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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 502 OF 2017   

IQ City Foundation & Anr.              Petitioner(s)

Versus

Union of India & Ors.      Respondent(s)

J U D G M E N T

Dipak Misra, CJI.

The present writ petition, as the circumstances would

have  it,  witnesses  a  second  verdict.   The  first  one  was

disposed of by us on 1st August, 2017.  At that time, we had

noted the facts to the effect that the petitioners had prayed

for issue of a writ of certiorari for quashment of the order

dated 31.05.2017 passed under Section 10-A of the Indian

Medical  Council  Act,  1956  (for  brevity,  ‘the  Act”)  by  the

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Secretary,  Ministry  of  Health  and  Family  Welfare,  the  1st

respondent herein, and further issue a direction to the said

respondent to grant permission to the petitioner-College for

4th renewal  for  the  academic  year  2017-2018 to  facilitate

admission of the 5th batch (150 students) MBBS Course.   

2. The  essential  facts  which  have  been  noted  in  the

earlier judgment are that the Medical Council of India (MCI)

had  conducted  an  inspection  and  granted  the  Letter  of

Permission (LOP) on 15.07.2013 for the establishment of the

new  medical  college  at  Burdwan,  West  Bengal  with  an

annual intake of 150 students with effect from the academic

year 2013-14.  Vide letters dated 04.07.2014, 10.06.2015

and  15.12.2015,  renewals  of  permission  for  the  2nd (1st

renewal),  3rd (2nd renewal)  and 4th (3rd renewal)  batches of

MBBS students at the petitioner-College for the academic

years  2014-15,  2015-16  and  2016-17  respectively  were

granted  by  the  respondent  No.  1.  On  06.07.2016,  the

petitioner-College  submitted  its  scheme  along  with  the

requisite  fees  for  the  4th renewal  for  the  academic  year

2017-18 which pertains to admission of the 5th batch of 150

students  in  MBBS  course.   On  09.07.2016,  the  2nd

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respondent  informed the  College  that  the  assessment  for

renewal of permission for the academic year 2017-18 would

be undertaken by the Assessors appointed by it at any time

after 15.07.2016 and the petitioners were asked to fill in the

Standard Inspection Form A, Form B and Declaration Form

for  the  academic  year  2017-18 and keep them ready  for

scrutiny  at  the  time  of  assessment.   There  was  also  a

direction for submission of the soft copies of the said Forms.

As averred, the petitioners duly submitted a compact disc

containing soft copies of Form A, Form B and Declaration

Form and upon receipt of the necessary documents, the 2nd

respondent  constituted  a  team of  Assessors  and directed

them to carry out the assessment inspection of the College.

The inspection team,  that  is,  the  Assessors,  conducted a

surprise  inspection  of  the  College  on  03.11.2016  and

04.11.2016.  The Assessors pointed out certain deficiencies

to the College and noted the same in the assessment report

dated  04.11.2016.  It  is  put  forth  that  in  the  Regular

Inspection  Report,  the  shortfall  in  Teaching  Faculty  and

Resident  Doctors  were  only  4.5% and  3.50% respectively

which  were  well  within  the  prescribed  limit.  Two  other

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deficiencies  that  were  pointed  out,  as  asserted,  were

completely  remediable  and  were  duly  remedied  by  the

College.  On  22.12.2016,  the  Executive  Committee  of  the

respondent No.2 considered the Assessment Report of the

Assessors  and  decided  to  recommend  to  the  respondent

No.1 not to renew the permission to the College for the 4th

renewal for the academic year 2017-18. It  was  also  noted

that  the  1st respondent,  by  its  letter  dated  03.02.2017,

communicated  to  the  College  the  recommendation  dated

28.01.2017 of  the  respondent  No.  2  for  disapproving  the

permission  to  the  College  for  the  4th renewal  for  the

academic  year  2017-18  and  called  upon  the  College  to

submit a detailed point-wise compliance with documentary

evidence.   The  College  was  further  intimated  about  the

hearing  that  was  to  be  held  on  09.02.2017  before  the

Hearing Committee. A team of representatives of the College

appeared before the Hearing Committee on the date fixed

and submitted the compliance report keeping in view the

remarks  and  observations  made  by  the  Assessors  of  the

respondent No. 2. In the second week of March, 2017, the

petitioners received a copy of the order dated 01.03.2017

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issued  by  the  1st respondent  recording  the

recommendations/order passed by the Hearing Committee

of the respondent No. 1 under Section 10-A(4) of the Act.

The recommendation of the Hearing Committee was to the

effect that the deficiencies pointed out by the 2nd respondent

were not such to warrant disapproval at that stage.  Despite

the  aforesaid  findings  of  the  Hearing  Committee,  the  1st

respondent, instead of taking a final decision, referred the

matter back to the respondent No.2 to review the same in

the  light  of  the  recommendations/findings of  the Hearing

Committee  along  with  documents  submitted  by  the

petitioners and to furnish its recommendation.  

3. On  the  earlier  occasion,  it  was  asserted  that  the

2nd respondent, on 17.03.2017, constituted a team to carry

out  a  Compliance  Verification Assessment  of  the  College.

The team of Assessors, instead of carrying out a compliance

verification, conducted a regular inspection on 21.03.2017

in a random manner and proceeded to make a different kind

of assessment instead of limiting to their scope of reviewing

the compliance of the remarks/observations of the Hearing

Committee. At this juncture, it was contended that though

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the Compliance Inspection Report was submitted,  yet  the

Assessors required the College to submit a representation

and,  accordingly,  the  College  submitted  the  necessary

representation to the respondent No. 2. The Assessors, as

per the stand of the petitioners, noted certain deficiencies in

their Compliance Verification.  The Executive Committee of

the respondent No. 2 held its meeting on 28.04.2017 but

the minutes of the meeting were not uploaded on the official

website of the respondent No. 2 until 29.05.2017 and were

not communicated to the petitioners.

4. On  earlier  occasion,  it  was  submitted  that  the

petitioner had approached the 1st respondent on 20.5.2017

and  submitted  a  detailed  representation  with  regard  to

compliance  verification  of  the  deficiencies  found  by  the

assessors as pointed by the Respondent No. 2.  Despite the

same,  the  1st respondent,  vide  order  dated  31.5.2017,

accepted  the  recommendation  of  the  2nd respondent  and

rejected  the  scheme  of  permission  for  the  4th renewal

(Admission of the 5th batch of 150 students in MBBS course)

for  the academic year 2017-2018.  It  was urged that the

order dated 31.5.2017 was communicated to the college on

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30.6.2017.  That apart,  it was highlighted that the entire

approach of the MCI was contradictory to the Act and the

Establishment  of  Medical  College  Regulations,  1999  (for

short,  ‘the  Regulations’)  and  further  when  the  Central

Government had sent back the matter to the MCI to have a

relook at certain aspects, it could not have proceeded for a

fresh compliance inspection.

5. The contentions raised by the petitioners were opposed

by  the  MCI.  This  Court,  referring  to  the  decisions  in

Manohar Lal Sharma v. Medical Council of India and

others1, Medical Council of India v. Kalinga Institute of

Medical Sciences (KIMS) and others2 and Royal Medical

Trust (Registered)  and another v. Union of India and

another3 and thereafter referring to Section 10-A of the Act

and the Regulations, opined thus:-

“29. On a reading of Section 10-A of the Act, Rules and the   Regulations, as has been  referred  to  in  Manohar  Lal Sharma (supra), and the view expressed in Royal Medical Trust (supra), it would be inapposite to restrict the power of the

1 (2013) 10 SCC 60

2 (2016) 11 SCC 530

3 (2015) 10 SCC 19

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MCI  by  laying  down  as  an  absolute principle  that  once  the  Central Government  sends  back  the  matter  to MCI  for  compliance  verification and the Assessors visit the College they shall only verify  the  mentioned  items  and  turn  a Nelson’s eye even if they perceive certain other  deficiencies.   It  would  be  playing possum.  The  direction  of  the  Central Government  for  compliance  verification report  should  not  be  construed  as  a limited remand as  is  understood  within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand, we are disposed to think, is not attracted.  Be  it  clearly  stated,  the  said principle  also  does  not  flow  from  the authority  in  Royal  Medical  Trust (supra). In this context, the objectivity of the  Hearing  Committee  and  the  role  of the  Central  Government  assume  great significance.  The  real  compliant institutions  should  not  always  be  kept under  the  sword  of  Damocles.  Stability can be brought by affirmative role played by  the  Central  Government.  And  the stability  and  objectivity  would  be perceptible if  reasons are ascribed while expressing a view and absence of reasons makes  the  decision  sensitively susceptible.”

6. After so holding, the Court took note of the fact that

the  order  passed  by  the  Central  Government  is  not  a

reasoned one and in that backdrop, this Court directed:-

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“It  is  obligatory  on  its  part  to  ascribe reasons. For the said purpose, we would like the Central  Government to afford a further  opportunity  of  hearing  to  the petitioners and also take the assistance of  the  newly  constituted  Oversight Committee  as  per  the  order  dated  July 18,  2017  passed  by  the  Constitution Bench in Writ Petition (Civil)  No. 408 of 2017  titled  Amma  Chandravati Educational and Charitable Trust and others v. Union of India and another and thereafter take a decision within two weeks. Needless to say, the decision shall contain reasons.  We repeat at the cost of repetition that  the  decision must be  an informed one.”

7. To appreciate the controversy, we may first record the

letter  dated 21.3.2017 before  the  order  of  remand.   The

said letter written by the petitioner to the MCI reads thus:-

“In  connection  with  the  above  subject  I would  like  to  submit  the  following paragraph for your kind consideration.

1. That  during  the  last  MCI  inspection held on 3rd and 4th Nov 2016 our Faculty & Resident  deficiency  was  2.18  and  3.38 respectively.  However  on  21.03.2017 surprise  inspection  and  due  to  their personal commitment they could not come by 11 AM and could not appear before the assessors.

2. Secondly,  the  State  NEET  Post Graduate  counseling  and  the  Diplomat  in National Board (DNB) counseling in process, many  of  the  senior  and  Junior  Residents and  few  faculty  members  had  gone  to KOLKATA for  their  counseling  hence  were

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not  able  to  appear  in  the  inspection conducted on 21.03.2017.

3. Thirdly  most  of  these  faculties  and residents  are  working  with  us  since  long time and kind of documentary proof for the same can be submitted, but because of the counseling they were unable to make it.

4. It will  not be out of place to mention here  that  our  faculties  and  residents  had gone to attend medical camps in suburban areas as such they could not reach by 11 AM to appear before the assessors.

Hence  their  absence  may  kindly  be considered to offset the faculty and resident deficiency.”

8. Another letter was issued on 10.4.2017.  The relevant

part of the said communication reads thus:-

“(3)  That for our 4th renewal inspection we were inspected on 3rd & 4th November 2016 & a subsequent compliance inspection was conducted on 21st March, 2017.

(4)  That  on  21st March  when the  surprise compliance inspection was conducted, few of our facility & residents were on deputation for attending our regular Medical camps on the  rural  areas.  In  view  of  the  inspection these facilities & residents were called back to  the  hospital  &  college  but  by  the  time they  arrived  the  time  for  signing  the attendance sheet was over i.e. 11 a.m. They were denied signing in the attendance sheet and  were  not  considered  during  the  head count which lead to deficiency of faculty and residents – 15.99% and 25.88% respectively,

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even  though  our  deficiency  was  less  than 5% for both categories in the inspection held on 3rd and 4th November 2016.

(5)  That on 22nd March 2017 we also sent one  representation  letter  along  with photograph  of  few  of  our  medical  camps which  were  going  on  vide  letter  no IQMC/2016-17/09 dated 21/03/2017. The photographs are once again enclosed.

(6)  That  we  are  an  established  running medical college and hospital with more than thousand employees working having all the requisite  infrastructure,  faculties  and residents and clinical  materials as per the council norms.”

And again:-

“Hence,  it  is  requested  that  our  faculty  & resident  deficiency  on  the  day  of  the inspection  may  kindly  be  considered sympathetically  and  permission  may  be accorded to us to admit the 5th batch of 150 students  and  continue  our  services  in Medical Education & Health Care Services.”  

9. As  the  facts  would  show,  the  petitioner-institution

was  afforded  an  opportunity  of  hearing  by  the  Hearing

Committee  which,  thereafter,  recorded  the  following

findings:-

“1. On  detailed  examination  of  the documents,  the  deficiency  of  the  faulty  still persisting. Hence not acceptable.

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2. The  shortage  of  Residents  is  25.88% (maximum acceptable is 5%).

3. It has been recorded in the Minutes of the MCI meeting that the Assessor resorted to only random checking of OPDs in just three Departments, namely TB & Respiratory, ENT and Psychiatry Department and has arrived at a figure without counting the total number of patients registered in all the Departments, which seems unreasonable and inaccurate.

4. Student  hostel:  The  college  authorities are  producing  the  Chartered  Architect Certificate  on  completion  and  occupancy  of the hostel (to be verified).

5. The  Anatomy  Department  had  the requisite  number  of  mounted/unmounted specimens on the  date  of  inspection and is being treated as complied with.

Conclusion:  The  deficiency  of  faculty  found by assessor was 15.9% and was accepted by the  College.  The  reasons  provided  by  the college for this deficiency are not compatible with MCI guidelines of acceptable leave. Also the  deficiency  of  Residents  was  25.88%. Therefore, renewal is not recommended.”

10. The Central Government, considering the remarks of

the Hearing Committee, passed an order which is to the

following effect:-

“10.  Now,  therefore,  in  compliance  with  the above direction of Hon’ble Supreme Court, the Ministry  granted  hearing  to  the  college  on 22.08.2017. A Member of the newly constituted Oversight Committee also attended the Hearing Committee  meeting.  The  Hearing  Committee

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submitted  its  report  to  the  Ministry  with  the following conclusion:-

The  deficiency  of  faculty  by  assessor  was 15.9% and was accepted by the College. The reasons  provided  by  the  College  for  this deficiency  are  not  compatible  with  MCI guidelines  of  acceptable  leave.  Also  the deficiency was 25.88%. Therefore, renewal is not recommended.

A  copy  of  the  Hearing  Committee  report containing their observations is enclosed.

11. Accepting  the  recommendations  of  the Hearing Committee, the Ministry reiterates its earlier decision dated 31.05.2017 not to renew the permission to admit MBBS students at IQ City Medical College, Burdwan for the academic year 2017-18.”

11. Thus, it is demonstrable that the competent authority

of  the  Central  Government,  considering  various  aspects,

had reiterated the order.  

12. We  have  heard  Mr.  Mukul  Rohatgi  and  Mr.  P.S.

Patwalia,  learned  senior  counsel  for  the  petitioners,  and

Mr.  Ajit  Kumar Sinha, learned senior  counsel  for  the  1st

respondent, and Mr. Vikas Singh, learned senior counsel

along with Mr. Gaurav Sharma, learned counsel for the 2nd

respondent, MCI.

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13. We may note here with profit that after the remand,

the petitioner-institution filed certain documents before the

Hearing Committee on 22.8.2017.   

14. The petitioner-institution also filed salary slips of the

teaching faculty and salary slips of Senior Resident Doctors

and  Junior  Resident  Doctors  before  the  Hearing

Committee.  The said documents have also been brought

on record.  Paragraph 14 of the letter dated 22.8.2017 by

the  petitioner-institution  to  the  Secretary,  Ministry  of

Health and Family Welfare, Government of India reads as

under:-

“It needs to be mentioned that our Teaching Hospital has received accolades from a team of  7  International  Doctors  headed  by  Dr. Partha Sadhu and Dr. Klas Erik Kaspersson of  “SMILE”  and  “INGA-International Foundation” who are carrying out a major camp for corrective surgery of Cleft Lip/Cleft Palate  in  our  Medical  College  &  Hospital from 16th August, 2017 to 24th August, 2017 under  the  name  and  style  called “OPERATION  SMILE”.   A  total  of  87 corrective  surgeries  for  Cleft  Lip  and Cleft Palate  have  already  been  performed  as  of date in our Hospital during the said period. The Operation Smile and INGA International Foundation  have  till  date  conducted  more than 100 such camps and performed more than 29,000 surgeries, Pan India.  The said “SMILE”  and  “INGA-  International Foundation”  have  issued  a  letter  of

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appreciation  to  our  College  and  Hospital stating  that  it  is  rare  to  find  such outstanding  “State-of-the-Art”  Medical  and infrastructure facilities.”

 15. That  apart,  the  details  of  OPD  patients  between

15.3.2017  to  29.3.2017  have  also  been  filed  before  the

Hearing  Committee  as  well  as  this  Court.  The  grievance

that has been vehemently agitated is that, had the Hearing

Committee scrutinized the documents and appreciated the

stand of the institution in proper perspective, the opinion of

the Hearing Committee would have been quite different and

as a corollary, the view of the Central Government would

have  been guided in an affirmative  way in favour of  the

institution.   The  aforesaid  submission,  on  a  first  blush,

looks quite attractive but, on a keener scrutiny, pales into

total insignificance. We are disposed to think so inasmuch

as the Hearing Committee, on verification of every aspect,

found that the deficiency of faculty members was 15.9 and

the  deficiency  of  Resident  Doctors  was  25.88  and,

accordingly, it did not recommend for renewal. The Central

Government, in its turn, observed that the deficiency found

by the MCI was not compatible with the MCI guidelines. In

such a situation, it is difficult to hold that there has been

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any perversity in the action of the authorities denying the

renewal to the institution. Though we have given the stamp

of approval to the decision of the Central Government, yet

we are inclined to direct that the prayer for renewal shall be

considered for the year 2018-19 and any bank guarantee

that has been furnished shall be treated as deposit for the

inspection  and  consideration  for  the  next  year,  that  is,

2018-19. Be it clearly stated, our opinion is restricted to

the non-granting of renewal for the year 2017-18 and not

an expression of opinion with regard to the consideration of

the prayer for 2018-19.

16. The writ  petition is  accordingly  disposed of  without

any order as to costs.  

………………………CJI.  (Dipak Misra)

………………………….J.                                         (Amitava Roy)

                                                                        ………………………….J.                                               (A.M. Khanwilkar)

New Delhi,   February 06, 2018.