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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.515 OF 2017 (With I.A. No.76155 of 2017)

Saraswati Educational Charitable Trust and Anr. ….Petitioner(s)

Versus  

Union of India and Anr. …..Respondents

J U D G M E N T

A.M. KHANWILKAR, J.

1. The petitioner Saraswati Educational Charitable Trust,

Lucknow, made an application to the Ministry of Health &

Family Welfare, Government of India, for establishment of a

new medical college at Unnao, Uttar Pradesh, in the name

and  style  of  “Saraswati  Medical  College,  Unnao,  Uttar

Pradesh”,  for  the  academic  session  2016-17.  That

application was forwarded to the Medical Council of India for

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evaluation  and  making  recommendations  to  the  Ministry

under Section 10A of the Indian Medical Council Act, 1956,

for academic session 2016-17.

2. The petitioners have filed this writ petition under Article

32 of the Constitution of India assailing the order dated 31st

May, 2017, passed by the Union of India, respondent No.1

herein,  whereby  the  petitioner  college  has  been  debarred

from admitting students in MBBS course for the academic

sessions  2017-18  and  2018-19  and  further  permitting

respondent No.2 Medical  Council  of  India to encash Bank

Guarantee of Rs.2 crores furnished by the petitioners. This

Court pronounced its judgment on 1st August, 2017 in group

of cases involving similar issues, in the following terms:

“24.  Having  regard  to  the  fact  that  the  Oversight Committee has been constituted by this Court and is also  empowered  to  oversee  all  statutory  functions under the Act, and further all policy decisions of the MCI would require its approval, its recommendations, to state the least, on the issue of establishment of a medical college, as in this case, can by no means be disregarded or left out of consideration. Noticeably, this Court did also empower the Oversight Committee to issue appropriate remedial directions. In our view, in  the  overall  perspective,  the  materials  on  record bearing  on  the  claim  of  the  petitioner

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institutions/colleges  for  confirmation  of  the conditional  letters  of  permission  granted  to  them require  a  fresh  consideration  to  obviate  the possibility of any injustice in the process.

25.  In  the  above  persuasive  premise,  the  Central Government is hereby ordered to consider afresh the materials  on  record  pertaining  to  the  issue  of confirmation or otherwise of the letter of permission granted  to  the  petitioner  colleges/institutions.  We make it clear that in undertaking this exercise, the Central  Government  would  re-evaluate  the recommendations/views  of  the  MCI,  Hearing Committee, DGHS and the Oversight Committee, as available  on  records.  It  would  also  afford  an opportunity  of  hearing  to  the  petitioner colleges/institutions  to  the  extent  necessary.  The process  of  hearing  and  final  reasoned  decision thereon,  as  ordered,  would  be  completed peremptorily within a period of 10 days from today. The  parties  would  unfailingly  co-operate  in compliance of this direction to meet the time frame fixed.”

3. Pursuant to the liberty granted to the petitioners by the

aforementioned  order,  the  petitioners  submitted  a  fresh

detailed representation to respondent No.1, pointing out that

the  petitioners  have  complied  with  all  the  conditions

specified  by  the  Oversight  Committee  (“OC”  for  short)

constituted  by  this  Court,  as  noted  in  the  letter  granting

permission  for  academic  session  2016-17.  The  petitioner

college  was  given  an  opportunity  of  being  heard  by  the

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Hearing Committee on 3rd August, 2017. During the hearing,

the petitioners pointed out the observations made by the OC

as noted in its letter dated 14.5.2017:   

“The EC did not bring out any deficiency either from assessment reports dated 18th –  19th Nov. 2016 or 21st –  22nd Dec.  2016, though they had considered both the reports in their meeting on 13.01.2017. Even then the College had represented against the observations  made  by  the  assessors  in  their assessment report dated 18th -19th Nov. 2016. The deficiencies reported in the assessment report in respect of faculty is 1.5% and residents is 6.52% and are within acceptable limits.  The other deficiencies are subjective. No MSR. LOP Confirmed.”

4. The  petitioners  had  demonstrated  before  the  Hearing

Committee  that  the  deficiencies  noticed  earlier  were

insignificant and within the permissible norms. With regard

to the core matters, regarding infrastructure and academics,

all  facilities  required  as  per  norms  were  fulfilled  by  the

petitioner college.

5. The Hearing Committee,  after considering the records

and oral and written submissions of the petitioner college,

submitted its report to the Ministry for consideration. The

Competent Authority  of  the Government of  India accepted

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the  recommendations  of  the  Hearing  Committee,  not  to

permit admission of  students in the MBBS course for the

academic  session  2017-18  and  that  the  petitioner  college

should apply afresh for renewal of permission for academic

session 2018-19 as per MCI Regulations. The reason which

weighed with the Competent Authority of the Government of

India can be discerned from paragraphs 17 and 18 of the

impugned  Communication-cum-Order  dated  10th August,

2017, issued under the signature of the Under Secretary to

the Government of India. The same read thus:

“xxx xxx xxx

17.  Now,  in  compliance with  the  above direction the  Hon’ble  Supreme  Court  dated  1.8.2017,  the Ministry  granted  hearing  to  the  college  on 03.08.2017.  The  Hearing  Committee  after considering  the  records  and  oral  and  written submission of the college submitted its reports to the Ministry. The observation of hearing committee is as under:

The  college  submitted  that  MCI  conducted compliance verification as per  OC orders  on 18-19 November  2016.  However,  without  assigning  any reason,  MCI  visited  the  college  again  on  21 December, 2016 to re-inspect.  In the submission of the  college,  since  MCI  was  required  to  conduct compliance verification only once for confirmation of LOP for 2016-17, it did not allow the 2nd inspection to happen.  The  college  representatives  also  informed

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that on the day i.e.  21.12.2016 they contacted OC over telephone. It was informed by OC that MCI was authorized for only one inspection. The college was asked if  they obtained the same confirmation from OC in writing to which they replied in the negative.  After the November inspection the college vide letter dated 20.11.2016 raised its  objection with  the OC that they were not allowed to put the dissent note by the assessor and this was prejudicial to the college. They also informed the OC about the date for major and  minor  surgeries  with  photo  and  video  proofs. They also submitted other information pertaining to OPD, investigations to the OC.  It is also seen from November SAF report that there was faculty  deficiency  of  1.5% only  and residents deficiency of 6.52%. The college did not submit any compliance since as per  its  version  neither  MCI  nor  OC  conveyed  any deficiency to it. In  the  opinion  of  the  Committee,  MCI  was  not precluded  from  conducting  inspection  subject  to sufficient  reason  and  justification.  But  no  adverse comments such as the college/hospital  was closed has been made by the assessor during the 2nd visit to the college.  The November inspection had no major deficiencies. In  the  peculiar  facts  of  the  case,  the  Committee recommends that LOP for 2016-17 may be confirmed. No fresh batch for 2017-18 may be allowed. For the session 2018-19, the college may apply for renewal permission to MCI.  18. Accepting the recommendations of the Hearing Committee,  the  Ministry  confirms  the  conditional permission  granted  to  the  College  in  2016-17. Further, it has been decided not to permit admission of  students  in  MBBS  courses  for  the   academic session  2017-18  at  the  College.  The  College  may apply  afresh  for  renewal  of  permission  for  the academic session 2018-19 as per MCI Regulation. 19. Admission made in violation of above conditions will be treated as irregular and action will be taken

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as  per  provision  of  IMC  Act,  1956  and  the Regulations made there under.”

(emphasis supplied)

6. Being  aggrieved by  this  decision  the  petitioners  have

filed  I.A.  No.76155  of  2017  in  the  pending  writ  petition

before this court  praying for  quashing the aforementioned

order dated 10th August, 2017, to direct the respondents to

grant renewal of permission for 2nd year and to permit the

petitioner college to admit 150 students in MBBS course for

the  academic  session  2017-18  and  further,  allow  the

petitioner  college  to  participate  in  the  ongoing  central

counselling process.  

7. According to the learned counsel for the petitioners, the

petitioners  were  advised  that  second  inspection  was  not

permissible  after  15th December,  2016.  The  petitioners,

therefore, questioned the necessity for the second inspection

by the Assessing Team on 21st and 22nd December,  2016.

Inspection was already completed in November, 2016, during

which no major or serious deficiency was found. From the

available record, as has been rightly noted by the OC, the

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deficiencies reported in the Assessment Report in respect of

faculty were 1.5%  and residents 6.52% which were within

acceptable limits and the other deficiencies were subjective

sans any express stipulation therefor. It was submitted that

the petitioners are willing to comply with all the formalities

that may be necessary and further conditions, if  any. The

petitioners are willing to provide inspection of the college to

MCI if the Court so directs. It is submitted that considering

the  fact  that  the  petitioner  college  has  already  started

functioning from academic session 2016-17 and fulfills all

the  infrastructure  and  academic  facilities,  it  ought  to

continue  by  confirming  the  LOP  2016-17,  and  admitting

students  even  for  the  academic  session  2017-18.  The

petitioners have placed emphasis on the observation made

by the Competent Authority that in the Inspection carried

out  in  November,  2016,  no  major  deficiency  has  been

noticed, which itself is a valid reason to permit the petitioner

college to admit students in MBBS course even for academic

session 2017-18.   

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8. According to the respondents, the inspection conducted

in  November,  2016  will  be  of  no  avail  to  the  petitioner

college. For granting permission to the petitioner college to

admit  students  for  academic  session  2017-18,  a  fresh

inspection was inevitable. There has been no inspection in

that regard as of now. Hence, the relief as claimed by the

petitioner college cannot be acceded to. It is submitted that

since  the  petitioners  were  responsible  for  not  providing

second inspection, it is not open to them to find fault with

the decision of the Competent Authority of the Government

of India. It is submitted that no permission can be granted to

any professional college, much less medical college imparting

MBBS  course,  without  proper  scrutiny  and  inspection.

According to the respondents, this writ petition as well as

the  application  are  devoid  of  merits  and  deserve  to  be

dismissed.  

9. Having considered the rival submissions, it  is noticed

that  the  OC  in  its  communication  dated  14.5.2017  has

clearly  noted  that  there  was  no  major  deficiency.  The

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deficiencies reported in the assessment report in respect of

faculty were only 1.5 % and residents 6.52 %. These were

within the acceptable limits. The petitioner college has been

functioning  from  academic  session  2016-17.  Even  the

Competent  Authority  in  the  impugned  decision  has  not

opined that the deficiencies noticed earlier were significant

or  critical.  On  the  other  hand,  in  paragraph  17,  the

Competent Authority has plainly noted that the November

SAF Report  mentions  that  there  was  faculty  deficiency  of

1.5%  and  residents  deficiency  of  6.52%  only.  Such

deficiencies by no standard can be said to be critical. The

same, as rightly observed by the OC, were within permissible

limits.

10. On  a  perusal  of  the  record  it  is  noticed  that  the

Assessors of the MCI had inspected the college on 18th and

19th November,  2016,  as  is  evident  from  the  Assessment

Form for  150  MBBS Admissions  Report  submitted  to  the

MCI,   running into 36 pages (Annexure-P/12) to this writ

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petition.  The  Summary  of  Assessment  recorded  in  the

prescribed format reads thus:  

“Summary of Assessment 1. Saraswati  Medical  College,  Unnao is  run by Trust

‘Saraswati Educational Charitable Trust’

2. The college has got LOP from GOI with intake of 150 seats for last academic year 2016-17 with reference to  the  conditional  approval  accorded  by  Oversight Committee

3. Type of assessment: Regular – LOP No.  of  seats: 150

4. PG courses : No

5. Deficiency  of  the  infrastructure  of  college  and hospital if any: Pl. Mention category wise:

6. Deficiency  of  clinical  material  if  any:  Pl  mention category wise:

Only  one  major  operation  (C-section)  was done  till 12.30  pm.  No  minor  surgeries  done  till  1.00  pm Investigations  both  Radiological  and  Laboratory inadequate.  Cross  verified  by  assessors.  On  an average  only  1  unit  of  blood  being  dispensed  per day.  Total  of  7  units  were  stored  on  the  day  of assessment.   Most of the OPDs had few patients.

7. Deficiency of teaching staff if any: Shortage of teaching faculty is 1.5 %

8. Deficiency of resident doctors if any: Shortage of resident doctors is 6.52 %

9. Any other Remarks:  As mentioned in the report”

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After  this  assessment  report  was  submitted,  another

surprise inspection was proposed on 21st December, 2016.

Since the said inspection was scheduled after 15th December,

2016, the Principal of the petitioner college questioned the

said action and placed the objection on record in writing vide

letter dated 21.12.2016 which reads:

“SARASWATI MEDICAL COLLEGE LIDA,  Madhu  Vihar,  P.O.  Asha  Khera,  NH-25, Lucknow Kanpur Highway, Unnao (UP), Pin-209859 Tel: (+91) 515-307000,  Email: smc@saraswaticolleges.com ___________________________________________________ Ref. No. SMC/MCI/2016-17/014 Dated: 21/12/2016 To, The Secretary, Medical Council of India, New Delhi.

Sub: Surprise Assessment of Saraswati Medical College on 21  st   December, 2016.

Sir/Madam,

In  reference  to  MCI  Letter  no.MCI-34(41) (UG)/2017-18  Med./dt.21/12/2016  regarding Surprise Assessment of Saraswati Medical College, Unnao on 21st December, 2016. I have to submit the following,

1. Compliance  Assessment  &  Verification  of  Physical and  other  facilities  of  Saraswati  Medical  College, Unnao, as per the direction of the OC, has already been  conducted  by  MCI  on  18th &  19th November,

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2016  vide  letter  no.MCI-34(41)/2016  –  Med./ dt.18/11/2016.

2. MCI  vide  letter  no.  MCI-34(41)(R-107)/2016- Med./142566  dt.  08/11/2016  has  informed  the college that assessment Inspection will be held upto 15th December 2016 only.

3. LOP has already been granted to the College by the Ministry  of  Health  and  Family  Welfare  and  per direction  of  the  OC  an  inspection  verifying  our compliance has already been undertaken by the MCI on 18th & 19th Nov., 2016.

Since  the  OC  has  given  no  further  direction  for re-inspection  of  the  Compliance  Inspection  held  by MCI on 18th & 19th Nov., 2016 and since the MCI has categorically  communicated  to  the  college  that inspection  will  be  carried  out  only  upto  15th December, 2016, the college does not see any merit to undergo any further Compliance inspection for the session 2016-17, hence denied the inspection on 21st December, 2016 BY THE MCI team.

Regards,

SD/- Prof. B.P. MATHUR Principal”

It is noticed that the inspecting team did not insist on the

second inspection and chose to leave the college on account

of the stand taken by the Principal of the petitioner college.

That  fact  was  reported  to  the  MCI  and  the  Executive

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Committee of the MCI considered the proposal in its meeting

held on 13th January, 2017 and noted as follows:

“…The  Executive  Committee  of  the  Council  also perused  the  letter  dated  21/12/2016  from  the appointed team of Council Assessors stating therein as under:- With  reference  to  email  letter  no. MCI-34(41)/2016-Med./dated  21.12.2016  for  the above  cited  subject,  we  went  to  the  college  and reached there at 10 am and met the Principal,  Dr. B.P. Mathur who informed us that they did not want the assessment to be done and gave a letter stating the same.  The letter from the Principal is attached along with the filled SAII form.”

The  Committee  further  perused  the  letter  dated

21/12/2016 from the Principal, Saraswati Medical College,

Unnao.  The  Committee  submitted  its  recommendation  to

MCI vide letter dated 15.01.2017 as under:-

“In view of the above, the college has failed to abide by the undertaking it had given to the Central Govt. that there are no deficiencies as per clause 3.2(i) of the  directions  passed  by  the  Supreme  Court mandated Oversight Committee vide communication dated 11/08/2016.  The Executive Committee, after due deliberation and discussion, have decided that the college has failed to comply with the stipulation laid down by the Oversight Committee. Accordingly, the Executive Committee recommends that as per the directions  passed  by  Oversight  Committee  in  para 3.2(b)  vide  communication  dated  11/08/2016  the college should be debarred from admitting students in  the  above  course  for  a  period  of  two  academic years i.e. 2017-18 & 2018-19 as even after giving an

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undertaking  that  they  have  fulfilled  the  entire infrastructure  for  establishment  of  new  medical college  at  Unnao,  Uttar  Pradesh  by  Saraswati Educational  Charitable  Trust,  Lucknow,  Uttar Pradesh  under  Chhatrapati  Shahuji  Maharaj University,  Kanpur,  the  college  was  found  to  be grossly deficient.   It  has also been decided by the Executive  Committee  that  the  Bank  Guarantee furnished  by  the  college  in  pursuance  of  the directives  passed  by  the  Oversight  Committee  as well as GOI letter dated 20/08/2016 is liable to be encashed.”

11. On the basis  of  the recommendation of  the MCI,  the

Ministry decided to grant a personal hearing to the college on

8th February,  2017 by the DGHS. The Hearing Committee

after  examining  the  oral  and  written  submissions  of  the

college, submitted its report to the Ministry. The report of the

Hearing Committee was forwarded to the OC for guidance.

The OC after  examining the matter,  vide  letter  dated 14th

May, 2017 noted that the Executive Committee of MCI did

not point out any deficiency from the assessment reports. On

the other hand, the deficiency reported in the assessment

report in respect of faculty was only 1.5% and residents of

6.52%  which  was  within  the  acceptable  norms.  The  OC

further noted that the rest of the deficiencies were subjective

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sans  any express  stipulation in  that  behalf  and therefore

commended confirmation of Letter of Permission.

12. Considering the above, we find that the inspection for

issuance  of  Letter  of  Permission  for  academic  session

2017-18  was  duly  carried  out  on  18  and  19th November,

2016.  We reject the contention raised by the respondents

that no inspection in relation to academic session 2017-18

has  been  carried  out  as  of  now.  Indeed,  the  petitioners

objected to the second surprise inspection intended on 21st

and 22nd December, 2016 as the same was after the cut off

date 15th December, 2016. The purpose for which the second

surprise  inspection  became  necessary,  when  the  earlier

report was pending consideration and that too after the cut

off  date  15th December,  2016,  has  not  been  explained  or

noted either by the Executive Committee in its meeting held

on 13th January,  2017 or  for  that  matter  by  the  Hearing

Committee and more so by the Competent Authority of the

Central Government. Significantly, it is not a case where the

college officials prevented the inspecting team from entering

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the college. The petitioner college only placed their objection

on  record  as  per  the  advice  given  to  them  that  such

inspection  by  the  MCI  after  the  cut  off  date  was  not

permissible. The inspecting team chose to leave the college

without  doing  any  inspection.  The  Competent  Authority,

however,  mechanically  acted upon the recommendation of

the MCI to  debar the petitioner college  for  two years and

authorised the MCI to encash the Bank Guarantee of Rs.2

crores vide order dated 31st May, 2017.

13. The  said  order  dated  31st May,  2017,  passed  by  the

Ministry has been assailed in the present writ petition. As

noted  earlier,  the  writ  petition  was  heard  along  with  the

connected  cases  on  1st August,  2017  on  which  date  this

Court  directed  the  Central  Government  to  reconsider  the

matter  afresh  and  record  reasons.  Pursuant  to  the  said

directions,  the  petitioners  submitted  representation  before

the Central Government and also participated in the hearing

before  the  Hearing  Committee  on  3rd August,  2017.  The

Hearing  Committee  without  reference  to  the  relevant

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matters, once again reiterated the position taken earlier, that

the  petitioner  college  did  not  permit  second inspection to

happen. Neither the purpose of second inspection has been

elaborated  nor  any  justification  has  been  given  by  the

Hearing  Committee  as  to  why  the  second  inspection  was

required  and  moreso  when  the  first  inspection  was  done

about  a  month  earlier.   The  Central  Government  has

mechanically accepted the recommendation of  the Hearing

Committee and has passed the impugned decision on 10th

August, 2017, as can be discerned from the observations in

paragraphs 17 and 18 of the impugned decision.  

14. We  have  no  hesitation  in  taking  the  view  that  the

Hearing Committee as well as the Central Government have

failed to consider all the relevant aspects of the matter and

the conclusion reached by the said authorities is, on the face

of it, without application of mind, if not perverse.  We are

conscious of the fact that there is nothing in the Regulations

which expressly or for that matter by implication prohibits

the  MCI  from undertaking  multiple  inspections.  However,

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when that action is questioned, it is expected that the MCI

must  offer  some  justification  for  the  second  surprise

inspection when its Assessors had already carried out that

exercise  recently  on  18th and  19th November,  2016  and

submitted an elaborate report running into 36 pages in the

prescribed  format  in  that  regard  (Annexure-P/12).  The

Hearing Committee as well  as the Competent Authority of

the  Central  Government  were  expected  to  examine  this

aspect  of  the  matter  before  taking  any  final  decision,

especially when the inspection report on record did not point

out any deficiency except the marginal deficiency of faculty

of 1.5% and residents of 6.52% which were obviously within

the permissible norms.        

15. The  question  is:  whether  this  approach  of  the

Competent  Authority  can  be  an  impediment  for

consideration  of  prayer  to  allow  the  petitioner  college  to

admit  students  in  MBBS  course  for  academic  session

2017-18?  Notably,  the  Competent  Authority  has  already

confirmed the conditional permission granted to the college

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for the academic session 2016-17 but has not permitted the

petitioner college to admit students in MBBS course for the

academic session 2017-18. Further, the impugned decision

even if read as a whole nowhere mentions the cause for the

second inspection when only one month back on 18th and

19th November,  2016 a proper inspection was done and a

comprehensive report was submitted in that regard in the

prescribed  format  and  which  was  pending  consideration

before  the  MCI.  The  argument  now  raised  by  the

respondents that the petitioners having objected to second

inspection are not entitled for the relief, therefore, does not

commend us. Considering the fact that the petitioner college

fulfills  the  infrastructure  and  academic  requirements  and

has  already  become  functional  from  academic  session

2016-17, by admitting the first batch of students in MBBS

course  and  as  even  the  Competent  Authority  has  noticed

that  there  are  no  major  deficiencies,  in  the  larger  public

interest, we allow this petition and the application filed by

the  petitioners.  We  are  also  inclined  to  issue  further

directions  to  the  respondents  as  have been issued in  the

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judgment of  Dr. Jagat Narain Subharti Charitable Trust and

Anr.  vs. Union of India and Ors., delivered on 30th August,

2017.

16. We,  accordingly,  quash  and  set  aside  the  impugned

decision to the extent it bars the petitioners to admit upto

150 students in the academic session 2017-18. Instead, we

direct the respondents to permit the petitioner college to take

part  in  the current  year  counselling  process.   The cut-off

date  for  completing  the  admissions  in  respect  of  the

petitioner  college,  however,  is  extended till  5th September,

2017.   The  respondents  shall  forthwith  make  available

students willing to take admission in the petitioner college

through  central  counselling  in  order  of  their  merit.  This

direction is being issued in exercise of plenary powers of this

Court under Article 142 of the Constitution of India, in the

peculiar facts of the present case to do complete justice and

in larger public interest, so that the aspiring students who

have not been admitted to the 1st year MBBS course for the

academic session 2017-18, in order of their merit in NEET

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examination,  will  get  opportunity  to  be  admitted  in  the

petitioner college.  At the same time we make it clear that the

MCI or the Competent Authority of the Central Government

is free to inspect the petitioner college as and when deemed

fit and, if any deficiency is found after giving opportunity to

the  petitioner  college,  may  suitably  proceed  against  the

college  in  accordance  with  law.   This  arrangement  will

subserve the ends of justice.  

17. No order as to costs.     

……………………………….CJI.     (Dipak Misra)

………………………………….J. (A.M. Khanwilkar)

.………………………………...J.            (Dr. D.Y. Chandrachud)

New Delhi, Dated: September 1, 2017.