Apollo Institute of Medical Sciences & Research and Ors. vs Union of India and ANR.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.496 OF 2017 (With I.A. No.52343 of 2017)

Apollo Institute of Medical .….Petitioners Sciences & Research and Ors.

Versus

Union of India and Anr. …..Respondents

JUDGMENT

A.M. KHANWILKAR, J.

1. The petitioners made an application to the Ministry of

Health and Family Welfare, Government of India for

establishment of a new medical college at Murukambattu Village,

Chittoor, Andhra Pradesh, in the name and style of ‘Apollo

Institute of Medical Sciences & Research’ for the academic

session 2016-17. The Ministry forwarded the application to the

Medical Council of India (for short “MCI”) for evaluation and for Signature Not Verified Digitally signed by GULSHAN KUMAR ARORA Date: 2017.08.31 15:20:43 IST

making recommendations to the Ministry under Section 10A of Reason:

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the Indian Medical Council Act, 1956, (for short “1956 Act”) for

the academic session 2016-17. MCI submitted an assessment

report after which the respondent No.1 Central Government

declined to issue a letter of permission to the petitioners’ college.

An opportunity of hearing was accorded to the petitioners’ college

under Section 10A (4) of the 1956 Act on 24.02.2016 and the

case was referred back to MCI for review. MCI, in turn, returned

the application with a negative recommendation. Consequent

thereto, the Ministry, upon accepting the recommendation of

MCI, disapproved the application submitted by the petitioners for

establishment of a new medical college for the academic session

2016-17 vide its letter dated 15.06.2016.

2. The Oversight Committee (for short “OC”) constituted under

the directions of this Court, however, issued directives, as a

result of which the Ministry asked for and obtained a fresh

compliance from the college and forwarded the same to MCI vide

letter dated 22.06.2017. MCI then submitted its report, citing

various reasons and that report, in turn, was forwarded to the

OC for its guidance. The OC approved of the scheme submitted

by the petitioner college for the academic session 2016-17 vide

letter dated 29.08.2016, subject to certain conditions. On the 3

basis of the approval of the OC, the respondent No.1 Central

Government issued a Letter of Permission on 12.09.2016 in

favour of the petitioners’ college for the academic session

2016-17, with conditions imposed by the OC. Assessment and

verification of compliance was undertaken by MCI which

submitted its report on the basis of the inspection. The Executive

Committee of the MCI, in its meeting held on 22.12.2016, noticed

the deficiencies and decided to send a negative recommendation

to the Ministry. The Ministry/Director General of Health Services

(for short “DGHS”) then afforded personal hearing to the college

on 17.01.2017. The Hearing Committee did not accept the

explanation offered by the petitioner college and submitted its

negative finding. The said report was forwarded to the OC for

guidance. The OC, in turn, vide letter dated 14.05.2017 conveyed

its opinion to the Ministry in which it observed thus:

“I. Faculty:- Once 7 members faculty are considered, the deficiency becomes 1.53%, which is within the acceptable limits.

II. Resident:- Once 3 residents are considered, the deficiency becomes 2.17%, which is within the acceptable limits.

III. OTs:- EC pointed out that OT in General Surgery, ENT, Ophthalmology and OG have 2 tables which is not as per norms. There is no such mention in the SAF. In SAF 2.10 it has been marked as 9 Major OTs against required 4 4

and 2 Minor OTs as required, which is more than the MSR. Hence there is no deficiency.

IV. ICUs:- This deficiency is subjective. No MSR.

V. Mobile X-ray machines:- This deficiency is subjective. No MSR.

VI. USG machine:- PNDT approval for 1 USG machine is available and applied for the other.

VII. MRD:- This deficiency is subjective. No MSR.

LOP Confirmed”

3. The Ministry, however, acting upon the negative

recommendation of MCI vide letter dated 31.05.2017, debarred

the petitioner college from admitting students for two years and

authorised MCI to encash the Bank Guarantee offered by the

petitioners. That decision was assailed by the petitioners before

this Court in the present writ petition.

4. On 01.08.2017, this Court called upon the respondent No.1

Central Government to reconsider the materials on record

pertaining to the issue of confirmation, including the letter of

permission granted to the petitioners’ college, as was the case of

other colleges whose matters were heard together by this Court.

Pursuant to the said directions, the Ministry afforded a personal

hearing to the petitioner college on 04.08.2017. The Hearing

Committee made favourable observations with regard to the 5

deficiencies and while recommending to the Ministry to confirm

the conditional permission granted to the college in 2016-17,

however recommended not to permit the petitioners’ college to

admit students in the MBBS course for the academic session

2017-18 and to apply afresh for renewal of permission for the

academic session 2018-19, as per MCI Regulations. On the basis

of the said recommendation, the Ministry passed an order on

10.08.2017. The relevant portion of the said order reads thus:

“17. Now, in compliance with the above direction of Hon’ble Supreme Court dated 01.08.2017, the Ministry granted hearing to the college on 04.08.2017. The Hearing Committee after considering the record and oral & written submission of the college submitted its report to the Ministry. The findings of the Hearing Committee are as under:

The college does not seem to have any infrastructural deficiency. MCI has pointed out faculty and resident deficiency at 12.3% and 8.69%.

The deficiency is not of high order. The contention of college that 7 of the 8 faculty shown as deficient were assigned for medical camp organized on the day of inspection is supported by the note written by Principal of the college on the last page of the SAF form which is also signed by all the four assessors. The Principal has mentioned that the 7 faculty and 3 residents had already left for the camp before the surprise inspection. The Committee has also noted the medical camp order dated 19.11.2016 and that the deficiencies of faculty correspond to those sent for the camp duty. However, the assessors have not noted the 10 names in the SAF form as 6

‘faculty/residents present but not counted’ if they had come late. Further the column on RHTC in the SAF form is devoid of any details and no reference to camp could be seen.

The college has submitted a certificate from MCI vendor which states that 158 faculty have been enrolled on 26.07.2017 for biometric attendance system.

The other deficiencies regarding 2 tables in OTs, AERB and PNDT approval have been rectified post assessment as per documentary evidence furnished.

In view of the above, the Committee is of the opinion that the deficiency of faculty and residents is marginal. The submission of the college regarding medical camp on the day of assessment as a result of which 10 doctors could not be available for head count seems bonafide but cannot be confirmed. In such case debarring the college for two years seems excessive even though the recommendation is as per the conditions of OC approval.

The committee recommends that conditional LoP for 2016-17 may be confirmed. No fresh batch for 2017-18 may be allowed. The college may apply for renewal permission to MCI for the session 2018-19.

18. Accepting the recommendations of the Hearing Committee, the Ministry confirms the conditional permission granted to the College in 2016-17. Further, it has been decided not to permit admission of students in MBBS courses for the academic session 2017-18 at the College. The College may apply afresh for renewal of permission for the academic session 2018-19 as per MCI Regulation.

19. Admission made in violation of above conditions will be treated as irregular and action will be taken as per 7

provision of IMC Act, 1956 and the Regulations made thereunder.” (emphasis supplied)

5. The petitioners would contend that in view of the favourable

observations by the Hearing Committee, it is incomprehensible

as to why the petitioners’ college should be deprived from

admitting students for the academic session 2017-18 and

especially when no significant deficiency has been noticed by

either the Hearing Committee or the Competent Authority of the

Central Government which would justify the drastic order passed

against the petitioners’ college. The petitioner enjoys high

reputation. The petitioners’ college aims to impart quality

education. It is submitted that the conclusion reached by the

Hearing Committee or, for that matter, by the Competent

Authority, against the petitioners’ college, cannot stand the test

of judicial scrutiny. No tangible reason has been assigned to

deprive the petitioners’ college from admitting students in the

MBBS course for the academic session 2017-18. This Court

ought to intervene and issue appropriate directions against the

respondents.

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6. The respondents, on the other hand, have supported the

conclusion arrived at by the Hearing Committee and the

Competent Authority. According to the respondents, it may not

be permissible to sit over the subjective satisfaction of the expert

body and to issue directions to the contrary. The respondents

have prayed for dismissal of the writ petition and the

interlocutory application.

7. Having considered the rival submissions, we have no

hesitation in taking the view that the Hearing Committee, as well

as the Competent Authority of the Central Government, have

shown complete disregard to the fact situation and moreso when

they have found that the infrastructure and academic

requirements were fully in place in so far as the petitioners’

college is concerned. Infact, we find that the impugned order

acknowledges the fact that the petitioners’ college is a compliant

college in respect of infrastructure and academic matters. In

such a situation, we are at a loss to discern as to what weighed

with the Hearing Committee and Competent Authority of the

Central Government to prohibit the petitioners’ college from

admitting students in the MBBS course for the academic session 9

2017-18. No tangible reason whatsoever has been assigned by

the said authorities in that regard, leave alone any reason.

8. We have no hesitation in observing that the approach of the

statutory authorities is bordering on abdication of their statutory

duty and is against the letter and spirit of the direction given by

this Court on the earlier occasion to reconsider the case of the

petitioners’ college afresh on the basis of material available on

record. Admittedly, the petitioners’ college has started

functioning from the academic session 2016-17, on the basis of a

conditional Letter of Permission. The conditions specified therein

have been substantially fulfilled in all respects including

infrastructure and academic requirements. Therefore, we allow

this petition and the application filed by the petitioners in the

larger public interest.

9. Considering the fact that the petitioners’ college has fulfilled

the infrastructure and academic requirements and has already

operated the college for the academic session 2016-17 by

admitting the first batch of students in the MBBS course and

further, even the Competent Authority has noticed that there are

no major deficiencies, we allow this petition and the application 10

filed by the petitioners in the larger public interest. We are also

inclined to issue further directions to the respondents as have

been issued in the judgment of Dr. Jagat Narain Subharti

Charitable Trust and Anr. Vs. Union of India and Ors., delivered on

30th August, 2017.

10. We, accordingly, quash and set aside the impugned decision

to the extent it bars the petitioners to admit upto 150 students

for the academic session 2017-18. Instead, we direct the

respondents to permit the petitioners’ college to take part in the

current-year counselling process which is still in progress. The

cut-off date for completing the admissions in respect of the

petitioners’ college, however, will stand extended till 5 th

September, 2017. The respondents shall make available students

willing to take admission in the petitioners’ college through

central counselling, in order of their merit. This direction is being

issued in exercise of plenary powers of this Court under Article

142 of the Constitution of India, in the peculiar facts of the

present case, to do complete justice and in the larger public

interest, so that aspiring students who have not been admitted to

the 1st year MBBS course for the academic session 2017-18, in

order of their merit in NEET examination, will get an opportunity 11

to be admitted in the petitioner college. At the same time, we

make it clear that the MCI or the Competent Authority of the

Central Government is free to inspect the petitioners’ college as

and when deemed fit and, if any deficiency is found after giving

opportunity to the petitioners’ college, it may suitably proceed

against the said college in accordance with law. This

arrangement will subserve the ends of justice.

11. No order as to costs.

……………………………….CJI.

(Dipak Misra)

………………………………….J. (A.M. Khanwilkar)

.………………………………...J. (Dr. D.Y. Chandrachud) New Delhi;

Dated: August 31, 2017.