Hamdard Institute of Medical Sciences and Research (HIMSR) & ANR. vs Union of India and Ors.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 480 OF 2017

Hamdard Institute of Medical Sciences And Research (HIMSR) & Anr. ….Petitioners

Versus

Union of India and Ors. ....Respondents

JUDGMENT

A.M. KHANWILKAR, J.

1. The petitioner college made an application for renewal of

permission for admission of 5 th batch (100 seats) in MBBS course

for the academic session 2016-17, to the Medical Council of

India. Pursuant thereto, inspection of the petitioner college was

undertaken on 19th & 20th November, 2015. Assessment report in

that behalf was placed before the Executive Committee of the

Medical Council of India (for short “MCI”) in its meeting held on Signature Not Verified Digitally signed by GULSHAN KUMAR 27th November, 2015. That proposal was processed and ARORA Date: 2017.09.08 15:55:15 IST Reason:

eventually as per the directive issued by the Oversight Committee 2

(for short “OC”) constituted by this Court for approving the

renewal of permission with certain conditions, the Central

Government issued Letter of Permission (for short “LOP”) on 20 th

August, 2016 on conditions imposed by the OC. Compliance

verification assessment was conducted by the MCI on 21 st

December, 2016 and 6th and 7th February, 2017. The Executive

Committee of the MCI considered the said report on 16 th March,

2017 and noting the deficiencies forwarded its negative

recommendation to the Central Government vide letter dated 20 th

March, 2017. The deficiencies noted were as follows:

“1. Casualty: Ventilator is not available. Portable Ventilator is not functional.

2. ICUs: There were only 2 patients in PICU on day of assessment.

3. 2 Static X-ray machines are available against requirement of 5.

4. Other deficiencies as pointed out in the assessment report.”

The aforementioned decision of MCI was communicated to the

petitioner college vide letter dated 20th March, 2017. Later on, as

per the conditions stipulated regarding verification compliance

submitted by the petitioner college was conducted on 19 th April,

2017. The compliance verification report was considered by the

Executive Committee of MCI on 28th April, 2017 when following

deficiencies were noted:

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“1. Deficiency of faculty is 5.66% as detailed in the report.

2. Shortage of Residents is 13.43% as detailed in the report.

3. Bed Occupancy at 10 a.m. on day of assessment is 66.38%.”

The MCI vide letter dated 30th April, 2017 submitted its negative

recommendation to the Ministry.

2. The Central Government granted personal hearing to the

petitioner college before the UG Hearing Committee on 22 nd May,

2017. The UG Hearing Committee recorded its observations

which read thus:

Srl. Deficiencies Observations of hearing No. reported by committee MCI I. Deficiency of faulty is As per the assessment report of the

5.66% as detailed in the college, the deficiency of the faculty report. is marginal. Considering the faculty II. Shortage of Residents is not counted the deficiency is under 13.43% as detailed in the the permissible limit. report. Similarly, many of the residents III. Bed Occupancy at 10 a.m. who were on night duty off were on day of assessment is not taken into consideration. 66.38%. College claimed surplus residents.

As MRD records, bed occupancy is under permissible limit as per the MSR.

In view of the Committee, deficiency of faculty is marginal which seems to have been adequately explained.

The college has made other submission which may need to be verified. However, in the given facts, debarring the college for 2 years seems too strict.

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3. The Ministry on the basis of the negative recommendation

of the MCI vide order dated 31st May, 2017, decided to debar the

petitioner college from admitting students for two academic

sessions 2017-18 & 2018-19 and also authorised the MCI to

encash the bank guarantee of Rs.2 crore offered by the

petitioner. The petitioner college challenged this decision by filing

the present wit petition. After hearing the parties this Court on

1st August, 2017, noticed that the decision of the Ministry dated

31st May, 2017 was bereft of any reasons for which it directed the

Central Government to give fresh opportunity to the petitioner

college and then issue appropriate order recording reasons.

4. Pursuant to the directions of this Court, fresh personal

hearing was afforded to the petitioner college before the Hearing

Committee on 22nd August, 2017. As the Oversight Committee

(for short “OC”) was re-constituted by this Court, a member of

the newly constituted OC was invited to consider the matter

before submitting the second and final report after reviewing all

facets of the case on 29th August, 2017. The Hearing Committee

observed that seemingly there was no deficiency of faculty and

residents but it was not in a position to give any finding with

regard to the bed occupancy deficiency unless physical 5

verification was done. The Ministry, after considering the findings

of the Hearing Committee issued an order on 29 th August, 2017

reiterating its earlier decision dated 31st May, 2017. The relevant

portion of the order/decision dated 29th August, 2017 reads thus:

“19. Whereas in compliance with the above direction of Hon’ble Supreme Court dated 4.8.2017, the Ministry granted hearing to the college on 22.8.2017. A Member of the newly constituted Oversight Committee also attended the Hearing Committee Meeting. The Hearing Committee submitted its second and final report after reviewing all facets of the case on 29.08.2017 to the Ministry with the following conclusion:-

‘There seems no deficiency of faculty and residents. But the Hearing Committee is of the view that the Bed Occupancy as claimed by the College can not be validated by this Committee and requires physical verification.’

A copy of the Hearing Committee report containing their observations is enclosed.

20. Now considering the findings of the Hearing Committee, the Ministry reiterates its earlier decision dated 31.5.2017 to debar the Hamdard Institute of Medical Sciences & Research, Delhi from admitting students for two academic years i.e. 2017-18 & 2018-19 and authorize MCI to encash the Bank Guarantee of Rs. 2.00 Crore.”

5. On a bare perusal of the aforementioned decision it is

amply clear that despite the inconclusive opinion given by

the Hearing Committee regarding the bed occupancy

deficiency vide its report dated 29th August, 2017, the 6

Ministry chose to reiterate its earlier decision dated 31 st May,

2017.

6. The petitioners have assailed this decision on diverse

counts, including that the Ministry has passed a mechanical

order even on this occasion despite a clear direction given by

this Court to record reasons. Our attention was invited to

the Chart appended to the impugned decision dated 29 th

August, 2017, which has noted in the column “Comments of

Hearing Committee” to the effect that “As (per) MRD records,

bed occupancy is under permissible limit as per the MSR.” It

was also contended that the factual position stated in

paragraph 19 of the impugned decision dated 31 st August,

2017, creates serious doubt about the manner in which the

matter has been processed by the Ministry. There was no

reason for the Hearing Committee to review its report dated

22nd August, 2017 which was obviously favourable to the

petitioners. It was vigorously contended by the petitioners

that the petitioner Institution enjoys high reputation and

that the proposal submitted by the petitioner college was for

the 5th batch in MBBS course for the academic session 7

2016-17. Further, considering the fact that there was no

deficiency in regard to infrastructure and academic matters,

the order in question cannot stand the test of judicial

scrutiny. Accordingly, it was submitted that the impugned

orders dated 31st May, 2017 and 29th August, 2017 be

quashed and set aside and appropriate directions be issued

to the respondents to not only confirm the LOP in respect of

5th batch in MBBS course for academic session 2016-17, but

also to permit the petitioner college to admit students for

academic session 2017-18.

7. Learned counsel appearing for the respondents, on the

other hand, would justify the order passed by the Competent

Authority of the Central Government and submit that the

grievance made by the petitioners is untenable.

8. We have heard Mr. Mukul Rohatgi, learned senior

counsel appearing for the petitioner college and Mr. Vikas

Singh, learned senior counsel appearing for MCI and Mr.

Maninder Singh, learned Additional Solicitor General

appearing for Union of India.

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9. After considering the rival submissions, we have no

hesitation in observing that the Competent Authority of the

Central Government has once again passed a mechanical

order on 29th August, 2017, which is on the face of it, not in

conformity with the spirit of the directions given by this

Court on 1st August, 2017, to consider all aspects of the

matter and record reasons.

10. Notably, in the present case, the deficiency in respect of

faculty and residents has been found to be insignificant or

within the permissible limits. The deficiency regarding bed

occupancy, noted in the assessment report dated 19 th April,

2017 was, however, quite significant and beyond the

permissible limits. The Hearing Committee which submitted

its observation to the Competent Authority of the Central

Government, after the second round of hearing on 22 nd

August, 2017 and in the second and final report dated 29 th

August, 2017, did not record any conclusive opinion about

the deficiency in respect of bed occupancy. This can be

discerned from the extracted portion of the opinion in

paragraph 19 of the impugned decision dated 29th August, 9

2017. As the deficiency regarding bed occupancy requires

physical verification to ascertain whether it is within

permissible limit, we would prefer to adopt the same course

as in other cases decided today i.e. in the case of

Melmaruvathur Adhiparasakthi Institute of Medical

Sciences and Research Vs. Union of India and Anr. 1, and

Subharti Medical College Vs. Union of Inida.2

11. Reverting to the arguments of petitioners that the

factual position stated in paragraph 19 of the impugned

decision dated 29th August, 2017, we find force in the

argument of the respondents that the Hearing Committee

chose to review all facets of the case and submitted second

and final report on 29th August, 2017 after the OC was

re-constituted by this Court. That became necessary

because the OC was not in place on 22 nd August, 2017. In

our opinion, no fault can be found with the Hearing

Committee for having submitted second and final report

after considering all facets of the case on 29 th August, 2017.

The fact remains that the observation of the Hearing

1 W.P.(C) No.680 of 2017. 2 W.P.(C) No.426 of 2017. 10

Committee was that it was not possible for the Hearing

Committee to validate the deficiency pertaining to bed

occupancy without doing physical verification.

12. Indeed, the petitioners have stoutly relied on the

notings made in the Chart appended to the impugned

decision dated 29th August, 2017, which states: “As (per)

MRD records, bed occupancy is under permissible limit as

per the MSR.” That comment is not found below column:

“Hearing Committee findings on 22.8.2017 and Review on

29.8.2017”. What, however, has been mentioned under this

column is that the college authorities produced the

admission record of the patients along with the case sheets

in respect of 363 patients. It is then noted that the

authenticity of the bed occupancy and the genuineness of

the patients cannot be validated on the basis of the available

data unless physical verification was done. This observation

is relevant and cannot be disregarded. In other words, there

is no conclusive observation of the Hearing Committee in

respect of the deficiency pertaining to bed occupancy noted

in the assessment report dated 19th April, 2017 as 66.38%. 11

Considering the fact that this deficiency is significant, it is a

relevant factor and presumably must have weighed with the

Competent Authority while taking decision on 31st May, 2017

as well as on 29th August, 2017.

13. As aforesaid, in the fact situation of the present case, we are

inclined to adopt the course resorted to in the case of

Melmaruvathur Adhiparasakthi Institute of Medical

Sciences and Research (supra), decided today, involving

similar fact situation.

14. We accordingly direct the respondents, in particular the

MCI, to send its Inspecting Team to the petitioner college within a

period of three months and inform the petitioner college about

the deficiencies if any, with option to remove the same within the

time limit as may be specified. The petitioner college shall then

report its compliance and communicate the removal of

deficiencies to MCI, whereafter it will be open to the MCI to verify

the position and then prepare its report to be placed before the

Competent Authority for being processed further in accordance

with law. Final decision be taken by the Competent Authority

within one month from receipt of the report from MCI. In the

event the final decision is adverse to the petitioners, it will be 12

open to them to take recourse to further remedies as may be

available in law.

15. We make it clear that the inspection to be done will be for

considering the confirmation of renewal permission for admission

of 5th batch (100 seats) in MBBS course for academic session

2016-17. The bank guarantee furnished by the petitioners shall

not be encashed but the same shall be kept alive until further

orders to be passed by the Competent Authority of the Central

Government in that behalf.

16. Writ petition is disposed of in the aforementioned terms. No

order as to costs.

……………………………….CJI.

(Dipak Misra)

………………………………….J. (A.M. Khanwilkar)

.………………………………...J. (Dr. D.Y. Chandrachud) New Delhi, Dated: September 8, 2017.