Glocal Medical College and Super Speciality Hospital and Research Centre vs Union of India & Another

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 411 OF 2017

GLOCAL MEDICAL COLLEGE AND SUPER SPECIALITY HOSPITAL & RESEARCH CENTRE ….PETITIONER

VERSUS

UNION OF INDIA AND ANOTHER ….RESPONDENTS

WITH

W.P. (C) NOS. 430, 432, 437, 436, 438, 441, 442, 445,448, 450, 468,477,511, 496, 511, 514, 515, 525 and 533 of 2017.

JUDGMENT

AMITAVA ROY,J.

In assailment is the order dated 31.05.2017 of the

Government of India, Ministry of Health and Family Welfare

(Department of Health and Family Welfare) whereby the

conditional permission for the establishment of the medical

colleges, involved herein with number of seats as mentioned,

for the academic year 2016-17, granted on the basis of the Signature Not Verified Digitally signed by GULSHAN KUMAR ARORA Date: 2017.08.01 11:30:59 IST Reason: approval of the Supreme Court Mandated Oversight Committee

(for short, hereinafter to be referred to as “Oversight Committee”) 2

has been cancelled and the colleges have been debarred from

admitting students in the next two academic years i.e. 2017-18

and 2018-19. Thereby, the Medical Council of India, (for short,

hereinafter to be referred to as “MCI'/Council”) has also been

authorised to encash the bank guarantees submitted by the

colleges/institutions, as required for availing the conditional

permission as above. The colleges/institutions have been

directed not to admit students in the MBBS Course in the

academic years 2017-18 and 2018-19.

2. We have heard M/s. Salman Khurshid, S.G. Hasnain,

Gurukrishna Kumar, A. Sharan, P.S. Patwalia, Kapil Sibal, V.

Giri, Nidhesh Gupta, R. Basant, Raju Ramachandran, Sanjay R.

Hegde, Dr. Rajeev Dhawan, C.A. Sundaram, Vikras Singh,

Maninder Singh, Ajit Kumar Sinha, Senior Advocates and Mr.

Mishra Saurabh, learned counsel for the parties.

3. It is submitted across the Bar that the foundational facts,

which constitute the essence of the dissension, are identical so

much so that the sequence of events, if drawn from any of the

petitions would suffice to comprehend the issues to be

addressed. Having regard to the striking likeness of the factual 3

framework of the cases in hand, for the sake of brevity and

convenience, facts in bare minimum as available in the

pleadings of W.P. (C) No. 411 of 2017 – Glocal Medical College

and Super Specialty Hospital and Research Centre vs.

Union of India and Another and W.P.(C) No. 436 of 2017 –

Gayatri Vidya Parishad Society & Another vs. Union of

India and Another would be adverted to.

4. The colleges/institutions in this batch had, as required

under Section 10A of the Indian Medical Council Act, 1956 (for

short, hereinafter to be referred to as “the Act”) and the

Establishment of Medical College Regulations, 1999 (for short,

hereinafter to be referred to as “Regulations”) framed thereunder

duly submitted schemes for grant of letter of permission to

establish new medical college with annual intake of MBBS

students, as mentioned in their individual applications, from the

academic year 2016-17. As ordained in law, the Council caused

an inspection of the colleges to be made by its Council of

Assessors on 11th and 12th December, 2015, whereafter the

assessment report was laid before the Executive Committee of

the MCI, which in its meeting dated 28.12.2015, on a 4

consideration of the deficiencies pointed out, forwarded its

recommendation to the Central Government disapproving the

schemes for the academic year 2016-17 on 31.12.2015.

5. The Central Government in its turn, by letter dated

05.02.2016 consequently disapproved as well, the schemes of the

petitioner colleges/institutions for the academic year 2016-17.

6. Shortly thereafter, this Court by its judgment and order

dated 02.05.2016 rendered in Modern Dental College and

Research Centre & Anr. vs. State of Madhya Pradesh &

Ors.1 constituted the Oversight Committee, amongst others to

oversee the functioning of the Council under the Act. As the

records demonstrate, the Oversight Committee intervened in the

process as reportedly many colleges/institutions did complain of

denial of opportunity to submit their compliance write up, to the

deficiencies pointed out by the assessors and by its

communication dated 22.06.2016 permitted those

colleges/institutions to submit their compliance inputs afresh to

the Ministry of Health and Family Welfare and further directed

the Council to conduct compliance verification inspection of

1 (2016)7SCC 353 5

those colleges/institutions and submit the inspection report to

the Central Government.

7. Subsequent thereto, the Oversight Committee by its

communication dated 11.8.2016 addressed to the Central

Government, Ministry of Health and Family Welfare, for the

reasons recorded, granted conditional approval to the

colleges/institutions, as mentioned therein, subject to the

following conditions:

“(i) An affidavit from the Dean/Principal and Chairman of the Trust concerned, affirming fulfillment of all deficiencies and statements made in the respective compliance report submitted to MHFW by 22 June, 2016.

(ii) A bank guarantee in the amount of Rs.

2 crore in favour of MCI, which will be valid for 1 year or until the first renewal assessment, whichever is later. Such bank guarantee will be in addition to the prescribed fee submitted along with the application.

3.2(a) OC may direct inspection to verify the compliance submitted by the college and considered by OC, anytime after 30 September, 2016.

(b) In default of the conditions (i) and (ii) in para 3.2 above and if the compliances are 6

found incomplete in the inspection to be conducted after 30 September, 2016, such college will be debarred from fresh intake of students for 2 years commencing 2017-18.”

8. Accordingly, the Central Government vide letter No.

U-12011/13/2016-ME-I dated 20.8.2016, in deference to

the above directions of the Oversight Committee, issued the

letter of permission subject to the above conditions, initially

for a period of one year and renewable on yearly basis also

subject to the verification of the achievement of annual

targets, as indicated in their schemes and re-validation of the

performance bank guarantees. It was mentioned as well that

the next batch of students of MBBS Course for the academic

session 2017-18 would be admitted in the colleges only after

obtaining permission from Central Government and on

fulfilling the conditions laid down by the Oversight

Committee, as stipulated hereinabove.

9. The petitioners assert that on being intimated of the

above order, they accordingly, through their authorised

representatives, as directed submitted the affidavits of 7

compliance affirming that they had rectified all the

deficiencies pointed out in the inspection conducted by the

Council on 11/12.12.2015 and also had furnished the bank

guarantees, as required. The communications to this effect

are on 30.8.2016 and 1.9.2016. The colleges/institutions,

as have been mentioned in course of the arguments, have

meanwhile, acting on this conditional letter of permission,

admitted students to the academic year 2016-17.

10. The MCI caused another inspection of the

colleges/institutions to be made by its Council of Assessors

on 21/22.12.2016, whereafter on a consideration of the

report submitted by its assessors, in its meeting held on

13.1.2017 did record, a number of persisting deficiencies. It

was thus of the view that the colleges/institutions had failed

to abide by the undertaking given by them to the Central

Government that there was no deficiency as per clause

3.2(1) of the communication dated 11.8.2016 of the

Oversight Committee and as a consequence, recommended

in terms of paragraph 3.2(b) of the above communication

that the said colleges/institutions be debarred from 8

admitting students in the MBBS Course for the two academic

years i.e. 2017-18, 2018-19 and further that the bank

guarantees furnished by them be encashed. As per the

decision taken, a copy of the recommendations to the above

effect was forwarded to the Central Government and the

Oversight Committee.

11. The Central Government in turn, by its communication

dated 2.2.2017, addressed to the petitioner

colleges/institutions informed that an opportunity of

personal hearing would be granted on 17.1.2017 and

8.2.2017 on the issue of the recommendation of the MCI for

debarment of the colleges for two academic sessions, as

above and for encashment of their bank guarantees. The

colleges/institutions were instructed to depute their

authorised representatives to present their case vis-a-vis the

recommendations of the MCI along with the requisite

information in the prescribed format to be laid before the

committee concerned.

12. In response, the petitioner colleges/institutions in

time submitted their reply maintaining that almost all the 9

deficiencies pointed out in the inspection carried on

11/12.12.2015 had been rectified and that the deficiencies

noted in the subsequent inspection were not the same and

further were at best minor in nature.

13. Item-wise replies with clarifications were furnished by

the colleges vis-a-vis the deficiencies pointed out in the

inspection held on 21st and 22nd December, 2016. The

colleges/institutions claimed that in fact there was no

deficiency and that they were making all efforts to

overcome, if there be any, and prayed that the minor

deficiencies be condoned and the conditional LOP (Letter of

Permission) be confirmed.

14. A hearing was provided to the institutions/colleges

by a Hearing Committee of the Central Government on

17.1.2017 and 8.2.2017 and the comments of the Hearing

Committee along with the recommendations/comments of

the Director General of Health Services in respect of the

colleges mentioned therein, were forwarded to the Central

Government on 23.3.2017. As would be evident from this

document, it contained four columns and the third and 10

fourth thereof did set out the comments of the Hearing

Committee and recommendations/comments of Director

General of Health Services (for short “DGHS”) respectively. It

may be noted in the passing that whereas the comments of

the Hearing Committee in respect of most of the

colleges/institutions was “No satisfactory evidence

available”, the recommendations/comments of the DGHS

disclosed that the said authority on noting the deficiencies

highlighted did suggest some relaxation in the approach

thereto, to be brought to the notice of the Oversight

Committee and also recommended that the Oversight

Committee may take necessary initiatives in this regard. As

this document would also reveal, the recommendations of

the MCI and the comments of the Hearing Committee and

the DGHS were forwarded to the Central Government be

submitted for further directions/comments from the

Oversight Committee.

15. A lull followed and it was only on 5.5.2017 that the

Central Government forwarded the aforementioned

recommendations dated 23.3.2017 to the Oversight 11

Committee. As this communication would reveal, the

Hearing Committee/DGHS had granted personal hearing to

the colleges on 17.1.2017 and 8.2.2017. Noticeably,

however though the contents of the proceedings dated

23.3.2017 of the Hearing Committee/DGHS were set out in

that letter dated 5.5.2017, the column containing the

recommendations/comments of the DGHS did not find

place therein. In other words, as is patent, only a truncated

version of the document dated 23.3.2027 was forwarded by

the Central Government to the Oversight Committee. The

letter mentioned that the observations of the Hearing

Committee constituted by the DGHS, be construed to be

the views of the Ministry of Health and Family Welfare.

16. The letter No. OC/UG/2016-16 (Conditional

Approvals) 258 dated 14.5.2017 of the Oversight Committee

followed in response. As this letter would evince, the

Oversight Committee on a detailed consideration of the

factual backdrop and on an in-depth analysis of the

deficiencies pointed out by the assessors of the MCI, the

views of the Hearing Committee and of the Central 12

Government, by recording reasons, dismissed the

deficiencies enumerated and recommended confirmation

of the conditional letter of permission earlier granted to the

colleges/institutions concerned.

17. The impugned decision conveyed by the letter No.

U.I2012/27/2016-ME-I [FTS.30844749] dated 31 st May,

2017, as referred to hereinabove was thereafter issued.

Thereby to reiterate, the decision of the Central Government

to debar the petitioner colleges/institutions from admitting

students in the next two academic years 2017-18 and

2018-19 and also to authorise the MCI to encash the bank

guarantees was communicated. Directions were also issued

to the concerned colleges/institutions not to admit students

in the MBBS course in the said academic years.

18. The quintessence of the contrasting contentions next

needs to be outlined. It has been insistently urged on behalf

of the petitioners that in the pronounced backdrop of facts

outlining the march of events, the impugned decision is on

the face of it, unsustainable being bereft of any reason or

relevant consideration. It has been argued that the 13

Oversight Committee having being constituted by this Court

by its judgment and order dated 02.05.2016 in Modern

Dental College Research Centre (supra) authorizing it to

oversee all statutory functions under the Act and leaving it

at liberty to issue appropriate remedial directions, the

impugned order is in the teeth of the recommendations of the

said Committee, as communicated in its letter dated

14.05.2017 overruling the deficiencies on the basis of which

purportedly, the petitioner colleges/institutions are being

sought to be debarred from admitting students in the

academic session for the years 2017-18 and 2018-19 and

their bank guarantees are ordered to be encashed. It has

been emphatically asserted that having regard to the status

of the Oversight Committee and the role assigned to it by this

Court, its recommendations/views, as conveyed by its letter

dated 14.05.2017, by no means could have been

disregarded. It has been stoutly canvassed that not only the

Central Government in acting only on the recommendations

of the MCI had proceeded in a manner which is grossly

unfair and unreasonable vis-à-vis the petitioner 14

institutions/colleges, the manner in which the impugned

decision has been taken tantamounts to denial of hearing to

them, as mandated by Section 10A(4) of the Act. It has been

urged as well that the action of forwarding the incomplete

proceedings of the Hearing Committee/DGHS to the

Oversight Committee betrays inexplicable prejudice and a

predetermined disposition against the petitioner

colleges/institutions, rendering the impugned decision non

est in law.

19. As against this, it has been argued in emphatic

refutation on behalf of the respondents that the Central

Government being the final decision making authority under

the Act on the issue of grant or refusal of

permission/renewal of permission, there is no embargo on it

to take a decision thereon, more so there being no mandate

that it would be bound by the recommendations of the

Oversight Committee. It has been contended that the views

expressed by the Oversight Committee in its communication

dated 14.05.2017 are contrary to its directives earlier issued

in its letter dated 11.08.2016, recommending grant of 15

conditional LOP to the petitioner institutions/colleges. It has

been insisted that not only the petitioner

institutions/colleges had failed to provide the minimum

teaching, clinical, infrastructural and other facilities in the

colleges as divulged in the successive inspections, they have

been found to be non-compliant of the undertakings given by

them to the Central Government as well. It has been argued

that the impugned decision, in the attendant facts and

circumstances, is unassailable and does not merit any

interference.

20. After hearing the learned counsel for the parties and on

a consideration of the materials on record, to the extent

essential, we are of the considered opinion that the

impugned decision cannot be sustained in law as well as on

facts. Significantly, the authenticity and correctness of the

documents referred to by the parties are not disputed and

form part of the records.

21. A bare perusal of the letter dated 31.05.2017 would

demonstrate in clear terms that the same is de hors any

reason in support thereof. It mentions only about the grant 16

of conditional permission on the basis of the approval of the

Oversight Committee, and an opportunity of hearing

vis-à-vis the recommendations of the MCI in its letter dated

15.01.2017 highlighting the deficiencies detected in course of

the inspection undertaken on 21 st and 22nd December, 2016,

but is conspicuously silent with regard to the outcome of the

proceedings of the Hearing Committee, the recommendations

recorded therein both of the Committee and the DGHS and

more importantly those of the Oversight Committee conveyed

by its communication dated 14.05.2017, all earlier in point

of time to the decision taken. This assumes importance in

view of the unequivocal mandate contained in the proviso to

Section 10A(4) of the Act, dealing with the issue, amongst

others of establishment of a medical college. The relevant

excerpt of sub-section 4 of Section 10A of the Act for ready

reference is set out hereinbelow:

“(4) The Central Government may, after considering the scheme and the recommendations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the 17

factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under sub-section (1);

Provided that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard:”

22. Though as the records testify, a hearing was provided

to the petitioner colleges/institutions through the Hearing

Committee constituted by the DGHS (as mentioned in the

proceedings dated 23.3.2017) qua the recommendations of

the MCI contained in its letter dated 15.01.2017, as noted

hereinabove, the proceedings of the Hearing Committee do

reflect varying views of the Hearing Committee and the

DGHS, the latter recommending various aspects bearing on

deficiency to be laid before the OC for an appropriate

decision. The Central Government did forward, albeit a

pruned version of the proceedings of the Hearing Committee

to the Oversight Committee after a time lag of almost six

weeks. The reason therefor is however not forthcoming. The 18

Oversight Committee, to reiterate, though on a consideration

of all the relevant facts as well as the views of the MCI and

the proceedings of the Hearing Committee as laid before it,

did cast aside the deficiencies minuted by the MCI and

recommended confirmation of the letters of permission of the

petitioner colleges/institutions, the impugned decision has

been taken by the Central Government which on the face of it

does not contain any reference whatsoever of all these

developments.

23. As a reasonable opportunity of hearing contained in

the proviso to Section 10A(4) is an indispensable

pre-condition for disapproval by the Central Government of

any scheme for establishment of a medical college, we are of

the convinced opinion that having regard to the progression

of events and the divergent/irreconcilable

views/recommendations of the MCI, the Hearing Committee,

the DGHS and the Oversight Committee, the impugned

order, if sustained in the singular facts and circumstances,

would be in disaccord with the letter and spirit of the

prescription of reasonable opportunity of hearing to the 19

petitioner institutions/colleges, as enjoined under Section

10A(4) of the Act. This is more so in the face of the

detrimental consequences with which they would be visited.

It cannot be gainsaid that the reasonable opportunity of

hearing, as obligated by Section 10A(4) inheres fairness in

action to meet the legislative edict. With the existing

arrangement in place, the MCI, the Central Government and

for that matter, the Hearing Committee, DGHS, as in the

present case, the Oversight Committee and the concerned

colleges/institutions are integral constituents of the hearing

mechanism so much so that severance of any one or more of

these, by any measure, would render the process undertaken

to be mutilative of the letter and spirit of the mandate of

Section 10A(4).

24. Having regard to the fact that the Oversight

Committee has been constituted by this Court and is also

empowered to oversee all statutory functions under the Act,

and further all policy decisions of the MCI would require its

approval, its recommendations, to state the least, on the

issue of establishment of a medical college, as in this case, 20

can by no means be disregarded or left out of consideration.

Noticeably, this Court did also empower the Oversight

Committee to issue appropriate remedial directions. In our

view, in the overall perspective, the materials on record

bearing on the claim of the petitioner institutions/colleges

for confirmation of the conditional letters of permission

granted to them require a fresh consideration to obviate the

possibility of any injustice in the process.

25. In the above persuasive premise, the Central

Government is hereby ordered to consider afresh the

materials on record pertaining to the issue of confirmation

or otherwise of the letter of permission granted to the

petitioner colleges/institutions. We make it clear that in

undertaking this exercise, the Central Government would

re-evaluate the recommendations/views of the MCI,

Hearing Committee, DGHS and the Oversight Committee, as

available on records. It would also afford an opportunity of

hearing to the petitioner colleges/institutions to the extent

necessary. The process of hearing and final reasoned

decision thereon, as ordered, would be completed 21

peremptorily within a period of 10 days from today. The

parties would unfailingly co-operate in compliance of this

direction to meet the time frame fixed.

26. Let these matters be listed on 24.8.2017.

...........................................J. [Dipak Misra]

…........................................J. [Amitava Roy]

…........................................J. [A.M. Khanwilkar] New Delhi;

August 1, 2017.