Medical Council Of India vs The Principal Kmct Medical College

CIVIL APPEAL NO.8429 of 2018 (Arising out of Special Leave Petition (Civil) No.19919 of 2018)

Medical Council of India .... Appellant

Versus

The Principal KMCT Medical College & Anr. ….Respondent(s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The High Court directed the Appellant to

recommend grant of permission to the Respondent No.1

– College for admission of 150 seats in 1st year MBBS for

the academic session 2018-19. By the impugned

judgment, the High Court also directed Respondent No.2

Signature Not Verified – Union of India to issue a letter of permission on the Digitally signed by SANJAY KUMAR Date: 2018.08.21 17:25:49 IST Reason:

1 | Page basis of recommendation of the Appellant. Aggrieved

thereby, the MCI has filed this appeal.

2. Respondent No.1 (hereinafter referred to as “the

College”) was granted permission to start a medical

college for the academic year 2008-09 with an intake of

100 students. Thereafter, a Notification was issued

under Section 11(2) of the Medical Council of India Act,

1956 granting recognition of the course. The College

applied for enhancement of the intake of students from

100 to 150 for the academic session 2016-17. The

Appellant recommended for grant of approval to

increase the intake which was accepted by the

Government of India. The application for renewal of

permission with an enhanced intake of 150 students for

the academic year 2017-18 was also considered

favourably by the Appellant and Respondent No.2.

3. The College applied for renewal of permission for

the 3rd Batch of admissions with the intake of 150

students for the year 2018-19. An inspection was

conducted on 18th/19th September, 2017. The Executive

Committee of the Appellant-MCI considered the

2 | Page Assessment Report pursuant to the inspection

conducted on 18th/19th September, 2017 and noted the

following deficiencies :

“1. CT Scan is single slice against minimum 16 slice required.

2. Examination Hall: Out of 2 Examination Hall available, 1 is actually an Auditorium which cannot be considered as Examination Hall; hence there is deficit of 1 Examination Hall.

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

4. In view of the above deficiencies, the Executive

Committee of the MCI decided to recommend not to

renew the request for permission to admit 3 rd Batch of

MBBS students against the enhanced intake of 150

students. The deficiencies found in the inspection

conducted on 18th/19th September, 2017 were

communicated to the College. The College was

informed about a hearing to be conducted on 19 th

December, 2017. A representation was made by the

College to the Hearing Committee which found that the

two deficiencies pointed out appear to have been

rectified on the basis of the documentary evidence

submitted by the College. The Hearing Committee

3 | Page suggested that the Appellant “may review and make

revised recommendation without any need for

compliance verification.” Respondent No.2 referred

the matter back to the Appellant along with the

representation submitted by the College and requested

the Appellant to conduct a review.

5. The Appellant directed another inspection to be

conducted on 14th March, 2018. On the basis of the

inspection, the assessors submitted a Compliance

Verification Assessment Report noting the following

deficiencies:

“1. Deficiency of faculty is 7.75% as detailed in the report.

2. Shortage of Residents is 16.12% as detailed in the report.

3. Bed Occupancy at 10 a.m. on day of assessment was 53.11%.

4. Patients: Many patients in different wards were admitted since two to three months. In one male medicine ward 22 patients out of 34 were admitted since 29th January/ some from 30th January some from 31st January till date.

There was only one patient in Dermatology ward rest of the patients as per the HOD

4 | Page Dermatology were shifted from Orthopaedics Ward. Also 49 patients admitted in different wards did not require admission were admitted for minor complaints like low backache/ osteoarthritis/ vertigo etc. One patient Mr. Raju with amputated leg with prosthesis explained himself that he doesn’t have any health problem. Wards are not as per MCI norms.

5. There is no separate record of OPD & IPD patients in the laboratory.

6. Number of Haematology tests in the register/ in the system could not be shown to the assessors during visit.

7. Cytopathology workload on day of assessment was only 3.

8. Examination Hall: Capacity of 1 Examination Hall is 227 against requirement of

250.

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

6. The Executive Committee of the Appellant

considered the Compliance Verification Assessment

Report dated 14th March, 2018 along with the

previous Assessment Report of the inspection conducted

5 | Page on 18th/19th September, 2017 and the photographs/

videography. A decision was taken to recommend not

to renew the permission for admission against the

enhanced intake of 150. The Executive Committee of

the Appellant further decided to invoke Clause 8(3)(1)(c)

of the Establishment of Medical College Regulation

(Amendment) Act, 2010. The Appellant communicated

its decision of disapproval to Respondent No.2 which

was accepted. Respondent No.2 directed the College

not to admit more than 100 students in the MBBS

course for the Academic Session 2018-19. The College

was granted liberty to apply afresh for the next

academic year in accordance with the provisions of the

Indian Medial Council Act, 1956 and the Regulations

framed thereunder.

7. The College challenged the said decision of

Respondent No.2 in the High Court of Kerala and sought

for a Mandamus to Respondent No.2 to take a decision

on the basis of the earlier inspection conducted on

18th/19th September, 2017.

6 | Page

8. The High Court allowed the Writ Petition and

directed the Appellant to recommend increase of intake

of students from 100 to 150 to Respondent No.2 -Union

of India, within a period of three days from the date of

the judgement. There was a further direction to the

Respondent No.2 - Union of India to issue the letter of

permission within three days thereafter. The Writ

Petition was allowed solely on the ground that the

Appellant ought to have made a recommendation

without any further verification. The High Court was of

the opinion that the Appellant is bound to comply with

the direction given by Respondent No.2 - Union of India

and that the inspection conducted on 14 th March, 2018

was unwarranted. On the basis of the said conclusion,

the High Court found the recommendation for

disapproval made by the Appellant on 20 th April, 2018

and the order of Respondent No.2 accepting such

recommendation by an order dated 31 st May, 2018 to be

illegal and arbitrary.

9. The contention of the Appellant is that there is no

fetter on the power of the Medical Council of India to

7 | Page conduct an inspection for the purpose of verifying

compliance. It is the further case of the Appellant that it

is not bound by the observations of the Union of India

regarding the manner of compliance verification. In any

event, the observation of Respondent No.2 was only a

suggestion. The Appellant finally contends that the

High Court could not have issued a direction in favour of

the College after 31st May, 2018 which was the last date

for issuance of letter of permission.

10. It was submitted on behalf of the College that the

intake was enhanced from 100 to 150 seats on the basis

of a recommendation made by the Appellant in the year

2016-17. Thereafter, another inspection was conducted

for renewal of the enhanced intake for the year 2017-

18. Permission was granted to the College to make

admission to 150 seats for the year 2017-18. The Ld.

Senior Counsel for the College relied upon the

inspection conducted on 18th/19th September, 2017 for

the year 2018-19 to submit that only two deficiencies

were pointed out which, even according to Respondent

No.2, have been rectified. It was further argued on

8 | Page behalf of the College that the Appellant was bound by

the direction issued by Respondent No.2 which is the

final authority for grant of approval. According to the

Ld. Senior Counsel for the College, another inspection

could not have been conducted in March, 2018. The Ld.

Senior Counsel for the College submitted that the

endorsement made by the Principal of the College on

the inspection report would clearly show that the

inspection was not conducted in a proper manner.

He contended that the findings of the assessors in the

inspection conducted on 14.03.2018 were without any

basis.

11. In Royal Medical Trust (Registered) & Anr. v.

Union of India & Anr.1, this Court set out the steps to

be followed scrupulously by all the parties concerned in

the following terms:

“31. ... ... ...

(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 fails to fulfil these requirements,

1 (2015) 10 SCC 19

9 | Page 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

10 | P a g e 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.

(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.”

12. The power of the Appellant to conduct a second

inspection was considered by this Court in

Madha Medical College and Research Institute v.

Union of India & Anr.2 wherein it was held :

“17. While considering the above submissions, we must make it clear at the outset that we are not impressed with the argument that MCI is prohibited from conducting a second or subsequent inspection. The purpose of 2 (2017) 15 SCC 791

11 | P a g e inspection by an expert team of assessors is to verify whether a medical college has the requisite infrastructure and facilities including faculty, residents as well as clinical and non-

clinical material. The basic purpose of inspection is to verify whether the college possesses the wherewithal and resources to provide quality legal education consistent with the statutory regulations which hold the field. The powers of MCI cannot be constricted by prohibiting it from carrying out another inspection, even if it were to come close on the heels of an earlier inspection. As an expert statutory body, MCI may have legitimate reasons for seeking a reverification of the observations contained in a prior inspection.

There may be reasons to doubt the genuineness of the picture which has been made out by the College during the course of an inspection. MCI may have prima facie reasons to believe that the actual possession of resources and infrastructure is at variance with what was portrayed before its team of assessors. MCI has been conferred with statutory powers to protect the cause of medical education. MCI is a custodian of public interest and acts in trust for the welfare of society. Access to medical care requires the

12 | P a g e presence of qualified health professionals.

Verification of the conditions which prevail in medical colleges is central to the role discharged by MCI. Hence, it would be manifestly contrary to public interest to restrict the powers of MCI to carry out a fresh inspection even though in its considered decision, such an inspection is necessary. This Court cannot sit in judgment over the wisdom of an expert body and we find no basis to hold in law that there is a prohibition in carrying out a fresh inspection. In the absence of a statutory interdict, the court will not read such a restriction into the powers of MCI. In these circumstances, we find no merit in the submission.”

13. There is no restriction in conducting a second

inspection limiting it only in respect of the deficiencies

pointed out earlier, as held by this Court in I.Q. City

Foundation & Anr. v. Union of India & Ors.3 :

“31. On a reading of Section 10-A of the Act, Rules and the Regulations, as has been referred to in Manohar Lal Sharma [Manohar Lal Sharma v. Medical Council of India, (2013) 10 SCC 60 : 6 SCEC 578] , and the view expressed in Royal Medical Trust [Royal Medical Trust v. Union of India, (2015) 10 SCC 19 : 7 3 (2017) 16 SCC 249

13 | P a g e SCEC 429], 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 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. Be it clearly stated, the said principle also does not flow from the authority in Royal Medical Trust [Royal Medical Trust v. Union of India, (2015) 10 SCC 19 : 7 SCEC 429] . In this context, the objectivity of the Hearing Committee and the role of the Central Government assume great significance. The real compliant institutions should not always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government. And the stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence

14 | P a g e of reasons makes the decision sensitively susceptible.”

14. The conclusion of the High Court that a second

inspection ought not to have been conducted by the MCI

is contrary to the law laid down by this Court in the

judgments referred to supra. We are also not in

agreement with the High Court that the MCI was bound

to comply with the direction issued by Respondent No.2

and that a recommendation ought to have been made

by the Appellant without verification. It is relevant to

note that the Hearing Committee was prima facie

convinced that the deficiencies pointed out in the

inspection conducted on 18th/19th September, 2017

appeared to have been rectified on the basis of

documentary evidence furnished by the College.

Therefore, the Hearing Committee suggested that the

Appellant may review and make a revised

recommendation without any need for compliance

verification. On the basis of such recommendation of

the Hearing Committee, the matter was sent back to the

Appellant by Respondent No.2. At best, the observation

of the Hearing Committee, as affirmed by Respondent

15 | P a g e No.2, is a suggestion. Remand of the matter to the

Appellant -MCI for conducting a review is due to the fact

that the physical verification for compliance can be

done only by the Appellant - MCI. The manner of

verification of the compliance has to be necessarily left

to the Appellant -MCI. We are of the view that it is open

to the Appellant to choose the manner of compliance

verification. Remand by the Government of India to MCI

for a review does not place any restriction of verification

to only the deficiencies pointed out earlier. MCI is

competent to conduct the inspection regarding the

compliance of the minimum standards as prescribed by

the Regulations as well.

15. We do not deem it necessary to deal with the

submission made on behalf of the College regarding the

inspection not being properly conducted. This Court has

repeatedly said that a decision taken by the Union of

India on the basis of a recommendation of an expert

body regarding the inadequacy of facilities in medical

colleges cannot be interfered with lightly. Interference

is permissible only when the colleges demonstrate

16 | P a g e jurisdictional errors, ex facie perversity or mala fide.

[See:- Manohar Lal Sharma v. Medical Council of

India4 and Medical Council of India v. Kalinga

Institute of Medical Sciences (KIMS)5]. As no case

is made out by the College for interference with the

inspection report, we decline the request of Mr. Sibal for

remand of the matter to the High Court.

16. For the aforementioned reasons, the judgment of

the High Court is set aside and the Appeal is allowed.

.....................................J. [S.A. BOBDE]

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

New Delhi, August 21, 2018.

4 (2013) 10 SCC 60 : 6 SCEC 578 5 (2016) 11 SCC 530

17 | P a g e