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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10352 OF 2018 ( @ SPECIAL LEAVE PETITION [C] NO.23284 OF 2018 )

MEDICAL COUNCIL OF INDIA …  APPELLANT(S)

VERSUS

LORD BUDDHA EDUCATIONAL SOCIETY & ORS.… RESPONDENTS

J U D G M E N T   

ARUN MISHRA, J.

1. The background of the case indicates that the College was

established  pursuant to the  directive issued  by the  Oversight

Committee vide letter dated 20.8.2016. The negative

recommendation  was  made  by the  MCI to the  Government  of

India. However, in view of the Oversight Committee’s letter dated

20.8.2016, conditional permission was granted by the

Government of India to set up a medical college w.e.f. the

academic year 2016­17 with an annual  intake capacity of 150

MBBS students. The conditions stipulated that during the

subsequent inspection if it was found that the College was

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deficient then the  medical college shall be debarred for two

academic years.  

2. On 7/8.11.2016, the assessment was carried out by a team

of the MCI to ascertain whether the College had complied with

the conditions imposed by the  Oversight Committee and the

Government of India vide letter dated 20.8.2016 by removing the

deficiencies. On consideration of the report of the assessors the

Executive Committee of the MCI in its meeting held on

22.12.2016  found gross deficiencies in the  College  and  it  was

observed that the College had failed to remove the deficiencies

and to fulfill the conditions imposed and also failed to comply

with the undertaking and as such on 26.12.2016 a

recommendation was made to debar the College for two years i.e.

2017­18 and 2018­19 and to encash the bank guarantee of Rs.2

crores furnished by the College.

3. The Government of India on due consideration of the

recommendation of the Council made to it, accepted the

recommendation and debarred the College for two academic

years, and also permitted the Council to encash the bank

guarantee vide order dated 31.5.2017.

4. The College filed W.P. [C] No.1825/2017 in the High Court

of Chhattisgarh and it was disposed of vide order dated 3.8.2017.

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The Court  directed  the  Government  of India to reconsider the

case of the College and decide the representation of the College

by a reasoned order. Pursuant thereto, the Government of India

again granted an opportunity of hearing to the College and

passed a reasoned order on 14.8.2017 and the earlier decision to

debar the college from admitting students and to encash the

bank guarantee was reiterated.  

5. Aggrieved by the order dated 14.8.2017 passed by the

Government of India, the College filed W.P. [C] No.776/2017 in

this Court. This Court vide order dated 13.11.2017 directed the

MCI to consider the application for renewal of permission for the

academic year 2017­18 to be valid for the academic year 2018­19

and to process the same in accordance with law.

6. Thereafter, pursuant to the order passed by this Court on

13.11.2017 in the aforesaid writ petition,  the Assessors of the

MCI again carried out the inspection on 5/6.12.2017. The report

of the Assessors was placed before the Executive Committee in its

meeting held on 14.12.2017. Gross deficiencies were found in the

College with respect to infrastructure, clinical material, teaching

faculty,  and other  attendant  physical facilities  etc.  Hence, the

Executive Committee of the Council recommended to the Central

Government  not to grant renewal of permission for admitting

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third batch of 150 MBBS students for the academic year 2018­19

and also to invoke Regulation 8(3)(1)(a) of the Establishment of

New Medical College Regulations, 1999 as the deficiency of

‘teaching faculty’, residents and bed occupancy was found much

below the percentage prescribed in the said Regulations so as to

renew them in the same academic year. The decision of the

Executive Committee was considered by the Oversight Committee

and thereafter the  Council  considered the matter  and sent  its

recommendations to the Government of India on 6.1.2018. The

Government of India granted  an  opportunity of  hearing as is

apparent from communication dated 12.2.2018. The Government

of India requested the Council in view of the documents of

compliance filed by the appellant, to consider the same and to

review the decision.

7. On 23.2.2018 the case of the College was placed before the

Sub­Committee of the Council in its meeting on 21.2.2018.

Regulation 18(3)(1)(a) of the Regulations of 1999 had been

invoked against the College. The matter was then referred to the

Oversight Committee vide letter dated 23.2.2018. Before the final

decision was reached, the College approached the High Court of

Delhi by filing W.P. [C] No.2022/2018. The High Court vide order

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dated 6.3.2018 disposed of the petition and directed the MCI to

take a decision within a period of 5 weeks.

8. The Oversight  Committee considered the  matter  and vide

letter dated 8.3.2018 approved the decision of the MCI and it was

observed that  once  Regulation  8(3)(1)(a)  had  been invoked,  as

such it was impermissible for the Council/Government of India to

consider the compliance reported by the College.

9. The  case  of the  College  was  placed  before the  Executive

Committee of the Council on 24.3.2018. The Executive

Committee in view of the decisions of this Court and considering

the said Regulation decided to  reiterate  the  earlier  decision to

recommend to the Central Government not to grant renewal of

permission  for the third  batch of  150 MBBS students for the

academic year 2018­19. The decision of the Council was

communicated to the Oversight Committee on 28.3.2018.

Ultimately it was communicated to the Government of India vide

letter dated 13.4.2018.  

10. Before the Government of India could take the final call, the

College filed W.P. [C] No.4897/2018 which was decided by the

High Court vide order dated 8.5.2018 and directed the Central

Government to take a decision in the case of the College within a

period of 10 days. The Central Government after considering the

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recommendation passed an order on 31.5.2018 and in view of the

gross and serious deficiencies  found in the assessment report,

decided not to grant renewal of permission for admission for the

academic year 2018­19.

11. The College as against order dated 31.5.2018, filed W.P. [C]

No.6656/2018. The High Court has allowed the same vide order

dated 1.8.2018 and has ordered the College to submit

compliance and directed the MCI to conduct an inspection of the

College  in order to reconsider the case  for grant of  renewal of

permission for the academic year in question i.e. 2018­19.

12. The High Court has opined that in view of the direction in

the order passed by this Court on 13.11.2017 to grant

opportunity to make compliance and remove deficiencies, ought

to have been granted. Though this Court while passing the order

did not consider the applicability of Regulation 8(3)(1)(a), the

direction was binding as no clarification was sought  from this

Court.  

13. Shri Vikas Singh, learned senior counsel appearing on

behalf of the appellant, has submitted that  while this Court

decided the  matter on 13.11.2017, it was never intended to

decide as to the applicability of Regulation 8(3)(1)(a) as that was

dependent  upon the  outcome of the inspection to  be made  in

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future and, in ordinary course, an opportunity of compliance has

to be given, subject to exception contained in the cases  covered

under the proviso to Regulation 8(3)(1). However, considering the

nature of the deficiencies which were found in the inspections

made, in  compliance  of the  direction  issued by this  Court  on

13.11.2017, it was open to take a decision in accordance with

law and only in  case  deficiencies  were  not  so  much gross  as

contemplated under Regulation 8(3)(1)(a), an opportunity was

required to be given to make compliance and not otherwise. He

has relied upon the decisions of this Court in Medical Council of

India & Ors. v. Vedantaa Institute of Academic Excellence Pvt. Ltd.

& Ors. (2018) 7 SCC 225 and  Medical Council of India v. Malla

Reddy Institute of Medical Sciences & Ors. – C.A. No.4812/2016

decided on 27.4.2016.

14. Per contra, on behalf of the respondents, it was contended

that the direction of this Court was clear that an opportunity has

to be granted to make compliance and the compliance reported

ought to have been considered. Thus, there is a flagrant violation

of the direction issued by this Court, hence, no case for

interference is made out as the order of the High Court directs

only to comply with the direction issued by this Court.

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15. What emerges from the factual scenario of the case is that

the College had never been granted permission by the MCI. The

Government of India was compelled to grant permission on the

conditional basis that too in view of the direction issued by the

Oversight Committee. As there were deficiencies and it was a case

of conditional permission, thus deficiencies were required to be

removed and thereafter in the inspection that was made in the

year 2016 and again in 2017, it was found that the College had

not removed the deficiencies and did not fulfill conditions. After

the Oversight Committee of this Court decided to grant

conditional permission for the  academic session  2016­17, the

Government of India had to accept  it  as  is  apparent  from the

communication dated 20.8.2016. It was clearly a conditional

permission by the Government of India’s order that in case the

College was found to be deficient in complying with conditions

then it shall be debarred for two academic years. Such

conditional permissions are not ordinarily to be granted while a

new College is required  to  be established.  Nonetheless, it  was

granted in the wake of aforesaid facts and circumstances.

16. Thereafter,  an assessment was carried out  in view of the

conditional  permission on 26.12.2016 and  serious  deficiencies

were  found  in the College.  Thus,  a decision was taken by the

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Government of India on 9.6.2017 to debar the College for 2 years

and to encash the bank guarantee. The College filed a writ

petition in the High Court of Chhattisgarh. It was directed by the

High Court vide order dated 3.8.2017 to reconsider and to decide

the representation of the College. The Government of India

considered the recommendation, granted the hearing and

reiterated its earlier decision vide order dated 14.8.2017.

17. Thereafter,  a writ  petition was  filed directly  in this  Court

under  Article  32 of the  Constitution of India i.e.  W.P. (C]  No.

776/2017  in which on 13.11.2017  this  Court  has  passed  the

following order :

“This writ petition under Article 32 of the Constitution of India has been filed with the following prayers:-

(i) Quashing  of  the  decision  dated  14.8.2017  of  the  Ministry  of Health and Family Welfare, Government of India, directing the petitioner-institute not to admit students in the MBBS Course for the academic years 2017-18 and 2018-19 and also authorising the respondent no.2-Medical Council of India (MCI) to encash the bank guarantee of Rs. 2 crores submitted by the petitioner- institute.

(ii) Quashing of the recommendations dated 26.12.2016 made by the respondent no. 2-Medical Council of India (MCI) to the Ministry of Health & Family Welfare, Government of India, in respect of the petitioner-institute.

(iii) Issuance of directions to the respondent no.1-Union of India to grant first renewal permission for the academic year 2018-18 in terms  of  the  Oversight  Committee’s  recommendation  dated 14.5.2017, and also permit the petitioner-institute to admit 150 MBBS students for the academic year 2017-18.

(iv) Issuance of directions to the respondent no. 1-Union of India to confirm conditional Letter of Permission (LOP) in terms of the Oversight  Committee’s  recommendations  dated  14.5.2017  and

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directions to the respondent no.2 – Medical Council of India not to encash the bank guarantee of Rs.2 crores.

 The petitioners have also moved an application for direction (IA No.82637 of 2017), with the same prayer as mentioned at S.No. (iii) above.

Heard  learned  counsel  for  the  petitioners,  Mr.  Maninder Singh,  learned  Additional  Solicitor  for  the  respondent  no.1- Union of India and Mr. Gaurav Sharma, learned counsel for the respondent no.2-Medical Council of India.

Having heard learned counsel for the parties and keeping in view the recent decisions of this Court in Royal Medical Trust and Anr. vs. Union of India and Anr., [In WP [C] No.747/2017 decided on 12.9.2017], Annai Medical College & Hospital and Anr.  vs.  Union  of  India  and  Anr.,  [In  WP [C]  No.525/2017 decided on 14.9.2017] and Medical Council of India vs. Ananta Charitable  Educational  Society  and  Ors.,  [In  SLP  [C] No.17732/2017 decided on 30.10.2017], it is directed that MCI shall allow the students admitted in the petitioner-institute on the basis  of  conditional  LOP for  the  academic  year  2016-17  to continue their studies. MCI shall send a team for inspection of the  petitioner-institute  as  per  schedule  for  the  academic  year 2018-19. The application filed by the institution for the academic year 2017-18 for renewal shall be treated as an application for the  academic  year  2018-19.  If  deficiencies  are  noted  by  the Inspection Team, the same shall be brought to the notice of the institution,  and it  shall  be granted liberty to remove the same within a specified time.  Thereafter,  the matter  shall  be placed before the Executive Committee of MCI. If any deficiency is still required  to  be  removed,  the  same  shall  be  removed  by  the institution  within  a  specified  time,  and  if  the  institution  is  a compliant institution, the request for confirmation of LOP for the academic  year  2016-17  and  renewal  of  permission  for  the academic year 2018-19 may be dealt with appropriately.

The Ministry shall take a final decision within one month of the receipt of the recommendation from the MCI by taking the assistance  of  the  Hearing  Committee  as  constituted  by  the Constitution  Bench  of  this  Court  in  Amma  Chandravati Educational and Charitable Trust and Ors. vs. Union of India and Anr.  [In WP [C] No.408/2017 decided on 18.7.2017] or other directions in the said decision and in accordance with law.

We further direct that until the final decision is taken by the Ministry  and  communicated  to  the  institution,  the  Bank Guarantee offered by the institution in the sum of Rs.2 crores shall not be encashed by MCI but the institution shall keep the same alive. If the Bank Guarantee has already been encashed by

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MCI  in  the  meantime,  the  amount  shall  be  refunded  to  the institution, which shall furnish a fresh Bank Guarantee in the like amount to the MCI within two weeks from the date of receipt of the amount.  Mr. Gaurav Sharma learned counsel for the MCI would submit that the petitioners will be required to pay the inspection fee if it is not paid, for the inspection to be conducted in terms of this order for considering confirmation of LOP for the academic year 2016-17 and renewal application for the academic year 2018-19.

In the event, the final decision of the Competent Authority of the Central Government is adverse to the institution, it will be open to the institution to take recourse to such remedies as may be permissible in law.  We further make it clear that the respondent no.2 shall treat the renewal application submitted by the institution for the academic year 2017-18 as having been made for the academic year 2018- 19  and  process  the  same  in  accordance  with  law  with promptitude.  

The writ petition and IA No.82637 of 2017 are disposed of in the above terms, with no order as to costs.”

18. The inspection was carried out on 5/6.12.2017 by the Assessors of the

MCI in which various gross deficiencies were found. It is also apparent that the

Executive Committee of the MCI after considering the assessment report dated

5/6.12.2017  recommended  to  the  Ministry  vide  its  letter  dated  6.1.2018  to

invoke Regulation 8(3)(1)(a) and thereby to disapprove the application filed on

behalf  of  the  College.  The  said  decision  of  the  Executive  Committee  was

approved  by  the  Oversight  Committee  on  3.1.2018.  On  the  aspect  of

Regulation  8(3)(1)(a),  the  College  was  granted  a  hearing  on  5.2.2018.  On

12.2.2018 the Ministry directed the MCI to consider the review and to make

recommendations. The Sub-Committee of the MCI in its meeting on 21.2.2018

referred the matter to the  Oversight Committee to consider the question of

whether verification assessment was required to be carried out.

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19. Questioning  the  decision  of  the  Executive  Committee  of  MCI  dated

6.1.2018, the College filed W.P. (C) No. 2022/2018 which was disposed of by

the High Court of Delhi on 6.3.2018. Following is the order passed by the High

Court:

“Learned  counsel  for  the  petitioners  submits  that  after  the respondent  No.2  had  issued  the  impugned  order  dated  6.1.2018 recommending  disapproval  of  the  renewal  of  permission  to  the petitioner, respondent No.1 had granted a hearing to the petitioner on 5.2.2018 and upon hearing the petitioners, the respondent No.1 had remitted the matter back to respondent No.2 with a request to review the application of the petitioner.

   Today, the learned counsel for the petitioner submits that for the present, he would be satisfied, if a direction is given to respondent No.2 to review the case of the petitioner in a time-bound manner. He submits that  keeping in view the deadline as laid down under the Regulations and the decision of the Supreme Court, grave prejudice would  be  caused  in  case,  the  respondents  do  not  take  a  timely decision.  

Learned counsel for the respondents, who appear on advance notice, assure the Court that the decision on the review of the petitioner's application  will  be  taken  by  respondent  No.2  within  5  weeks  in accordance with the  Regulations as also the contents  of  the  letter dated 13.2.2018 written by respondent No.1 to respondent No.2.

The present petition is accordingly disposed of binding respondent No.2 to the statement to decide the petitioner’s application within 5 weeks.

Needless  to  say  that  the  present  order,  has  been  passed  without prejudice to the rights and contentions of both the parties.

In case the petitioners are still aggrieved by any order passed by the respondents, they may take legal recourse as permissible under law.”

It  is  apparent  from the  aforesaid  order  that  in  spite  of  the  fact  that

College was aware that in view of Regulation 8(3)(1)(a), fresh inspection was

not to be carried out in view of the deficiencies found by the Assessors and the

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compliance could not have been considered, the College in the aforesaid writ

petition pressed only the prayer for review in a time-bound manner. It did not

insist  that  the compliance should be considered as per orders of this Court;

whereas the provisions of the aforesaid Regulations were already attracted.  

20. The Oversight Committee opined that compliance could not have been

considered in view of the gross deficiencies found as provided in Regulation

8(3)(1)(a),  in  the  following  manner,  and  the  decision  of   the  Oversight

Committee is extracted hereunder:

“In  view of  the  provision  of  Regulation  8(3)(1)(a)  of  the Establishment  of  Medical  College  Regulations,  1999  referred above, wherein it is provided that “compliance of rectification of deficiencies  from  such  an  institute  will  not  be  considered  for renewal of permission in that Academic Year”, it is not permissible in law for  the Council  to consider  the compliance/representation submitted by the College.”  

Thereafter  the  MCI  had  recommended  disapproval  of  the  renewal

application for the academic year 2018-19.

21. It is apparent from the aforesaid that the petitioner was well-aware that in

view  of  the  gross  deficiencies  found,  an  opportunity  could  not  have  been

granted  in  view  of  Regulation  8(3)(1)(a).  The  College  filed  W.P.  [C]

No.4897/2018 which was decided by the High Court on 8.5.2018. Following is

the order passed by the High Court :

"Vide  the  present  petition,  the  petitioners/Institutes  have sought to quash of the decision dated 24th March 2018 passed by respondent  no.2,  recommending  disapproval  of  the  petitioners’ application to respondent no.1 for renewal/permission of the third batch of MBBS course (150 seats) for the Academic Year 2018-19. The petitioners have also sought issuance of direction to respondent no.2,  to  accept  the  Scheme  of  the  petitioners  as  submitted  for renewal  of  permission  in  respect  of  the  aforesaid  batch  and  if

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necessary grant an opportunity to furnish compliance verification and, therefore, issue a letter of permission.

At this stage, learned counsel for the petitioners submits that vide  order  dated  6th March  2018,  this  Court  had  recorded  the undertaking  of  respondent  no.  2/MCI  to  decide  the  petitioners' pending  application  and  forward  the  same  to  respondent  no.1 within five weeks. He submits that till date, the respondent no.1 has not informed the petitioners about any decision of respondent no.2.

Ms.  Arora,  who  appears  on  advance  notice  for  the respondent  no.1  submits  that  within  ten  days  of  receipt  of  the recommendations from respondent no.2, the respondent no.1 will pass a final order deciding the petitioners’ pending application.

On  the  one  hand,  Mr.  T.Singhdev,  learned  counsel  for respondent no.2, submits that its recommendations in respect of the petitioners’ application have already been sent to respondent no.1 on 13th April 2018 itself.  

In view of the categoric statement made by learned counsel for  the  respondent  no.2  that  the  recommendations  have  already been forwarded on 13th April 2018, the respondent no.1 is directed to take a final  decision on the petitioners'  application within ten days from today.  

It is made clear that in case the respondent no.1 is still not in possession of recommendations made by respondent no.2 vide its order dated 13th April 2018, respondent no.1 would be at liberty to seek immediately a fresh copy of the same from respondent no.2.

Needless  to  say  that  the  said  final  decision  taken  by respondent no.1, will be communicated to the petitioner who will be free to take legal recourse as permissible under law.

The petition and pending applications are disposed of in the aforesaid terms.”     

It is apparent from the aforesaid order that the College again did not insist

that fresh inspection should be carried out and it may be permitted to comply

with the deficiencies.

22. Pursuant  to  the  direction  issued,  the  Government  considered  the

recommendations  of  the  MCI  and  passed  the  impugned order  on  31.5.2018

disapproving the scheme of the institution and declined to renew the permission

for admission of 150 MBBS students for the academic year 2018-19. Following

deficiencies were noted by the Government of India :

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“The  Executive  Committee  of  the  Council  considered  the assessment  report  (5th and  6th December  2017)  carried  out  in compliance  of  the  Order  dated 13.11.2017 passed by the  Hon'ble Supreme Court of India in Writ Petition (C) No.776/2017 filed by Lord Buddha Educational Society & Anr. Vs. Union of India & Anr., and noted the following: -

1. Deficiency of faculty is 21% as detailed in the report. 2. Shortage of Residents is 24.48% as detailed in the report. 3. In respect of Dr. Nitika Jain, morning & evening signatures are not matching. 4. In respect of Dr. R.W. Kamble,  appointment order is as  Asst. Prof. of Tb & Chest but has presented as Senior Resident. 5. As many as 27 faculty & residents cannot be considered due to reasons mentioned in detail in the assessment report.  6. Patients A. In the department of Gen. Medicine of the 38 patients on 72 beds with respective case files, 22 are invalid for UG teaching purposes because  of  following  reasons:  8  cases  of  fever  without  any investigative work up or relevant treatment,  not actually requiring hospitalization, 9 patients of hypertension without any investigative work up or relevant treatment not requiring hospitalization, 1 patient of  acidity  not  requiring  hospitalization,  2  patients  of  acute gastroenteritis  without  prescription  of  any  IV  fluids  or  relevant investigations and treatment suggesting that patient does not have an illness  worth  hospitalization,  1  patient  of  renal  colic  without  any investigative  evidence  and  relevant  treatment  not  requiring hospitalization,  1  with  vague  abdominal  pain  without  any investigations  and relevant  treatment  not  requiring  hospitalization. Of all these patients, 5 were admitted today and as many as 9 were admitted  on  4.12.2017.   Surprisingly  the  dates  of  admission  as recorded on the case files did not match with what was told by the patients to the assessor when they were asked by the assessor as to when they were admitted in the hospital.  Many patients could not tell the exact date of admission and looked up to either staff nurse or Medical Superintendent or the Doctor or accompanying the assessor. All  these  observations  suggest  non-genuineness  of  these  patients. Admission discharge register had no proper entry like a diagnosis for so many cases.  This leaves a Total of 16 valid patients to be counted as clinical material.

B. In the Department of Pediatrics of the 20 patients on 24 beds, 14 are invalid because of following reasons: - 10 beds had no patients but case files were lying on the bed, 3 patients had URI without any treatment  or  even  an  x-ray.   1  patient  was  of  UTI  without  any evidence on case file and any relevant treatment. 1 patient Bhisma of operated PUJ was hospitalized for no valid reason.

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C. In the department of TB & Respiratory Medicine on the 8 beds 6 patients were available on beds.  Case file of none had any diagnosis; all were receiving the same treatment in an injectable form asking to show the drugs, they were neither available neither with the patient nor in the ward with the sister or in the ward store suggesting that entire thing is on paper and not genuine.  

D. In the Department of Psychiatry on the 8 beds 6 patients were available  on beds,  case  files  of  none had any diagnosis;  all  were receiving the same treatment in injectable form.  On asking to show the drugs, they were neither available neither with the patient nor in the ward with the sister or in the store suggesting that entire things are on paper and not genuine.

E. In the Department of Dermatology of the 6 patients available on 8 beds, all 6 had a diagnosis of scabies and appeared to be persons from destitute homes/old age homes.  On asking to show the drugs being administered, no drug could be shown either with the patient or with the sister at the nursing station or in the store of the ward.   

F. In the department of Gen. Surgery 42 patients were available on 90 beds.  Following 15 patients are not considered valid for counting as follows: - 2 patient of UTI without any evidence on investigation or treatment not requiring hospitalization. 2 patients of gastritis not requiring hospitalization.   1 patient Gayatri's  case file  showed the diagnosis of acute appendicitis on the front page of the case sheet but inside it was written as diabetic foot exam of her foot, it was found normal.   1  patient  Minakshi’s  attendant  told  that  she  had  been admitted for not being able to speak but on file the diagnosis written was Hernia and on examination of the patient by the assessor,  no hernia  anywhere  was  found.   1  patient  Durpati  was  admitted  as operated lipoma on 2.12.2017 but on examination by the assessor, no dressing or operated sutured incision or any dressing on the operated lipoma was found.  1 patient Sunita Bai was admitted as operated fibroadenoma on 2/12/17  but  on  examination  by  the  assessor,  no dressing or operated sutured incision was found.  1 patient Pacho Bai had the symptom of headache on asking by the assessor but case file showed the diagnosis of Acute Appendicitis.  1 patient Hiteshwari had features of vague abdominal pain but diagnosis documented on case file was lipoma and on examination, there was no lipoma.  1 patient Kunj Rani was admitted with the diagnosis of hypertension in surgical ward (not a surgical patient). 1 patient Sridhar was admitted with multiple joint pains in surgery wad (not a surgical patient).  1 patient Lekhroo was admitted with pain elbow in surgery ward (not a surgical  patient).   1  patient  Chelliya  Sahu  was  admitted  with osteoarthritis in surgery was (not a surgical patient).  1 patient Nand Lal  was  admitted  with  backache  in  surgery  ward  (not  a  surgical patient).

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G. In the department of Orthopedics of the 24 patients admitted on 30  beds,  9  are  invalid  for  following  reasons  for  UG  teaching purposes: - 6 were admitted with lumbar radiculopathy without and clinic investigative evidence suggesting they have been admitted to show  increased  count  but  actually  do  not  have  an  illness  worth hospitalization.   They  were  lying  comfortably  and  were  not prescribed  appropriate  treatment.   1  patient  of  claudication  was admitted in ortho ward.  1 patient of claudication was admitted in Ortho ward.  1 patient of osteoarthritis and 1 of polyarthralgia were admitted without a clinico-investigative evidence without any proper treatment.

H. In the department of ENT 6 patients on 10 beds, which 2 are not be  counted.   1  was  admitted  with  acute  pharyngitis  without  any clinical evidence and relevant treatment thus suggesting that it did not  require  hospitalization  and  the  other  was  a  cataract  patient admitted in ENT.

I. In the department of OB & GYN, 25 patients were on 40 beds. 10 Gynec patients and 15 obstetric patients.  They can be taken as valid patients.

7. Most of the patients  in General Medicine, Psychiatry, Skin & VD,  Tb  &  Chest  wards  appeared  to  be  brought  from  Destitute homes/old age homes.

8. In view of the above, Bed occupancy of genuine patients was 33% as detailed in the report at 10 a.m. on the day of assessment.  

9. OPD  attendance  up  to  2  p.m.  on  the  day  of  assessment  as verified by Assessors was 521 against the requirement of 750.  

10. PNDT approval is not available for USG machines.

11. OPD: Various sections of OPDs are haphazard and spread here and there and are highly disorganized.

12. Data of Radiological & Laboratory investigators as submitted by the Institute appear to be inflated.

13. Casualty:  Separate Casualty for O.G. is not available.  Disaster Trolley, Crash Cart is not available.  

14. ICUs:  There  was  NIL patient  in  ICCU & 1  patient  each  in SICU, NICU/PICU on the day of assessment.

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15. 2 Static X-ray machines are available against the requirement of 3.  

16. Lecture Theaters: Only 2 Lecture Theaters are available against the requirement of 3.  Arrangement is not proper as detailed in the report.  

17. Students' Hostels:  Accommodation is available for 292 students against the requirement of 339.  

18. Residents’ Hostel:  Rooms on I floor are not furnished.

19. Anatomy department:  Only 5 cadavers are available.

20. RHTC:  It is actually a CHC and the Institute is only permitted to use it.  The control is not with the Dean.  All registers are maintained by  the  staff  of  CHC  and  not  by  college  staff.   Activities  under National Health Programmes are done by the staff of CHC & not by the staff of the college.  

21. UHC:   Survey/MCH/Immunization/FP  registers  are  not available.  Specialists’ visits are not organized.

22. Website:   Information  uploaded  is  sketchy  as  detailed  in  the report.

23. MEU:  It is not available as per regulations.

24. Other deficiencies as pointed out in the assessment report.

The Executive  Committee  noted  that  Regulation  8(3)(1)(a)  of the  Establishment  of  Medical  College  Regulation  (Amendment), 2010 (Part  II),  dated 16th April  2010 and amended on 18th March 2016 provides as under: - “8(3)(1) ….

(a) Colleges in the stage of Letter of Permission up to II renewal (i.e. Admission of the third batch)  

If it is observed during any inspection/assessment of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or  bed occupancy is  <50% (45% in North East,  Hilly  terrain etc.),  compliance  of  rectification  of  deficiencies  from  such  an institute  will  not  be  considered  for  issue  of  Letter  of  Permission (LOP)/renewal of permission in that Academic Year.”

In  view  of  the  deficiencies  as  noted  above,  the  Executive Chairman of the Council decided to recommend to the Central Govt. to  invoke  Regulation  8(3)(1)(a)  of  the  Establishment  of  Medical

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College Regulation, 1999 and disapprove the application of the Raipur Institute of Medical Sciences, Raipur, Chhattisgarh under Chhattisgarh Ayush and Health Sciences University,  Raipur u/s 10A of the IMC Act, 1956 for renewal of permission of MBBS course 3rd batch (150 seats) for the academic year 2018-2019.”

The Government of India also considered Regulation 8(3)(1)(a) and the

decisions are taken by the Oversight Committee and the MCI while passing the

aforesaid order. The deficiency of the faculty was 21%, shortage of residents

was 24.48%, bed occupancy was found to be 33%, OPD attendance was also

found less than the requirement. There were other deficiencies of equipment’s

and infrastructure as noted above. Regulation 8(3)(1)(a) was clearly attracted

which is extracted hereunder:

“8. GRANT OF PERMISSION:

(3)(1).  The  permission  to  establish  a  Medical  College  and  admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to  the  expiry  of  the  initial  permission.  This  process  of  renewal  of permission  will  continue  till  such  time  the  establishment  of  the Medical College and expansion of the hospital facilities are completed and a formal recognition of the Medical College is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey  the  deficiencies  to  the  applicant  and  provide  him  an opportunity and time to rectify the deficiencies.

    Note: In the above clause, "six months" shall be substituted by "as per latest time schedule”:

    Provided that in respect of---            (a) Colleges in the stage of letter of permission up to II renewal (i.e. admission of third batch)

If  it  is  observed  during  any  inspection/assessment  of  the institute  that  the  deficiency of  teaching faculty  and/or  Residents  is

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more than 30% and/or bed occupancy is <50% (45% in North East, Hilly  terrain,  etc.),  compliance of  rectification of  deficiencies  from such  an  institute  will  not  be  considered  for  issue  of  letter  of permission (LOP)/renewal of permission in that academic year.”

23. In view of the gross deficiencies found, no compliance verification could

have been made  in  view of  Regulation  8(3)(1)(a).  It  was  already  a  case  of

conditional permission which was granted subject to removal of deficiencies

and in successive inspections, it was found that the College was not compliant

and had not removed the deficiencies. When this Court has passed an order on

13.11.2017, no doubt about it that this Court has observed that inspection should

be carried out and College should be given an opportunity to make compliance

of deficiencies. In concluding portion it was observed that the decision has to be

in  accordance  with  law.  This  Court  never  decided  the  question  in  case

deficiencies  were  found  to  be  gross  as  contained  in  Regulation  8(3)(1)(a)

whether the said Regulation has to be ignored. The observations which were

made  by  this  Court  were  obviously  based  upon  the  main  provision  which

requires an opportunity to be given unless the deficiencies are such which can

be termed to be “gross” as contemplated in proviso (a) to Regulation 8(3)(1)(a)

that has been amended.

24. The effect the Regulations as well as the decision in Royal Medical Trust

(Registered) & Anr. v. Union of India & Anr. (2015) 10 SCC 19 came up for

consideration of this Court in  Vedantaa (supra). Regulation 8(3)(1)(a) provides

that if the deficiencies of teaching faculty and/or residents are found to be more

than 30% and/or  bed occupancy less than 50%, College shall not be entitled to

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make them good and compliance  of  deficiencies  will  not  be  considered for

issuance of letter of permission for same academic year. This Court held that

compliance verification could not have been ordered in view of Regulation 8(3)

(1)(a). The relevant observations in Vedantaa (supra) are extracted hereunder:

“10. Though Regulation 8(3)(1)(a) was challenged in the writ  petition filed  by  Respondents  1  and  2,  they  did  not  press  the  relief.  They restricted their challenge to the manner in which the inspection was done and  for  a  direction  to  the  appellant-Council  to  carry  out  a  fresh inspection. The interpretation of Regulation 8(3)(1)(a) by the High Court is patently erroneous inasmuch as the High Court did not take note of the proviso  to  Regulation  8(3)(1).  Without  a  proper  examination  of  the provision, the High Court fell in error in holding that Regulation 8(3)(1) (a) would be applicable only to the Colleges seeking second renewal i.e. admissions of the third batch. Admissions up to the second renewal i.e. admissions to the third batch would fall under Regulation 8(3)(1)(a). In other words, the proviso is not restricted only to second renewal cases. Even the first renewal is covered by proviso (a) to Regulation 8(3)(1) as the language used is "up to second renewal". We do not see any conflict between Section 10-A (3) and (4) of the Act on one hand and Regulation 8(3)(1)(a)  on  the  other.  Regulation  8(3)(1)  (a)  is  complementary  to Section 10-A of the Act. Fixing minimum standards which have to be fulfilled  for  the  purpose  of  enabling  a  medical  College  to  seek  fresh inspection would not be contrary to the scheme of Section 10-A. In fact, Regulation  8(3)(1)  provides  that  an  opportunity  shall  be  given to  the Medical College to rectify the defects. But, the proviso contemplates that certain minimum standards are to be satisfied i.e. there should not be a deficiency  of  teaching  faculty  and/or  residents  more  than  30  percent and/or bed occupancy should not be less than 50%. This prescription of standards  for  availing an opportunity to  seek reinspection is  not  ultra vires either the Regulation or Section 10-A of the Act.

11. On perusal of the material on record, we are of the opinion that the conclusion reached by the High Court regarding the manner in which inspection was conducted is also not correct. Bed occupancy at 45.30 percent on random verification was the claim of Respondents 1 and 2. However, the inspection report shows that out of the required minimum of 300 patients only 3 were available at 10.00 am on 25th September 2017. This Court in Medical Council of India v. Kalinga Institute of Medical Sciences, (2016) 11 SCC 530 has held that medical education must be taken very seriously and when an expert body certifies that the facilities in a medical College are inadequate, it is not for the Courts to interfere  with  the  assessment,  except  for  very  cogent  jurisdictional reasons such as malafide of the inspection team, ex facie perversity in the inspection, jurisdictional error on the part of the M.C.I., etc. The

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submission relating to the cyclone being a reason for the number of patients  being  less  is  not  acceptable.  We  are  in  agreement  with  the submission made on behalf of the Appellant that the Resident Doctors are required to be in the hospital at all points of time.”

25. It is apparent that the  College  had filed successive  writ

applications in the High Court of Delhi in 2018 but did not pray

for fresh inspection in terms of the order passed by this Court

knowing fully well that the MCI and the Oversight Committee had

decided and  again reiterated their decision that  due to gross

deficiencies found as per Regulation 8(3)(1)(a), compliance

verification could not have been made. It was incumbent upon

the College to timely press for the relief of considering compliance

which it did not insist and thereafter it was too late in the day to

order it by the High Court vide impugned order dated 1.8.2018

passed by the High Court even if it was permissible.

26. What this Court intended by passing the order on

13.11.2017  was that the  College be inspected afresh for the

academic year 2018­19 but it was not even in contemplation of

this Court at the time what would be the nature of deficiencies to

be found on fresh inspection. The observation has to be

considered only with respect to when deficiencies have been

found  to  be  such,  more  than 30% of faculty  and of residents

and/or the bed occupancy is less than 50%, no further

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compliance verification opportunity has to be given. The decision

of this Court cannot be taken to be a decision with respect to it

when deficiencies  are found to  be  gross  where the  proviso to

Regulation 8(3)(1) comes into play. The decision of this Court is

based on the main provision that ordinarily an opportunity has to

be given to removing the deficiencies which are removable not

falling  within the  aforesaid  percentage in  Regulation 8(3)(1)(a).

Thus, Court never intended to bye­pass the provision of

Regulation 8(3)(1)(a). It was not ordered that notwithstanding the

provision of Regulation 8(3)(1)(a), compliance opportunity is to be

afforded. A decision is an authority for the question considered

and decided. This Court had not decided the aforesaid aspect nor

was it germane as fresh inspection had not been carried out by

13.11.2017. Thus, the observations made by this Court cannot

be taken to mean that though deficiencies are found to be more

than 30% of faculty and residents and bed occupancy is 50% and

notwithstanding the provisions contained in Regulation 8(3)(1)(a),

compliance opportunity should be given. Thus, the High Court

has erred in law in considering purport of the order of this Court

and  the ratio  of the  decision  in  Vedantaa  (supra)  was  clearly

applicable in the case.

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27. Considering the  nature  of the  deficiencies that  had been

found on fresh assessment and also the fact that the College had

in fact never been granted clear recognition by the Government of

India or  MCI, it  was only on the insistence of the  Oversight

Committee appointed by this Court that conditional permission

was granted and gross deficiencies were found. Thus, the College

was not entitled to any further indulgence; more so, in view of

Regulation 8(3)(1)(a), that too after the period of grant of sanction

etc. was over and also the admissions. The  High  Court has

ignored the academic calendar also. In such facts and

circumstances, the fresh inspection could have been directed for

the academic year 2018­19, and the fresh decision by the

Government of India and the MCI.

28. Resultantly, we find that no case for quashing order dated

31.5.2018 passed by the Government of India had been made

out. The judgment and order passed by the High Court are thus

liable to be set aside and the appeal deserves to be allowed. The

judgment and order are set aside and the appeal is hereby

allowed. Parties to bear their own costs.

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…………………………. J. (Arun Mishra)

New Delhi; …………………………J. October 9, 2018. (Vineet Saran)