)(1)(a) or (b) is attracted. Thus, such kind ofgeneral direction issued without considering the provisions of theRegulations are wholly illegal and unwarranted and on inspection, thedecision has to be taken in accordance with law as per regulations.Obviously, regulations would come into play as per outcome of anassessment. It cannot be predicted in advance what would be theoutcome of inspection to decide in advance opportunity of removal ofdeficiencies. There may be a case where deficiencies are found byAssessors to be gross as contemplated in the proviso to Regulation8(3)(1), they cannot be removed in that year. Even otherwise, the Courtcould not have at all ordered the admissions, as directed in the instantmatter. High Court at the same time has ordered inspection and if thedeficiencies are found to exist then the MCI and Government of Indiahave been given liberty to take appropriate decision. Such orders mayruin the entire career of the students. Once permission to admit studentsis granted, it should not be such conditional one. Considering thedeficiencies, it would be against the efficacious medical education and A

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Awould amount to permit the unequipped medical college to impart medicaleducation without proper infrastructure and faculty, patients serve asthe object of teaching by such an approach ultimately interest of thesociety would suffer and half-baked doctors cannot be left loose onsociety like drones and parasites to deal with the life of patients in theabsence of proper educational training. It would be dangerous and againstBthe right to life itself, in case unequipped medical colleges are permittedto impart substandard medical education without proper facilities andinfrastructure.

In re: D. M. Education and Research Institute of MedicalSciences:C

34. Coming to the case of recognition and admission in of D.M.Education and Research Institute of Medical Sciences established byD.M. Education Research Foundation Trust, it was a case of recognitionand admission. In the inspection dated 27.2.2018 and 14/15 March 2018various deficiencies were found supported by photographs, videographyDetc. The deficiencies which were found as mentioned in the Governmentof India order dated 31.5.2018 are extracted hereunder:

“The Executive Committee of the Council considered theassessment report (27.2.2018) and 14[th] & 15[th] March 2018) alongwith photographs/ videography and letters/ representation datedE15.03.2018 from Dean of the Institute with regard to Recognition/Approval of DM Wayanad Institute of Medical Sciences, Keralaand noted the following:

1. “Deficiency of faculty is 18.93% as detailed in the report.

2. OPD: On both days, at 09.40 a.m., most of the faculty &Fresidents were not available.

3. Bed Occupancy at 10 a.m. on the day of assessment was61.69%; however about 15% of the patients were notgenuine reducing Bed Occupancy to 46%. Out of these,most of the patients were admitted on a day prior toGassessment.

4. Patients: On verification of the patients on the beds (fromamong the 401), the following patients were notified in mostof the wards, indicating the nongenuine patients. Forexample:- H

I.Mini C.K. WIMS No.258951, Gen. Med-3, was admitted on14.3.2018 at 9.40 pm when the institution was inspecting at9.30 am on 14.3.2018. Nurses clinical chart was entered evenfor 13[th] doctors notes too, thereby indicating that case sheetswith non-genuine patients are prepared in advance.

II.Raimanath – WIMS No.310182, OBG Ward, was admittedtwice on 13.3.2018 and 14.3.2018. No case notes of the patientin the case sheet and no treatment.

III.Mr. Sivan WIMS No.212033 – Gen Medicine Only admissionrequest form – entire inpatient case records including namesblank.

IV.Prabhashini WIMS No.39575, OBG Ward 2 – admitted withcomplaints of excessive bleeding PV, on enquiry, she gives ahistory of no bleeding at all, but only pain abdomen. The samewas endorsed by the Resident in the ward on the case sheet.No investigations and treatment were given. Taking this intoaccount in the wards, around 15% of the patients were non-genuine, taking the effective bed occupancy to around 46%.

Also apart from this, in the wards, more than 50% of the patientswere admitted on 13.3.2018, the day before the assessment.

5. Data of Radiological & Laboratory investigations given bythe Institute include data of private patients & Superspecialties patients which is not permissible.

6. Wards: There is no signage of Unit-wise bed distribution,no faculty & residents were available inwards during theround.

7. ICUs: There was only 1 patient in PICU on the day ofassessment.

8.4 Mobile X-ray machines are available against therequirement of 6.

9. Microbiology department: 6 Service laboratories areavailable against requirement of 7.

10. Pharmacology department: There are NIL Specimen & NILModel in the Museum.

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A11.Forensic Medicine Department: Cold Storage is notavailable.

12. RHTC: Cold Chain equipment are not available.

13. Residents’ Hostel: On verification, about 15-20% ofResidents are found to be not staying in the campus. RoomsBallotted to them were closed on inspection by the assessors.”

35. The background facts indicate that the college was grantedpermission for the academic sessions 2013-2014 and 2015-2016. Forthe academic year 2016-2017, it was granted conditional permission onthe recommendation of the Oversight Committee to the effect that inCcase of failure to remove the deficiencies, it would be debarred for twoacademic years. Thereafter, on inspection assessment that was madeon 5[th] and 6[th] December 2016, gross deficiencies were found and due tothat the MCI on 28.1.2017 recommended the Central Government todebar the college for two academic years and to encash the bankDguarantee. On 31.5.2017, Government of India accepted therecommendations of the MCI. As the first batch admitted in the collegereached the final year, the application was filed by the college for grantof recognition. The college, aggrieved by the Government of India’sdecision on 31.5.2017 filed Writ Petition (C) No.19753 of 2017 forpermission to admit fresh batch of 150 M.B.B.S. students for theEacademic year 2017-2018. The writ petition was decided by order dated2.8.2017 the High Court directed Government of India to give a personalhearing to the college and thereafter to pass a fresh reasoned order.The Government of India after considering the recommendation of theHearing Committee decided on 14.8.2017 to confirm the conditionalFrenewal of permission for the academic year 2016-2017 and that nofresh batch for 2017-2018 may be allowed.

36. Writ Petition No.19753 of 2017 came to be filed for grant ofadmission in 2017-18 in which interim order was granted by the HighCourt on 25.8.2017. This Court set aside the interim order of the HighGCourt on 6.9.2017, however, permitted the college to approach this courtunder Article 32 of the Constitution of India. Thereafter, Writ Petition(C) No.838 of 2017 was filed in this Court. This Court vide order dated22.9.2017 while permitting the students admitted for the academic year2017-2018 to continue, directed the college to remove the deficiencies.The order was passed to safeguard the interest of the students alreadyHadmitted pursuant to the interim order dated 25.8.2017.

37. In order to consider the case of the respondent – medicalcollege for recognition, an inspection was carried out on 27.2.2018 and14/15, March 2018. In the assessment report, various deficiencies asnoted above were found. The Executive Committee decided not torecommend the recognition in regard to MBBS degree. It was alsorecommended to the Central Government not to grant renewal ofpermission for the admission of a fresh batch of 150 MBBS students forthe academic year 2018-19. The decision of the Executive Committeewas communicated to the Oversight Committee, which in turn vide orderdated 28.3.2018 approved the same.

38. The Executive Committee then vide letter dated 20.04.2018communicated to the Government of India. At the same time, the MCIvide letter dated 20.04.2018 requested the respondent-Medical Collegeto rectify the deficiencies and submit compliance within one month forfurther consideration of its case for grant of recognition. As againstrecommendation made by the MCI, the college filed the Writ Petition(C) No.15171 of 2017 before the High Court of Kerala. The HighCourt directed Government of India to grant a hearing and to pass finalorder on or before 31.5.2018. The Government of India granted hearingopportunity on 21.5.2018. The college reported compliance on 22.5.2018.The MCI vide letter dated 25.5.2018 requested the Oversight Committeeto consider the matter. The Oversight Committee on 28.5.2018 directedthe MCI to follow the regulations. The Government of India was informedby the MCI on 28.5.2018 that last date to send recommendation by MCIwas up to 30.04.2018 which was already over, as such the case of thecollege could not have been considered for admission for 2018-2019 andthe matter of the recognition was under consideration of the MCI andshall be decided appropriately after considering compliance. The CentralGovernment passed the impugned order on 31.5.2018 and in view of thegross deficiencies decided not to grant renewal of permission admissionfor the batch of 150 MBBS students in the academic year 2018-2019.Aggrieved by the same, Writ Petition (C) No.19543 of 2018 was filed inwhich prayer was made to grant recognition and to permit the studentsto be admitted. The said writ petition had been allowed by the impugnedcommon judgment.

39. For the purpose of recognition, the Regulations of 1999 containsthe provisions in Regulation 8(3)(1) wherein the process of renewal ofpermission will continue till such time the establishment of the medical AB

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Acollege and expansion of the hospital facilities are completed and a formalrecognition of the medical college is granted. Further admissions shallnot be made at any stage unless the requirements of the Council arefulfilled. The Central Government may at any stage convey thedeficiencies to the applicant and provide him an opportunity and time torectify the deficiencies. It is the stand of the MCI also that the matter ofBrecognition is under consideration and shall be considered in terms ofsaid regulation after giving the opportunity to make good deficiency.However, with respect to admissions in 2018-19, the recommendationwas made not to admit the students.

40. It is apparent that when the Hearing Committee has orderedCon 21.5.2018 to consider the compliance and to make a freshrecommendation, the MCI declined to do so on the ground that time tomake a recommendation was already over on 30.04.2018. The decisionof Mridul Dhar v. Union of India, 2005 (2) SCC 65, Priya Gupta v.State of Chhattisgarh 2012 (7) SCC 433 and Royal Medical TrustD(Regd.) & Anr. v. Union of India 2015 (10) SCC 19 were referred to.It was clearly mentioned by the MCI in its letter dated 25.5.2018 thatthe matter could not be considered for renewal of permission for admissionfor the academic year 2018-2019, but compliance of the medical collegefor the purpose of recognition/approval under section 11(2) of the Actwas under consideration of the MCI and compliance verification/Eassessment and recommendations of the MCI would be sent to CentralGovernment in due course of time. The matter was under considerationbefore the MCI for recognition, renewal for permission for admissionhad been declined by the MCI on 28.5.2018. Thereafter, the Governmentof India has passed the order on 31.5.2018 declining admission forF2018-19.

41. In view of the deficiencies of faculty and of bed occupancy,the decision not to grant permission for admission in the year 2018-2019was appropriate. However, the compliance that had been submitted bythe college on 22.5.2018 will be considered for the purpose of recognitionGby the MCI as provided under the regulation 8(3). Let the MCI considerthe matter for the purpose of recognition duly considering the complianceunfettered by the order passed by the Government of India on 31.5.2018.The Government of India also to consider the matter of recognition inaccordance with the law. Let the decision be taken by the respondents-MCI and Government of India as expeditiously as possible.H

42. Resultantly, the appeals are allowed. The impugned judgmentand order are set aside. However, it would be open to the colleges tostake their claim for permission for admission for next academic sessioni.e. 2019-2020, in accordance with law. No costs.

Kalpana K. Tripathy Appeals allowed.

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