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REPORTABLE

 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 14838 OF 2015

POONAIYAH RAMAJAYAM INSTITUTE  OF SCIENCE AND TECHNOLOGY TRUST    …….. PETITIONER(S)

                           VERSUS

MEDICAL COUNCIL OF INDIA AND ANOTHER ……. RESPONDENT(S)

O R D E R

M.Y. EQBAL, J.

We have heard Dr. Rajeev Dhawan, learned senior

counsel  appearing  for  the  petitioner  and  Mr.  Vikas

Singh, learned senior counsel appearing for Respondent

No.1 – Medical Council of India (MCI).

2. Aggrieved by the judgment and order dated 5th May,

2015 passed by the Division Bench of the Delhi High

Court in L.P.A. No. 234 of 2015, the petitioner filed this

special leave petition.   

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3. By  the  impugned  judgment,  the  Division  Bench

allowed  the  appeal  filed  by  the  respondent-Medical

Council of India and set aside the judgment passed by

the learned Single Judge in the Writ Petition.

4. Indisputably, the petitioner submitted application,

as required under Section 10A of the Medical Council of

India Act, 1956 (hereinafter referred to as 'the Act') for

establishment of new medical college for the academic

year  2015-2016.   The Essentiality  Certificate  and the

consent of affiliation were admittedly not annexed along

with the application filed under Section 10A of the said

Act.   According  to  the  petitioner,  the  Essentiality

Certificate was issued on 28.8.2014 and the consent of

affiliation was communicated on 30.8.2014.  After about

10  days  i.e.  10.9.2014,  the  petitioner  submitted

Essentiality Certificate and Certificate of Affiliation.  The

application so submitted by the petitioner was, however,

rejected  on  15.10.2014  on  the  ground  that  the

certificates  aforesaid  were  not  submitted  before  the

cut-off  date  i.e.  31.8.2014.   By  the  said  order,  the

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petitioner  was  given  liberty  to  apply  for  the  next

academic year.   

5. Against  the aforesaid order,  the petitioner  moved

the Delhi High Court by filing Writ Petition being Writ

Petition No. 7424 of 2014.  The learned Single Judge,

after hearing the parties, by judgment dated 8.4.2015

allowed  the  Writ  Petition  and  directed  the  Medical

Council  of  India  to  consider  the  application  of  the

petitioner and make recommendations.

6. The respondent-Medical  Council  of  India assailed

the impugned order passed by the learned Single Judge

by filing a Writ Appeal being Letters Patent Appeal No.

234 of 2015.  The Division Bench, by a reasoned order,

allowed  the  appeal  and  set  aside  the  judgment  and

order passed by the learned Single Judge.  The Division

Bench rejected the plea of the petitioner based on the

need  for  medical  assistance  in  the  country  and  the

resulting disuse of the infra structure for one year.  The

petitioner-Trust  dissatisfied  with  the  order  passed  by

the  Division  Bench,  filed  the  instant  special  leave

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petition.

7. The matter was firstly heard on 15th July, 2015 by

this Bench and after taking note of the facts of the case

and sequence of events, disposed of the application with

a direction to the respondent-Medical Council of India to

consider  the  petitioner’s  application  and  make  its

recommendation  within  a  period  of  three  weeks  from

that day.  The matter was directed to be listed after four

weeks to enable the respondent-Medical Council of India

to submit the recommendation in a sealed cover.   

8. The relevant portion of the order dated 15th July,

2015 is reproduced herein below:-

“4. Indisputably, the petitioner as far back as on  25.8.2014  submitted  application  as required  under  Section  10A  of  the  Indian Medical  Council  Act,  1956  for  the establishment  of  the  Institute.   The Essentiality Certificate was issued by the State of  Tamil  Nadu only on 28.8.2014.  The said communication was received by the petitioner only  in  the  1st week  of  September,  2014. Similarly,  the  Tamil  Nadu  MGR  University granted  Consent  of  Affiliation  for  starting  of MBBS  Degree  course  in  the  new  medical college.  On receipt of this communication, the petitioner  immediately  on  10.9.2014

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submitted  Essentiality  Certificate  and Certificate  of  Affiliation.   Curiously  enough after  about  a  month,  the  respondent  no.2  – Central  Government  rejected  the  application on the ground that Essentiality Certificate was not  submitted  before  the  cut-off  date  i.e. 31.8.2014. 5. Aggrieved  by  the  said  rejection  of application,  the  petitioner  filed  writ  petition being  W.P.  No.7424  of  2014.   The  learned Single Judge of the High Court by a detailed judgment and order allowed the writ petition and  directed  the  respondent  no.1  MCI  to consider the case of the petitioner.   Instead of doing  so,  the  respondent  no.1  being dissatisfied assailed the said judgment of the learned Single Judge by filing writ appeal.  The said appeal was heard and disposed of on 5th May, 2015.  The Division Bench, after giving reasons,  refused  to  uphold  the  direction issued  by  the  learned  Single  Judge  for processing  the  application  of  the  petitioner and consequently the direction was set aside.

6. From the aforesaid facts narrated in brief, we do not find any fault, laches or negligence from the side of the petitioner in the matter of submission of application and other required documents.  As  noticed  above,  although  the Essentiality  Certificate  and  Certificate  of Affiliation were filed on 10.9.2014, but after a month application was rejected by the Central Government  merely  on  the  ground  that  the same  was  not  submitted  before  the  cut-off date i.e. 31.8.2014.  This reason given by the Central Government is highly unjustified.  The Division Bench in the impugned judgment also took  note  of  the  fact  and  held  that  the rejection  of  the  application  merely  on  the ground  that  the  said  documents  were  not submitted along with application would not be proper since such pedantic approach serve no

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purpose.   For better  appreciation,  paragraph 39  of  the  impugned  judgment  is  quoted hereinbelow:

“39.  However,  when the  deficient documents are available with the Central  Government  as  on  the date  of  consideration  of  the applications  for  reference  to  the MCI for their recommendations, it appears  to  us  that  nothing precludes the Central Government to  consider  the  applications  on merits.  Rejection  of  the applications  in  such circumstances  merely  on  the ground  that  the  said  documents were not submitted along with the applications  may  not  be  proper since  such  pedantic  approach does  not  serve  any  purpose. Therefore,  we  too  agree  that  the Central  Government  in appropriate  cases  may  exercise the  discretion  in  favour  of  the applicants  and  consider  the applications which are complete in all  respects  by  the  date  of consideration  under  Section 10A(2)  of  the  MCI  Act.  Such consideration  in  our  considered opinion cannot be found fault with since  the  same  would  not  affect the  adherence  to  the  statutory time  schedule.  However,  the question  with  which  we  are concerned in the  present  case  is whether the failure of the Central Government  to  exercise  such discretion  can  be  held  to  be erroneous and contrary to law and whether  a  positive  direction  can

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be issued by this court to consider the applications of the petitioners particularly at the fag end of the statutory time schedule.”

7. Prima facie, therefore, we are of the view that in the facts and circumstances of the case, the respondents have not discharged their duty in  accordance  with  the  provisions  of  the  Act and Rules made thereunder rather acted in a biased manner.

8. We, therefore, dispose of this application with  a  direction  to  the  respondent  Medical Council of India to consider the application and make  its  recommendation  within  a  period  of three weeks from today.

9. Let the matter be listed after four weeks to  enable  the  respondents  to  submit  the recommendation in a sealed cover.”

9. In  compliance  of  the  aforesaid  direction,  the

respondent-Medical  Council  of  India  conducted

inspection and submitted its report in a sealed cover.

Thereafter  the  matter  was  again  listed  before  us  for

hearing.

10. Dr.  Rajeev  Dhawan,  learned  senior  counsel

appearing  for  the  petitioner,  assailed  the  impugned

report  submitted  by  the  Medical  Council  of  India  on

various  grounds  including  that  the  same  is  arbitrary

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and biased.

11. Dr. Rajeev Dhawan has drawn our attention to the

Inspection  Report  and  submitted  that  as  a  matter  of

fact, the Medical Council of India was fully aware that

the  inspection was  carried  out  for  the  academic  year

2015-2016 and, therefore, there is no reason why the

petitioner-Trust shall not be granted permission for the

academic year 2015-2016.  Dr. Dhawan further drawn

our attention to the decision rendered by a three-Judges

Bench of this Court in the case of Royal Medical Trust

(Regd.) and Another vs. Union of India and Another,

reported in 2015 (9) SCALE 68, and submitted that the

respondent-Medical Council of India totally failed in the

discharge of their duties and acted in a totally biased

manner.  Dr.  Dhawan  further  submitted  that  the

decision of Medical  Council  of  India recommending to

cancel the prayer for approval not only for the academic

year  2015-2016  but  also  for  the  academic  year

2016-2017  is  wholly  illegal  and  arbitrary.   The

petitioner, therefore, reserves its right to challenge the

said  recommendation before  the  appropriate  forum in

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accordance with law.

12. On the other hand, Mr. Vikas Singh, learned senior

counsel appearing for the respondent-Medical Council of

India,  drawn  our  attention  to  the  inspection  report

submitted  by  the  Medical  Council  of  India  and

contended that in addition to various deficiencies which

are not remediable, fake faculty was also found in the

said Institution.

13. Mr. Vikas Singh further submitted that the instant

special  leave  petition  was  heard  along  with  Special

Leave  Petition  (Civil)  No.  15043  of  2015  titled  as

Padmashree  Dr.  D.Y.  Patil  Medical  College versus

Medical  Council  of  India  and  Another and  in  the

similar facts and circumstances of the case, this Court,

by  a  reasoned  judgment  dated  31st August,  2015

dismissed  the  special  leave  petition  mainly  after

considering the statutory time schedule which is already

over and held that no positive direction can be issued

for the academic year 2015-2016.   

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14. Before we consider the rival contentions made by

the learned counsel,  we would like to refer the report

and  the  decision  of  the  executive  committee  of  MCI

dated  5.8.2015  in  compliance  to  our  order  dated

15.7.2015.   From the  said  report,  it  reveals  that  the

executive  committee  of  the  council  considered  the

council’s  assessment  report  and  noted  many

deficiencies.  Some  of  the  major  deficiencies  are

extracted hereinbelow:-

“1)  Deficiency  of  teaching  faculty  is  83%  as detailed in the report. 2)  Shortage of residents is 100% as detailed in the report. 4)  As many as 42 Senior/Junior Residents as detailed  in  the  report  have  provided  wrong information in  the  Declaration Form regarding address proof as during  round it was found that no  staff  member/faculty/resident  doctor  is staying/residing in the staff quarters/residents’ hostel in the campus; 6).  OPD:  Attendance  was  150-175  on  day  of assessment  which  is  grossly  inadequate. Institute  has  given  figure  of  707  which  is inflated.   When  the  assessors  arrived  in  the morning, few patients were found.  After some time,  during  rounds,  around  150  people  were found sitting  in  front  of  registration  counters, with  only  3-4  patients  actually  registering  at counters.  When visited again in the afternoon, the same people were found sitting there without any  intention  of  registering  at  OPD  counter. Many  patients  in  the  OPD  were  having  very minor/fake  complaints  for  which  normally  no person  will  come  to  the  hospital.   In departmental  OPD  registers,  no  information

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regarding  admitted  patients  was  given.  In Medical  OPD,  at  1  p.m.,  61  patients  were claimed to have been seen but there was not a single  patient  was  admitted.   There  was  no display  board  of  OPD  timings,  doctor’s  name, Unit information. 7). There was NIL patient in Casualty on day of assessment. 12). There were NIL Major & Minor operations in the hospital on day of assessment. 13). There  were  NIL  Normal  Delivery  & Caesarean Section on day of assessment. 16). MEU: It is not furnished. 24). ICUs:  There  was  NIL  patient  in  ICCU & SICU and only 1 patient in NICU/PICU on day of assessment. 31). There is Engineering college in the same campus.  Engineering books & instruments were found  in  some  rooms  of  medical  college hostel/quarters.  It appears as if the hostels & quarters shown for Medical College are actually used by Engineering College. 32). Dean has refused to sign the report after reading it for 1 hour due to instruction from the management. 33). Other  deficiencies  as  pointed  out  in  the assessment report.”

15. The  executive  committee,  therefore,  decided  to

apply clause 8(3)(1)(d) of the Establishment of Medical

College  Regulation  (Amendment),  2010  and  further

decided to return the application for establishment of a

new  Medical  College  of  the  petitioner  to  the  Central

Government recommending disapproval  of  the scheme

under Section 10A of IMC Act, 1956 for the academic

year 2015-2016 and 2016-2017.

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16. Indisputably, now it is for the Central Government

to approve or disapprove and to take a final decision on

the report of the executive committee of the Council.

17. The crucial question that falls for consideration is

as to whether this Court having regard to the facts of

the case and the decision taken by the Council, which is

not even looked into by the Central  Government,  this

Court can issue any direction to consider the grant of

permission  to  the  petitioner  for  the  academic  year

2015-2016.

18. Another  Special  Leave Petition being SLP (C)  No.

15043 of 2015 was heard along with this case at the

preliminary  stage  and  decided  by  judgment  dated

31.08.2015, in which one of us (M.Y. Eqbal, J.) was a

member  of  the  Bench.    In  that  case,  this  Court

elaborately discussed the time schedule which has to be

strictly  adhered  and  followed  in  catena  of  decisions.

After discussing the ratio laid down in number of cases,

the Bench observed:-

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“20. On an analysis of the aforesaid decisions, it is crystal clear that the time schedule is required to be strictly observed. Hence, it  would not be appropriate  to  issue  any  direction  for consideration of petitioner’s case for the ongoing academic session 2015-16 in which inspection is yet to be made. It is too late in the day to direct inspection  for  the  session  2015-16  as  all  the dates  fixed in the time schedule  are  over  and fixation of time schedule has a purpose behind it and from a particular  date the session has to commence  and part  of  seats  to  be  filled  by  a competitive examination held on all-India basis. Any relaxation in the time schedule would make holding of examinations on an all India basis a farce  and  several  complications  would  arise. Everything cannot be allowed to go haywire. The entire  curriculum  would  be  unsettled  in  case breach of time schedule is permitted. The power given  to  Central  Government  to  relax  can  be exercised in exceptional circumstances and that too  without  disturbing  the  academic  session. The  decision-making  process  after  inspection has various steps and it cannot be ordered to be done  in  haste  resulting  in  sub-standard education and half-baked doctors.  

21. On behalf of the petitioner, reliance has been placed on a decision of this Court in S.L.P. [C] No.14838/2015  –  Ponnaiyah  Ramajayam Institute  of  Science  and  Technology  Trust  v. Medical  Council  of  India  &  Anr.  (decided  on 15.7.2015) wherein this Court has directed the inspection  to  be  made  and  to  submit  the recommendation  in  a  sealed  cover  after  four weeks to this Court. No doubt about it that the application which was filed was for the academic session 2015-16 but this Court has not decided the question whether inspection would enure for the  benefit  of  the  ongoing  academic  session 2015-16 and in case on inspection it is decided to recommend the prayer made whether it would be for academic year 2016-17 or for the ongoing session 2015-16 and also question of breach of time  schedule.  What  has  not  been  decided, cannot be deduced by inferential process. What would  be  the  ultimate  recommendation  on

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inspection,  can  also  not  be  anticipated.  The requisite  Committee  of  the  MCI  and  Central Government  have  to  ultimately  consider  the report/recommendations.  Various  aspects including time schedule are required to be taken into  consideration for  issuance of  any positive direction as to session.

Xxxxxx

23. Considering the statutory time schedule and that the same is already over and in the facts and circumstances of the case, it would not be appropriate to direct inspection to be made and thereafter a decision to be taken for the current academic session 2015-16 as that would be in breach of the law laid down in various decisions of this Court which is binding. Thus, we direct that the application which has been submitted by the college for the academic session 2015-16 be  considered  for  the  next  academic  session, subject  to  fulfilment  of  other  requisite formalities, as may be necessary, and thereafter the MCI shall conduct an inspection well-in-time as  per  the  time  schedule  fixed  under  the Regulations of 1999. The Special Leave Petition is  dismissed  with  the  aforesaid  modification. Ordered accordingly”

19. In  the  facts  and  circumstances  of  the  case,  no

directions can be issued to the respondent to consider

the case of the petitioner-college for the academic year

2015-2016 and 2016-17, since the matter is yet to be

decided by the Central  Government.   However,  we do

not  express  any  opinion  with  regard  to  the

recommendation  made  by  the  Council  to  the  Central

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Government disapproving the scheme for the academic

year 2016-2017 also.  Hence, it is for the petitioner to

move the appropriate forum as against the decision of

disapproval for the academic year 2016-2017.

20. With the aforesaid directions and observations, this

special leave petition stands disposed of.

                                                                 ........................J.

         (M.Y. EQBAL)

                .........................J.   (C. NAGAPPAN)  

New Delhi, September 17, 2015

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