Indian Centre for Advancement of Research and Education Haldia (ICARE) vs Union of India & Another

(for brevity, ‗the Act‘) approval to the petitioner No. 2 College

and recognition to the MBBS degree to be awarded by the

West Bengal University of Health Sciences, Kolkata in respect

of the students who have completed their courses at petitioner

No. 2 College.

2. The facts which are essential for the purpose of

adjudication of the controversy are that the petitioner No. 2

College was established in 2011 and it has been imparting

education in MBBS courses since the academic year 2011-

2012 and has been granted renewal permission for all

subsequent years up to 2016-2017. For the purpose of grant

of renewal of permission under Section 10-A of the Act, a

surprise assessment was carried out by the assessors on 3

05.11.2015 and 06.11.2015. The assessment report dated

06.11.2015 showed certain deficiencies and thereafter the

same being not removed by the institution, the Executive

Committee of the Medical Council of India (MCI) recommended

to the Central Government not to renew permission for the

admission of 6th batch (100 seats) of the MBBS for the

academic year 2016-2017. The petitioners came to know

about the recommendation and the deficiencies and through

communication dated 02.01.2016 informed the respondent

No. 1 that the deficiencies pointed out in the assessment

report dated 06.11.2015 had been duly rectified and

accordingly submitted for compliance report. A request was

made for issuance of Letter of Permission for admission of 6th

batch of MBBS course for the academic year 2016-2017 on the

basis of the compliance report.

3. After receipt of the compliance report from the petitioner

No. 2, the second respondent carried out a surprise inspection

for clarification of the compliance on 19.02.2016. On the date

of inspection, the assessors found certain deficiencies and

eventually on 14.05.2016 recommended to the respondent No. 4

1 not to renew the permission for admission of the 6th batch

(100 seats) in MBBS course for the academic year 2016-2017.

4. The decision of the Executive Committee of the MCI

taken on meeting held on 13.05.2016 is note worthy. It is as

follows:

―The Executive Committee of the Council considered the compliance verification assessment, report (19 th February 2016) alongwith previous assessment report (5th & 6th November, 2015) as well as letter dated 19/02/2016 and 14.03.2016 received from the Principal of the college and noted the following:-

1. Deficiency of faculty is 67% as detailed in the report

2. Shortage of Residents is 85% as detailed in the report

3. Bed occupancy was only 08% on day of assessment which is grossly inadequate. Many wards were closed.

4. OPD attendance was only 250 on day of assessment which is grossly inadequate.

5. Casualty attendance was only 09 on day of assessment. No Casualty Medical Officer was present on day of assessment

6. There was NIL Major & NIL Minor operation on day of assessment

7. There was NIL Normal Delivery & NIL Caesarean Section on day of assessment 5

8. Radiological & Laboratory investigation workload is inadequate. Separate register for Laboratory investigation is not available.

9. Histopathology & Cytopathology workload is NIL on day of assessment.

10. ICUs: ICCU beds are not available. MICU & ICCU are common.

11. Otho. Deficiencies as pointed out in the assessment report.

In view of the above, the Executive Committee of the Council decided to recommend to the Central Govt. not to renew the permission for admission of 6 inbatch of 100 MBBS students at ICARE Institute of Medical Sciences & Research, Haldia, West Bengal under West Bengal University of Health Sciences, Kolkata u/s 10A of the IMC Act, 1956 for the academic year 2016-2017.‖

5. After receipt of the recommendation of the Executive

Committee of the MCI, the first respondent vide

communication dated 10.06.2016 directed the petitioner

institution not to admit any students in 6th batch (100 seats)

in MBBS course for the academic year 2016-2017. It is

necessary to state here that by that time the Oversight

Committee had come into existence by virtue of the

Constitution Bench judgment in Modern Dental College and

Research Center and others v. State of Madhya Pradesh 6

and others1. The Oversight Committee informed the MCI that

it had decided in its meeting held on 13.06.2016 to permit all

colleges which had not been afforded an opportunity of

hearing to present their compliance deficiencies

communicated by MCI in the inspection/verification reports

for 2016-2017 be given an opportunity to furnish their

compliance reports to respondent No. 1. The petitioner College

submitted its fresh application for renewal permission for 6th

batch (100 seat) for the academic year 2016-2017 on

20.06.2016 along with the compliance report. The petitioners

also submitted a letter dated 30.07.2016 to the Oversight

Committee clarifying the factual position in respect of alleged

deficiencies pointed out by the assessors and thereafter, the

first respondent vide communication dated 20.08.2016 on the

basis of the report of the Oversight Committee granted

permission for the 6th batch (100 seats) in MBBS course for

the academic year 2016-2017 under Section 10-A of the Act

and further stipulated that the next batch of students in

various courses be admitted in the College only after the

1 (2016) 7 SCC 353 7

permission of the Central Government for renewal and

fulfilling of the stipulated conditions. Be it stated, the

conditions that were imposed by the Oversight Committee

were incorporated in the letter of respondent No. 1. The

conditions imposed by the Oversight Committee read:

―(i) An affidavit from the Dean/Principal and Chairman of the Trust / Society/ University/ Company etc 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 alongwith the application.

2. The OC has also stipulated as follows:-

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

(ii) In default of the conditions (i) and (ii) in para 1 above and if the compliances are 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

6. It is the stand of the petitioner No. 2 that it had complied

with the conditions imposed by the Oversight Committee and

also furnished the back guarantee in favour of the second

respondent. In the meantime, students admitted in the first

batch had completed the course and were ready to appear for

their final professional MBBS University examination in

February, 2017 and in this factual background, it applied for

grant of approval and recognition under Section 11(2) of the

Act.

7. It is contended by the petitioner No. 2 that after

receiving the application of the college/institute, the MCI is

required to carry out assessment for compliance verification in

the light of assessment report dated 19.02.2016 and to

evaluate the standard of MBBS University Examination and to

assess the infrastructural facilities available therein and

thereafter confer approval and recognition to MBBS degree

with permission to admit students during the academic

session 2017-2018. It is averred that MCI inspected the

institution on 03.02.2017, 17.03.2017 and 18.03.2017 for the

purposes mentioned above. After evaluation of standard of 9

examination on 03.02.2017, the assessors submitted a report

in Form ‗C‘ and recommended for grant of approval of the

institute. On 17.03.2017 and 18.03.2017 in the compliance

verification report, the assessors did not notice any major

deficiency whatsoever but the MCI after perusal of the said

assessment report decided to recommend to the Central

Government to debar the petitioner institute from taking

admission of students in MBBS course for the next two

sessions, that is, 2017-2018 and 2018-2019. The Executive

Committee of the MCI took note of the assessors report which

has noted the following:

―1. There were only 08 Major Operations for the whole hospital on day of assessment.

2. ICUs: There were only 2 patients each in SICU, NICU, PICU on day of assessment.

3. Radio diagnosis department: 4 Static X-ray machines are available against requirement of 5. 2 USG machines are available against requirement of

3.

4. Students Hostels: Available accommodation is less than required as detailed in the report Study room does not have Computer with Internet & is not air-conditioned.

5. Interns‘ Hostel: Available accommodation is less than required. Hostels are not furnished. Toilet 10

facilities are inadequate. Visitors‘ room, AC. Study room with Computer & Internet and Recreation room are not available.

6. Nurses‘ Hostel: Available accommodation is for 44 against requirement of 48.

7. MEU: Infrastructure facility in MEU is not adequate. There is no computer internet facility.

8. Other deficiencies as pointed out in the assessment report.‖

8. Thereafter the Executive Committee opined thus:

―In view of the above, the college has failed to abide by the undertaking it had given to the Central Govt. that there are no deficiencies as per clause 3.2(i) of the directions passed by the Supreme Court mandated Oversight Committee vide communication dated 12/08/2016. The Executive Committee, after due deliberation and discussion, has decided that the college has failed to comply with the stipulation laid down by the Oversight Committee. Accordingly, the Executive Committee recommends that as per the directions passed by Oversight Committee in para 3.2(b) vide communication dated 12/08/2016 the college should be debarred from admitting students in the above course for a period of two academic years i.e. 2017-18 and 2018-19 as even after giving an undertaking that they have fulfilled the entire infrastructure for recognition/approval of ICARE Institute of Medical Sciences and Research, Haldia, West Bengal for the award of MBBS degree (100 seats) granted by The West Bengal University of Health Sciences, Kolkata u/s 11(2) of the IMC Act, 1956 and Compliance Verification Assessment for renewal of permission for admission of 6th batch (100 MBBS seats) u/s 10(A) of the IMC Act, 1956 for 11

the Academic year 2016-17 with reference to the conditional approval accorded by Oversight Committee, the college was found to be grossly deficient. It has also been decided by the Executive Committee that the Bank Guarantee furnished by the college in pursuance of the directives passed by the Oversight Committee as well as GOI letter dated 20/08/2016 is liable to be encashed.‖

A copy of the recommendation was sent to the Principal

of the petitioner institute.

9. After receiving the communication from the MCI,

petitioner No. 2 vide letter dated 04.04.2017 submitted a

detailed representation to the Oversight Committee

highlighting the unjustified decision of the Executive

Committee of MCI with regard to compliance verification. A

communication was also sent to respondent No. 1. In the

meantime, the petitioner received a communication dated

07.04.2017 issued by the first respondent granting an

opportunity of personal hearing on 13.04.2017. The

petitioners appeared before the respondent No. 1 on the date

fixed and furnished the requisite information and reiterated

the stand that the petitioner No. 2 institute is fully compliant

with the MCI rules and regulations and clarified the position 12

relating to deficiencies which were noted as per the

assessment report on 03.02.2017. It also highlighted that the

assessment reports of 17.03.2017 and 18.03.2017 did not

justify denial of grant of permission and in any case, the

institution had taken measures to remove the said

deficiencies. It was asserted that the compliance report dated

12.04.2017 of the institute clearly established that all the

deficiencies have been removed by 12.04.2017.

10. According to the petitioners, on 24.04.2017 officers of

respondent No. 2 without prior intimation conducted an

assessment flouting all norms. The report dated 24.04.2017

which is named as Compliance Verification Assessment of the

petitioner-College by the MCI noted certain major deficiencies

which are as follows:

―1. Deficiency of faculty is 61.32% as detailed in the report.

2. Shortage of Residents is 36.06% as detailed in the report.

3. Bed Occupancy is 45.95% at 10 a.m. on the day of assessment.

4. Most of the wards are not as per MSR.

13 5. In Obst. & Gynae wards, pediatric wards and orthopedic wards patients have minor complaints did not required admission, in obstetrics wards elderly lay admitted in the wards (college authority not provide a case sheet about this). Hospital internal condition is non-hygienic.

6. There were only 05 Major Operations on day of assessment.

7. Data of Laboratory & Radiological investigations provided by the Institute are inflated.

8. IPD attendance data provided by Institute are inflated.‖

11. The Executive Committee in its meeting held on

30.04.2017 considered the compliance verification report

dated 24.04.2017 along with previous assessment report (17 th

& 18th March, 2017) and noted:

―In view of the above, the Executive Committee of the Council decided to recommended to the Central Government not to recognize/approve ICARE Institute of Medical Sciences & Research, Haldia, West Bengal for the award of MBBS degree (100 seats) granted by The West Bengal University of Health Sciences, Kolkata u/s 11(2) of the IMC Act, 1956 and further decided that the Institute be asked to submit the compliance for rectification of the above deficiencies within 01 month for further consideration of the matter.

14 However in view of above, the Executive Committee to reiterate its earlier decision to recommend to the Central Govt, that the college should be debarred from admitting students in the above course for a period of two academic years i.e. 2017- 18 & 2018- 19 as per directions passed by Oversight Committee in Para 3.2(b) vide communication dated 12.08.2016."

12. Inspection carried out by the MCI on 24.04.2017 was

brought to the notice of the Oversight Committee highlighting

that the assessment carried out on the said date was factually

incorrect and not in good faith. Criticism was advanced about

the inspection of 24.04.2017 on the foundation that despite

assessments carried out on 03.02.2017, 17.03.2017 and

18.03.2017, a surprise and perfunctory verification was

carried out. As the factual narration would uncurtain, the

respondent No. 1 vide letter dated 31.05.2017 intimated the

petitioner No. 2 College that the Central Government decided

not to permit admission of students in the MBBS course (100

course) for the academic year 2017-2018 with the further

stipulation that the admission made against the decision of

the Central Government will be treated as irregular and action

will be initiated under the Act and Regulations made

thereunder. Examples have been cited in the Writ Petition, 15

how the other institutions who had suffered from significant

deficiencies have been granted the Letter of Permission and

action of the respondents have been characterized as mala

fide.

13. It is necessary to state here that after the matter was

sent for reconsideration, the Central Government granted

hearing to the college on 22.08.2017 and took the assistance

of the newly constituted Oversight Committee as per the order

of the Constitution Bench. The Hearing Committee after

considering the report and submissions of the College

submitted its report by stating that there was no merit for

reconsideration of the case for renewal and it concurred with

the decision taken by the Ministry on earlier occasion. The

decision of the Hearing Committee has been enclosed with the

order dated 29.08.2017. The report of the Hearing Committee

also mentioned the tabular. We think it appropriate to

reproduce the same:

―

Deficiencies Deficiencies in Deficiencies Comments Hearing 2016-17 compliance in of DGHS Committee 16

verification compliance Hearing findings assessment on verification Committee (22.8.2017) 3rd Feb. 2017 for & 17th-18th Recognition March, 2017 on 24.4.2017 after OC approval

1. There were 1- Deficiency only 08 Major 1.Deficiency 1. l,2,3. The of faculty is Operations for of faculty is Complied college 67% as the whole 61.32% as with authorities detailed in the hospital on detailed in 2. Need to submitted report day of the report. the re- the

2. Shortage assessment. 2. Shortage verified explanation of Residents 2. ICUs: of Residents 3. Agreed as per the is 8S% as There were is 36.06% to the deficiency detailed in only 2 as detailed deficiency pointed the report patients each in the in the out by MCI

3. Bed in S1CU, report. assessment for points occupancy NICU, P1CU 3. Bed report. No 1, 2 & 3.

was only on day of Occupancy satisfactory College 08% on day assessment is 45.95% reply. authorities of 3. Radio- at 10 a.m. Deficiency failed to assessment diagnosis on day of persists. produce which is department: 4 assessment any grossly Static X-ray 4. Most of concrete inadequate. machines are the wards document Many wards available are not as ary proof were closed. against per MSR. of their requirement contention

4. OPD 5. In Obst attendance of 5. 2 USG & Gynae machines are 4. The was only 250 wards, available college on day of pediatric authorities assessment against wards and could not which is requirement orthopedic provide any grossly of 3. wards satisfactory inadequate. patients evidence.

5. Casualty 4: Students' attendance Hostels: have minor 5 The was only 09 Available complaints Hearing on day of accommodation did not Committee assessment. is less than required cannot give No Casualty required as admission, comments Medical detailed in the in regarding Officer was report. Study obstetrics the present on room does not genuineness 17

day of have wards of the assessment Computer elderly lady patients as

6. There was with Internet admitted in pointed out NIL Major & & is not air- the wards by MCI in NIL Minor conditioned. (college point No. operation on authority 5. Also the day of 5. Interns' not provide college assessment Hostel: a case sheet authorities

7. There was Available about this). failed to NIL Normal accommodation Hospital provide any Delivery & is less than internal further NIL required. condition is proof Caesarean Hostels are non- regarding Section on not furnished. hygienic. the same. day of Toilet facilities 6. There assessment are were only. 6. College

8. Radiological 05 Major authorities inadequate.

& Laboratory Operations could not Visitors' room, investigation on day of provide any A.C. Study workload is assessment. evidence room with inadequate. 7. Data of for more Computer & Separate Laboratory than 5 Internet and register for & major Recreation Laboratory Radiological operations room are not investigation investigations on the date available. is not provided by of 6. Nurses' assessment. available. Hostel: Institute Available are inflated. 7& 8. The

9.Histopathology accommodation 8. OPD Data & Cytopathologyis for 44 attendance Laboratory workload is against data & NIL on day of requirement of provided by Radiological assessment. 48. Institute investigations

7. MEU: are inflated. provided by

10. ICUs: Infrastructure 9. Other the ICCU beds facility in MEU deficiencies Institute in are not is not as pointed front of available. adequate. out in the hearing MICU & ICCU There is no assessment committee are common computer report. was not internet satisfactory.

facility. minor

‖ 18

14. Assailing the decisions of the MCI and the Central

Government, it is submitted by Dr. Rajeev Dhawan, learned

senior counsel appearing for the petitioner No.1 and Mr. R.S.

Suri, learned senior counsel for the petitioner No. 2 submit

that the institution was found fully compliant as per the

inspection made on 03.02.2017 and surprise inspections

carried out on 17.03.2017 and 18.03.2017 and the said

inspections have to be understood in law as assessment for

grant of recognition under Section 11(2) of the Act and

compliance verification assessment for renewal of permission

for admission of 6th batch (100 seats) of MBBS course under

Section 10-A of the Act and hence, further inspection on

24.04.2017 has no legal acceptation. That apart, submits Dr.

Dhawan, the initial communication of the MCI though made

within 11 days of the inspection, it, despite its obligation to

obtain the approval of the Oversight Committee, had debarred

the institution from admitting students and encashing the

bank guarantee which exhibits absolute arbitrariness and

makes the decision wholly vulnerable. It is contended that the

recommendation made was contrary to the fact situation and, 19

therefore, to justify its stand, the assessors of the MCI being

so directed carried out routine assessment which is neither

supportable in law nor does it stand to reason. Learned senior

counsel is extremely critical of such kind of inspection

because it does not follow any procedure and reveals the pre-

determined mind of the assessors and, in any case, the object

of the MCI, as is evident, was to prove its point and not to

objectively perceive things so that the medical education in

this country can achieve real stability. He has referred to the

compliance report of 12.04.2017 as it would be indicative of

the fact that the deficiencies have been rectified. It is put forth

by Dr. Dhawan that the Central Government despite the order

passed by this Court in IQ City Foundation & Anr. v. Union

of India and Ors. 2 has not really kept itself alive to the

principles stated by this Court and acted not only

unreasonably but in a high-handed manner. Learned senior

counsel would submit that the order dated 29.08.2017

deserves to be axed because it is cryptic and unreasonable as

it has not taken into account the materials submitted before

2 (2017) 8 SCALE 369 20

the Hearing Committee in the form of attendance record,

salary statements, Forms 16A (TDS), clinical records and

certain other documents which speak eloquently about the

compliance of initial deficiencies pointed out by the assessors.

It is urged by him that the whole action of the MCI is mala fide

and is incapable of withstanding scrutiny.

15. Refuting the submissions of Dr. Dhawan, it is contended

by Mr. Vikas Singh, learned senior counsel along with Mr.

Gaurav Sharma, learned counsel appearing for the MCI

contended that the aspersions made by the petitioners on the

inspection held on 24.04.2017 do not deserve consideration

since it is the duty of the MCI to see that the institutions

remain ever compliant. Attribution of mala fide is absolutely

unwarranted, for the assessors of MCI had gone on surprise

verification as the College submitted the compliance report

which stated that the deficiencies had been removed. Learned

senior counsel would submit that the experts enjoy great

reputation in their field and the bald allegations should not be

allowed to destroy the basic purpose for which the inspection

is meant for and it is the statutory responsibility of the MCI to 21

scrutinize at the spot about the due compliance report.

Placing reliance on certain authorities which we shall refer to

in due course, contends Mr. Singh, that a minute inspection of

the contents of the report is not permissible in law unless

prima facie it is reflective of total unacceptability or perversity.

The learned counsel has drawn the distinction between Letter

of Permission at the commencement of the college and at a

renewal stage and further at the final recognition stage. He

has pressed into service the language employed in the

provisions of the Act and the Establishment of Medical College

Regulations, 1999 (for short, ―the Regulations‖) framed under

the said Act to strengthen the stand that an institution having

deficiencies which are unacceptable cannot be extended the

benefit of recognition. It is his further contention that an

institution which is granted LOP for the initial establishment,

certain deficiencies to some extent be ignored but as it moves

from initial stage to another the yardsticks that apply are more

rigorous.

16. Mr. Maninder Singh, learned Additional Solicitor General

defending the order passed by the Central Government 22

canvassed that the order in present incarnation cannot be

characterized as an unreasoned one because it has

chronologically referred to the background and taken note of

the Oversight Committee which consists of eminent doctors as

per the decision of this Court passed by the Constitution

Bench in Writ Petition (Civil) No. 408 of 2017 titled Amma

Chandravati Educational and Charitable Trust and

others v. Union of India and another. It is argued by him

that when the eminent doctors have evaluated all the

verification inspection reports and arrived at the conclusion

and the Central Government concurred with it by taking note

of every facet to call it an unreasoned order is not only unfair

but, in a way uncharitable. According to Mr. Singh, the

recommendations made by the MCI being well considered and

based on materials have been accepted by the respondent No.

1 and in such circumstances the order passed by it should be

treated as impeccable, warranting no interference.

17. We have already narrated the facts in a chronological

manner. What grieves the petitioners is the inspection caused

on 24.04.2017. The gravamen of the proponement is that the 23

said inspection in the name of verification is an outcome of

mala fides and hence, legally illegitimate. The stance taken to

pyramid the point is that it is not permissible under the Act or

the Regulations, and the assessors nominated by the MCI

have carried out inspection not only in total violation of

principles of natural justice but also totally abandoning their

sense of objectivity. As the chronicle of the factual score

would depict, the institution had filed a ―compliance report‖ on

12.04.2017. The said compliance report referred to

communication of MCI dated 28.03.2017 in respect of grant of

renewal/approval to the petitioner College. The said report

after mentioning about the minor deficiencies pointed out by

the assessors stated:

―So far as the deficiencies pointed out by the assessors after their assessment of infrastructures on 17/18 March, 2017 vide their report in Format A-II is concerned, they are not in major natures which may justify denial of grant of recognition. They are not in respect of staff, space, equipment, college/hospital and clinical material. It is not practical to insist for a full proof or absolute adherence to all requirements without regard to their importance for the purpose of imparting education, in a practical way. However, since we have already removed the deficiencies a compliance report in tabular form is being submitted herewith.

24 It is important to mention here that the Assessors have not found any deficiency in teaching staff. They have pointed out in their report shortage of 3.8% teaching faculty and 1.5% of resident doctors which are permissible as per MCI rules.

Under the facts and circumstances mentioned above, you are requested to kindly accept the compliance report and if deemed necessary grant personal hearing to us in the matter for the ends of natural justice.‖

Be it noted, the compliance report contained annexures

and the soft copy in word format and in CD. At this juncture,

as the MCI would contend, it felt the necessity to conduct a

surprise inspection to satisfy itself as regards the compliance

on 24.04.2017. We already have reproduced the same.

18. To appreciate the controversy in apposite perspective, it

is extremely crucial to understand the scheme of the Act and

how the same has been understood and appreciated by this

Court. Section 3 of the MCI Act deals with constitution and

composition of the MCI. Section 10 provides the constitution of

the Executive Committee and further stipulates that in

addition to the powers and duties conferred and imposed upon

it by the Act, the Committee shall exercise and discharge such

powers and duties as the Council may confer or impose upon 25

it by Regulations which may be made in that behalf. Section

10-A(1) provides for permission for establishment of new

medical college and new course of study. It stipulates that

notwithstanding anything contained in the Act or any other

law for the time being in force, no person shall establish a

medical college or no medical college shall open a new or

higher course of study or training including post-graduate

course of study or training or increase its admission capacity

in any course of study or training except with the previous

permission of the Central Government obtained in accordance

with the provisions of the said section. Section 10-A(2) lays the

postulate that every person or medical college shall for the

purpose of obtaining permission under sub-section (1), submit

to the Central Government a scheme in accordance with the

provisions of clause (b) of Section 3 and the Central

Government shall refer the scheme to the MCI for its

recommendations.

19. Sub-section (3) and sub-section (7) of Section 10-A deal

with the role of the MCI on receipt of a scheme. Sub-section

(3), (4) and sub-section (7) of Section 10-A read as follows : 26

―(3) On receipt of a scheme by the Council under sub-section (2) the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may—

(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council.

(b) consider the scheme, having regard to the factors referred to in sub-section (7) and submit the scheme together with its recommendations thereon to the Central Government.

x x x x x (7) The Council, while making its

recommendations under clause (b) of sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely:-

(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under section 19A or, as the case may be under section 20 in the case of postgraduate medical education.

(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase it admission capacity has adequate financial resources;

27 (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course or study or training or accommodating the increased admission capacity, have been provided or would be provided within the time- limit specified in the scheme.

(d) whether adequate hospital facilities, having regard to the number or students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;

(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications;

(f) the requirement of manpower in the field of practice of medicine; and

(g) any other factors as may be prescribed.‖

20. Sub-section (4) of Section 8 deals with the power of the

Central Government. It reads :

―(4) The Central Govt. 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 factors referred to in sub-section (7), either 28

approve 4 (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;

Provided further that nothing in this sub section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under sub-section (2).‖

21. Section 10-A has been interpreted in Royal Medical

Trust (Registered) and Anr v. Union of India & Anr3. The

said decision also reflects on the Regulations framed by the

MCI. The Court has ruled that the MCI and the Central

Government, having vested with the monitoring powers under

Section 10-A of the Act, they are required to show due

diligence right from the day when the applications are received

and the schedule giving various stages and the time limit must

accommodate every possible eventuality and at the same time

3 (2015) 10 SCC 19 29

must comply with the requirement of observance of principles

of natural justice at various levels. The Court, in this regard,

has expressed thus:

―31. MCI and the Central Government have been vested with monitoring powers under Section 10A and the Regulations. It is expected of these authorities to discharge their functions well within the statutory confines as well as in conformity with the Schedule to the Regulations. If there is inaction on their part or non- observance of the time schedule, it is bound to have adverse effect on all concerned. The affidavit filed on behalf of the Union of India shows that though the number of seats had risen, obviously because of permissions granted for establishment of new colleges, because of disapproval of renewal cases the resultant effect was net loss in terms of number of seats available for the academic year. It thus not only caused loss of opportunity to the students community but at the same time caused loss to the society in terms of less number of doctors being available. MCI and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various stages and time-limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. In our view the Schedule must ideally take care of:

(A) Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant 30

fails to fulfil these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfil the basic requirements would be considered at the next stage.

(B) Inspection 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 to be given to MCI to cause inspection at any time and such inspection should normally be undertaken latest by January. Surprise inspection would ensure that the required facilities and infrastructure are always in place and not borrowed or put in temporarily.

(C) Intimation of the result or outcome of the inspection would then be communicated. If the infrastructure and facilities are in order, the medical college concerned should be given requisite permission/renewal. However, if there are any deficiencies or shortcomings, MCI must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.

(D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of MCI and the Central Government. In cases where actual physical verification is required, MCI and the Central Government must cause such verification before the deadline.

31

(E) The result of such verification if positive in favour of the medical college concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned.‖

The aforesaid authority makes it clear as day that the

surprise inspection is conceived of within the scheme of the

Act and the institution/college is required to remain

compliant.

22. In Manohar Lal Sharma v. Medical Council of India

& Ors.4, it has been ruled that the MCI on the basis of the

reports regular compliance is legally obliged to form an opinion

with regard to the capacity of the College to provide necessary

facilities in respect of staff, equipments, accommodation,

training and other facilities to ensure proper functioning of the

medical college or for increase of admission capacity. In the

said case, the Court while dealing with the surprise

inspection, has expressed thus:

4

(2013) 10 SCC 60 32

―24. Surprise inspection, in this case, was conducted to ascertain whether compliance report could be accepted and to ascertain whether the deficiencies pointed out in the regular inspection were rectified or not. By pointing out the deficiencies, MCI is giving an opportunity to the College to rectify the deficiencies, if any noticed by the inspection team. It is the duty of the College to submit the compliance report, after rectifying the deficiencies. MCI can conduct a surprise inspection to ascertain whether the deficiencies had been rectified and the compliance report be accepted or not.‖

Eventually, the Court held:

―27. We are also of the view that such an order is not vitiated by violation of principles of natural justice, especially, when no allegation of bias or mala fide has been attributed against the two doctors who constituted the inspection team, which conducted the surprise inspection on 6-7- 2013. When the inspection team consists of two doctors of unquestionable integrity and reputation, who are experts in the field, there is no reason to discard the report of such inspection. In such circumstances, we are of the view that MCI has rightly passed the order rejecting the approval for renewal of permission for the third batch of 150 MBBS students granted for the academic year 2013-2014.‖ [Emphasis added]

23. In this context, Mr. Vikas Singh, learned senior counsel

for the MCI, has drawn our attention to Regulation 7 which 33

deals with the report of the MCI. He has also drawn our

attention to Regulation 8 that pertains to grant of permission

by the Central Government. Regulation 8, has been amended

on 8.2.2016 and 8.3.2016. We think it appropriate to extract

the relevant clauses:

―(1) The Central Government, on the recommendation of the Council for Letter of Permission, may issue a letter to set up a new medical college with such 18 conditions or modifications in the original proposal as may be considered necessary. This letter can also include a clear cut statement of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipments, faculty and staff before admitting the first batch of students. The formal permission may be granted after the above conditions and modifications are accepted and the performance bank guarantee for the required sums are furnished by the person and after consulting the Medical Council of India.

(2) The formal permission may include a time bound programme for the establishment of the medical college and expansion of the hospital facilities. The permission may also define annual targets as may be fixed by the Council to be achieved by the person to commensurate with the intake of students during the following years.‖

24. Sub-clause (3)(1) provides that :

―(3)(1) The permission to establish a medical college and admit students may be granted initially for a period of one year and may be 34

renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.‖

[Underlining is by us]

25. Vide Gazette Notification dated 18.3.2016, clause

8(3)((1)(a) was substituted thus :

―(a) Colleges in the stage of Letter of Permission upto II renewal (i.e. Admission of third batch) If it is observed during any inspection/assessment of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is < 50% (45% in North East, Hilly terrain, etc.), compliance of rectification of deficiencies from such an institute will not be considered for issue of Letter of Permission (LOP)/renewal of permission in that Academic Year.‖

26. Clause 8(3)(1)(b) was also substituted which reads

thus :

35

―(b) Colleges in the stage of III & IV renewal (i.e. Admission of fourth & fifth batch) If it is observed during any inspection of the Institute that the deficiency of teaching faculty and / or Residents is more than 20% and / or bed occupancy is < 65% compliance of rectification of deficiencies from such an institute will not be considered for renewal of permission in that Academic Year.‖

27. Clause 8(3)(1)(c), after the amendment, reads as

follows:

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

If it is observed during any inspection / assessment of the institute that the deficiency of teaching faculty and / or Residents is more than 10% and / or bed occupancy is < 70% compliance of rectification of deficiency from such an institute will not be considered for issue of renewal of permission in that Academic Year and further such an institute will not be considered for processing applications for Postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendations for withdrawal of recognition of the courses run by that institute should not be made for undergraduate and postgraduate courses which are recognized u/s 11(2) of the IMC Act, 1956 along with direction of stoppage of admissions in permitted postgraduate courses.‖ ―However, the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious 36

and festival holidays declared by the Central/State Govt.‖

28. Clause (4) is as follows:

―(4) The Council may obtain any other information from the proposed medical college as it deems fit and necessary.

RECONSIDERATION Wherever the Council in its report has not recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. The Council shall, thereafter, submit its report in the same manner as prescribed for the initial report.‖

29. Regulation 8(3)(1) has been added by Gazette Notification

dated 08.02.2016 which stipulates that permission to

establish a medical college and admit students may be granted

initially for a period of one year and may be renewed on an

yearly basis subject to verification of the achievement of

targets. It also provides that the process of renewal of

permission to continue till such time the establishment of the

medical college and expansion of the hospital facilities are

completed, and thereafter a formal recognition of the medical 37

college is granted. It clearly lays down that further admission

shall not be made at any stage unless the requirements of the

Council are fulfilled and the Central Government may at any

stage convey the deficiencies to the college and provide an

opportunity and time to rectify the deficiencies.

30. Sub-section (3)(1) contains certain provisos. They read

as follows :

―PROVIDED that in respect of

(a) Colleges in the stage upto II renewal (i.e. Admission of third batch):

If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is 60 %, such an institute will not be considered for renewal of permission in that Academic Year.

(b) Colleges in the stage from III renewal (i.e. Admission of fourth batch) till recognition of the institute for award of M.B;B.S. degree:

If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is < 70 %, such an institute will not be considered for renewal of permission in that Academic Year. 19

(c) Colleges which are already recognized for award of M.B.B.S. degree and/or running Postgraduate Courses:

38 If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 10% and/or bed occupancy is < 80%, such an institute will not be considered for processing applications for postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendation for withdrawal of recognition of the courses run by that institute should not be made for Undergraduate and Postgraduate courses which are recognized u/s 11(2) of the IMC Act, 1956 along with direction of stoppage of admissions in permitted Postgraduate courses.

(d) Colleges which are found to have employed teachers with faked/forged documents:

If it is observed that any institute is found to have employed a teacher with faked/forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission/recognition for award of M.B.B.S. degree/processing the applications for postgraduate courses for two Academic Years – i.e. that Academic Year and the next Academic Year also.

However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 days after important religious and festival holidays declared by the Central/State Govt.

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

39

(3) The procedure for ‗Renewal‘ of recognition shall be same as applicable for the award of recognition. (4) Failure to seek timely renewal of recognition as required in subclause (a) supra shall invariably result in stoppage of admissions to the concerned Undergraduate Course of MBBS at the said institute.‖

As is evincible, the aforesaid Regulations deal with

various stages and the requirements under Section 10-A and

Section 11 (2) of the Act.

31. The aforesaid Regulations, as we perceive, deal with the

compliance verification. In the instant case, after the College

submitted that it had complied with deficiencies pointed out

by the team of assessors, the MCI thought it necessary to have

an inspection. It is not in dispute that the said inspection was

a surprise inspection and further it was, as the MCI perceived,

required to be done to verify whether the institution was really

compliant or not. In the verification report dated 24.04.2017,

as the assessors have pointed out, there are number of

deficiencies.

32. The stand of the petitioners is that such verification is

impermissible and grossly mala fide. In IQ City Foundation 40

(supra), the three-Judge Bench, after referring to the authority

in Royal Medical Trust (supra) has held that the emphasis

on the compliant institutions that can really educate doctors

by imparting quality education so that they will have inherent

as well as the cultivated attributes of excellence. There can be

no scintilla of doubt that an institution that imparts medical

education has to remain ever compliant. It is necessary to

mention here that in IQ City Foundation (supra), a

contention was advanced that when the Central Government

sends back the matter to the MCI for compliance verification,

the power of the MCI is restricted and it is only required to

inspect the aspects for which the matter has been referred

back by the Central Government. Negativining the said

contention, the Court has held :

―On a reading of Section 10-A of the Act, Rules and the Regulations, as has been referred to in Manohar Lal Sharma (supra), and the view expressed in Royal Medical Trust (supra), it would be inapposite to restrict the power of the MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for compliance verification and the Assessors visit the College they shall only verify the mentioned items and turn a Nelson‘s eye even if they perceive certain other deficiencies. It 41

would be playing possum. The direction of the Central Government for compliance verification report should not be construed as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand, we are disposed to think, is not attracted.‖

33. The aforesaid passage lays stress how the educational

institutions are to be compliant to have the requirements as

per the Act and the Regulations and not to take shelter under

a subterfuge or lean upon a contrived situation to exhibit

justification. Thus analysed, the grievance agitated pertaining

to surprise inspection with keen acumen does not commend

acceptance. The attack on the compliance report on

asseverations of mala fide, if we allow ourselves to say so, does

not deserve acceptance. Whether there is mala fide or not,

depends upon the facts and circumstances of the case as has

been held in State of Bihar v. P.P. Sharma, IAS & Anr.5

Mere allegation of mala fide does not vitiate an enquiry or

proceeding. As we see, in the instant case, the allegations

have been made against the assessors who are experts in the

5 1992 Supp.(1) SCC 222 42

field and we find no reason to attribute any kind of malice or

mala fide to them. In the absence of any kind of material

brought on record, the mere allegations that there was a

surprise inspection, within a fortnight, would not make the

inspection a tainted one. In this regard, we may usefully refer

to a passage from Medical Council of India v. Kalinga

Institute of Medical Sciences6 :

―Our attention was also drawn to the decision of this Court in Manohar Lal Sharma v. Medical Council of India wherein it was held (SCC p. 72, para 27) that since the inspection is taken by ―doctors of unquestionable integrity and reputation, who are experts in the field, there is no reason to discard the report of such an inspection‖. In the present appeal, there is no allegation made by KIMS of any mala fides of the inspection team or any perversity in the inspection report and hence, there is no question of challenging the conclusions of a neutral, randomly selected inspection team in its assessment.‖

And again:

―The High Court did not appreciate that the inspection was carried out by eminent Professors from reputed medical institutions who were experts in the field and the best persons to give an unbiased report on the facilities in KIMS. The High Court under Article 226 of the Constitution 6 (2011) 11 SCC 530 43

was certainly not tasked to minutely examine the contents of the inspection report and weigh them against the objections of KIMS in respect of each of its 18 items. In our opinion, the High Court plainly exceeded its jurisdiction in this regard in venturing into seriously disputed factual issues.‖ [Emphasis supplied]

34. In Royal Medical Trust and another v. Union of India

and another7 this Court held:

―Keeping in view the facts and circumstances of the case, we sum up our conclusions and directions, thus:-

(a) The petitioners are not entitled to Letter Of Permission (LOP) for the academic session 2017-2018. We direct that the order passed in the present writ petition shall be applicable hereafter for the academic session 2018-2019 since the cut off date for admissions to MBBS course for academic session 2017-2018 is over and the academic session has commenced. No petition shall be entertained from any institution/college/society/trust or any party for grant of LOP for 2017-2018. We say so as the controversy for grant of LOP for the academic year 2017-2018 should come to an end and cannot become an event that defeats time. The students who are continuing their studies on the basis of LOP granted for the academic year 2016-2017 should be allowed to continue their studies

7 2017 (11) SCALE 307 44

in the college and they shall be permitted to continue till completion of the course.

(b) The applications submitted for 2017-2018 shall be treated as the application for 2018-

2019 and the petitioners shall keep the bank guarantee deposited with the Medical Council of India alive and the MCI shall not encash the same.

(c) The Medical Council of India shall conduct a fresh inspection as per the Regulations within a period of two months. It shall apprise the petitioner-institution with regard to the deficiencies and afford an opportunity to comply with the same and, thereafter, proceed to act as contemplated under the Act.

(d) The inspection shall be carried out for the purpose of grant of LOP for the academic session 2018-2019.

(e) After the Medical Council of India sends its recommendation to the Central Government, it shall take the final decision as per law after affording an opportunity of hearing to the petitioners. Needless to say, it shall take the assistance of the Hearing Committee as constituted by the Constitution Bench decision in Amma Chandravati Educational and Charitable Trust (supra) or other directions given in the said decision.‖ 45

The aforesaid directions were issued keeping in view the

deficiencies in the college therein and the interest of the

students.

35. In Madha Medical College & Research Institute v.

Union of India8 the Court held:

―At the same time, we are of the view that having regard to the facts which have transpired, the petitioner should be permitted to establish before MCI that it possesses the requisite infrastructure and has taken all necessary steps to remove the deficiencies which have been noted to exist. Such an exercise cannot be carried out in time for academic year 2017-18 since the last date for admissions has elapsed and the academic session commenced. Hence the petitioner cannot be permitted to participate in the counseling process for the ensuing academic year. Any such exercise would necessarily have to be for the ac academic year 2018-19.‖

36. In Major S.D. Singh Medical College and Hospital &

Another v. Union of India & another9 it has been said:

―Having regard to the interest of medical education and the observations contained in the judgment delivered today by this Court in W.P. (c) 674 of 2017 in Madha Medical College and Research Institute through its Managing Director

8 2017 (11) SCALE 330 9 2017 (11) SCALE 372 46

v. Union of India, we decline to grant any relief in respect of academic year 2017-18 to the petitioner…‖

37. In Karpagam Faculty of Medical Sciences &

Research v. Union of India and others10, it has been stated:

―The benchmark and the minimum standards for these proposals are bound to be different and we must presume that the expert body, such as MCI and the Hearing Committee in which one member of the OC also participated, were fully aware of the essentialities and pre-conditions for grant of recognition/approval. Since the decision of the Competent Authority of the Central Government is based on such inputs, it is not open for us to sit over that decision as a Court of appeal.‖

38. In Annaii Medical College & Hospital and Anr. v.

Union of India and another, Writ Petition (Civil) No. 525 of

2017, the Court referred to the decision in Varunarjun Trust

and Anr. v. Union of India and Ors.11 and directions have

been issued as in Royal Medical Trust7 (supra).

39. As noted earlier, an institution has to remain compliant

and necessity for remaining compliant becomes more

important as the institution enters the renewal year and 10 2107 (11) SCALE 435 11 W.P. (C) No. 787 of 2017, decided on 12.09.2017 47

thereafter for grant of approval and recognition under Section

11(2) of the Act. At the time of consideration of recognition, the

compliance is viewed and scrutinized with great rigour and

strictness. What may be treated as a minor deficiency at the

initial stage may not remain so when the institution/college

proceeds from year to year. In the instant case, we have

already held that surprise inspection in law is permissible and

the said inspection is not tainted with mala fide, as alleged.

Once we arrive at such irresistible conclusion, the order

passed by the Central Government with the assistance of the

Hearing Committee cannot be flawed.

40. Though we have so held, we think it appropriate to direct

that the students who have been admitted in the respective

courses shall be permitted to continue in the courses and the

students who pass out from the institution, the MCI shall see

to it that they are conferred degrees. The MCI is directed to

conduct an inspection for recognition keeping in view the

academic year 2018-19 and if during the inspection any

deficiency is noticed, the same shall be intimated to the

petitioner No. 2 institution and thereafter, process shall be 48

carried out keeping in view the principles of natural justice in

mind and the principles stated in IQ City Foundation

(supra). The inspection shall be carried out as per the

schedule by the MCI for grant of recognition for the academic

year 2018-2019 and to avoid any kind of uncalled for

situation, the application submitted for the academic year

2017-2018 shall be treated as application for the academic

year 2018-2019. The bank guarantee furnished by the

institution shall not be encashed by the MCI and the

petitioners shall keep it alive.

41. The Writ Petition is, accordingly, disposed of. There shall

be no order as to costs.

………………………….CJI.

(Dipak Misra)

….………………………….J. (Amitava Roy)

..…………………………...J. (A.M. Khanwilkar) New Delhi.

September 21, 2017.