Tirumala Medical Academy Educational Society And Another vs Union Of India And Others

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION Writ Petition (C) No. 779 of 2018

TIRUMALA MEDICAL ACADEMY EDUCATIONAL SOCIETY AND ANR.

………PETITIONER (S) Versus UNION OF INDIA AND ORS. ……..RESPONDENT (S)

JUDGMENT

L. NAGESWARA RAO, J.

1. This Writ Petition is filed challenging the letter dated

27.04.2018 of the Dental Council of India-Respondent No.2

herein to the Union of India-Respondent No.1 recommending

that the first Petitioner-Tirumala Medical Academy Educational

Society is not entitled for establishment of a dental college for

the academic session 2018-2019. The order dated 26.06.2018

passed by Respondent No.1 accepting the recommendations of

Respondent No.2 and disapproving the application of the first Signature Not Verified Digitally signed by Petitioner for establishment of a dental college is also assailed SANJAY KUMAR Date: 2018.08.21 17:25:46 IST

in the Writ Petition. The Petitioners seek a further direction to Reason:

Respondent No.1 to issue appropriate orders granting letter of

1 permission for establishing a new dental college for the

academic year 2018-2019.

2. Tirumala Medical Academy Educational Society, the first

Petitioner submitted an application for establishment of a

dental college in Nizamabad, Telangana for the academic

session 2018-2019. The Executive Committee of the second

Respondent considered the proposal in its meeting held on

21.12.2017. The Executive Committee by its letter dated

29.12.2017 recommended to the Central Government not to

approve the scheme of the first Petitioner for establishment of

dental college for the academic session 2018-2019. It was

mentioned therein that in spite of several opportunities given

to the first Petitioner, the land use certificate was not furnished

and that certificate relating to the completion of the buildings

was also not given. The Executive Committee was also not

satisfied with the attachment of the proposed dental college

with the Government Medical College and Hospital as the

certificate issued by the Principal Secretary to Government of

Andhra Pradesh was issued four years back in which it was

stated that the arrangement may be revoked in the future.

The first Petitioner was informed that an opportunity of being

heard shall be afforded to him on 17.01.2018 to make his 2 submissions regarding the recommendations made by the

second Respondent for not approving the proposal of the first

Petitioner to start a new dental college. A personal hearing

was given on 17.01.2018 in respect of the deficiencies

communicated to the first Petitioner. Certain documents were

submitted by the first Petitioner in support of its contention

that the said deficiencies have been rectified. After

considering the said documents the Hearing Committee

recommended to the first Respondent that the second

Respondent should review their recommendation of

disapproval. By a letter dated 24.01.2018, the first

Respondent informed the first Petitioner that the scheme

submitted by it for starting a dental college had been sent

back to the second Respondent for a review on the basis of the

recommendations of the Hearing Committee.

3. Pursuant to the direction by the first Respondent to

review the scheme, the second Respondent appointed a

Committee to conduct inspection of the dental college. The

inspection was carried out on 22 nd and 23rd March, 2018. It is

relevant to state that there was a dispute between the first

Petitioner and Vels Education Society which was running

Meghna Institute of Dental Sciences at Nizamabad regarding 3 the affiliation to the Government Hospital, Nizamabad. Vels

Education Society filed a Writ Petition in the High Court of

Telangana and Andhra Pradesh seeking a direction to the

second Respondent not to approve the scheme of the first

Petitioner for starting a dental college. An interim order was

passed by the High Court on 17.04.2018 in I.A. No.1 of 2018 in

Writ Petition No.11172 of 2018 that the proposal of the first

Petitioner may be considered, if permissible under the

regulations having regard to the peculiar facts of the case.

4. By a letter dated 27.04.2018, the Executive Committee of

the second Respondent recommended to the first Respondent

to disapprove the application/scheme of the first Petitioner for

establishment of a dental college. Relying upon the relevant

regulations, the request of the first Petitioner regarding the

clinical attachment with the Government Hospital, Nizamabad

was rejected as only one dental college can be attached to a

Government Hospital. Meghna Institute of Dental Sciences,

Nizamabad was already having clinical attachment to the

Government Hospital. Apart from the said deficiency, several

others were pointed out in the letter dated 27.04.2018 which

are as follows:

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“2. The college has four specialties clinics in Prothodontics, Pedodontics, Operative and Periodontics in one clinic hall.

3. The oral Surgery clinics are in next hall.

4. There is no biometrics for staff attendance.

5. There was shortage of clinical material.

6. There was no record of work done in Register/ log book of lab/ Ceramic work.

7. Many staff have residential address of Hyderabad city (160 km from college).

8. 15 affidavits are incomplete, despite requests to complete them and give proofs of degrees, registration etc.

9. The list of medical college staff (teachers + non teaching) was not provided in the inspection hence, no verification could be done of medical teachers teaching the dental students.

10. Some Professors have no IT Returns after 2014.

11. The library had no journals, back journals only a few e- journals.

12. No staff lives in the dental college premises.

13. The information of annexures No. 7, 8 are to be provided by the dental college directly to the council, as it was not provided during inspection.

14. Medical Teaching Staff information not given.

15. DCI cards not available.

16. Information about university approval of appointment of teachers not available.

17. Attached Medical College details are as under:-

Department Require Allotted Occupancy d During last 6 On the day months of Inspection General Ward- 30 Information not given to Medical including the Inspectors allied specialties General Ward- 30 Surgical including allied specialties Private Ward (A/c & 9 Non A/c) Maternity Ward 15 Pediatric Ward 6 Intensive Care 4 Services (4% of bed strength) 5 Critical Care Services (6% of bed strength)

18. Area Requirement (As per Bureau of Indian Standards):-

Required Available Covered Area 20 sq.m./bed Information not given Impatient Services 40% Outpatient Services 35% Department and supportive 25% Services

19. There are following information of Man Power Requirement in various departments not given by the college authority during Inspection:-

Medical Staff: - General Surgery-2, General Medicine- 2, Obstetrics & Gynaecology-2, ENT-2, Paediatrics-

2, Anaesthesia-2, Orthopaedics-2, Pharmacologist-1, Radiologist-1, GDMO-1, Community Medicine-1, Hospital

Administration-1. Nursing Staff: Matron-1, Sister Incharge-6, O.T. Nurses-6, General Nurses-20, Labour Room Nurses-4.

Health Staff: Female Health Assistant-1, Extension Educator Paramedical Staff-1, Lab Technician/ Blood Bank Tech-4, ECG Technician-1, Pharmacist-4, Sr. Radiographer-1, CSSD-2, Medical Records-1. Engineering Staff: Civil-2, Mechanical-2, Electrical-2, Engineering Aid-4.

Other Staff: Drivers-2, Carpentor-1, Cooks-2, Barbar-

1, Class IV including chowdikers-55.

Administrative Staff: Office Superintendent-1, Head Clerk-1, Cashier-1, Stenographer-1, UDC-2, LDC-4.

20. Non-Teaching Staff/ Ministerial Staff: (Annexure10), Manager-4, Assistants-7, D.S.A. (Chair side attendant)-12, Dent. Tech. (Dental Mechanic)-6 Dent.Hygst.-2, Radiographer-3, Photographer-1, Artist-1, Physical Direction-1, Electricians-4, Plumber-

2, Carpenter-1, Meson-1, A.C. Tech-1, Helpers Electrical-3, Sweepers & Scavengers-9, Attenders-18, Security Personal-5, Dept. Secretaries- 5, Driver-1, Nurses-2, Lab. Technicians-4.

21. Central Library: not available any journal.

Indian Journals: No International Journals: No 6 Back Volumes: No Journal Room: No separate room (one big hall only) Computer/ Internet Room: No Room for librarian: No

22. There are following deficiencies of Major Equipments in various departments:

Prosthodontics and Crown & Bridge: Extra oral/ Intra oral trace-2, Preheating furnace-1, Surveying unit-1, Deflasking unit-4, Hydraulic press-2, Vacuum mixing maching-1, Curing pressure pot-1, Porcelain Furnace- 1, Vibrator-2, Sand blasting unit-1, Model Trimmer-1, Geyser-2, H.P. Grinder with suction-1, Heavy duty lathe-2, Phantom Heads-50, Pre- clinical working tables-100.

Ceramic and Cast Partial Laboratory: Pindex System- 1, Circular saw-1, Model Trimmer with Carborandum disc-1, Model Trimmer with Diamond disc-1, Induction casting machine-1, Programmable porcelain furnace with vacuum pump with instrument kit and material kit-1, Vacuum mixing maching-1, Spindle Grinder 24,000 RPM with vacuum suction-1, Curing pressure pot-1, Milling machine-1, Palatal trimmer-1, Micro surveyor-1, Pre-clinical Prosthetics Laboratory (Work table preferably complete stainless steel fitted with light, Bunsen burner, air blower, working stool)-60 (deficient), Adequate number of lab micro motor with attached hand piece-20, Plaster room for Pre-Clinical Work: Vibrator-2, Model Trimmer-1, Carborandum Disc-1, Diamond disc-1.

Conservative Dentistry and Endodontics: Dental Chairs and Unit-33, Glass bead sterilizers-4, Vibrator- 2, Intra-oral X-ray Unit-Radiation safety not there, injectable gutta percha-1, Phantom Lab Unit-60. Chemical Laboratory: Model Trimmer Carborandum disc.-1, Model Trimmer Diamond disc-1, Spindle Grinder-1, Vibrator-2, Burnout furnace-1, Porcelain furnace-1, Sand blasint machine-1, Lab Airrotor-1, Pindex System-1, Circular Saw-1, Vacuum mixer-1, Pneumatic chisel-1.

23. Staff Quarters (Separate from Hostel): Principal Bungalow- not occupied and Quarters for staff not occupied.

No. of equipped common rooms: None No. of messes: only one

24. Boys Hostel:- 4 seater boys hostel.

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25. As per Hospital Attachment only clinical facility provided to the proposed dental college.”

5. The recommendation for disapproval of the scheme by

the second Respondent was accepted by the first Respondent

on 30.05.2018. The first Petitioner approached the High Court

of Andhra Pradesh and Telangana seeking a direction to

Respondent No.1 and 2 herein to consider his representation

dated 28.05.2018 for grant of permission to establish a new

dental college. By an order dated 07.06.2018, the High Court

directed the first Respondent to consider the representation

dated 28.05.2018 in accordance with law. The first

Respondent reconsidered the matter as per the directions of

the High Court and reiterated that the first Petitioner is not

entitled to start a new dental college for the year 2018-2019

by an order dated 26.06.2018.

6. We have heard Mr. Shyam Divan, learned Senior Counsel

appearing for the Petitioners, Ms. Pinky Anand, learned

Additional Solicitor General for the Union of India and Mr.

Gaurav Sharma, learned Advocate for the Dental Council of

India. Mr. Divan submitted that the recommendation by the

second Respondent for disapproval of the scheme of the first

Petitioner to start a dental college and the acceptance of the

8 said recommendation by the first Respondent are in flagrant

violation of Section 10 A (3) (a) and 10 (4) of the Indian

Medical Council Act, 1956. He contended that no opportunity

was given to the Petitioners to rectify the deficiencies pointed

out in the inspection conducted on 22 nd and 23rd March, 2018.

He also urged that the first Respondent failed to provide a

hearing to the first Petitioner before disapproval of the scheme

for starting a new dental college. He relied upon a judgment

of this Court in Royal Medical Trust v. Union of India ,

(2015) 10 SCC 19 in support of his contention. Mr. Divan

urged that the dispute pertaining to the affiliation to a

Government Hospital has been settled and Vels Education

Society has withdrawn the Writ Petition filed by it in the High

Court of Telangana and Andhra Pradesh. According to him,

there is no dispute about the Petitioner No.1 being the only

college affiliated to the Government Medical Hospital,

Nizamabad at present. He further submitted that all the

deficiencies pointed out in the inspection have been rectified

and he requested for a direction to Respondent No.2 to

conduct another inspection to verify whether the deficiencies

still exist. He also submitted that huge investment has been

9 made on the dental college and the Petitioners would suffer

immense hardship unless permission is granted to start the

dental college for the academic session 2018-2019.

7. The learned Additional Solicitor General submitted that

the Hearing Committee of the Union of India fairly considered

the representation of the Petitioners and sent the matter back

to the second Respondent for review in January, 2018. As

gross deficiencies have been pointed out by the second

Respondent on the basis of inspection conducted on 22 nd and

23rd March, 2018, the recommendation for disapproval of the

scheme of the first Petitioner was accepted by the first

Respondent. She stated that there was no requirement of

giving an opportunity at every stage and in view of the

personal hearing given to the first Petitioner in January, 2018,

there was no necessity of another opportunity to be given by

the first Respondent before passing a final order. She further

submitted that there are time lines fixed in the schedule which

cannot be violated as per the judgments of this Court.

According to her, the first Petitioner is not entitled for any

relief as the last date for grant of approval by the Union of

India was 31.05.2018. Mr.Gaurav Sharma urged that the Writ

Petition warrants dismissal as the Petitioners are not entitled 10 for the relief claimed for. He stated that the deficiencies

pointed out have not been cured. By referring to the material

placed on record by the Petitioners, he submitted that there is

large scale shortage of clinical material. He also contended

that the settlement arrived at between the first Petitioner and

Vels Education Society was only last week. At the time of

consideration of his proposal by the Respondents, the first

Petitioner was not entitled for permission to start a dental

college as it was not the only college affiliated to Government

Hospital. He supported the Additional Solicitor General by

stating that the first Petitioner was not entitled for an

opportunity after the inspection was held in view of the fact

that an oral hearing was given by the Union of India before

sending the matter back to the Dental Council of India in

January, 2018.

8. Section 10 (A) of the Indian Medical Council Act, 1956 and

the relevant Regulations framed under Section 33 of the Act

were considered by this Court in Royal Medical Trust (supra)

in which it was held as follows:

“30. In the light of the aforesaid facets, namely, that the scheme under Section 10-A may itself contemplate stage- wise achievement of annual targets and the requirements of reasonable opportunity to be afforded not only at the 11 initial stage but also in cases of subsequent renewal and further that the opportunity must be afforded at both the stages, namely, by MCI as well as by the Central Government, the Schedule under the Regulations must accommodate and provide for adequate time-limits to take care of such eventualities. The Schedule which was brought in force by way of an amendment dated 21-9-2012 unfortunately does not provide for such stage-wise consideration. It simply gives four stages without indicating any time-limits to ensure grant of such reasonable opportunity in case the decisions of disapproval are taken against the applicants. It also does not speak of any compliance verification. The pattern that emerges in the present cases is common and consistent in that the inspections were undertaken in and around April/May 2014 and the letters of disapproval were sent by the Central Government on or about 15-7-2014. Though the compliance was reported, no verification in that behalf was undertaken.

31. MCI and the Central Government have been vested with monitoring powers under Section 10-A 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 12 as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant 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.

(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.

11. The recommendation of the first Respondent for

disapproval of the scheme of the first Petitioner by its letter

dated 29.12.2017 to the second Respondent pertained to the

initial assessment of the application at the first level. Having 13 been satisfied with the explanation of the first Petitioner during

the hearing held on 17.01.2018, the first Respondent directed

the second Respondent to review the proposal of the first

Petitioner for starting a new dental college for the academic

session 2018-2019. It is relevant to mention that no

inspection of the college was done at that stage. The only

inspection that was done was on 22 nd and 23rd March, 2018.

The first Petitioner was entitled for an opportunity to report

compliance after the deficiencies were communicated to it.

Admittedly, no such opportunity was afforded by the second

Respondent. Consequently, the Dental Council of India did not

also call for compliance verification. No opportunity was given

by the first Respondent to the first Petitioner before

disapproving the scheme of the first Petitioner. We do not see

any substance in the submissions made on behalf of the

Respondents that there was no requirement of an opportunity

to be given to the first Petitioner. The only inspection that

was conducted in this case was on 22 nd and 23rd March, 2018

and according to the judgment of this Court in Royal Medical

Trust (supra), the first Petitioner was entitled for an

opportunity to rectify the deficiencies pointed out in the

14 inspection and a further hearing before a final order was

passed by the first Respondent.

12. Having held that the letter dated 27.04.2018 of the first

Respondent recommending disapproval of the scheme of first

Petitioner to start a dental college and the order dated

28.06.2018 of the first Respondent are in flagrant violation of

Section 10 of the Indian Medical Council Act, 1956, it is

necessary to decide as to whether the first Petitioner is

entitled for a direction for re-inspection to enable it to make

admissions for the academic session 2018-2019.

13. The time schedule for the receipt of the applications for

establishment of new dental colleges and processing them by

the Central Government is as follows:

Sl. State of processing Last Date No. 1. Receipt of applications by the Central Between 15thJune to Government 7 July th (both days inclusive) of any year

2. Forwarding of applications by the By 31stJuly Central Government to Dental Council of India

3. Technical Scrutiny, Assessment and By 31stDecember Recommendations by the Dental Council of India

4. Receipt of reply/ compliance from the Two months from receipt applicant by the Central Government of recommendation from and for personal hearing thereto, if any DCI but not after and forwarding of compliance by the 31 January.

st

Central Government to the Dental Council of India

5. Final recommendation by the Dental By 30thApril Council of India

6. Issue of Letter of Permission by the By 31stMay 15 Central Government

7. Commencement of academic session/ 1stof August term

8. Last date upto which students can be By 15thSeptember admitted/ Joined against stray vacancies arising due to any reason

14. The time schedule for receipt of application for opening of

higher courses of study/increase of post graduate

seats/renewal of permission and processing of the applications

by the Central Government and the Dental Council of India is

as follows:

SI. Stage of proceeding Last Date No.

1. Receipt of applications by the Central Between 15th March Government. to 7th April (both days inclusive of any year)

2. Forwarding of applications by the Central By 30th April Government to Dental Council of India.

3. Technical Scrutiny, Assessment and By 15th October Recommendations by the Dental Council of India.

4. Receipt of reply/compliance from the Two months from applicant by the Central Government and receipt of for personal hearing thereto, if any and recommendation forwarding of compliance by the Central from DCI but not Government to the Dental Council of India. after 15th November

5. Final recommendations by the Dental By 31st January Council of India.

6. Issue of letter of permission by the Central By 28th February Government.

7. Commencement of academic 1st May session/term.

8. Last date up to which students can be By 31st May admitted/Joined against stray vacancies arising due to any reason.

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15. The last date for grant of permission by the Central

Government was 31.05.2018 and commencement of academic

session is 01.08.2018. A time schedule for completion of the

admission process for first BDS Course for the academic

session 2018-2019 was issued by a notification of the second

Respondent on 11.06.2018. According to the schedule, the first

round of State Counselling was scheduled to be held between

25th June to 5th July and the second counselling is to be held

between 15th July to 26th July.

16. The notification issued by the Dental Council of India with

previous sanction of the Central Government prescribing the

time schedule for receipt of applications for establishment of

new medical colleges and processing the applications was

approved by this Court in Ashish Ranjan v. Union of India

(2016)11 SCC 225.

17. After holding that the Respondents acted in violation of

Section 10 A (3) (a) and Section 4 by not affording an

opportunity to the Petitioner No.1, we proceed to examine

whether the Petitioners are entitled for the relief claimed in

this Writ Petition. The final order relating to the relief may be

different and not a natural consequence of the ratio decidendi

of the judgment. This may happen either on account of a

17 subsequent event or the need to mould the relief to do the

complete justice in the matter. See: Sanjay Singh v. U.P.

Public Service Commission (2007) 3 SCC 720 and U.P.

Public Service Commission v. Manoj Kumar Yadav & Anr.

(2018) 3 SCC 706. It has been repeatedly held by this

Court that the schedule prescribed by the Dental Council of

India is binding on all concerned and should not be ordinarily

relaxed. Any direction given by us in this case would

necessarily involve relaxation of the time lines mentioned in

the schedule. We are not inclined to do that in this case as the

Petitioners are also responsible for the delay caused in

consideration of their proposal to start a new dental college.

Initially, they did not furnish the required information sought

by the second Respondent regarding the land and buildings

which resulted in the recommendation of disapproval of the

scheme proposed by them. If they complied with the direction

for submission of the relevant documents sought by the

Respondent No.2, the inspection of the college would have

been conducted as scheduled in December, 2017 itself.

Further delay was caused due to the order passed in the Writ

Petition filed by the Petitioners in the High Court of Telangana

18 and Andhra Pradesh by which Respondent No.1 was directed to

consider the representation made on 28.05.2018. Further, the

settlement between the Petitioners and Vels Education Society

regarding the affiliation to the Government Medical College

and Hospital was reached only last week. In the facts and

circumstances mentioned above, we are not inclined to give

any direction to the Respondents to consider the proposal of

the Petitioner No.1 to start a new dental college for this

academic session by relaxing the schedule issued by the

Dental Council of India.

18. For the aforementioned reasons, the Writ Petition is

disposed of.

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

......................................J. [L. NAGESWARA RAO] New Delhi, August 21, 2018.

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