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REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.709  OF  2017 (With I.A. No.74584 of 2017)

Shri Gangajali Education Society .…Petitioners  & Anr.

Versus  

Union of India and Ors. ....Respondents

J U D G M E N T

A.M. KHANWILKAR, J.

1. The  petitioners  have  filed  the  present  writ  petition

challenging  the  order  of  respondent  No.1  dated  14th August,

2017,  whereby  respondent  No.1,  relying  upon  the

recommendations  made  by  respondent  No.2,  rejected  the

petitioners’ application for establishment of a medical college and

debarred  the  petitioners  from  admitting  students  to  the  said

college for two years i.e. 2017-18 and 2018-19 and also directed

that the petitioners’ bank guarantee of Rs. 2 crore be encashed.

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2. Petitioner No.1 Shri Gangajali Education Society had made

an application  to the respondent No.1 Ministry of Health &

Family Welfare, Government of India (for short “MHFW”) for

establishment  of  a  new  medical  college  at  Bhilai,

Chhatisgarh in the name and style of ‘Shri Shankaracharya

Institute  of  Medical  Sciences’ from  the  academic  session

2016-17  onwards.  That  application  was  forwarded  to

respondent No.2 Medical Council of India (for short “MCI”)

for evaluation and making recommendations to the MHFW

under Section 10-A of Medical Council Act, 1956 (for short

“1956  Act”),  which  then  opined  that  several  deficiencies

existed in the proposed college and submitted its negative

recommendation  to  MHFW vide  its  letter  dated  14th May,

2016.  Based  on  the  recommendations  made  by  MCI,  the

MHFW disapproved the  proposal vide order dated 10th June,

2016 but nevertheless, granted liberty to the petitioners to

apply for the next academic session.

3. Soon  thereafter,  the  Oversight  Committee  (for  short

“OC”)  constituted  by  this  Court,  adopted  a  resolution  to

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permit  all  applicant  colleges,  including  the  petitioners,  to

furnish  compliance  reports  in  relation  to  the  deficiencies

communicated  by  MCI.  MCI  would  then  forward  such

compliance reports to the MHFW which, in turn, would take

a decision on the said reports and forward its decision along

with  the  applications  and  the  reports  to  the  OC.  After

considering the petitioners’ case,  the OC passed an order on

11th August, 2016.

4. Pursuant  to  the  OC’s  aforestated  order,  the  MHFW

issued a conditional Letter of Permission to the petitioners

dated  20th August,  2016,  which  was  subject  to  certain

criteria being fulfilled, including an inspection by the OC for

verification  of  the  compliance  report  issued  by  the

petitioners.  

 5. Thereafter,  a  compliance  verification  inspection  was

conducted  by  the  MCI  on  16th/17th December,  2016,  and

after  considering  the  assessment  report  of  the  said

inspection,  the  Executive  Committee  of  the  MCI  noted

several deficiencies in the petitioners’ college. The MCI then

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submitted its negative recommendation to the MHFW vide

letter dated 15th January, 2017, inter alia to revoke the Letter

of Permission granted to the petitioners. After receipt of the

aforestated recommendation, the MHFW/Director General of

Health Services (for short “DGHS”) granted the petitioners an

opportunity for personal hearing on 8th February, 2017. The

Hearing Committee noted as follows:  

Srl. No.

Deficiencies reported by MCI Observations  of hearing committee

i. Deficiency of  faculty  is  10.60 % as detailed in the report.

No  satisfactory justification  for deficiencies.ii. Shortage of Residents is 15.21 % as

detailed in the report. iii. In  General  Medicine  ward,  some

patients  did  not  require hospitalization;  E.g.  Bodyache, Dyspepsia,  Giddiness,  etc.  In General Surgery ward, some patients are  such  who  do  not  require hospitalization;  E.g.  Simple  would dressing,  etc.  One  patient  who required  Dental  Intervention  was admitted in General Surgery ward.

iv. OPD attendance was 540 at 2 p.m. on  day  of  assessment  against requirement  of  600  as  per Regulations.

v. There  was  NIL  Minor  Operation  on day of assessment

vi. Radiological  investigations  workload is grossly inadequate. USG workload was NIL  on day of assessment.

vii. Laboratory  investigations  workload is  inadequate.  There  was  NIL Mocrobiological  &  Serological

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investigations on day of assessment. viii. Histopathology  &  Cytopathology

workload  was  NIL  on  day  of assessment.

ix. Wards:  Space  between  2  beds  is <  1.5  m.  in  Orthopaedics  ward. Nursing station is  unsatisfactory in several wards.

x. Casualty: Separate Casualty for O.G. is not available. Casualty attendance & admissions are sub-optimal.

xi. There are only 2 Pre-operative beds. xii. ICUs: There was NIL patient in SICU

& only 1 patient each in NICU/PICU on  day  of  assessment.  Out  of  2 patients  in  ICCU,  1  was  of Glomerulonephritis & another was of Hemiparesis.

xiii. Labour room: Septic Labour room is located away from Labour room.

xiv. MRD: It is partially computerized. xv. Central  Photography  Section:

Equipment  is  inadequate.  There  is no staff.

xvi. Students’ Hostels: There is  no hostel for  medical  students  as  such. Engineering college hostel is used for accommodating medical students by creating partitions.

xvii. Nurses’ Hostel: No hostel for Nurses is  available  as  such.  They  are accommodated  on  ground  floor  of Engineering students’ hostel.

xviii. Pharmaco  Vigilance  Committee:  No meeting is held.

xix. MEU: It is not available. xx. College Council: NIL meeting is held.  

This report was forwarded to the OC for guidance vide letter

dated  5th May,  2017.  In  response  to  this  letter,  the  OC

conveyed its opinion to the MHFW vide its letter dated 14th

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May, 2017, inter alia recording that the inspection conducted

by MCI was contrary to the guidelines issued by the OC. The

OC recommended confirmation of the grant of the Letter of

Permission dated 20th August, 2016 to the petitioners, as set

out hereunder:

“(i) Faculty:-  As per EMCR 1999, the requirement of faculty is acceptable with deficiency upto 20%. However College has explained  the  grounds  on  which  the  assessors  had  not accepted  the  7  faculty  members.  The  explanation  is acceptable.  

(ii) Residents:- College has explained the grounds on which the  assessors  had  not  accepted  4  Residents.  The explanation  is  acceptable.  Deficiency  of  3  Residents  i.e. 6.52% is within norms.  

(iii) General Medicine ward:- This deficiency is subjective. No MSR.  

(iv) OPD attendance:- During the last assessment the College had mentioned that the OPD attendance by 4 pm was 620, while  assessors  had  mentioned  340  at  12  noon.  This attendance  was  540 upto  2  pm.  The  assessors  have  not shown  this  as  deficiency  in  their  summary  and  OPD attendance  is  540  in  SAF.  The  rest  of  the  remark  is subjective.  

(v) Operations:- This deficiency is subjective. No MSR.  

(vi)  Radiological  investigations  workload:-  All  equipments were  available  and  functional  as  per  SAF. No  further remarks  of  the  assessor.  The  deficiency  pointed  out  is subjective. No MSR.  

(vii)  Laboratory investigations workload:- This deficiency is subjective. No MSR.

(viii)  Histopathology  and  Cytopathology  workload:-  This deficiency is subjective. No MSR.

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(ix) Wards:- It is not specified by how much is the distance less than 1.5m. This deficiency is subjective. No MSR.  

(x) Casualty:- This deficiency is subjective. No MSR.  

(xi) ICUs:- This deficiency is subjective. No MSR.  

(xii) Labour room:- This deficiency is subjective. No MSR.  

(xiii) MRD:- This deficiency is subjective. No MSR.  

(xiv)  Central  Photography  Section:-  The  deficiency  pointed out is subjective. No MSR.  

(xv) Student’s hostels:- Explanation of College is acceptable.  

(xvi)  Nurses  Hostel:-  Hostel  is  within  the  campus  with adequate capacity.  

(xvii)  Pharmaco  Vigilance  Committee:-  This  deficiency  is subjective. No MSR.  

(xviii)  College  Council:-  This  deficiency   is  subjective.  No MSR.  

(xix) There are only 2 Pre-operative beds.:- This deficiency is subjective. No MSR.  

LoP confirmed.”

(emphasis supplied)  

6. However,  on  31st May,  2017,  the  MHFW rejected  the

petitioners’ application on the basis of the recommendation

made  by  respondent  No.2  MCI,  while  also  debarring  the

petitioners  from  admitting  students  for  two  years  i.e.

2017-18 and 2018-19 and further, authorising respondent

No.2 MCI to encash the petitioners’ bank guarantee.

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7. Aggrieved, the petitioners challenged the above order of

the MHFW by filing a writ petition before the High Court of

Chhattisgarh. The High Court proceeded to dispose of  the

same in light of the decision of this Court in Glocal Medical

College and Super Speciality Hospital and Research Centre v

Union of India1 [Writ Petition (Civil) No. 411 of 2017] in which

this Court had directed the Central Government to revaluate

the  recommendations  made by  the  MCI  and the  OC with

respect to the applicant college therein as also to grant the

applicant college therein a fresh opportunity of hearing.

8. Accordingly, the petitioners were granted fresh hearing

on 8th August, 2017 to present their case but ultimately, the

MHFW  reiterated  its  earlier  decision  and  rejected  the

petitioners’  application vide order dated 14th August, 2017

while also debarring the petitioners from admitting students

for  two  years  i.e.  2017-18  and  2018-19  and  authorising

respondent  No.2  MCI  to  encash  the  petitioners’  bank

guarantee.  The  relevant  extract  of  the  impugned  decision

reads thus:

1  2017 (8) SCALE 356

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“17. Now,  in  compliance  with  the  above  direction  of Hon’ble High Court dated 03.08.2017, the Ministry granted hearing  to  the  college  on  08.08.2017.  The  Hearing Committee after considering the record and oral & written submission  of  the  college  submitted  its  report  to  the Ministry. The findings of Hearing Committee are as under:

The Committee note that deficiency of 7 faculty and 7 residents have been pointed out in the MCI  assessment.  The  SAF  form  mentions  8 faculty and 5 residents who were not accepted, 11  for  coming  late  and  2  in  the  absence  of Form-16. The Form 16 and salary details  for some  faculty  were  randomly  perused.  The college  did  not  submit  Form-16  for  residents since they are very mobile and do not stay for long periods.  

The submission of the college that patients go for  laboratory  investigations  after  clinical rounds is  not acceptable.  The college had no explanation for  how a renal  and a neurology patient could be admitted in Intensive Cardiac Care Unit.  

The  Committee  also  notes  the  finding  of  the assessors that nursing hostel  is not available and they are accommodated in the Engineering hostel  run  by  the  same  management.  The college denied and was asked to submit some proof of the availability of hostels. They could not provide a convincing evidence.  

In view of the above the Committee concludes that  the  deficiency  of  clinical  material  and infrastructure seems more pronounced than the deficiency of faculty and residents. The college is  at  LoP  stage  and  the  facilities  have  to  be satisfactorily verified.  

The Committee agrees with the decision of the Ministry vide letter dated 31.05.2017 to debar the college for two years and also permit MCI to encash bank guarantee.  

18. Accepting  the  recommendations  of  Hearing Committee, the Ministry reiterates its earlier decision dated

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31.05.2017 to debar the college from admitting students for a period of 2 years i.e., 2017-18 & 2018-19 and also to authorize MCI to encash Bank Guarantee of Rs.2 Crores.”

(emphasis supplied)

9. The petitioners then filed the present writ petition

before this Court, seeking issuance of a writ of certiorari to

set aside the aforesaid order of the MHFW dated 14th August,

2017 as also to confirm the Letter of Permission granted to

the petitioners for admission of students (150 seats) to the

MBBS  course.  The  petitioners  also  filed  an  Interlocutory

Application  along  with  the  main  writ  petition,  being  I.A.

No.74584 of 2017, praying for stay of the MHFW’s order of

14th August, 2017 and to direct the respondent No.3 State to

include the petitioner No.2 college for counselling and allot

students  for  the  MBBS  course  for  the  academic  year

2017-18.  This application was taken up for  hearing along

with the main writ petition.

10. The  principal  grievance  of  the  petitioners  is  that  the

Competent Authority of the Government of India has once again

passed a casual and mechanical order, mainly being influenced

by the recommendation of the MCI.  It has failed to advert to the

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opinion recorded by the OC in its letter dated 14.05.2017, which

expressly  held  that  the  deficiencies  noticed  by  the  Assessing

Officer were acceptable and within the norms specified therefor.

No effort has been made by the Competent Authority to indicate

any tangible reason for not accepting the stated opinion of the

OC.  Significantly, the deficiencies adverted to by the Competent

Authority relate to technical matters and rejected the explanation

offered by the college on the basis of conjectures.  On the other

hand,  the  OC  was  fully  convinced  that  the  petitioner  college

fulfilled the requisite requirements regarding infrastructure and

academic  matters.  No  finding  has  been  recorded  by  the

Competent Authority  that  the  deficiency of  faculty of  10.60 %

and residents of 6.52 % was exceeding the prescribed norms in

that  regard.  Further,  the  Competent  Authority  has  not

considered or analysed the explanation offered by the petitioner

college  with  regard  to  the  deficiencies  highlighted  in  the

impugned decision but has jumped to the conclusion that the

said explanation was not acceptable.  Moreover,  the conclusion

reached by the Competent Authority, that there was deficiency of

clinical material and infrastructure, was manifestly wrong and is

belied by the opinion of the OC, but no effort has been made by

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the  Competent  Authority  to  point  out  the  specific  information

and material facts as to why it took a view contrary to the one

taken  by  the  OC.  In  substance,  the  argument  is  that  the

conclusion reached by the Competent Authority suffers from the

vice of non-application of mind and non-consideration of relevant

materials  and  record  which  were  pressed  into  service  by  the

petitioners even during the recent hearing.  

11. The respondents,  on the other hand,  have supported the

conclusion  reached  by  the  Competent  Authority  and  would

contend  that  the  same  is  just  and  proper.  According  to  the

respondents,  MCI  in  its  recommendation,  has  adverted to  the

deficiency  not  only  regarding  faculty  and  residents  but  also

clinical material  which, according to it,  was more pronounced.

The  respondents  contend  that  this  writ  petition  is  devoid  of

merits and deserves to be dismissed.   

12. Having  considered  the  rival  submissions,  we  are  of  the

considered opinion that the Competent Authority has once again

passed an order which is cryptic, if not perverse. No attempt has

been made by the Competent Authority to analyse the factors

noticed  by  the  OC  in  its  letter  dated  14.05.2017  whilst

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recommending confirmation of Letter of Permission in favour of

the petitioner college. From the observations of the OC, it was

amply clear that the deficiency noticed by the Assessing Officer

was  within  the  permissible  norms.  Moreover,  the  explanation

offered  by  the  petitioner  college  with  regard  to  each  of  the

deficiencies  was  acceptable.  In  the  case  on hand,  neither  the

Hearing Committee nor the Competent Authority has made any

endeavour to dislodge the said observation.  We are conscious of

the fact that the recommendation of OC may not be stricto sensu

binding on the Competent Authority.  But at the same time, it

cannot be completely disregarded.  We are also conscious of the

fact  that  the  Competent  Authority  is  not  expected  to  give

elaborate reasons but is certainly bound to advert to the relevant

factors noticed by the OC and record its clear finding that it was

disagreeing with the same for some tangible reasons discernable

from the record before it. It is also possible that the Competent

Authority may have additional reasons or advert to some material

which has been glossed over by the OC, but then, the decision

making process would require the Competent Authority to not

only advert to such matter but also record its reasons to come to

a  different  conclusion.   In  the  present  case,  the  Competent

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Authority has not dealt with the matter as was expected in terms

of the direction issued by the Court to reconsider the matter after

giving opportunity to the petitioners.  

13. Be that as it may, reverting to the factors which have been

highlighted in the impugned decision, particularly in paragraph

17 which is the edifice of the impugned order, the first is about

the deficiency of seven faculty and seven residents pointed out by

the MCI. With reference to the said deficiency, the OC has noted

that  the  deficiency  up  to  20% is  permissible.  The  Competent

Authority has not chosen to dislodge that observation of the OC.

Further, the OC has noticed that the explanation offered by the

petitioner  college  with  regard to  deficiency  of  7  faculty  and 7

residents was acceptable and plausible. However, the Competent

Authority has not analysed the said explanation in the impugned

decision or recorded a clear finding that it was disagreeing with

the view of OC in that behalf  for reasons which can be perceived

as tangible and just. The Competent Authority has then adverted

to another facet of the deficiency concerning Form 16 and salary

details, but has not chosen to advert to the explanation given by

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the petitioner college in that behalf which had found favour with

the OC. Another reason which has weighed with the Competent

Authority is that the explanation of the college that patients go

for  laboratory  investigations  after  clinical  rounds  is  not

acceptable  and that  no explanation was forthcoming from the

petitioner college as to how a renal and neurology patient could

be admitted in Intensive Cardiac Care Unit.  Assuming that the

observation is correct, the issue of granting permission cannot be

answered on the basis of one stray incident. No finding has been

recorded  by  the  Competent  Authority  that  a  pattern  of  such

practice  is  being  followed  by  the  college  and  it  has  been  so

noticed from the record and further, that such lapse is opposed

to defined medical protocols entailing in revocation of permission

accorded to a medical college.  

14. An objective assessment would be one which is based on

the information gathered from the entire record pertaining to the

relevant period and not just one stray lapse or mistake. Suffice it

to  observe  that  the  reconsideration  of  the  matter  by  the

Competent Authority in terms of the order passed by the Court

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leaves much to be desired. It borders on abdication of statutory

duty.  It  is  unnecessary  to  underscore  that  even for  academic

session 2016-17, the approach of the Competent Authority was

questioned by the petitioner college and after pursuing remedies,

the  petitioner  college  was  eventually  granted  a  Letter  of

Permission  subject  to  conditions.  It  is  not  the  finding  of  the

Competent Authority that the conditions so specified have not

been fulfilled by the petitioner college. The petitioner college has

already started functioning from the academic session 2016-17

and is desirous of getting permission to admit the second batch

in  the  MBBS  course  for  the  academic  session  2017-18.  The

petitioner  college  undertakes  to  remove  with  promptitude  any

deficiency already noted or which becomes known in due course.

Considering  the  fact  that  the  petitioner  college  fulfills  the

infrastructure  and  academic  requirements  and  has  already

started  the  college  for  the  academic  session  2016-17  by

admitting the first batch of students in the MBBS course, in the

larger  public  interest,  we  allow  this  writ  petition  and  the

application  filed  by  the  petitioners.  We are  also  inclined  to

issue  further  directions  to  the  respondents  as  have  been

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issued  in  the  judgment  of  Dr.  Jagat  Narain  Subharti

Charitable  Trust  and  Anr.  vs.  Union  of  India  and  Ors.,

delivered on 30th August, 2017.  

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

decision to the extent that 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

which is still in progress.  The cut-off date for completing the

admissions in respect of the petitioner college, however, will

stand extended till  5th September, 2017.  The respondents

shall 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 the larger public interest,

so that aspiring students who have not been admitted to the

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1st year MBBS course for the academic session 2017-18, in

order  of  their  merit  in  NEET  examination,  will  get  an

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,  it  may  suitably  proceed  against  the  college  in

accordance with law.   This arrangement will  subserve the

ends of justice.  

16. No order as to costs.     

……………………………….CJI.     (Dipak Misra)

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

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

New Delhi; Dated: August 31, 2017.