REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO.445 OF 2017

Shri Venkateshwara University ... Petitioner(s) Through its Registrar and Another

                               Versus

Union of India and Another … Respondent(s)

J U D G M E N T

Dipak Misra, CJI.

In  this  writ  petition  preferred  under  Article  32  of  the

Constitution of India, the petitioner-University and its functionary

have prayed for issue of a direction for quashment of the order

dated  31st May,  2017,  contained  in  letter  No.U-12012/

27/2016-ME-I [3084749] debarring the petitioners from admitting

the students in MBBS course for academic sessions 2017-2018

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and 2018-2019 and authorizing the respondent No.2, the Medical

Council  of  India  (MCI)  not  to  encash  the  bank  guarantee

furnished by the petitioners to the MCI and further to issue writ of

mandamus or  any other  direction in  the  nature  of  mandamus

directing  the  respondents  to  grant  renewal  of  permission  for

academic year 2017-2018 and further to admit the students in

the said academic session.

2. The  assertions  made  in  the  writ  petition  and  the

documents annexed thereto exposit the history of litigation which,

we are inclined to think, has a different colour.  Suffice it to note

that for the academic session 2016-2017, the MCI had inspected

the Institution and found certain deficiencies.  The summary of

assessment, which was submitted by a team of four doctors on

12th November, 2016, has been brought on record.  Paragraphs 9,

10,  11  and  12  of  the  said  summary  of  assessment  read  as

follows:-

“9. Any other remarks: Most of the faculty as well as resident doctors has joined this institute in last one & half month prior to the inspection.  It is not known or could not be verified whether those faculties  where  considered  by  MCI  in  the  same academic year where they were previously working or  whether  these  faculty  is  appointed  on

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permanent basis or temporarily.  Most of them did not have permanent address proof.  Patients in the ward  were  admitted  with  very  vague  complains which  did  not  require  admission,  like  pain abdomen,  itching,  cough  mild  fever,  joint  pains, irritation  in  the  eyes,  low  back  pains.   In  some wards  both  Male  and  female  patients  were admitted in the same ward (Like Psychiatry).   In pediatrics patients above age of 14 were admitted with vague/no complain.

10. No  patients  were  in  labor.   No  Lscs,  No Normal Delivery on the date of inspection.

11. Only  one  major  surgery  on  the  day  of inspection (Open cholecystectomy) & One minor (D & C).

12. College website does not show names of all the faculty members (Like only one name appears on website out of five present in Pharmacology.)”

3. We are not referring to other aspects of the summary of

assessment,  as  the  deficiencies  pointed  out  are  within  the

permissible limit.  Be it noted, the deficiencies which are noted

earlier were by the inspecting team, and the Oversight Committee

constituted by this Court accepted the explanation offered by the

University and imposed certain conditions and recommended for

grant of Letter of Permission and eventually the same was granted

by the Central Government for the year 2016-17.

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4. After the inspection that was conducted on 11th and 12th

of  November,  2016,  another  inspection  took  place  on  9th

December, 2016.  The team of the assessors vide letter dated 9th

December, 2016, has communicated to the MCI, which reads as

follows:-

“We  reached  the  Dean's  office.   The  Dean  was present in his office.  However, he left his chamber immediately and was not  to be seen for  next  15 minutes.  Whereafter he returned to inform us his refusal to allow us to conduct the MCI assessment today even after presenting MCI order to conduct the assessment.  He stated that it was a holiday declared by their own university for Eid, which falls 5 days later.  It was not national or State or local holiday.   He  also  mentioned  that  there  were  no doctors in wards or OPD or Emergency as it was a holiday.   When  questioned  again,  regarding  the patients'  services can also  stop on a  holiday,  he had no answer.

He had no answer as to why the Dean and two or three possible officers were working on a holiday, if all the doctors were on a holiday.

We then asked him to give his refusal in writing.  It took two hours for the Dean to hand over the letter. In the meantime the assessors went on rounds of campus.  There were no patients.  There were no doctors in campus.  Hostel rooms and wards, OPD had no patients or nurses to be seen.  In all ICUs, there  were  no  patients  admitted.   Casualty  area and  reception  area  there  were  no  patients,  in laboratory,  no  patients  for  giving  the  samples. Only 10 to 12 cars were patient in the campus.  No sign of a running hospital was seen in the entire

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hospital.  Infrastructure looked highly inadequate. All beds were seen to be fresh.  We, the assessors' team, wondered how an entire hospital service can take holiday as mentioned in the Dean's reply since a hospital should run on a 24x7 basis for an entire year.

The  way,  the  Dean  refused  for  the  assessment quoting  invalid  excuses  shows  and  confirms  the non-functioning of the Hospital as well as Medical College/classes  which  are  self  declared  holidays from 08.12.2016 to 12.12.2016.  The dates looked like tailored dates confirming with the assessment dates as and when the assessment occurred also the leter submitted to the MCI by the College on 08.12.2016  mentions  holidays  of  10th &  11th December  of  Saturday  and  Sunday  respectively and Monday 12 for Eid.  No mention is found of 9th December as claimed by the Dean in his letter.

At the fag end of the process, another letter was submitted  to  us  with  some  of  the  key  words changed and we were pressurized to include this and replace the first letter.  So we are submitting both the letter for your perusal.”

5. On the basis of the assessors report, the MCI vide letter

dated  26th December,  2016,  recommended  to  the  Ministry  as

follows:-

“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  the directions passed by the Supreme Court mandated Oversight  Committee  and  communicated  vide Ministry of Health & F.W. letter dated 12/09/2016 [para  1(i)].   The  Executive  Committee,  after  due

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deliberation and discussion, has 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  and  communicated  vide  Ministry  of Health  & F.W.  letter  dated  12/09/2016 [in  para 2(b)], 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 undertaking that they have fulfilled the entire infrastructure for establishment of new medical  college  at  Gajaroula,  Dist  Amroha,  Uttar Pradesh by Shri Venkateshwara University, Meerut (Trust name – Shri Bankey Bihari  Educational  & Welfare  Trust)  under  Shri  Venkateshwara University,  Gajroula,  Amroha,  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 12/09/2016 is liable to be encashed.”

6. The  Ministry  granted  a  personal  hearing  to  the

Institution on 17th January, 2017, by the Directorate General of

Health  Services.   The  Hearing  Committee,  after  permitting  the

Institution to file written submissions, eventually, submitted its

report to the Ministry.  The Ministry forwarded the report of the

Hearing Committee to the Oversight Committee for guidance. The

Oversight Committee  vide letter dated 14th May, 2017, conveyed

the following views to the Ministry:-

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“EC has not considered the assessment report of assessment carried out on 11th-12th Nov. 2016.

As per the assessment report dated 11th – 12th Nov. 2016,  there  is  no  deficiency  in  infrastructure, faculty/residents  strength,  clinical  material  and investigation  workload  that  would  warrant disapproval  of  the  scheme.   There  are  certain remarks  such  as  :  (i)  Most  of  the  faculty  and resident doctors have joined in last one and a half months  prior  to  inspection.   It  is  not  known or could not be verified whether those faculties were considered by MCI in the same year,  where they were  previously  working  or  where  these  faculty were appointed with permanent address proof.

There  are  no  remarks  given  by  the  College. However,  it  was  the  responsibility  of  the assessment  team  to  verify  the  above  about  the faculty.

ii) Patients in the ward were admitted with very vague complaints which did not require admission like pain in abdomen, itching, cough, mild fever, joint pains, irritation in the eyes, low back pains. In some wards, both male and female patients were admitted in  the  same ward (like  Psychiatry).   In Paediatrics,  patients  above  the  age  of  14  were admitted with vague/no complaint.

The remarks about  patients  are  not  specific  and are general in nature.

iii) No  patients  were  in  labor.   No  LSCS.   No Normal delivery on date of assessment.  This is a subjective remark without MSR.

iv) Only 1 major & 1 minor surgery on date of assessment.  This is a subjective remark without MSR.

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v) It is reported in SAF that the College website does  not  show name of  all  the  faculty  members (only 1 name appears on website out of 5 present in Pharmacology).  Names of all faculty (including Pharmacology)  are  shown  on  website (http://vimshospital.edu.in/wp-content/uploads/ 2016/12/Faculty-10-Nov-2016.pdf).”

7. Thereafter,  the  Union  of  India  passed  an  order  on

31st May, 2017.  As the order was an unreasoned one, this Court

in  Glocal  Medical  College and Super Specialty Hospital  &

Research Centre  vs.  Union of  India & Others [Writ  Petition

(Civil) No.41 of 2017] had given certain directions and the present

matter was included.  The direction given on 1st August, 2017, by

this Court reads as follows:-

“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

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from  today.  The  parties  would  unfailingly co-operate in compliance of this direction to meet the time frame fixed.”

8. In  compliance  of  the  aforesaid  order,  the  Ministry

granted hearing to the Institution on 3rd August, 2017 and on 10th

August, 2017, passed the following order:-

“The college informed that compliance verification was carried out by MCI on 11-12 November, 2016. As per SAF form the deficiency was 1.5% in faculty and 8.6% in residents.

The  college  had  declared  extended  holiday due to Eid and informed MCI on 08.12.2016.  But MCI conducted surprise inspection on 09.12.2016. The college did  not  allow inspection as only  one compliance  inspection was  warranted  as  per  OC orders.

It is seen from assessors note that on their visit to the college on 09.12.2016, the campus wore a completely deserted look.  There was no sign of a functional hospital.

In  the  opinion of  the  Committee,  MCI  was not precluded from conducting inspection subject to  sufficient  reason  and  justification.   The Committee agrees with the decision of the Ministry conveyed by letter dated 31.05.2017 to debar the college for 2 years and also permit MCI to encash bank guarantee.

Accepting  the  recommendations  of  the Hearing  Committee,  the  Ministry  reiterates  its earlier  decision  dated  31.05.2017  to  debar  the college from admitting students for a period of two years  i.e.  2017-18  and  2018-19  and  also  to

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authorize  MCI  to  encash the  Bank Guarantee  of Rs.2 Crore.”

9. Criticizing  the  aforesaid  order,  it  is  submitted  by

Mr. Mukul Rohatgi and Mr. Harin P. Raval, learned senior counsel

for the petitioners that the order passed by the Union of India is

absolutely  unjustified,  inasmuch as  the  inspecting  team of  the

MCI  could  not  have  conducted  a  surprise  inspection  on  9th

December, 2016.  However, there is a subsequent amendment to

the Medical Council of India Regulations, which clearly states that

the MCI shall ensure that such inspections are not carried out at

least  2  days  before  and  2  days  after  important  religious  and

festivals  holidays  declared  by  the  Central/State  Government.

Learned senior counsel would further submit that the controversy

is squarely covered by the decision rendered by this Court on 30 th

August,  2017,  in  Kanachur Islamic Education Trust  (R)  vs.

Union  of  India  and  Another  [Writ  Petition  (Civil)  No.468  of

2017].

10. Mr. Maninder Singh, learned Additional Solicitor General

supporting the order passed by the Union of India contended that

the  inspection  report  clearly  spells  out  the  deficiencies  in  the

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Institution and if the Letter of Permission is granted, it would be

travesty  of  justice.  It  is  his  further  submission  that  the

controversy in  the  instant  case is  remotely  not  covered by  the

decision  rendered  in  Kanachur  Islamic  Education  Trust  (R)

(supra).  Additionally, learned Additional Solicitor General would

harp upon the fact that the entire exercise has been carried out

for the academic session  2016-2017 and not for 2017-2018.

11. To appreciate the controversy in issue, it is necessary to

mention that on the basis of the recommendation of the Oversight

Committee,  the  Central  Government  had  granted  the  Letter  of

Permission.  The  Oversight  Committee  had  imposed  certain

conditions. One such condition was to furnish the bank guarantee

amounting to Rs.2 crores and to remove certain deficiencies and

file an affidavit of affirmation of removal of deficiencies that was

meant  for  2016-2017.   Though,  Mr.  Singh,  has  laid  immense

press that the inspection was carried out for 2016-2017, we are

not inclined to accept the same.  We are disposed to think that

the inspection was done for academic session 2017-2018 because

we  have  been  apprised  in  the  course  of  hearing  that  the

Institution had applied for grant of renewal of permission for the

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academic session 2017-2018.

12. The thrust of the matter is whether the inspecting team

could have inspected on 9th December, 2016.  It is worthy to note

that the Medical Council of India with the previous sanction of the

Central Government had amended the “Establishment of Medical

College Regulations 1999”. The amended clause 8(3)(1)(d) reads as

follows:-

”However,  the  office  of  the  Council  shall  ensure that such inspections are not carried out at least 2 days before  and 2 days after  important  religious and festival holidays declared by the Central/State Govt.”

13. In  Kanachur  Islamic  Education  Trust  (R)  (supra),

while dwelling upon the same, this Court has held:-

“The fact that the petitioner's college/institution is a minority institution and that a major festival for the said community was scheduled on 12.12.2016 and that the day previous thereto i.e. 11.12.2016 was a Sunday, are facts which may not be wholly irrelevant.”

14. Thereafter, the Court has proceeded to state thus:-

“The  observation  of  the  Hearing  Committee  that petitioner’s  college/institution  has  not  explained the  deficiency  of  faculty  is  belied  by  its representations and also the observations amongst

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others of the Oversight Committee.  The conclusion that a few residents might have been on leave on account of NEET (PG) examination but not all, also seems to  be  inferential  in  the  face  of  exhaustive explanation  provided  by  the  petitioner's college/institution. In this context, the observation of the Oversight  Committee in its communication dated 14.5.2017 that eight colleges including  the petitioner’s  college/institution  had  been  assessed twice  in  quick  succession  for  the  same  purpose though  not  authorized  by  it  in  its  guidelines, deserves attention.  The Hearing Committee seems to have ignored  the explanation provided by the Professor  and  Head  of  Department  of  Surgery, explaining the treatment given to the three patients named  in  clause  xii  (a)  to  (c)  of  the  Inspection Report  in  concluding  that,  the  petitioner's college/institution had not responded thereto.  Its deduction  that  there  might  have  been  more instances  of  multiple  entries  in  the  OPD patient statistics based  on  five such instances  is also visibly  presumptive.  The  striking  feature  of  the observations  of  the  Hearing  Committee,  on  the basis  of  which  the  impugned  decision  has  been rendered,  is  the  patent  omission on its  part   to consider  the  relevant  materials  on   record,  as mandated  by  this  Court  by  its  order  dated 1.8.2017.   The findings of the Hearing Committee, in our comprehension, thus stands vitiated  by the non-consideration  of  the  representations/ explanations of the petitioner's college/institution, the  documents  supporting  the  same,  the recommendations/views  of  the  MCI,  the observation  of  the  earlier  Hearing  Committee, DGHS and Oversight  Committee,  as  available  on records.  The  Central  Government  as  well  readily concurred  with  the  observations  of  the  Hearing Committee in passing the impugned order, which per se,  in our estimate,   is  unsustainable in the singular facts and circumstances of the case.”

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15. On a careful reading of the aforesaid judgment, we do

not think that the clause has been interpreted as not to allow any

inspection on a Sunday, but the Court have said in the factual

matrix  of  the  said  case  that  the  Institution  was  a  minority

institution  and  a  major  festival  for  the  said  community  was

scheduled on 12th December, 2016 and the day previous thereto

i.e. 11th December, 2016, was a Sunday and the said facts are not

wholly irrelevant.  The said analysis cannot be regarded as the

construction of the clause.

16. Having said that, we shall proceed to analyze what the

clause precisely conveys.  On a careful reading of the same, it is

quite clear and unambiguous that the obligation of the MCI is to

ensure that inspections are not to be carried out at least 2 days

before  and  2  days  after  an  important  religious  and  festival

holidays  declared  by  the  Central/State  Government.   In  the

clause, the words which gain significance are “important religious

and  festival  holidays”.   On  12th December,  2016,  it  was

Milad-un-Nabi and it is the day of festival.  The inspection was

done on 9th December, 2016, which was a Friday.  The amended

clause  of  the  notification  state  only  covers  2  days  before  the

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festival declared as a holiday by the Central/State Government

and 2 days thereafter.  In the case at hand, the inspection team

had gone for inspection on 9th December, 2016, and they were

deprived to carry out the inspection.  It was not covered by the

concept of two days of moratorium.  In such a situation when the

Institution does not allow the team of the MCI or the assessors of

the MCI, it will be  adding premium to deviancy.   Conferment of

this kind of privilege is absolutely unwarranted.  Therefore, the

directions sought for grant of renewal of Letter of Permission for

the academic session 2017-2018 is not acceptable.    

17. Though we have so held, yet we think it appropriate that

the students who have been admitted in the Institution for the

academic session 2016-2017, shall continue their studies.  The

MCI shall  send the inspecting team to the Institution within a

period  of  two  months.  After  the  report  is  filed,  the  MCI  shall

apprise the Institution with regard to the deficiencies and give a

date for removal of the same so that the Institution would be in a

position  to  do  the  needful.   We  may  hasten  to  add  that  the

inspection that will be carried out and the further follow up action

shall be done for the academic session 2018-2019.  

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18. As we intend to appreciate the inspection report and the

deficiencies and the action taken up thereon by the Institution,

list the matter on 15th November, 2017.  The renewal application

that was submitted for the academic session 2017-2018 may be

treated as the application for the academic session 2018-2019.

The  bank  guarantee  which  has  been  deposited  shall  not  be

encashed and be kept alive.

…....................................CJI. [Dipak Misra]

….......................................J. [Amitava Roy]

….......................................J. [A.M. Khanwilkar]

New Delhi, September 01, 2017.