Board of Governors in Supersession of Medical Council of India vs National Institute of Medical Sciences and Research and Another

Civil Appeal No.3340 of 2019 (Arising out of SLP (C) No.5964 of 2019)

BOARD OF GOVERNORS IN SUPERSESSION OF MEDICAL COUNCIL OF INDIA .... Appellant(s) Versus

NATIONAL INSTITUTE OF MEDICAL SCIENCES AND RESEARCH & ANR. …. Respondent (s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The Appellant has approached this Court aggrieved

by the direction given by the High Court of Rajasthan to

conduct inspection of Respondent No.1-Institute for

enhancement of seats in M.S. (Orthopedics) and M.D.

(Radio Diagnosis). The Appellant was further directed to

Signature Not Verified submit its report before 28.02.2019 which would be dealt Digitally signed by VISHAL ANAND Date: 2019.04.01 16:16:06 IST Reason: 1 with by the Second Respondent-Union of India in

accordance with law.

2. The First Respondent-Medical College was established

in the year 2004. In the year 2011, a letter of permission

was granted to the First Respondent to start M.D. (Radio

Diagnosis) course with an annual intake of one student

from the academic year 2011-2012. The First Respondent

was informed that the permission would be valid till such

time as the first batch of students admitted against the

said course appear for the final examination. The College

was directed to take up the matter for recognition of the

qualifications under Section 11(2) of the Indian Medical

Council Act, 1956 (hereinafter referred to as ‘ the Act’) at

the time the students appear for the final year

examination. Permission was also granted in 2011 for

starting M.S. (Orthopedics) course with an annual intake

of two students. The First Respondent applied for

recognition on 18.07.2013. Thereafter, several inspections

were conducted by the Appellant and deficiencies were

pointed out to the First Respondent. Compliance reports

were sent by the College with which the Appellant was not

2 satisfied. Ultimately, a decision was taken that Post

Graduate courses in M.S. (Orthopedics) and M.D. (Radio

Diagnosis) cannot be conducted in the First Respondent

Institute as the requirement of the Post Graduate Medical

Education Regulations, 2000 (hereinafter referred to as

‘the Regulations’) in respect of clinical material, human

resources, and infrastructure were not fulfilled. As

students admitted during the academic years 2011-2012,

2012-2013, and 2013-2014 in M.S. (Orthopedics) and M.D.

(Radio Diagnosis) have completed their courses it was

decided by the Appellant that the qualifications awarded

by the First Respondent in favour of such students should

be recognized and included in the First Schedule to the

Act.

3. The Committee also decided on 07.03.2017 that the

Respondent shall be restrained from making any

application for starting the M.S. (Orthopedics) and M.D.

(Radio Diagnosis) courses for a period of five years. On

14.04.2017, the Appellant recommended to the Second

Respondent-Union of India to notify the qualifications of

the students who have completed M.S. (Orthopedics) and

3 M.D. (Radio Diagnosis) in the First Respondent-Institute

during the years 2011-2012, 2012-2013 and 2013-2014.

The Post Graduate Medical Education Committee

(hereinafter referred to as ‘the Committee’) decided that

the admissions made by the First Respondent-Institute to

M.S. (Orthopedics) and M.D. (Radio Diagnosis) after 2014

were in violation of Regulations 6(2) and (3) of the

Regulations.

4. The Second Respondent issued a notification on

07.06.2017 including the Post Graduate courses of M.S.

(Orthopedics) and M.D. (Radio Diagnosis) of the First

Respondent-Institute in the First Schedule to the Act. It

was categorically mentioned in the said notification that

students who were admitted for the academic years 2011-

2012, 2012-2013 and 2013-2014 and trained at the First

Respondent-Institute “on or after 2014” shall be entitled

for a recognized medical qualification. In the note to the

said notification, it was stated that the recognition granted

to the Post Graduate courses shall be for a maximum

period of five years after which it shall have to be renewed.

It is relevant to note that the notification dated 07.06.2017

4 is not restricted to the First Respondent-Institute but

applied to other colleges as well. The First Respondent had

filed a Writ Petition questioning the proceedings dated

14.04.2017 of the Appellant insofar as it pertained to

refusal to recognize certain courses. A further relief that

was sought in the said Writ Petition filed in the High Court

of Delhi was to set aside the bar imposed on the First

Respondent-Institute from admitting students for future

academic years. However, the First Respondent withdrew

the said Writ Petition with liberty to approach the Court at

a later stage. Later, a corrigendum was issued by the

Second Respondent to the notification dated 07.06.2017

and the words “on or after 2014” were removed. After the

removal of the above portion from the notification, Column

3 pertaining to M.D. (Radio Diagnosis) and M.S.

(Orthopedics) of the First Respondent-Institute reads as

follows:

“Doctor of Medicine (Radio Diagnosis). MD (Radio Diagnosis) (This shall be a recognized medical qualification when granted by NIMS University (Deemed University) in respect of students admitted for the academic session 2011-12, 2012-13 & 2013-14 only and trained at National Institute of Medical Sciences, Jaipur.)

5 Master of Surgery (Orthopedics) MS (Orthopedics) (This shall be a recognized medical qualification when granted by NIMS University (Deemed University) in respect of students admitted for the academic session 2011-12, 2012-13 & 2013-14 only and trained at National Institute of Medical Sciences, Jaipur.)”

Further, it was mentioned that the note contained in

the notification dated 07.06.2017 does not apply to the

Courses mentioned in the corrigendum. The First

Respondent filed a Writ Petition in the High Court of Delhi

questioning the corrigendum dated 09.04.2018 and for a

direction to the Appellant to accord recognition to the Post

Graduate courses in M.S. (Orthopedics) and M.D. (Radio

Diagnosis) from the academic year 2014-2015. By an

order dated 03.08.2018, the Delhi High Court issued notice

in the said Writ Petition but refused to grant interim relief.

5. Thereafter, the First Respondent approached the High

Court of Rajasthan by filing a Writ Petition seeking a

direction to the Appellant to conduct an inspection for

enhancement of seats in M.S. (Orthopedics) and M.D.

(Radio Diagnosis) courses for the academic year 2019-

2020. As the Advocates were on strike, the President of

6 the Petitioner- Institute (First Respondent) appeared on

21.02.2019 and submitted that the deadline for granting

permission was 28.02.2019 and hence, urgent interim

order was required to be passed in the Writ Petition. By

recording a prima facie finding in favour of the First

Respondent that the recommendation made by the

Appellant baring admissions in the First Respondent-

Institute was not accepted by the Second Respondent-

Union of India and that it was incumbent on the Appellant

to conduct inspection, the High Court directed the

Appellant to conduct an inspection and submit a report to

the Second Respondent before 28.02.2019. The Second

Respondent was directed to take suitable action in

accordance with law for enhancement of the seats in M.S.

(Orthopedics) and M.D. (Radio Diagnosis) courses in the

First Respondent-Institute.

6. We have heard Mr. Vikas Singh, learned Senior

Counsel for the Appellant and Mr. Niraj Kishan Kaul and Mr.

Ranjit Kumar, learned Senior Counsels for the First

Respondent-Institute. Mr. Vikas Singh submitted that the

proceedings dated 14.04.2017 along with the corrigendum

7 dated 09.04.2018 would disclose that the First Respondent

was restrained from making admissions to M.S.

(Orthopedics) and M.D. (Radio Diagnosis) courses for a

period of five years. According to him, the ambiguity in

the notification dated 07.06.2017 was clarified by the

corrigendum dated 09.04.2018. The corrigendum

recognized the courses in respect of students admitted in

the First Respondent-Institute for the academic years

2011-2012, 2012-2013 and 2013-2014 only. He further

submitted that any ambiguity in the interpretation of the

note attached to the notification dated 07.06.2017 was

also cleared by the non-applicability of the note to the

aforementioned courses. He submitted that the First

Respondent had indulged in forum shopping by

approaching the Rajasthan High Court as the earlier Writ

Petitions were filed by the First Respondent in the Delhi

High Court. He submitted that the High Court was not

right in holding that the recommendations made by the

Appellant were not accepted by the Second Respondent.

He stated that the decision taken by the Committee

constituted under Section 20 of the Act had become final

8 as it was accepted by the Appellant Council. He further

urged that there would be no surprise element in the

inspection which was directed to be conducted by the High

Court within a period of one week.

7. It was submitted by the learned Senior Counsel

appearing for the First Respondent that there is no

complaint of lack of infrastructure and other facilities in

respect of the College which has been running Under

Graduate courses from the year 2004. Permission was

granted to start Post Graduate courses and seats were

enhanced for M.S. (Ophthalmology) and M.D. (General

Medicine). It was submitted that from 2014 onwards, the

First Respondent-Institute was being harassed by the

Appellant by not accepting the compliance reports

submitted by the First Respondent regarding the

deficiencies pointed out. Mr. Kaul submitted that

admissions made to the PG courses after the year 2014

were being regularly intimated to the Appellant. He

submitted that the recommendation made by the

Appellant Council to restrain the First Respondent from

making admissions for five years by the proceedings dated

9 14.04.2017 was not accepted by the Second Respondent.

The notification dated 07.06.2017 dealt with recognition of

the qualifications in respect of the students who were

admitted for the academic years 2011-2012, 2012-2013

and 2013-2014 and trained in the First Respondent-

Institute “on or after 2014”. He submitted that the words

“on or after 2014” are significant and such of those

students who were trained after the year 2014 were also

entitled for a recognized medical qualification. He relied

upon a note to the notification dated 07.06.2017 to argue

that the recognition granted to the Post Graduate courses

shall be for a maximum period of five years after which it

shall have to be renewed. In response to the allegation of

forum shopping, he submitted that the First Respondent is

situated in Jaipur and there was no bar on filing a Writ

Petition in the Rajasthan High Court. Mr. Kaul urged that

the First Respondent cannot be accused of forum shopping

for approaching Rajasthan High Court merely because the

earlier two Writ Petitions were filed at the Delhi High Court.

8. Mr. Ranjit Kumar submitted that there is no shortage

of the requisite facilities and the First Respondent-Institute

10 fulfils the minimum requirements which is evident from the

fact that the Appellant conducted inspections for the other

P.G. courses. He stated that the application filed for

enhancement of seats on 06.04.2018 has not been

considered by the Appellant and having no other

alternative, the First Respondent approached the High

Court as the last date for grant of permission was

28.02.2019. The learned Senior Counsel urged that the

interim order passed by the High Court does not warrant

interference.

9. The interim order passed by the High Court on

21.02.2019 is on the basis that the recommendation made

on 14.04.2017 by the Appellant to bar admissions for five

years to M.S. (Orthopedics) and M.D. (Radio Diagnosis)

courses has not been accepted by the Second Respondent.

Consequently, the High Court was of the opinion that the

Appellant was obliged to conduct an inspection. The High

Court failed to examine the notification dated 07.06.2017

and the corrigendum dated 09.04.2018 before passing the

impugned order. No notice was issued to the Appellant

before the interim order was passed by the High Court.

11 The direction to conduct an inspection within a period of

one week ought not to have been passed by the High

Court as the surprise element of the inspection would not

be there. In Manohar Lal Sharma v. Medical Council of

India1, this Court observed: “Surprise inspection naturally

contemplates no notice, if the notice is given in advance, it

would not be a surprise inspection and will give room for

the College to hoodwink the assessors by springing a

surprise, by making perfect what was imperfect.” The

Three Judge Bench in Royal Medical Trust v. Union of

India2 while laying down guidelines regarding medical

college admissions emphasized that there must be a

surprise element in the inspection conducted by the MCI.

10. Having challenged the corrigendum dated 09.04.2018

before the Delhi High Court, any further direction in

connection with the enhancement of seats to the PG

courses should have been sought by the First Respondent

only in the Delhi High Court. We are refraining ourselves

from entering into the merits of the matter pertaining to

the interpretation of the proceedings dated 14.04.2017,

1 (2013) 10 SCC 60, Para 23 2 (2015) 10 SCC 19, Para 31 (B)

12 the notification dated 07.06.2017, and the corrigendum

dated 09.04.2018 as it is the subject matter of a Writ

Petition pending in the Delhi High Court. The High Court

ought to have given an opportunity of hearing to the

Appellant before passing the impugned order. Prima facie

satisfaction of the High Court in favour of the First

Respondent is without appreciation of the entire material

pertaining to the dispute. Moreover, no useful purpose will

be served by an inspection before the adjudication of the

dispute relating to the bar imposed on the First

Respondent from making admissions to the M.S.

(Orthopedics) and M.D. (Radio Diagnosis) courses. In any

event, the inspection which was directed to be conducted

within a period of one week will not show the correct

picture pertaining to the infrastructure and other facilities.

11. For the aforementioned reasons, the interim direction

of the High Court to conduct inspection of the First

Respondent-Institute is set aside. Accordingly, the appeal

is allowed.

..…................................J. [L. NAGESWARA RAO]

13 ..…................................J. [M.R. SHAH] New Delhi, April 01, 2019

14