# MEDICAL COUNCIL OF INDIA v. THE CHAIRMAN, S. R. EDUCATIONAL AND CHARITABLE TRUST & ANR

- **Citation:** [2018] 10 S.C.R. 1039
- **Court:** Supreme Court of India
- **Decided:** 2018-10-29
- **Case number:** Civil Appeal No. 10372 of 2018
- **Bench:** Arun Mishra, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/medical-council-of-india-v-the-chairman-s-r-educational-and-charitable-trust-anr-32543
- **Pages:** 35

## Headnote

Education/Educational Institutions:
Medical Colleges - Denial of renewal permission/
recognition - Propriety of - On inspection of colleges by Medical
Council of India (MCI) deficiencies found - Government of India/
Hearing Committee directed MCI to review the recommendation and
consider the compliance reported - MCI declined to review its
recommendation - Thereafter Government of India denied renewal/
recognition - Writ petition challenging the denial - High Court
quashed the orders whereby permission was declined - Directed to
admit students to the Colleges for academic year 2018-19 - Also
directed MCI to carry out inspection to verify rectification of the
deficiencies found at the time of earlier inspection - On appeal,
held: For effective implementation of provision of s. 10A of Medical
Council Act, 1999 Regulations have been made - The Regulations
are binding with respect to availability of teaching faculty,
infrastructural and other facilities - With the advancement of the
batches, this requirement becomes more rigorous - Therefore,
recommendations made by Hearing Committee to review and consider
the compliance is not binding - Provisions of 8(3)(1)(a) and (b) are
binding upon the Hearing Committee/Government of India and
MCI - In case there are gross deficiencies, more than prescribed in
the Regulation, for the concerned batch, then the compliance
verification would not be considered in the same year - A decision
taken by Union of India on the basis of recommendation of an expert
body regarding the inadequacy of facilities cannot be interfered
with lightly - Interference is permissible only when there are
jurisdictional errors, ex facie perversity or mala fide - High Court
has gravely erred in law in quashing Government's order, allowing
the admissions for academic session 2018-19 without there being
1039
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[2018] 10 S.C.R.
permission by Government of India and recommendation of MCI -
Such general directions without considering the provisions of the
Regulations are illegal and unwarranted and on inspection decision
has to be taken in accordance with law as per regulations - However,
it would be appropriate that MCI and Government of India take
decision at an early date i.e. by the end of February or latest by
March and not by the end of the Scheduled date i.e. May -
Establishment of Medical Colleges Regulations, 1999 - Regulation
8(3)(1)(a) and (b) - Judicial Review.
Allowing the appeals, the Court
HELD: 1. The Medical Council of India (MCI) has been
established in order to streamline the standard of medical
education. It has the power to supervise qualification and eligibility
standards for admissions into medical institutions. [Para 22]
[1061-E]
State of Kerala v. T. P. Roshna (1979) SCC 580; Medical
Council of India v. State of Karnataka (1998) 6 SCC
131 : [1998] 3 SCR 740 - relied on.
2. For effective implementation of provisions of Section 10A
of the Indian Medical Council Act, 1956 requiring prior
permission from the Central Government for the establishment
of medical colleges, regulations have been made in exercise of
powers under Section 10A read with Section 33 of the Act.
Consequently, the Establishment of Medical Colleges
Regulations 1999 are binding with respect to availability of
teaching faculty, infrastructural and other facilities and with the
advancement of the batches this requirement becomes more
rigorous as there is more requirement in the faculty than the
college is recognized after fulfillment of all the conditions as
apparent from the provisions contained in the Regulations. With
the aforesaid objective, the provisions contained in Regulation
8(3) have been carved out and amended in 2016. In case there
are gross deficiencies, more than prescribed in regulation for
the concerned batch then the compliance verification would not
be considered in the same academic year. [Paras 24-25] [1062D-G]
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Dr. Preeti Srivastava

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MEDICAL COUNCIL OF INDIA
v.
THE CHAIRMAN, S. R. EDUCATIONAL AND CHARITABLE
TRUST & ANR.
(Civil Appeal No. 10372 of 2018)
OCTOBER 29, 2018
[ARUN MISHRA AND VINEET SARAN, JJ.]
Education/Educational Institutions:
Medical Colleges - Denial of renewal permission/
recognition - Propriety of - On inspection of colleges by Medical
Council of India (MCI) deficiencies found - Government of India/
Hearing Committee directed MCI to review the recommendation and
consider the compliance reported - MCI declined to review its
recommendation - Thereafter Government of India denied renewal/
recognition - Writ petition challenging the denial - High Court
quashed the orders whereby permission was declined - Directed to
admit students to the Colleges for academic year 2018-19 - Also
directed MCI to carry out inspection to verify rectification of the
deficiencies found at the time of earlier inspection - On appeal,
held: For effective implementation of provision of s. 10A of Medical
Council Act, 1999 Regulations have been made - The Regulations
are binding with respect to availability of teaching faculty,
infrastructural and other facilities - With the advancement of the
batches, this requirement becomes more rigorous - Therefore,
recommendations made by Hearing Committee to review and consider
the compliance is not binding - Provisions of 8(3)(1)(a) and (b) are
binding upon the Hearing Committee/Government of India and
MCI - In case there are gross deficiencies, more than prescribed in
the Regulation, for the concerned batch, then the compliance
verification would not be considered in the same year - A decision
taken by Union of India on the basis of recommendation of an expert
body regarding the inadequacy of facilities cannot be interfered
with lightly - Interference is permissible only when there are
jurisdictional errors, ex facie perversity or mala fide - High Court
has gravely erred in law in quashing Government's order, allowing
the admissions for academic session 2018-19 without there being
1039
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permission by Government of India and recommendation of MCI -
Such general directions without considering the provisions of the
Regulations are illegal and unwarranted and on inspection decision
has to be taken in accordance with law as per regulations - However,
it would be appropriate that MCI and Government of India take
decision at an early date i.e. by the end of February or latest by
March and not by the end of the Scheduled date i.e. May -
Establishment of Medical Colleges Regulations, 1999 - Regulation
8(3)(1)(a) and (b) - Judicial Review.
Allowing the appeals, the Court
HELD: 1. The Medical Council of India (MCI) has been
established in order to streamline the standard of medical
education. It has the power to supervise qualification and eligibility
standards for admissions into medical institutions. [Para 22]
[1061-E]
State of Kerala v. T. P. Roshna (1979) SCC 580; Medical
Council of India v. State of Karnataka (1998) 6 SCC
131 : [1998] 3 SCR 740 - relied on.
2. For effective implementation of provisions of Section 10A
of the Indian Medical Council Act, 1956 requiring prior
permission from the Central Government for the establishment
of medical colleges, regulations have been made in exercise of
powers under Section 10A read with Section 33 of the Act.
Consequently, the Establishment of Medical Colleges
Regulations 1999 are binding with respect to availability of
teaching faculty, infrastructural and other facilities and with the
advancement of the batches this requirement becomes more
rigorous as there is more requirement in the faculty than the
college is recognized after fulfillment of all the conditions as
apparent from the provisions contained in the Regulations. With
the aforesaid objective, the provisions contained in Regulation
8(3) have been carved out and amended in 2016. In case there
are gross deficiencies, more than prescribed in regulation for
the concerned batch then the compliance verification would not
be considered in the same academic year. [Paras 24-25] [1062D-G]
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Dr. Preeti Srivastava v. State of Madhya Pradesh & Ors.
(1999) 7 SCC 120 : [1999] 1 Suppl. SCR 249 - relied
on.
3. It is apparent from regulation 8(3)(1)(a) of Regulations
of 1999 that in the case of the third batch, if deficiencies of
teaching faculty and/or residents are found to be more than 30%
and bed occupancy less than 50%, a college cannot be given an
opportunity for compliance in the same year. In the case of the
4th and 5th batch as provided in regulations 8(3)(1)(b), if the
deficiencies of teaching faculty and the residents is more than
20% and bed occupancy is less than 65%, such college cannot
be given opportunity of reporting compliance during the same
academic year. [Paras 14 and 15] [1056-A-B]
4. Considering the deficiencies in case of S.R. Educational
Trust, Regulation 8(3)(1)(a) was attracted. In Al-Azhar Medical
College and P. K. Dass Institute of Medical Sciences for 5th Batch
deficiencies found by the assessors were gross so as to attract
the provisions contained in amended Regulation 8(3)(1)(b). [Para
16] [1056-C]
5. Therefore, the recommendations made by the Hearing
Committee to review and to consider the compliance could not
be said to be binding. The provisions of the regulations 8(3)(1)(a)
and (b) are binding upon the Hearing Committee/Government of
India and the MCI. It is only in a case when a report of the
Assessors on the face of it, makes out that the same is incorrect,
a reconsideration or review is called for. Otherwise, in the case
of gross deficiency, the yardstick contained in regulation 8(3)(1)(a)
or (b) has to be applied by the Hearing Committee, Government
of India or the MCI, as the case may be. It is not open to the
Government of India/ MCI or Hearing Committee to depart in a
few cases and in some other to take a different stand. They have
to scrupulously observe the provisions of regulations which are
binding on them. [Para 26] [1036-B-D]
Royal Medical Trust (Registered) & Anr. v. Union of
India & Anr. (2015) 10 SCC 19; Madha Medical
College and Research Institute v. Union of India & Anr.
(2017) 15 SCC 791; I.Q.City foundation and Anr. v.
Union of India & Ors. (2017) 16 SCC 249 - relied on.
MCI v. CHAIRMAN, S.R. EDUCATIONAL AND
CHARITABLE TRUST
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[2018] 10 S.C.R.
6. It is high time for the MCI to ensure its functions well
and eradicate all the loop-holes and decide the case within a
reasonable time and not to lend the colleges in a situation with
no legal remedy available once case is decided at the fag end of
the academic session on 31st May. It would be appropriate that
MCI and Government of India take a decision in all the cases at
an early date and not by the end of May 2018. The next academic
session has to commence from first of July of the Gregorian
calendar year as such at least 3-4 months' time should be available
to seek judicial review of the action or re-inspection, if any, so
warranted by the MCI or Government of India. Once a petition
is filed and even if in some cases the Court is inclined to grant a
relief of re-inspection to a college, but due to the lapse of the
time schedule and the admissions having already been made, it
is not considered appropriate to disturb the uniform schedule of
various Universities. It would be appropriate that the MCI, as
well as the Government of India, should take a final decision after
inspection, by the end of February or latest by the end of March.
[Para 28] [1063-G-H; 1064-A-B]
Medical Council of India v. Vedantaa Institute of
Academic Excellence Pvt. Ltd. & Ors. (2018) 7 SCC
225; Medical Council of India v. The Principal, KMCT
Medical College, and Anr. (2018) 9 SCC 766 - relied
on.
7. In the case of P.K. Dass Institute of Medical Sciences,
as per the Assessors, the bed occupancy was 40.30% i.e. 262
patients out of 650 patients which were required. Whereas college
claimed that 493 indoor patients were there at 10.00 am on
31.10.2017. There was 80% bed occupancy on 30-31.10.2017
and 1.11.2017. The College has drawn support from the website
portal. Whatever college says is not a gospel truth. There is no
case wherein college does not dispute the report of the Assessors
and contend that there were no such deficiencies. It is clearly
disputed fact. Firstly, the report of the Assessors cannot be lightly
disbelieved. It is not open to examining the case set up by the
college as facts found by Assessors are at great variance;
secondly, in the judicial review, the report cannot be discarded
relying on data put up by the college on self-serving website
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portal. The High Court was right in discarding the explanation
offered by the colleges with respect to deficiencies. Even the
Hearing Committee with respect to the College did not doubt
the report of Assessors as to bed occupancy. It is not what the
institution asserts on website but what is actually found on
inspection, that has to be considered by the court and while
exercising judicial review it is settled law that court cannot sit in
appeal over the report of the assessors. It was also observed
that at the time of inspection faculty should be present barring
certain exceptions otherwise the very purpose of the inspection
would be defeated. The Report of the Assessors cannot be lightly
faulted and the court cannot sit in an appeal and go into disputed
facts. There were other deficiencies too but due to the aforesaid
gross deficiencies, the provisions of regulations 8(3)(1)(b) were
clearly attracted. [Paras 30-31] [1065-A-D, G-H; 1066-E-F]
Medical Council of India v. N.C. Medical College &
Hospital and Ors. 2018 (9) JT 204; Medical Council
of India vs. Kalinga Institute of Medical Sciences
(KIMS) & Ors. (2016) 11 SCC 530 : [2016] 4 SCR 403
- relied on.
8. 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
jurisdictional errors, ex facie perversity or mala fide. It is not
open to the court in judicial review to accept tenuous objections
as to bed occupancy in the absence of mala fide. [Para 32] [1067B-C]
Medical Council of India v. The Principal, KMCT
Medical College, and Anr. (2018) 9 SCC 766 - relied on.
9. The High Court has gravely erred in law while passing
the impugned judgment and order in quashing Government's
order, allowing the admissions for the academic session 20182019 without there being Government of India's permission and
the recommendation of the MCI. The High Court has issued
direction for fresh inspection and thereafter the MCI to consider
the report after the grant of opportunity to remove defects if any.
MCI v. CHAIRMAN, S.R. EDUCATIONAL AND
CHARITABLE TRUST
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Firstly, it could not have issued such a direction in view of
regulations and also the blanket direction that college should be
permitted to remove the deficiencies if any found. Deficiencies
can be removed, if found, within the permissible limits as provided
in regulation 8(3), not in a case Regulation 8(3)(1)(a) or (b) is
attracted. Thus, such kind of general direction issued without
considering the provisions of the Regulations are wholly illegal
and unwarranted and on inspection, the decision has to be taken
in accordance with law as per regulations. [Para 33] [1067-C-F]
10. The case of D.M. Education and Research Institute of
Medical Sciences is of recognition and admission. For the purpose
of recognition, the Regulations of 1999 contains the provisions
in Regulation 8(3)(1) wherein the 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. It is the stand of
the MCI also that the matter of recognition is under consideration
and shall be considered in terms of said regulation after giving
the opportunity to make good deficiency. However, with respect
to admissions in 2018-19, the recommendation was made not to
admit the students. [Paras 34 and 39] [1068-C-D; 1071-H; 1072A-B]
11. It was clearly mentioned by the MCI in its letter dated
25.5.2018 that the matter could not be considered for renewal of
permission for admission for the academic year 2018-2019, but
compliance of the medical college for the purpose of recognition/
approval under Section 11(2) of the Act was under consideration
of the MCI and compliance verification/assessment and
recommendations of the MCI would be sent to Central
Government in due course of time. The matter was under
consideration before the MCI for recognition, renewal of
permission for admission had been declined by the MCI on
28.5.2018. Thereafter, the Government of India has passed the
order on 31.5.2018 declining admission for 2018-19. [Para 40]
[1072-D-F]
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12. In view of the deficiencies of faculty and of bed
occupancy, the decision not to grant permission for admission in
the year 2018-2019 was appropriate. However, the compliance
that had been submitted by the college on 22.5.2018 will be
considered for the purpose of recognition by the MCI as provided
under the regulation 8(3). Let the MCI consider the matter for
the purpose of recognition duly considering the compliance
unfettered by the order passed by the Government of India on
31.5.2018. The Government of India also to consider the matter
of recognition in accordance with the law. Let the decision be
taken by the respondents- MCI and Government of India as
expeditiously as possible. [Para 41] [1072-F-H]
Mridul Dhar v. Union of India (2005) 2 SCC 65 : [2005]
1 SCR 380; Priya Gupta v. State of Chhattisgarh (2012)
(7) SCC 433 : [2012] 5 SCR 768 - relied on.
Swamy Devi Dayal Hospital & Dental College v. Union
of India & Ors. AIR 2014 SC 284 : [2013] 14 SCR 105;
Priyadarshini Dental College and Hospital v. Union of India
& Ors. 2011 AIR SCW 2383 : (2011) 4 SCC 623 : [2011]
2 SCR 945; D.M. Education and Research Foundation
v. Union of India [2016 KHC 171] 5 - referred to.
Case Law Reference
[2013] 14 SCR 105
referred to
Para 5
[2011] 2 SCR 945
relied on
Para 5
2016 KHC 171
relied on
Para 5
(2018) 7 SCC 225
relied on
Para 6
(2018) 9 SCC 766
relied on
Para 6
(2015) 10 SCC 19
relied on
Para 18
(2017) 15 SCC 791
relied on
Para 18
(2017) 16 SCC 249
relied on
Para 18
[1998] 3 SCR 740
relied on
Para 23
(1979) SCC 580
relied on
Para 22
2018 (9) JT 204
relied on
Para 31
[2016] 4 SCR 403
relied on
Para 31
[2005] 1 SCR 380
relied on
Para 40
[2012] 5 SCR 768
relied on
Para 40
MCI v. CHAIRMAN, S.R. EDUCATIONAL AND
CHARITABLE TRUST
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SUPREME COURT REPORTS
[2018] 10 S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10372
of 2018
From the Judgment and Order dated 30.08.2018 of the High
Court of Kerala at Ernakulum in W.P. (C) No. 19386 of 2018.
WITH
C.A. Nos. 10373, 10374, 10375 of 2018.
Vikash Singh, Jaideep Gupta, Neeraj Kishan Kaul, Huzefa
Ahmedi, C. S. Vaidyanathan, Ajit Kumar Sinha, Sr. Advs., Gaurav
Sharma, Prateek Bhatia, Abhishek, Dhawal Mohan, Prasanna Mohan,
Vishal Arun, G. Prakash, Jishnu M. L., Ms. Beena Prakash, Divyanshu
Srivastava, Vivekananda Bomminneni, Varun Mathur, Hario Beeran,
Usman Ghani Khan, Pallavi Pratap, Zulfiker Ali P. S, Radha Shyam
Jena, K. V. Mohan, George Jacob, K. V. Balakrishnan, Anirudh Gupta,
Gaurav Sharma, Venkita Subramani T. R., P. Sreekumar, Amit
Sharma, Raghenth Basant, Mithun Verghis, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. The Medical Council of India (for short,
"the MCI") is aggrieved by the judgment and order dated 30.8.2018
passed by the High Court of Kerala at Ernakulam. The High Court has
quashed the order passed by the Government of India declining to grant
renewal permission/ recognition to respondents - medical colleges. The
High Court has directed the Commissioner for Entrance Examinations,
Government of Kerala to allot students to the colleges for the academic
year 2018-2019 immediately. The MCI has also been directed to carry
out the inspection to verify whether the colleges had rectified the
deficiencies found at the time of earlier inspection. In case they have
not done so, the MCI shall be at liberty to take appropriate action against
them including the enforcement of the Bank Guarantees. At the same
time, it has been ordered that in case fresh deficiencies are detected, the
colleges shall be given the opportunity to rectify such deficiencies within
a stipulated time.
2. The High Court has decided the petitions of the four colleges
by the common order. Probably, High Court had felt that the question on
which it decided the matters was common, however, the facts of each
and every college are different, the deficiencies found obviously varies
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and the order of the High Court is subject to further judicial review. It
would have been appropriate for the High Court to decide the matter by
separate orders duly reflecting the facts of each case and the deficiencies
found. Clubbing of matters in the method and manner it had been done
may indicate non-serious approach. In three of the matters, question
was that of admissions in the academic session 2018-2019 and in one of
the matters, the question pertains to the grant of recognition as well as
admissions.
3. The High Court has observed that there are many serious
deficiencies and the lack of patients would result in a lack of exposure
of the students in so far as treatment of patients was concerned. The
deficiencies, such as lack of teaching faculty, residents, lack of a sufficient
number of surgical procedures, though, are of nature which would have
a serious impact on the quality of education, the explanation offered by
the colleges on the deficiencies has not been found to be genuine to
impress the court. Notwithstanding the aforesaid observations, the High
Court has proceeded to grant the relief to the medical colleges.
4. The colleges had contended that they had rectified the
deficiencies and the Hearing Committee had recommended the MCI to
review the case. Accordingly, the Central Government had required the
MCI to review its earlier stand. However, the Executive Committee of
MCI refused to reconsider its earlier stand in view of the provisions
contained in the Regulations 8(3)(1)(a) of the Establishment of Medical
College Regulations, 1999 (for short, "the Regulations"). The MCI
declined to review the order on the ground that the time for the MCI to
send its recommendations to Central Government had already expired
on 30th April 2018 and the schedule was required to be strictly adhered
to.
5. The High Court had observed that opportunity of hearing would
mean to make a representation. Timely assessment is integral to the
scheme and such an opportunity is to be given not only when permission
for the establishment of a new college is under consideration but even in
cases of subsequent renewal of such permission. The High Court had
referred to the decisions in Swamy Devi Dayal Hospital & Dental
College v. Union of India & Ors. AIR 2014 SC 284 and Priyadarshini
Dental College and Hospital v. Union of India & Ors., 2011 AIR
SCW 2383= 2011 (4) SCC 623. At the time of renewal what is required
to be considered is whether the prescribed faculty and infrastructure is
MCI v. CHAIRMAN, S.R. EDUCATIONAL AND
CHARITABLE TRUST [ARUN MISHRA, J.]
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available. There is some difference between the renewal and the
parameters prescribed for the establishment. The High Court has relied
upon the decision in D.M. Education and Research Foundation v.
Union of India [2016 KHC 171] in which a Division Bench of the High
Court of Kerala held that the principle of natural justice has to be strictly
adhered to. The stand taken by the MCI had been rejected and it was
observed that compliance once reported was required to be considered,
thus, the MCI ought to have reconsidered the matter. In the cases, the
recommendation to review had not been considered, lack of time could
not be accepted as an excuse to deny the petitioner the right claimed to
which they were entitled.
6. It was urged by learned senior counsel for the MCI that the
High Court has failed to consider the provisions contained in the Regulation
8(3)(1)(a) of the Regulations that was attracted in the matter of grant of
renewal/ recognition. If upon assessment the deficiencies had been found
to be gross as provided in the aforesaid regulation, the college was not
entitled to seek liberty of compliance and further verification in the same
academic year. The decision of this court in Medical Council of India
v. Vedantaa Institute of Academic Excellence Pvt. Ltd. & Ors. 2018
(7) SCC 225 though referred to in the judgment, has not been discussed
but, the decision of the Division Bench of the High Court has been
preferred which was contrary to it. Similarly, the decision of this Court
in Medical Council of India v. The Principal, KMCT Medical
College, and Anr. (Civil Appeal No.8429 of 2018) had not been adverted
to. In the matter of D.M. Education and Research Foundation (supra)
the compliance was reported by the college belatedly on 22.5.2018. Thus,
considering the time schedule, it was not possible to make the inspection
again for verification of the compliance. Therefore, it was not legally
permissible to grant any relief for the academic session 2018-2019 to
the said college. However, it was the case of recognition where the
main provision of regulation 8 (3)(1) was applicable. For recognition, its
case would be considered and admissions can be made only in the next
academic session i.e. 2019-2020 if permitted.
7. Shri Neeraj Kishan Kaul, learned senior counsel appearing on
behalf of the two of the colleges contended that when the Government
of India/Hearing Committee had directed the MCI to review the
recommendation and consider the compliance reported, the order was
binding upon the MCI. It was necessary for the MCI to consider the
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compliance that was reported and to conduct a fresh inspection for
assessment, in case, it was so required and thereafter to take decision
afresh. Declining to review the earlier recommendation clearly indicate
that there was non-application of mind and subsequently Government of
India erred in accepting the stand of the MCI declining to review and
consider the compliance. Thus, the High Court was fully justified to
permit the colleges to admit the students subject to removal of the
deficiencies and liberty has been given to the MCI to inspect the colleges
and in case of deficiencies still subsist, to take appropriate action.
8. Mr. C.S. Vaidyanathan, learned senior counsel appearing on
behalf of the respondent college - P.K. Dass Institute of Medical Sciences
vehemently contended that the report of the Assessors was absolutely
incorrect. The website portal of the college clearly indicated the number
of indoor patients occupying the beds in the hospital. The patients were
more than 500. The Assessors had wrongly reported the number of
indoor patients in their report. A large number of patients were in the
operation theatre, bathrooms, and other places. They have been illegally
excluded. He further contended that somebody is required to consider
all these factual aspects. The High Court has also not considered the
explanation offered. At some level, somebody is required to consider
the compliance. Assessors cannot be said to be the final arbiter in such
matters when the report is ex-facie incorrect as apparent from the
explanation offered by the college. Thus, this court should look in the
same and grant the relief to the college discarding the report of the
Assessor.
9. Shri Hufeza H. Ahmedi, learned senior counsel appearing on
behalf of D.M. Education and Research Foundation contended that the
case of the respondent falls for recognition and proviso (a) to Regulation
8(3)(1) of Regulations was not attracted. The opportunity of compliance
was required to be given and by not giving opportunity the regulation has
been violated. Thus, the decision rendered by the MCI/Government of
India cannot be said to be appropriate. The MCI, thus, deserves to be
directed to take a decision afresh in the matter of college in question.
No case for interference is made out in the matter of D.M. Education
and Research Foundation as the matter was with respect to the
recognition-cum-admission.
10. When we consider the report of the Assessors, in the case of
S.R. Educational and Charitable Trust, the physical inspection was carried
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out on 6th and 7th November 2017. The question involved was of 3rd
Batch of 100 students for the academic year 2018-2019. A large number
of deficiencies were found as observed in the order dated 31.5.2018
passed by the Government of India:
1.
Deficiency of faculty is 12.64% as detailed in the report.
2.
Shortage of Residents is 15.21 % as detailed in the report.
3.
OPD attendance at 2 p.m. on the day of assessment is 575 against
the requirement of 600.
4.
Bed Occupancy at 10 a.m. on the day of assessment is 37%.
5.
There was NIL Major Operation on the day of assessment.
6.
There was NIL Normal Delivery on the day of assessment.
7.
The workload of Histopathology was NIL on the day of
assessment.
8.
OPD: Separate Registration counters for male/ female are not
available. Registration counters for OPD/ IPD patients are not
separate.
9.
Audiometry room is not air-conditioned. Speech Therapy is not
available.
10.
Casualty: Separate Casualty for O.G. is not available.
11.
O.T.s: They are under renovation.
12.
ICUs: There was NIL patient in SICU and only 1 patient in
ICCU and 2 patients each in MICU, PICU/ NICU.
13.
Radiodiagnosis department: Only 1 Mobile X-ray machine is
available against the requirement of 2. Only 1 Static X-ray
machine is available against the requirement of 2.
14.
C.T. Scan is not available.
15.
CSSD: Receiving and Distribution points are not separate.
16.
Central Research Laboratory is not functional.
17.
Lecture Theaters: 2 Lecture Theatres are available against the
requirement of 3.
18.
Central Library: Students Reading room (Outside) is not furnished.
2,968 books are available against the requirement of 3,000.
19.
Central Photography section is not available.
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20.
Students' Hostels: They are shared with BDS students.
21.
Residents' Hostel: It is not available.
22.
Residential Quarters: NIL quarters are available for Non-teaching
staff.
23.
Pathology department: Audiovisual aids are not available.
Specimens are not available in the Museum. 4 Service
Laboratories are not available.
24.
Microbiology department: Audiovisual aids are not available. The
museum is not available. 7 Service Laboratories were not
available. Media Preparation facility, Autoclaving are not available.
25.
Pharmacology department: Audiovisual aids are not available.
The museum is not available. Clinical Pharmacology laboratory
is not available.
26.
Forensic Medicine department: Audiovisual aids are not available.
Museum is not available. Cold storage is not available. Autopsy
block is under construction.
27.
Community Medicine department: Audiovisual aids are not
available. Museum is not available. Practical Laboratory is not
available. It is not furnished.
28.
RHTC: Cold chain equipment is not available. Survey/ MCH/
Immunization/ FW Register are not available.
29.
CME: There was no CME activity during the year.
30.
Other deficiencies are as pointed out in the assessment report.
11. In the matter of Al-Azhar Medical College and Super Specialty
Hospital the Government of India in its order dated 31.5.2018 has
mentioned the deficiencies found by the Assessors in the inspection made,
in the matter of renewal of permission for 5th Batch of 150 seats in
MBBS course for the academic year 2018-2019. The deficiencies
mentioned are extracted herein:
1.
Deficiency of faculty is 37.12% as detailed in the report.
2.
Shortage of Residents is 100 % as detailed in the report.
3.
Residents and Assistant Professors are drawing more salary than
Professors and HOD. All Senior and Junior Residents have been
appointed with orders mentioning duty hours from 8 am to 4.30
pm. Hence, they have not been counted as SR/JR.
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4.
OPD attendance up to 2 p.m. on the day of assessment is 592
against the requirement of 1200.
5.
Bed Occupancy at 10 a.m. on the day of assessment was 46.15%.
6.
Patients:
(a) In Pediatric wards case sheets of 35 patients shows IV
Antibiotics going on but on cross verifying with patients, relatives
it was found that no injections were given. Also, none of such
patients had IV Cannulas inserted hence they were not counted.
(b) In Pulmonary Medicine Department, female ward 9 patients
had a diagnosis of COPD, Bronchiectasis, Pneumonia etc. on
taking history and examining the patient, no corroborative clinical
findings were found. Also, none of the patients had Chest Xrays done. Hence, they were not counted.
(c) In Orthopedics ward, 15 patients with complaints of Neck
Pain, Leg pain under evaluation were not counted as they were
asymptomatic also did not have x-rays.
(d) In Ophthalmology female ward, 3 patients were kept with.
diagnosis of corneal opacity. On examination, no such findings
were seen. Hence not counted.
7.
There were only 3 Major Operations on the day of assessment.
8.
There was only 1 Normal delivery & NIL Caesarean Section on
the day of assessment.
9.
Histopathology workload was only 4 & Cytopathology workload
was 2.
10.
OPD: Plaster Cutting room is not available.
11.
Casualty: Separate Casualty or O.G. is not available.
12.
ICUs: There was only 1 patient in NICU & 2 patients each in
PICU, SICU on the day of assessment.
13.
There was NIL issue of Blood on the day of assessment.
14.
Residential Quarters: 24 quarters are available for faculty against
requirement of 26.
15.
Anatomy Department: Band Saw is not available.
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16.
Physiology department: Mammalian Laboratory is not available.
17.
RHTC: Cold Chain equipment are not available. Immunization is
not available.
18.
Dean has refused to sign the assessment report.
The provision contained in Regulation 8(3)(1)(a) of the Regulation
had been invoked by the MCI and the decision had been taken not to
grant permission for admission in the academic session 2018-2019.
12. In the case of P.K. Dass Institute of Medical Sciences,
Palakkad, Kerala the matter pertains to the renewal of permission for
admission of 5th Batch of 150 seats in MBBS course for the academic
year 2018-2019. On the basis of the report of the Assessors dated 31st
October & 1st November 2017 the matter was considered and following
deficiencies were noted:
1.
Deficiency of faculty is 9.2% as detailed in the report.
2.
OPD attendance up to 2 p.m. is 1,060 against the requirement of
1,200.
3.
Bed Occupancy is 40.60 % at 10 a.m. on the day of assessment.
4.
There were only 09 Major Operations on the day of assessment.
5.
Central Kitchen: No register is available in the kitchen.
6.
Other deficiencies as pointed out in the assessment report.
13. Regulation 8(3)(1)(b) of the Establishment of Medical College
Regulation (Amendment), 2010, had been applied by the MCI as the
bed occupancy was less than 65%. As per the MCI, the compliance of
rectification of the deficiencies could not have been considered for renewal
of the permission in the same academic year.
14. Regulation 8(3) is extracted hereinunder:
"8. GRANT OF PERMISSION:
(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 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
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and allied equipment's, 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 program
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.
The following shall be added:
8(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 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 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.
8(3)(1)(a) Colleges in the stage of Letter of Permission up to II
renewal (i.e.) Admission of the 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.)
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(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.
(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.
8(3)(1)(d): However, the office of the Council shall ensure that
such inspection are not carried out at least 2 days before and 2
days after important religious and festival holidays declared by
the Central/ State Government."
(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.
(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."
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It is apparent from the aforesaid regulation that in the case of the
third batch, deficiencies of teaching faculty and/or residents are found
to be more than 30% and bed occupancy less than 50%, a college cannot
be given an opportunity for compliance in the same year.
15. In the case of the 4th and 5th batch as provided in regulations
8(3)(1)(b), if the deficiencies of teaching faculty and the residents is
more than 20% and bed occupancy is less than 65%, such college cannot
be given opportunity of reporting compliance during the same academic
year.
16. Considering the aforesaid deficiencies in case of S.R.
Educational Trust, Regulation 8(3)(1)(a) was attracted. In Al-Azhar
Medical College and the college at Palakkad for 5th Batch deficiencies
found by the assessors were gross so as to attract the provisions contained
in amended Regulation 8(3)(1)(b).
17. Regulation 8(3)(1)(a) came up for consideration in the case of
Vedantaa Institute (supra) and while upholding vires of the provisions,
precluding opportunity of re-verification, this court has observed:
"10. Though Regulation 8(3)(1)(a) was challenged in the Writ
Petition filed by Respondent No. 1 and 2, they did not press the
relief. They restricted their challenge to the manner in which the
inspection was done and for a direction to the Appellant-Council
to carry out a fresh inspection. The interpretation of Regulation
8(3)(1)(a) by the High Court is patently erroneous in as much as
the High Court did not take note of the proviso to Regulation
8(3)(1). Without a proper examination of the provision, the High
Court fell in error in holding that Regulation 8(3)(1)(a) would be
applicable only to the Colleges seeking second renewal i.e.
admissions of the third batch. Admissions up to the second
renewal i.e. admissions to the third batch would fall under
Regulation 8(3)(1)(a). In other words, the proviso is not restricted
only to second renewal cases. Even the first renewal is covered
by proviso (a) to Regulation 8(3)(1) as the language used is "up
to second renewal". We do not see any conflict between Section
10-A (3) and (4) of the Act on one hand and Regulation 8(3)(1)(a)
on the other. Regulation 8(3)(1) (a) is complementary to Section
10-A of the Act. Fixing minimum standards which have to be
fulfilled for the purpose of enabling a medical College to seek
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fresh inspection would not be contrary to the scheme of Section
10-A. In fact, Regulation 8(3)(1) provides that an opportunity
shall be given to the Medical College to rectify the defects. But,
the proviso contemplates that certain minimum standards are to
be satisfied i.e. there should not be a deficiency of teaching
faculty and/or residents more than 30 percent and/or bed
occupancy should not be less than 50 percent.