published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40735
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.585 OF 2013
Rohilkhand Medical College &
Hospital, Bareilly …. Petitioner
Versus
Medical Council of India & Another … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. The petitioners have invoked the extraordinary jurisdiction of
this Court conferred under Article 32 of the Constitution of India to
quash the letter dated 13.07.2013 issued by the Medical Council of
India by which the permission granted for renewal of admission for
additional intake of students for the academic session 2013-2014 was
revoked.
2. Rohilkhand Medical College and Hospital was established by
Rohilkhand Educational Charitable Trust in the year 2005.
The Medical
College started the first M.B.B.S. Course during the year 2006-07 with
an annual intake of 100 seats for which permission was granted under
Section 10A of the Indian Medical Council Act, 1956 (for short “the
IMC Act) by the Central Government.
Later, the Medical Council of
India (for short “the MCI”) granted recognition to the College to
award M.B.B.S. Degree granted by M.J.P. Rohilkhand University,
Bareily, U.P. The College is also conducting post-graduate courses
during the year 2011-12.
3. Permission was granted under Section 10A of the IMC Act for
admitting the second batch of 100 students in the year 2007-08.
The
College later submitted an application for extension of renewal of
permission for the admission of 3rd batch of 100 seats of M.B.B.S. for
the academic year 2008-09 to the MCI.
The MCI after processing the
application constituted a medical team for inspection of the College.
The team conducted the inspection on 1st and 2nd April, 2008. The -
MCI team then submitted its report to the Secretary, MCI, New Delhi on
02.04.2008. The MCI team pointed out the following deficiencies in
the College as per the MCI Regulations:
“There was a shortage of teaching faculty by 21.05% (24 out of 114)
and residents by 37.03% (30 out of 81) As under:
a) Professor – 4
b) Associate Professor – 13
c) Asstt. Professor – 3
d) Tutor – 4
e) Sr. Resident – 16
f) Jr. Resident – 14”
4. The MCI team also noticed that OPD attendance on the date of
inspection was only 421 as against the minimum requirement of 850-900
and OPD bed occupancy was only 55% as against the minimum requirement
of 83-85%. The MCI team inspection report, as per the Board
Regulation, was placed before the Executive Committee in its meeting
held on 14.04.2008 and it intimated its decision to the Central
Government not to renew the permission for the admission of the 3rd
batch of students for the academic session for the year 2008-09, vide
its letter dated 16.04.2008. A copy of the letter was also sent to
the Principal of the College with a request to submit the compliance
in respect of the deficiencies pointed out by the MCI team on or
before 30.04.2008.
5. The College later submitted its “compliance report”. The MCI
again constituted a team to examine whether the College had rectified
the deficiencies pointed out by the MCI team. The MCI team again
conducted an inspection on 20.05.2008 and submitted its report to the
MCI.
The report pointed out the following deficiencies :
“(1) There was a shortage of teaching faculty by 18% (22 out of 110)
and Residents by 5% (5 out of 82) as under:
a) Professor – 6
b) Associate Professor – 12
c) Asstt. Professor – 4
d) Tutor – NIL
e) Sr. Resident – 3
f) Jr. Resident – 2
ii) The OPD attendance on the date of inspection was only
691 against the minimum requirement of 850-900.
iii) IPD bed occupancy was only 55(74%) against the minimum
requirement of 83-95%.”
6. The MCI inspection report was later placed before the Executive
Committee of MCI in its meeting held on 13/14-06-2008 and it was
decided by the Committee not to renew the permission for the admission
of 3rd batch of students for the academic year 2008-09. The Executive
Committee’s decision was communicated to the Central Government vide
its letter dated 14.06.2008.
The then Under Secretary, Ministry of
Health and Family Welfare, New Delhi on 19.06.2008 forwarded the
letter received from the MCI to the College requesting to submit the
compliance in respect of the deficiencies pointed by the MCI
inspection team. The College then forwarded the compliance report to
the Secretary, MCI vide its letter dated 24.06.2008. The College also
sent another letter dated 01.07.2008 to the Secretary, Ministry of
Health and Family Welfare, New Delhi stating that the deficiencies
pointed out by the MCI team were of minor nature and, therefore,
requested to grant necessary permission by the Central Government for
admission of the 3rd batch for the academic year 2008-09.
7. The Chairman of the Roholhand Medical College and Hospital on
03.07.2008 sent a letter to the Health Minister, Government of India
requesting to grant necessary permission and the Central Government,
for admission of the 3rd batch, followed by yet another letter on
04.07.2008 to the Secretary, Ministry of Health and Family Welfare,
New Delhi.
8. We notice, following the letter received by the Minister as well
as the Secretary, the Central Government constituted a team of two
doctors to carry out the compliance verification/inspection of the
College. The central team conducted the verification inspection on
11.07.2008 and submitted its report to the Deputy Secretary, Ministry
of Health and Family Welfare, New Delhi on 10.07.2008. The central
team pointed out the following deficiencies:
“(i) The shortage of teaching staff was found more than 11% (13 out of
116) as under:
a) Professor
b) Associate Professor – 7
c) Asstt. Professor – 2
d) Tutor – NIL
e) -
f) Sr. Resident – 1
g) Jr. Resident – 1
(ii) The faculty members holding same post were getting different
salaries. Some of faculty members were getting less salary than
resident doctors. Some of the Junior Residents were old in age. Some
of Sr. Residents presented with their declaration forms seemed to be
specialists doing private practice, as they were in the town much
before the inception of the College/Institution. Some of the area and
buildings were under construction, which was not advisable in working
in working areas.”
9. The then Under Secretary, Ministry of Health and Family Welfare,
New Delhi then sent a letter dated 27.07.2008 to the Chairman of the
College requesting him not to admit any fresh batch of MBBS students
for the academic year 2008-09. The College was also advised to
rectify the deficiencies and send compliance report for consideration
for the academic year 2009-10 for further admission.
10. The Chairman of the College then filed a Writ Petition (C)
No.294 of 2008 before this Court which was clubbed with other similar
writ petitions filed by other medical colleges. This Court passed an
order on 03.09.2008 directing the MCI to submit its recommendations to
the Central Government within two days and Ministry of Health and
Family Welfare was directed to consider the issue of grant of
permission within a week. Further it was also directed that the
College be given an opportunity of being heard by the Ministry of
Health and Family Welfare, New Delhi.
11. The MCI, in the meantime, conducted yet another inspection of
the College on 19.08.2008 and the MCI team submitted its report to the
Secretary, MCI again pointing out the following deficiencies:
“(i) The shortage of teaching staff was found to be 23.68% (27 out of
114):-
Professor – 3
Associate Professor -13
Asstt. Professor - 5
Tutor – 5
(ii) The shortage of resident was found to be 20.9% (17 out of 81):-
Sr. Resident – 5
Jr. Resident – 12”
12. The MCI report was then placed before the Executive Committee
and the MCI in its meeting held on 21.08.2008, decided to inform the
Central Government not to renew the permission for admission of the
3rd batch of students for the academic year 2008-09. The decision of
the Executive Committee was communicated to the Central Government
vide its letter dated 04.09.2008 with reference to the order passed by
this Court on 03.09.2008 in Writ Petition (C) No.294 of 2008, filed
the College.
13. The Under Secretary, Ministry of Health and Family Welfare, New
Delhi then sent a letter dated 09.09.2008 to the Chairman of the
College to appear before the Deputy Secretary, (Medical Education),
Ministry of Health and Family Welfare, New Delhi on 10.09.2008 along
with the compliance report and other documents mentioned in the order
passed by this Court on 03.09.2008. The Chairman of the College then
appeared, as directed, on 10.09.2008. The Under Secretary, Ministry
of Health and Family Welfare, New Delhi then issued a letter to the
Chairman of the College intimating that after considering the facts
submitted by the College at the time of personal hearing and the
recommendations of the MCI, it was decided by the Ministry not to
grant renewal of permission for admission of 3rd batch of MBBS
students for the academic year 2008-09.
14. The Chairman of the College then vide his letter dated
12.09.2008, addressed to the Secretary, Medical Education, Ministry of
Health and Family Welfare, New Delhi requested him to grant permission
for 50 students of MBBS for the academic session 2008-09. The
Ministry of Health and Family Welfare, New Delhi again constituted a
central team and deputed the team to inspect the College and submit a
report by 25.09.2009 positively. The two doctors then conducted
inspection of the College on 25.09.2008 and submitted the report on
26.09.2008 to the Ministry of Health and Family Welfare on the same
day. On the basis of that report the Central Government issued a
letter dated 26.09.2008 according sanction for renewal of permission
for admission of 3rd batch of 100 students for the academic year 2008-
09.
15. On receipt of the said letter dated 12.09.2008 from the Chairman
of the College, the Under Secretary, Ministry of Health and Family
Welfare, wrote a letter on 24.09.2008 to the Secretary, MCI requesting
to furnish their recommendations regarding reduced intake. The
Secretary, MCI, in turn, intimated that on the basis of the
deficiencies pointed out by the MCI team during the inspection of the
College on 19.08.2008 the College was grossly lacking facilities even
for admission of 50 students.
16. MCI team, it is seen, constituted yet another Committee to
conduct an inspection of the College on 01.10.2008 and a report was
submitted to the MCI on the same day pointing out various
deficiencies. The report was submitted to the Executive Committee of
MCI in its meeting held on 06.10.2008 and the Committee took a
decision to inform the Central Government not to renew the permission
for the academic year 2008-09 and urge the Central Government to
recall the letter of permission dated 26.09.2008 issued to the
College. The decision of the Executive Committee of the MCI was
communicated to the Central Government vide its letter dated
06.10.2008.
17. We have noticed that the Central Government had accorded
approval for 3rd batch of 100 students for the academic year 2008-09
on 26.09.2008, despite the repeated negative recommendations made by
the MCI and before the grant of permission on 26.09.2008, the MCI was
not even consulted. We have indicated the facts to show the situation
that prevailed in the year 2008-09 and the manner in which permission
was accorded for intake of 100 students by the Central Government.
18. The MCI, following its decision taken on 04.06.2013, vide its
letter dated 20.06.2013 decided to convey its approval for renewal of
permission for admission for the second batch of MBBS students
against the increased intake i.e. from100 to 150 seats to the College
for the academic year 2013-14. The approval was granted taking into
consideration of the assessment report dated 26/27-02-2013 submitted
to the Board of Governors of MCI subject to certain conditions which
are extracted herein below:
“I am further directed to inform that you and your institution
are fully responsible to fulfill and maintain norms including
the infrastructure both physical and human resource, teaching
faculty and clinical material, etc. throughout the academic
year, as stipulated in Regulation of Medical Council of India.
In case false/wrong declaration or fabricated documents have
been used for procuring permission of the Board of Governors for
the increased intake and the said misconduct is brought to
notice or comes to the knowledge of MCI at any stage during the
current academic year, your institution is not liable to be
considered for renewal of permission against increased intake
for the next academic year and this renewal of permission
against the increased intake for the next academic year and this
renewal of permission against the increased intake is also
liable to be revoked for current academic year. Besides, MCI is
entitled to take all such measures against you and your
college/institution as permissible under the law.”
19. The MCI, in the meantime, received a confidential letter dated
11.07.2013 from the Central Bureau of Investigation (for short “the
CBI”) informing that the CBI has registered a case against the
Chairman of the College and officers of the Ministry of Health and
Family Welfare, New Delhi under Section 120B IPC and Section 13(2)
read with Section 13(1)(d) of the Prevention of Corruption Act, 1988
(for short “the PC Act”). Charge-sheet was also enclosed along with
the letter, which was placed before the Board of Governors of the MCI
in its meeting held on 12.07.2013. The Board then revoked its
decision dated 04.06.2013 and communicated the same to the College
vide its letter dated 20.06.2013. The Board of Governors of the MCI
informed the College that the letter of permission accorded for
renewal of admission of the 2nd batch of students against the
increased intake i.e. from 100 to 150 for the academic year 2013-14
would stand revoked with immediate effect.
20. The legality of that decision, as already indicated, is the main
issue that arises for consideration in this writ petition.
21. Shri Mukul Rohtagi, learned senior counsel appearing for the
petitioners submitted that the letter dated 13.07.2013 revoking the
permission granted for admission for the increased intake was mala
fide and in violation of the principles of natural justice. Learned
senior counsel submitted that a right has already been accrued to the
petitioners by virtue of the decision taken by the MCI on 04.06.2013,
which was communicated to the College vide its letter dated
20.06.2013. Learned senior counsel submitted that such a decision was
validly taken on the inspection report dated 26/27.02.2013. Learned
senior counsel submitted that since the College has complied with all
the conditions stipulated in the Regulations and that there is no
deficiency, as reported by the inspection team, there is no
justification in revoking the permission already granted, that too,
without giving the petitioners an opportunity of being heard. Learned
senior counsel also submitted that mere fact that the CBI has
registered a case against few officers of the Ministry of Health and
Family Welfare, New Delhi and also against the Chairman of the College
is not a ground at all to revoke the permission already granted for
the additional intake of students for the academic year 2013-14 since
the College has satisfied all the requirements under the Regulations
for Establishment of Medical College Regulations, 1999. Learned
senior counsel also submitted that even though the Chairman of the
College has been charge-sheeted, that itself is not a ground to revoke
the letter of permission accorded by the Board of Governors, unless he
has been convicted by a court of competent jurisdiction in a criminal
investigation. Learned senior counsel made a reference to Regulations
3(5) of the “Enhancement of Annual Intake Capacity in Under-graduate
Courses in Medical College for the Academic Session 2013-14 Only
Regulation, 2013 (for short “the Regulation 2013).
22. Shri Amrendra Sharan, learned senior counsel appearing for the
students submitted that on the basis of the decision of the MCI dated
20.06.2013, 21 students have already secured admission in the College
by 10th July, 2013, since they were allotted the College after
successfully competing the U.P. Combined Medical Entrance Test (for
short “the UPCMET) and the decision taken by the MCI on 13.07.2013
would have serious consequences so far as the students are concerned
since they would not be able to get admission in any other private
institution for this academic year. Learned senior counsel also
submitted that the College has facilitated as per the University
Grants Commission (UGC) Regulations and there is no justification in
not permitting the students to continue with their study in the
College even if there was some infirmity in the grant of permission
granted by the Central Government for the additional intake during the
year 2008-09.
23. Shri Amit Kumar, learned counsel appearing for the Medical
Council of India, on the other hand, justified the decision taken by
the MCI on 13.07.2013. Learned counsel submitted that the MCI has the
power to revoke its earlier decision taken on 04.06.2013 if sufficient
materials have been brought to its knowledge which have got a vital
bearing in the matter of conduct of courses in the College. Learned
counsel also submitted and referred to the letter dated 20.06.2013 and
pointed out that permission was accorded subject to certain conditions
and those conditions have been violated by the College. Learned
counsel submitted that as per clause 8(3)(1)(d) of the Establishment
of Medical Regulations (Amendment 2010 Part II), the MCI has got the
power not to renew the permission/recognition, if it is observed later
that any institute is found to have acted on fake/forged documents,
such an institute could not be considered for renewal of
permission/recognition for the post-graduate courses for two years i.e
for the academic year and the next academic year also. Hence, the
decision taken by the MCI revoking the letter of permission for
renewal of admission of the 2nd batch of students against the
increased intake from 100 to 150 students for the academic year 2013-
14 was justified.
24. We may notice with concern the unprecedented growth of the
Technical and Medical Institutions in this country which has resulted
in widespread prevalence of various unethical practices. Collection
of large amount by way of capitation fee running into crores of rupees
for MBBS and Post-Graduate seats, exorbitant fee, donation etc, by
many of such self financing institutions, has kept the meritorious
financially poor students away from those institutions. Pressure, it
is also seen, is being extended by various institutions, for the
additional intake of students, not always for the benefit of the
student community and thereby serve the community, but for their own
betterment.
25. We are not commenting upon the acceptability, or otherwise, of
the charges leveled against the Minister, bureaucrats or the Chairman
of the College. But the fact remains, the CBI after conducting an
investigation had to charge-sheet them under Section 120B, 468, 471
IPC and Section 13(2) read with Section 13(1)(d) of the PC Act. CBI’s
investigation prima facie establishes the criminal conspiracy between
the Chairman of the College and the then Union Minister of Health and
Family Welfare, Government of India, New Delhi along with the then
Deputy Secretary, Ministry of Health and Family Welfare, New Delhi,
two doctors, one is the head of Nephrology VMMV and Safdarjung
Hospital and the other is Professor of Department of Community
Medicine, VMMC and Safdarjung Hospital, New Delhi which lead to the
issuance of the order passed for the additional intake of 50 students
for the academic year 2008-09 on 26.09.2008. For the prosecution of
both the doctors necessary prior sanction was obtained from the
competent authority by the CBI.
-
26. The CBI, in its charge-sheet, points out serious infirmities in
the report submitted by the central team, which conducted the
inspection of the College on 25.09.2008, which are as follow:
“The above chart clearly proves that accused Dr. Vindu Amitabh
and accused Dr. S.K.Rasania were party to the larger conspiracy
and they deliberately by way of limiting the shortage of faculty
to 2% in their report; had glossed over the glaring deficiencies
in the strength of the faculty members (15% i.e. 17 out of 115)
and thereby, facilitated the private College in getting
permission of the Central Govt.
Their involvement in the criminal conspiracy is further
established by the fact that during the inspection they did not
ask the faculty members as to whether they (faculty members)
were full timers or part-timers/merely called to make up the
members for the purpose of inspection. The investigation has
established that at least 5 doctors, namely, Dr. Harbeer Singh
Sodhi, Dr. Anil Madan, Dr. Birendra Kumar Sinha, Dr. Jamaludin
and Dr. Shiv Nath Banerjee, who have been shown as full time
faculty members and residents in the records of Rohilkhand
Medical College, Bareily during 2008, have confirmed that they
had never worked as full-timers in the said College during 2008,
but were rather, visiting faculty. These facts prove that the
inspection report of accused Dr. Vindu Amitabh and accused Dr.
S.K. Rasania was perfunctory and biased in favour to the private
Medical College.
The investigation further disclosed that accused Dr. Vindu
Amitabh and accused Dr. S.K. Rasania have claimed to have done
personal inspection of the -
wards and the departments. In their inspection report,
they mentioned that the presence (of patients in the OPDs of all
Departments was good, the bed occupancy was about 90% and that
the ICU was full to its capacity. However, during the
investigation , physical verification of 14 patients, who were
shown present in the OPD registers on the date of inspection,
i.e. 25.09.2003, was got conducted through the Postal Deptt. on
the random basis. It was revealed that 09 of them were fake or
non-existent. The claim of the accused doctors of the Central
Team of having done personal inspection of the wards and the
departments, which was one of the important criteria, on the
basis of which they gave a green signal to the College, thus
turns out to be devoid of merit and a falsehood.
The investigation further revealed that the Central Team
comprising of accused Dr. Vindu Amitabh and accused Dr. S.K.
Rasania has stated in its report that it accepted the
photocopies of the declaration forms, submitted to MCI, for
verification. During the investigation, it has been revealed
that declaration forms are provided by the College concerned,
include details of all faculty members, their educational
qualification, appointment letter, identification documents
(like PAN card, etc.) documents in support of their residence in
the Medical College (like ration card, in order to certify their
being permanent faculty members there).
During the investigation, 5 so called faculty members (Dr.
Harbeer Singh Sodhi, Dr. Anil Madan, Dr. Birendra Kumar Sinha,
Dr. Jamaludin and Dr. Shiv Nath Banerjee) have stated that they
used to be called only for the inspections of the said College.
They were at best, visiting faculty members. Incidentally, the
MCI rules have not provision for part-timers or visiting faculty
members. Though the -
said 5 doctors have owned their signatures on their
Declaration Forms, they have denied receiving the appointment
letters shown to be annexed with their respective declaration
forms. They have also stated that the ration cards, residential
certificates, Form-16 (Income Tax) etc. shown as having been
issued in their names, were never given to them. Besides, it
has been found that they are all bogus/fake and forged, as they
(the doctors) were neither resident on the addresses shown in
the records nor had they ever applied for any ration card. The
District Supply Officer, Bareilly has denied their issuance and
confirmed that the said ration cards are fake and forged. It is
pertinent to mention that the fake ration cards have been used
by the College authorities to falsely establish before the MCI
Inspectors that th said doctors were their permanent faculty
members. Similarly no Form-16 was ever issued to them by the
College.
The investigation further disclosed that in case of the
aforesaid doctors, the appointment letters were issued in their
name by the College authorities without their knowledge and the
details of appointments do not even bear the signatures of their
doctors/employees of the College in the acceptable column. This
proves the fabrication and use of (forged) documents by the
College authorities, for the purpose of obtaining the approval
of Govt. of India on the recommendations of MCI/Central Team
deputed by GOI. However, the accused doctors i.e. Dr. Vindu
Amitabh and Dr. S.K. Rasania of the Central Team in pursuance of
the criminal conspiracy did not confirm the genuineness of the
documents put up by the College authorities and without
verifying the documents accepted photocopies of the Declaration
Forms and furnished a positive report in favour of the College
on the very next day. It is pertinent to mention that despite
mentioning about the presence -
of such doctors, who were even practicing in Bareilly and
the non-production of the original appointment letters, even
when asked for, the said Central Team still went ahead to give a
clean chit to the College. ”
27. We can also take judicial notice of the fact that many a times
the medical colleges and engineering colleges and others are being
established after availing large amounts by way of loans from the
financial institutions and other borrowings, with no funds of their
own, and once the college gets approval and students are admitted,
loan availed of is being repaid from the capitation fee charged from
the students and ultimately that amount constitute their capital.
Many a times, even without any sufficient facilities they put pressure
on the various agencies and the Central Government and get approval
overlooking the regulatory authority, like MCI, which adversely
affects the quality of medical education in this country. For
instance, the MCI has taken in the instant case a consistent view and
sent negative reports to the Central Government, but overlooking all
the reports submitted by the MCI, the Central Government got a report
of its own and granted permission vide its letter dated 26.09.2008.
CBI in its charge-sheet has categorically and clearly reported that
this was done on the basis of bogus, fake and forged records. CBI
noticed that the college authorities had produced fabricated and
forged documents before the inspection team and the team failed to
verify the correctness or otherwise of those documents. CBI
investigation has revealed that fraud has been practiced by the
Central team as well as the college to get the sanction for the 3rd
batch of MBBS students for the academic year 2008-09.
DUTY OF INSPECTION TEAM:
28. The Medical Council Act, 1956, especially Section 10A, mandates
that when a new medical college is to be established or the number of
seats to be increased, the permission of the Central Government is a
pre-requisite. Section 19A obliges the MCI to prescribe minimum
required standards for medical education and the recommendation made
by MCI to the Central Government carry considerable weight, it being
an Expert Body. MCI had prescribed the regulation – “Minimum Standard
Requirements for the Medical College for 100 Admissions Annually
Regulations, 1999” which is germane for our case, was published in the
Gazette of India dated 29.1.2000. In order to verify the minimum
requirements, MCI gets the inspection conducted by Inspectors, who are
experts, submit their reports on the availability of the staff -
teaching and residents - and other infrastructural facilities,
clinical availability, etc. as per the regulations.
29. We notice, in this case, constantly on all the occasions, the
MCI Team decided to recommend to the Central Government not to renew
permission for admission of the third batch for the academic year 2008-
09. Consistent stand of the MCI was communicated to the Central
Government on various occasions, but without even ascertaining their
view, a Central Team was appointed, got a favourable report and
permission was accorded by the Central Government for the year 2008-
09, which was the subject matter of CBI investigation.
30. We have now to examine the legality of decision of the MCI taken
on 13.07.2013 in the light of the above factual and legal scenario.
We have already indicated that when sanction was accorded on
20.06.2013 it was categorically stated by the MCI that the same was
accorded subject to certain conditions. It was stated therein that in
case false/wrong declaration or fabricated documents have been used
for procuring permission of the Board of Governors of the increased
intake and if said misconduct was brought to the notice or comes to
the knowledge of the MCI, at any stage during the current academic
year (2013-14) institution/college would not be liable to be
considered for renewal of the permission against increased intake for
the next academic year and that renewal of permission against the
increased intake for the academic year 2013-14 and for the next
academic year and the same would be liable to be revoked.
31. Having received the letter of the CBI as well as the charge-
sheet the impugned order dated 13.07.2013 was issued by the MCI
revoking the letter of permission granted for the academic year 2013-
14.
32. We are of the view that the above decision taken by the MCI is
in accordance with the Establishment of Medical Colleges Regulation
(Amendment 2010 Part II). The above-mentioned Regulation was issued
by the MCI in exercise of its powers under Section 33 of the IMC Act,
1956 with the previous sanction of the Central Government.
Clause 8.3
of the Regulation deals with the Grant of Permission, sub-clause
8(3)(1)(d) deals with the colleges which are found to have employed
teachers with faked/forged documents. Those provisions are extracted
herein below:
“8(3)(1)(d) Colleges which are found to have employed teachers
with faked/forged documents:
If it is observed that any institute is found to have employed a
teacher with faked/forged documents and have submitted the
Declaration Form of such a teacher, such an institute will not
be considered for renewal of permission/recognition for award of
M.B.B.S. degree/processing the applications for postgraduate
courses for two Academic Years – i.e. that Academic Year and the
next Academic Year also.
However, the office of the Council shall ensure that such
inspections are not carried out at least 3 days before upto 3
days after important religious and festival holidays declared by
the Central/State Government.”
33. Learned senior counsel for the petitioner, as already indicated,
submitted that only if the Chairman of the College is convicted by a
court of competent jurisdiction in a criminal investigation then only
the sanction accorded could be revoked. Such an argument was raised
relying upon 2013 Regulations, which in our view, would not apply to
the facts of this case. Regulation 3 of Regulations 2013 reads as
follow:
“3. Eligibility to make application : (1) the application for
enhance of annual intake capacity in the existing Medical
Colleges may be made by the recognizations that have established
the Medical College to the Board of Governors in supersession of
the Medical Council of India. The format of application for
Government and non-governmental owned Medical College is
prescribed in Schedule I appended to these Regulations.
(2) Only such existing Medical Colleges shall be eligible to
apply under these Regulations that enjoy minimum ten years of
standing from the date of grant of initial letter of permission
by the Central Government and the MBBS qualification awarded by
them stands included in the First Schedule of the Indian Medical
Council Act, 1956 (Act No.102 of 1956).
(3) The Medical Colleges with an annual intake of 50 or more but
below 100 MBBS seats shall be eligible to apply for enhance for
annual intake capacity to 100, as one-time measure.
-
(4) The Medical Colleges with an annual intake of 100 or more
but below 150 MBBS seats shall be eligible to apply for
enhancement for annual intake capacity to 150, as one-time
measure.
(5) Such Medical Colleges that have not been granted letter of
permission by the Board of Governors in Super-session of the
Medical Council of India in accordance with clause 8(1)(3)(d) of
the Establishment of Medical Colleges Regulations, 1999 (notified
in the Official Gazette on 16.04.2010) and/or the person who has
established the Medical College has been convicted by a Court of
Competent jurisdiction in a criminal investigation initiated by
the Central Bureau of Investigation or Police.”
34. Clause (2) of Regulation 3 clearly states that only such medical
colleges shall be eligible under these Regulations that enjoy minimum
10 years of standing from the date of grant of initial letter of
permission by the Central Government. So far as the petitioner is
concerned, they have completed only eight years, consequently,
Regulations 2013 would not apply to them.
35. The petitioners are governed by Establishment of Medical
Colleges Regulations, (Amendment), 2010 (Part II), especially clause
8(3)(1)(d), in the event of which, when MIC finds that the college has
employed fake/forged documents for renewal of -
permission/recognition for processing applications etc., that
institute will not be able to be considered for renewal of permission/
recognition for award of MBBS Degree/ processing the application for
post-graduate courses for two academic years i.e. that academic year
and the next academic year. In this case, CBI letter was received on
11.07.2013 by the MCI and it was placed before the Board of Governors
on 12.07.2013 and the revocation order was passed on 13.07.2013
revoking the renewal of permission for the 2nd batch of students
against the increased intake from 100 to 150 students for the academic
year 2013-14.
36. We are of the considered view that the MCI need not wait till
the culmination of the trial initiated on the basis of the charge-
sheet filed by the CBI. The investigation by a premier agency like
the CBI has prima facie revealed that the college has used fake and
forged materials to get sanction for the intake for the year 2008-09,
in our view, that is sufficient for the MCI to take action in
accordance with the Regulations 8(1)(3)(d) of Regulations 2013.
37. We are also not impressed by the argument raised by Mr. Amrendra
Sharan, learned senior counsel appearing for the students that they
have already joined the course on 10.07.2013. The information
brochure issued by the UPCMET refers to two important dates. The
important dates are the date of results declaration as 15.06.2013 and
counseling would start after 15.07.2013. If that be so, we fail to
see how students could be admitted on 10.07.2013. Counsel, however,
made reference to the newspaper ‘Dainik Jagran’ where it is indicated
that the first counseling would be on July 5, 2013. We cannot give
sanctity to that news items compared to the information brochure
published by the U.P. Unaided Medical Colleges Welfare Association for
the conduct of UPCMET. Even otherwise, in our view, once the medical
council finds that the sanction had been obtained on the basis of fake
and forge documents, clause 8(3)(1)(d) kicks in and the fraud unravels
everything. We make it clear that the criminal case charge-sheeted
by the CBI will, however, be disposed of uninfluenced by observations,
if any, made by us in this judgment.
COURT’S CONCERN
38. We think, this is an apt occasion to ponder over whether we have
achieved the desired goals, eloquently highlighted by the Constitution
Bench judgments of this Court in T.M.A. Pai Foundation and others v.
State of Karnataka and others (2002) 8 SCC 481 and P.A. Inamdar and
others v. State of Maharashtra and others (2005) 6 SCC 537. TMA Pai
Foundation case (supra) has stated that there is nothing wrong if the
entrance test being held by self financial institutions or by a group
of institutions but the entrance test they conduct should satisfy the
triple test of being fair, transparent and not exploitative. TMA Pai
Foundation (supra) and Inamdar (supra) repeatedly stated that the
object of establishing an educational institution is not to make
profit and imparting education is charitable in nature. Court has
repeatedly said that the common entrance test conducted by private
educational institutions must be one enjoined to ensure the
fulfillment of twin object of transparency and merits and no
capitation fee be charged and there should not be profiteering.
Facts, however, give contrary picture. In Inamdar, this Court, in
categorical terms, has declared that no capitation fee be permitted to
be charged and no seat can be permitted to be appropriated by payment
of capitation fee.
39. The CBI’s investigation, however, reveals a sorry state of
affairs, which is an eye-opener for taking appropriate remedial
measures in future so that medical education may attain the goals
envisaged by the IMC Act and the Regulations and serve the community.
CBI had to charge-sheet none other than the then Union Minister of
Health and Family Welfare, itself which depict how the educational
system in this country is deteriorating. Many of regulatory bodies
like MCI, AICTE, UGC etc. were also under serious clout in the recent
years. CBI, in the year 2010, had to arrest the President of the MCI
for accepting bribe to grant recognition to one Medical College in
Punjab. Later, it is reported that the CBI found that the President
of the MCI and its family members possessed disproportionate assets
worth of 24 crores. We have referred to these instances only to
indicate the falling standards of our educational system at the
highest level, sometime even at the level of the Central Government
making a serious inroad to the right to life guaranteed to the
citizens of the country under Article 21 of the Constitution of India.
40. Mushrooming of large number of medical, engineering, nursing and
pharmaceutical colleges, which has definitely affected the quality of
education in this country, especially in the medical field which call
for serious introspection.
Private medical educational institutions
are always demanding more number of seats in their colleges even
though many of them have no sufficient infrastructural facilities,
clinical materials, faculty members, etc. Reports appear in every now
and then that many of the private institutions which are conducting
medical colleges are demanding lakhs and sometimes crores of rupees
for MBBS and for post-graduate admission in their respective colleges.
Recently, it is reported that few MBBS seats were sold in private
colleges of Chennai.
We cannot lose sight of the fact that these
things are happening in our country irrespective of the constitutional
pronouncements by this Court in TMA Pai Foundation that there shall
not be any profiteering or acceptance of capitation fee etc.
Central
Government, Ministry of Health and Family Welfare, Central Bureau of
Investigation or the Intelligence Wing have to take effective steps to
undo such unethical practices or else self-financing institutions will
turn to be students financing institutions.
41. We notice that the current policy of the Central Government in
the higher education is to provide autonomy of institutions, but
adoption of unfair practices is a serious violation of the law. Few
States, like Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra,
Kerala, Delhi etc. have passed some legislation to prohibit
demand/collection of capitation fee which have no teeth, the
institutions who indulges in such practices can get away by paying
some fine, which is meager.
42. We, therefore, emphasise the extreme necessity of a
Parliamentary Legislation for curbing these unfair practices, which is
the demand of our society.
“The Prohibition of Unfair Practices in
Technical Educational Institutions, Medical Educational Institutions
and University Bill, 2010” has already been presented to both the
Houses of Parliament.
It is reported that the States have welcomed
such a legislation, but no further follow up action has been taken.
We are confident, earnest efforts would be made to bring in proper
legislation, so that unethical and unfair practices prevalent in
higher technical and medical institutions can be effectively curbed in
the larger public interest.
43. We, therefore, find no good reason to invoke Article 32 of the
Constitution of India and none of the fundamental rights guaranteed to
the petitioners stand violated. The Petition, therefore, lacks merits
and is dismissed.
……………………….…J.
(K.S. Radhakrishnan)
………………………….J.
(A.K. Sikri)
New Delhi,
September 06, 2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.585 OF 2013
Rohilkhand Medical College &
Hospital, Bareilly …. Petitioner
Versus
Medical Council of India & Another … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. The petitioners have invoked the extraordinary jurisdiction of
this Court conferred under Article 32 of the Constitution of India to
quash the letter dated 13.07.2013 issued by the Medical Council of
India by which the permission granted for renewal of admission for
additional intake of students for the academic session 2013-2014 was
revoked.
2. Rohilkhand Medical College and Hospital was established by
Rohilkhand Educational Charitable Trust in the year 2005.
The Medical
College started the first M.B.B.S. Course during the year 2006-07 with
an annual intake of 100 seats for which permission was granted under
Section 10A of the Indian Medical Council Act, 1956 (for short “the
IMC Act) by the Central Government.
Later, the Medical Council of
India (for short “the MCI”) granted recognition to the College to
award M.B.B.S. Degree granted by M.J.P. Rohilkhand University,
Bareily, U.P. The College is also conducting post-graduate courses
during the year 2011-12.
3. Permission was granted under Section 10A of the IMC Act for
admitting the second batch of 100 students in the year 2007-08.
The
College later submitted an application for extension of renewal of
permission for the admission of 3rd batch of 100 seats of M.B.B.S. for
the academic year 2008-09 to the MCI.
The MCI after processing the
application constituted a medical team for inspection of the College.
The team conducted the inspection on 1st and 2nd April, 2008. The -
MCI team then submitted its report to the Secretary, MCI, New Delhi on
02.04.2008. The MCI team pointed out the following deficiencies in
the College as per the MCI Regulations:
“There was a shortage of teaching faculty by 21.05% (24 out of 114)
and residents by 37.03% (30 out of 81) As under:
a) Professor – 4
b) Associate Professor – 13
c) Asstt. Professor – 3
d) Tutor – 4
e) Sr. Resident – 16
f) Jr. Resident – 14”
4. The MCI team also noticed that OPD attendance on the date of
inspection was only 421 as against the minimum requirement of 850-900
and OPD bed occupancy was only 55% as against the minimum requirement
of 83-85%. The MCI team inspection report, as per the Board
Regulation, was placed before the Executive Committee in its meeting
held on 14.04.2008 and it intimated its decision to the Central
Government not to renew the permission for the admission of the 3rd
batch of students for the academic session for the year 2008-09, vide
its letter dated 16.04.2008. A copy of the letter was also sent to
the Principal of the College with a request to submit the compliance
in respect of the deficiencies pointed out by the MCI team on or
before 30.04.2008.
5. The College later submitted its “compliance report”. The MCI
again constituted a team to examine whether the College had rectified
the deficiencies pointed out by the MCI team. The MCI team again
conducted an inspection on 20.05.2008 and submitted its report to the
MCI.
The report pointed out the following deficiencies :
“(1) There was a shortage of teaching faculty by 18% (22 out of 110)
and Residents by 5% (5 out of 82) as under:
a) Professor – 6
b) Associate Professor – 12
c) Asstt. Professor – 4
d) Tutor – NIL
e) Sr. Resident – 3
f) Jr. Resident – 2
ii) The OPD attendance on the date of inspection was only
691 against the minimum requirement of 850-900.
iii) IPD bed occupancy was only 55(74%) against the minimum
requirement of 83-95%.”
6. The MCI inspection report was later placed before the Executive
Committee of MCI in its meeting held on 13/14-06-2008 and it was
decided by the Committee not to renew the permission for the admission
of 3rd batch of students for the academic year 2008-09. The Executive
Committee’s decision was communicated to the Central Government vide
its letter dated 14.06.2008.
The then Under Secretary, Ministry of
Health and Family Welfare, New Delhi on 19.06.2008 forwarded the
letter received from the MCI to the College requesting to submit the
compliance in respect of the deficiencies pointed by the MCI
inspection team. The College then forwarded the compliance report to
the Secretary, MCI vide its letter dated 24.06.2008. The College also
sent another letter dated 01.07.2008 to the Secretary, Ministry of
Health and Family Welfare, New Delhi stating that the deficiencies
pointed out by the MCI team were of minor nature and, therefore,
requested to grant necessary permission by the Central Government for
admission of the 3rd batch for the academic year 2008-09.
7. The Chairman of the Roholhand Medical College and Hospital on
03.07.2008 sent a letter to the Health Minister, Government of India
requesting to grant necessary permission and the Central Government,
for admission of the 3rd batch, followed by yet another letter on
04.07.2008 to the Secretary, Ministry of Health and Family Welfare,
New Delhi.
8. We notice, following the letter received by the Minister as well
as the Secretary, the Central Government constituted a team of two
doctors to carry out the compliance verification/inspection of the
College. The central team conducted the verification inspection on
11.07.2008 and submitted its report to the Deputy Secretary, Ministry
of Health and Family Welfare, New Delhi on 10.07.2008. The central
team pointed out the following deficiencies:
“(i) The shortage of teaching staff was found more than 11% (13 out of
116) as under:
a) Professor
b) Associate Professor – 7
c) Asstt. Professor – 2
d) Tutor – NIL
e) -
f) Sr. Resident – 1
g) Jr. Resident – 1
(ii) The faculty members holding same post were getting different
salaries. Some of faculty members were getting less salary than
resident doctors. Some of the Junior Residents were old in age. Some
of Sr. Residents presented with their declaration forms seemed to be
specialists doing private practice, as they were in the town much
before the inception of the College/Institution. Some of the area and
buildings were under construction, which was not advisable in working
in working areas.”
9. The then Under Secretary, Ministry of Health and Family Welfare,
New Delhi then sent a letter dated 27.07.2008 to the Chairman of the
College requesting him not to admit any fresh batch of MBBS students
for the academic year 2008-09. The College was also advised to
rectify the deficiencies and send compliance report for consideration
for the academic year 2009-10 for further admission.
10. The Chairman of the College then filed a Writ Petition (C)
No.294 of 2008 before this Court which was clubbed with other similar
writ petitions filed by other medical colleges. This Court passed an
order on 03.09.2008 directing the MCI to submit its recommendations to
the Central Government within two days and Ministry of Health and
Family Welfare was directed to consider the issue of grant of
permission within a week. Further it was also directed that the
College be given an opportunity of being heard by the Ministry of
Health and Family Welfare, New Delhi.
11. The MCI, in the meantime, conducted yet another inspection of
the College on 19.08.2008 and the MCI team submitted its report to the
Secretary, MCI again pointing out the following deficiencies:
“(i) The shortage of teaching staff was found to be 23.68% (27 out of
114):-
Professor – 3
Associate Professor -13
Asstt. Professor - 5
Tutor – 5
(ii) The shortage of resident was found to be 20.9% (17 out of 81):-
Sr. Resident – 5
Jr. Resident – 12”
12. The MCI report was then placed before the Executive Committee
and the MCI in its meeting held on 21.08.2008, decided to inform the
Central Government not to renew the permission for admission of the
3rd batch of students for the academic year 2008-09. The decision of
the Executive Committee was communicated to the Central Government
vide its letter dated 04.09.2008 with reference to the order passed by
this Court on 03.09.2008 in Writ Petition (C) No.294 of 2008, filed
the College.
13. The Under Secretary, Ministry of Health and Family Welfare, New
Delhi then sent a letter dated 09.09.2008 to the Chairman of the
College to appear before the Deputy Secretary, (Medical Education),
Ministry of Health and Family Welfare, New Delhi on 10.09.2008 along
with the compliance report and other documents mentioned in the order
passed by this Court on 03.09.2008. The Chairman of the College then
appeared, as directed, on 10.09.2008. The Under Secretary, Ministry
of Health and Family Welfare, New Delhi then issued a letter to the
Chairman of the College intimating that after considering the facts
submitted by the College at the time of personal hearing and the
recommendations of the MCI, it was decided by the Ministry not to
grant renewal of permission for admission of 3rd batch of MBBS
students for the academic year 2008-09.
14. The Chairman of the College then vide his letter dated
12.09.2008, addressed to the Secretary, Medical Education, Ministry of
Health and Family Welfare, New Delhi requested him to grant permission
for 50 students of MBBS for the academic session 2008-09. The
Ministry of Health and Family Welfare, New Delhi again constituted a
central team and deputed the team to inspect the College and submit a
report by 25.09.2009 positively. The two doctors then conducted
inspection of the College on 25.09.2008 and submitted the report on
26.09.2008 to the Ministry of Health and Family Welfare on the same
day. On the basis of that report the Central Government issued a
letter dated 26.09.2008 according sanction for renewal of permission
for admission of 3rd batch of 100 students for the academic year 2008-
09.
15. On receipt of the said letter dated 12.09.2008 from the Chairman
of the College, the Under Secretary, Ministry of Health and Family
Welfare, wrote a letter on 24.09.2008 to the Secretary, MCI requesting
to furnish their recommendations regarding reduced intake. The
Secretary, MCI, in turn, intimated that on the basis of the
deficiencies pointed out by the MCI team during the inspection of the
College on 19.08.2008 the College was grossly lacking facilities even
for admission of 50 students.
16. MCI team, it is seen, constituted yet another Committee to
conduct an inspection of the College on 01.10.2008 and a report was
submitted to the MCI on the same day pointing out various
deficiencies. The report was submitted to the Executive Committee of
MCI in its meeting held on 06.10.2008 and the Committee took a
decision to inform the Central Government not to renew the permission
for the academic year 2008-09 and urge the Central Government to
recall the letter of permission dated 26.09.2008 issued to the
College. The decision of the Executive Committee of the MCI was
communicated to the Central Government vide its letter dated
06.10.2008.
17. We have noticed that the Central Government had accorded
approval for 3rd batch of 100 students for the academic year 2008-09
on 26.09.2008, despite the repeated negative recommendations made by
the MCI and before the grant of permission on 26.09.2008, the MCI was
not even consulted. We have indicated the facts to show the situation
that prevailed in the year 2008-09 and the manner in which permission
was accorded for intake of 100 students by the Central Government.
18. The MCI, following its decision taken on 04.06.2013, vide its
letter dated 20.06.2013 decided to convey its approval for renewal of
permission for admission for the second batch of MBBS students
against the increased intake i.e. from100 to 150 seats to the College
for the academic year 2013-14. The approval was granted taking into
consideration of the assessment report dated 26/27-02-2013 submitted
to the Board of Governors of MCI subject to certain conditions which
are extracted herein below:
“I am further directed to inform that you and your institution
are fully responsible to fulfill and maintain norms including
the infrastructure both physical and human resource, teaching
faculty and clinical material, etc. throughout the academic
year, as stipulated in Regulation of Medical Council of India.
In case false/wrong declaration or fabricated documents have
been used for procuring permission of the Board of Governors for
the increased intake and the said misconduct is brought to
notice or comes to the knowledge of MCI at any stage during the
current academic year, your institution is not liable to be
considered for renewal of permission against increased intake
for the next academic year and this renewal of permission
against the increased intake for the next academic year and this
renewal of permission against the increased intake is also
liable to be revoked for current academic year. Besides, MCI is
entitled to take all such measures against you and your
college/institution as permissible under the law.”
19. The MCI, in the meantime, received a confidential letter dated
11.07.2013 from the Central Bureau of Investigation (for short “the
CBI”) informing that the CBI has registered a case against the
Chairman of the College and officers of the Ministry of Health and
Family Welfare, New Delhi under Section 120B IPC and Section 13(2)
read with Section 13(1)(d) of the Prevention of Corruption Act, 1988
(for short “the PC Act”). Charge-sheet was also enclosed along with
the letter, which was placed before the Board of Governors of the MCI
in its meeting held on 12.07.2013. The Board then revoked its
decision dated 04.06.2013 and communicated the same to the College
vide its letter dated 20.06.2013. The Board of Governors of the MCI
informed the College that the letter of permission accorded for
renewal of admission of the 2nd batch of students against the
increased intake i.e. from 100 to 150 for the academic year 2013-14
would stand revoked with immediate effect.
20. The legality of that decision, as already indicated, is the main
issue that arises for consideration in this writ petition.
21. Shri Mukul Rohtagi, learned senior counsel appearing for the
petitioners submitted that the letter dated 13.07.2013 revoking the
permission granted for admission for the increased intake was mala
fide and in violation of the principles of natural justice. Learned
senior counsel submitted that a right has already been accrued to the
petitioners by virtue of the decision taken by the MCI on 04.06.2013,
which was communicated to the College vide its letter dated
20.06.2013. Learned senior counsel submitted that such a decision was
validly taken on the inspection report dated 26/27.02.2013. Learned
senior counsel submitted that since the College has complied with all
the conditions stipulated in the Regulations and that there is no
deficiency, as reported by the inspection team, there is no
justification in revoking the permission already granted, that too,
without giving the petitioners an opportunity of being heard. Learned
senior counsel also submitted that mere fact that the CBI has
registered a case against few officers of the Ministry of Health and
Family Welfare, New Delhi and also against the Chairman of the College
is not a ground at all to revoke the permission already granted for
the additional intake of students for the academic year 2013-14 since
the College has satisfied all the requirements under the Regulations
for Establishment of Medical College Regulations, 1999. Learned
senior counsel also submitted that even though the Chairman of the
College has been charge-sheeted, that itself is not a ground to revoke
the letter of permission accorded by the Board of Governors, unless he
has been convicted by a court of competent jurisdiction in a criminal
investigation. Learned senior counsel made a reference to Regulations
3(5) of the “Enhancement of Annual Intake Capacity in Under-graduate
Courses in Medical College for the Academic Session 2013-14 Only
Regulation, 2013 (for short “the Regulation 2013).
22. Shri Amrendra Sharan, learned senior counsel appearing for the
students submitted that on the basis of the decision of the MCI dated
20.06.2013, 21 students have already secured admission in the College
by 10th July, 2013, since they were allotted the College after
successfully competing the U.P. Combined Medical Entrance Test (for
short “the UPCMET) and the decision taken by the MCI on 13.07.2013
would have serious consequences so far as the students are concerned
since they would not be able to get admission in any other private
institution for this academic year. Learned senior counsel also
submitted that the College has facilitated as per the University
Grants Commission (UGC) Regulations and there is no justification in
not permitting the students to continue with their study in the
College even if there was some infirmity in the grant of permission
granted by the Central Government for the additional intake during the
year 2008-09.
23. Shri Amit Kumar, learned counsel appearing for the Medical
Council of India, on the other hand, justified the decision taken by
the MCI on 13.07.2013. Learned counsel submitted that the MCI has the
power to revoke its earlier decision taken on 04.06.2013 if sufficient
materials have been brought to its knowledge which have got a vital
bearing in the matter of conduct of courses in the College. Learned
counsel also submitted and referred to the letter dated 20.06.2013 and
pointed out that permission was accorded subject to certain conditions
and those conditions have been violated by the College. Learned
counsel submitted that as per clause 8(3)(1)(d) of the Establishment
of Medical Regulations (Amendment 2010 Part II), the MCI has got the
power not to renew the permission/recognition, if it is observed later
that any institute is found to have acted on fake/forged documents,
such an institute could not be considered for renewal of
permission/recognition for the post-graduate courses for two years i.e
for the academic year and the next academic year also. Hence, the
decision taken by the MCI revoking the letter of permission for
renewal of admission of the 2nd batch of students against the
increased intake from 100 to 150 students for the academic year 2013-
14 was justified.
24. We may notice with concern the unprecedented growth of the
Technical and Medical Institutions in this country which has resulted
in widespread prevalence of various unethical practices. Collection
of large amount by way of capitation fee running into crores of rupees
for MBBS and Post-Graduate seats, exorbitant fee, donation etc, by
many of such self financing institutions, has kept the meritorious
financially poor students away from those institutions. Pressure, it
is also seen, is being extended by various institutions, for the
additional intake of students, not always for the benefit of the
student community and thereby serve the community, but for their own
betterment.
25. We are not commenting upon the acceptability, or otherwise, of
the charges leveled against the Minister, bureaucrats or the Chairman
of the College. But the fact remains, the CBI after conducting an
investigation had to charge-sheet them under Section 120B, 468, 471
IPC and Section 13(2) read with Section 13(1)(d) of the PC Act. CBI’s
investigation prima facie establishes the criminal conspiracy between
the Chairman of the College and the then Union Minister of Health and
Family Welfare, Government of India, New Delhi along with the then
Deputy Secretary, Ministry of Health and Family Welfare, New Delhi,
two doctors, one is the head of Nephrology VMMV and Safdarjung
Hospital and the other is Professor of Department of Community
Medicine, VMMC and Safdarjung Hospital, New Delhi which lead to the
issuance of the order passed for the additional intake of 50 students
for the academic year 2008-09 on 26.09.2008. For the prosecution of
both the doctors necessary prior sanction was obtained from the
competent authority by the CBI.
-
26. The CBI, in its charge-sheet, points out serious infirmities in
the report submitted by the central team, which conducted the
inspection of the College on 25.09.2008, which are as follow:
“The above chart clearly proves that accused Dr. Vindu Amitabh
and accused Dr. S.K.Rasania were party to the larger conspiracy
and they deliberately by way of limiting the shortage of faculty
to 2% in their report; had glossed over the glaring deficiencies
in the strength of the faculty members (15% i.e. 17 out of 115)
and thereby, facilitated the private College in getting
permission of the Central Govt.
Their involvement in the criminal conspiracy is further
established by the fact that during the inspection they did not
ask the faculty members as to whether they (faculty members)
were full timers or part-timers/merely called to make up the
members for the purpose of inspection. The investigation has
established that at least 5 doctors, namely, Dr. Harbeer Singh
Sodhi, Dr. Anil Madan, Dr. Birendra Kumar Sinha, Dr. Jamaludin
and Dr. Shiv Nath Banerjee, who have been shown as full time
faculty members and residents in the records of Rohilkhand
Medical College, Bareily during 2008, have confirmed that they
had never worked as full-timers in the said College during 2008,
but were rather, visiting faculty. These facts prove that the
inspection report of accused Dr. Vindu Amitabh and accused Dr.
S.K. Rasania was perfunctory and biased in favour to the private
Medical College.
The investigation further disclosed that accused Dr. Vindu
Amitabh and accused Dr. S.K. Rasania have claimed to have done
personal inspection of the -
wards and the departments. In their inspection report,
they mentioned that the presence (of patients in the OPDs of all
Departments was good, the bed occupancy was about 90% and that
the ICU was full to its capacity. However, during the
investigation , physical verification of 14 patients, who were
shown present in the OPD registers on the date of inspection,
i.e. 25.09.2003, was got conducted through the Postal Deptt. on
the random basis. It was revealed that 09 of them were fake or
non-existent. The claim of the accused doctors of the Central
Team of having done personal inspection of the wards and the
departments, which was one of the important criteria, on the
basis of which they gave a green signal to the College, thus
turns out to be devoid of merit and a falsehood.
The investigation further revealed that the Central Team
comprising of accused Dr. Vindu Amitabh and accused Dr. S.K.
Rasania has stated in its report that it accepted the
photocopies of the declaration forms, submitted to MCI, for
verification. During the investigation, it has been revealed
that declaration forms are provided by the College concerned,
include details of all faculty members, their educational
qualification, appointment letter, identification documents
(like PAN card, etc.) documents in support of their residence in
the Medical College (like ration card, in order to certify their
being permanent faculty members there).
During the investigation, 5 so called faculty members (Dr.
Harbeer Singh Sodhi, Dr. Anil Madan, Dr. Birendra Kumar Sinha,
Dr. Jamaludin and Dr. Shiv Nath Banerjee) have stated that they
used to be called only for the inspections of the said College.
They were at best, visiting faculty members. Incidentally, the
MCI rules have not provision for part-timers or visiting faculty
members. Though the -
said 5 doctors have owned their signatures on their
Declaration Forms, they have denied receiving the appointment
letters shown to be annexed with their respective declaration
forms. They have also stated that the ration cards, residential
certificates, Form-16 (Income Tax) etc. shown as having been
issued in their names, were never given to them. Besides, it
has been found that they are all bogus/fake and forged, as they
(the doctors) were neither resident on the addresses shown in
the records nor had they ever applied for any ration card. The
District Supply Officer, Bareilly has denied their issuance and
confirmed that the said ration cards are fake and forged. It is
pertinent to mention that the fake ration cards have been used
by the College authorities to falsely establish before the MCI
Inspectors that th said doctors were their permanent faculty
members. Similarly no Form-16 was ever issued to them by the
College.
The investigation further disclosed that in case of the
aforesaid doctors, the appointment letters were issued in their
name by the College authorities without their knowledge and the
details of appointments do not even bear the signatures of their
doctors/employees of the College in the acceptable column. This
proves the fabrication and use of (forged) documents by the
College authorities, for the purpose of obtaining the approval
of Govt. of India on the recommendations of MCI/Central Team
deputed by GOI. However, the accused doctors i.e. Dr. Vindu
Amitabh and Dr. S.K. Rasania of the Central Team in pursuance of
the criminal conspiracy did not confirm the genuineness of the
documents put up by the College authorities and without
verifying the documents accepted photocopies of the Declaration
Forms and furnished a positive report in favour of the College
on the very next day. It is pertinent to mention that despite
mentioning about the presence -
of such doctors, who were even practicing in Bareilly and
the non-production of the original appointment letters, even
when asked for, the said Central Team still went ahead to give a
clean chit to the College. ”
27. We can also take judicial notice of the fact that many a times
the medical colleges and engineering colleges and others are being
established after availing large amounts by way of loans from the
financial institutions and other borrowings, with no funds of their
own, and once the college gets approval and students are admitted,
loan availed of is being repaid from the capitation fee charged from
the students and ultimately that amount constitute their capital.
Many a times, even without any sufficient facilities they put pressure
on the various agencies and the Central Government and get approval
overlooking the regulatory authority, like MCI, which adversely
affects the quality of medical education in this country. For
instance, the MCI has taken in the instant case a consistent view and
sent negative reports to the Central Government, but overlooking all
the reports submitted by the MCI, the Central Government got a report
of its own and granted permission vide its letter dated 26.09.2008.
CBI in its charge-sheet has categorically and clearly reported that
this was done on the basis of bogus, fake and forged records. CBI
noticed that the college authorities had produced fabricated and
forged documents before the inspection team and the team failed to
verify the correctness or otherwise of those documents. CBI
investigation has revealed that fraud has been practiced by the
Central team as well as the college to get the sanction for the 3rd
batch of MBBS students for the academic year 2008-09.
DUTY OF INSPECTION TEAM:
28. The Medical Council Act, 1956, especially Section 10A, mandates
that when a new medical college is to be established or the number of
seats to be increased, the permission of the Central Government is a
pre-requisite. Section 19A obliges the MCI to prescribe minimum
required standards for medical education and the recommendation made
by MCI to the Central Government carry considerable weight, it being
an Expert Body. MCI had prescribed the regulation – “Minimum Standard
Requirements for the Medical College for 100 Admissions Annually
Regulations, 1999” which is germane for our case, was published in the
Gazette of India dated 29.1.2000. In order to verify the minimum
requirements, MCI gets the inspection conducted by Inspectors, who are
experts, submit their reports on the availability of the staff -
teaching and residents - and other infrastructural facilities,
clinical availability, etc. as per the regulations.
29. We notice, in this case, constantly on all the occasions, the
MCI Team decided to recommend to the Central Government not to renew
permission for admission of the third batch for the academic year 2008-
09. Consistent stand of the MCI was communicated to the Central
Government on various occasions, but without even ascertaining their
view, a Central Team was appointed, got a favourable report and
permission was accorded by the Central Government for the year 2008-
09, which was the subject matter of CBI investigation.
30. We have now to examine the legality of decision of the MCI taken
on 13.07.2013 in the light of the above factual and legal scenario.
We have already indicated that when sanction was accorded on
20.06.2013 it was categorically stated by the MCI that the same was
accorded subject to certain conditions. It was stated therein that in
case false/wrong declaration or fabricated documents have been used
for procuring permission of the Board of Governors of the increased
intake and if said misconduct was brought to the notice or comes to
the knowledge of the MCI, at any stage during the current academic
year (2013-14) institution/college would not be liable to be
considered for renewal of the permission against increased intake for
the next academic year and that renewal of permission against the
increased intake for the academic year 2013-14 and for the next
academic year and the same would be liable to be revoked.
31. Having received the letter of the CBI as well as the charge-
sheet the impugned order dated 13.07.2013 was issued by the MCI
revoking the letter of permission granted for the academic year 2013-
14.
32. We are of the view that the above decision taken by the MCI is
in accordance with the Establishment of Medical Colleges Regulation
(Amendment 2010 Part II). The above-mentioned Regulation was issued
by the MCI in exercise of its powers under Section 33 of the IMC Act,
1956 with the previous sanction of the Central Government.
Clause 8.3
of the Regulation deals with the Grant of Permission, sub-clause
8(3)(1)(d) deals with the colleges which are found to have employed
teachers with faked/forged documents. Those provisions are extracted
herein below:
“8(3)(1)(d) Colleges which are found to have employed teachers
with faked/forged documents:
If it is observed that any institute is found to have employed a
teacher with faked/forged documents and have submitted the
Declaration Form of such a teacher, such an institute will not
be considered for renewal of permission/recognition for award of
M.B.B.S. degree/processing the applications for postgraduate
courses for two Academic Years – i.e. that Academic Year and the
next Academic Year also.
However, the office of the Council shall ensure that such
inspections are not carried out at least 3 days before upto 3
days after important religious and festival holidays declared by
the Central/State Government.”
33. Learned senior counsel for the petitioner, as already indicated,
submitted that only if the Chairman of the College is convicted by a
court of competent jurisdiction in a criminal investigation then only
the sanction accorded could be revoked. Such an argument was raised
relying upon 2013 Regulations, which in our view, would not apply to
the facts of this case. Regulation 3 of Regulations 2013 reads as
follow:
“3. Eligibility to make application : (1) the application for
enhance of annual intake capacity in the existing Medical
Colleges may be made by the recognizations that have established
the Medical College to the Board of Governors in supersession of
the Medical Council of India. The format of application for
Government and non-governmental owned Medical College is
prescribed in Schedule I appended to these Regulations.
(2) Only such existing Medical Colleges shall be eligible to
apply under these Regulations that enjoy minimum ten years of
standing from the date of grant of initial letter of permission
by the Central Government and the MBBS qualification awarded by
them stands included in the First Schedule of the Indian Medical
Council Act, 1956 (Act No.102 of 1956).
(3) The Medical Colleges with an annual intake of 50 or more but
below 100 MBBS seats shall be eligible to apply for enhance for
annual intake capacity to 100, as one-time measure.
-
(4) The Medical Colleges with an annual intake of 100 or more
but below 150 MBBS seats shall be eligible to apply for
enhancement for annual intake capacity to 150, as one-time
measure.
(5) Such Medical Colleges that have not been granted letter of
permission by the Board of Governors in Super-session of the
Medical Council of India in accordance with clause 8(1)(3)(d) of
the Establishment of Medical Colleges Regulations, 1999 (notified
in the Official Gazette on 16.04.2010) and/or the person who has
established the Medical College has been convicted by a Court of
Competent jurisdiction in a criminal investigation initiated by
the Central Bureau of Investigation or Police.”
34. Clause (2) of Regulation 3 clearly states that only such medical
colleges shall be eligible under these Regulations that enjoy minimum
10 years of standing from the date of grant of initial letter of
permission by the Central Government. So far as the petitioner is
concerned, they have completed only eight years, consequently,
Regulations 2013 would not apply to them.
35. The petitioners are governed by Establishment of Medical
Colleges Regulations, (Amendment), 2010 (Part II), especially clause
8(3)(1)(d), in the event of which, when MIC finds that the college has
employed fake/forged documents for renewal of -
permission/recognition for processing applications etc., that
institute will not be able to be considered for renewal of permission/
recognition for award of MBBS Degree/ processing the application for
post-graduate courses for two academic years i.e. that academic year
and the next academic year. In this case, CBI letter was received on
11.07.2013 by the MCI and it was placed before the Board of Governors
on 12.07.2013 and the revocation order was passed on 13.07.2013
revoking the renewal of permission for the 2nd batch of students
against the increased intake from 100 to 150 students for the academic
year 2013-14.
36. We are of the considered view that the MCI need not wait till
the culmination of the trial initiated on the basis of the charge-
sheet filed by the CBI. The investigation by a premier agency like
the CBI has prima facie revealed that the college has used fake and
forged materials to get sanction for the intake for the year 2008-09,
in our view, that is sufficient for the MCI to take action in
accordance with the Regulations 8(1)(3)(d) of Regulations 2013.
37. We are also not impressed by the argument raised by Mr. Amrendra
Sharan, learned senior counsel appearing for the students that they
have already joined the course on 10.07.2013. The information
brochure issued by the UPCMET refers to two important dates. The
important dates are the date of results declaration as 15.06.2013 and
counseling would start after 15.07.2013. If that be so, we fail to
see how students could be admitted on 10.07.2013. Counsel, however,
made reference to the newspaper ‘Dainik Jagran’ where it is indicated
that the first counseling would be on July 5, 2013. We cannot give
sanctity to that news items compared to the information brochure
published by the U.P. Unaided Medical Colleges Welfare Association for
the conduct of UPCMET. Even otherwise, in our view, once the medical
council finds that the sanction had been obtained on the basis of fake
and forge documents, clause 8(3)(1)(d) kicks in and the fraud unravels
everything. We make it clear that the criminal case charge-sheeted
by the CBI will, however, be disposed of uninfluenced by observations,
if any, made by us in this judgment.
COURT’S CONCERN
38. We think, this is an apt occasion to ponder over whether we have
achieved the desired goals, eloquently highlighted by the Constitution
Bench judgments of this Court in T.M.A. Pai Foundation and others v.
State of Karnataka and others (2002) 8 SCC 481 and P.A. Inamdar and
others v. State of Maharashtra and others (2005) 6 SCC 537. TMA Pai
Foundation case (supra) has stated that there is nothing wrong if the
entrance test being held by self financial institutions or by a group
of institutions but the entrance test they conduct should satisfy the
triple test of being fair, transparent and not exploitative. TMA Pai
Foundation (supra) and Inamdar (supra) repeatedly stated that the
object of establishing an educational institution is not to make
profit and imparting education is charitable in nature. Court has
repeatedly said that the common entrance test conducted by private
educational institutions must be one enjoined to ensure the
fulfillment of twin object of transparency and merits and no
capitation fee be charged and there should not be profiteering.
Facts, however, give contrary picture. In Inamdar, this Court, in
categorical terms, has declared that no capitation fee be permitted to
be charged and no seat can be permitted to be appropriated by payment
of capitation fee.
39. The CBI’s investigation, however, reveals a sorry state of
affairs, which is an eye-opener for taking appropriate remedial
measures in future so that medical education may attain the goals
envisaged by the IMC Act and the Regulations and serve the community.
CBI had to charge-sheet none other than the then Union Minister of
Health and Family Welfare, itself which depict how the educational
system in this country is deteriorating. Many of regulatory bodies
like MCI, AICTE, UGC etc. were also under serious clout in the recent
years. CBI, in the year 2010, had to arrest the President of the MCI
for accepting bribe to grant recognition to one Medical College in
Punjab. Later, it is reported that the CBI found that the President
of the MCI and its family members possessed disproportionate assets
worth of 24 crores. We have referred to these instances only to
indicate the falling standards of our educational system at the
highest level, sometime even at the level of the Central Government
making a serious inroad to the right to life guaranteed to the
citizens of the country under Article 21 of the Constitution of India.
40. Mushrooming of large number of medical, engineering, nursing and
pharmaceutical colleges, which has definitely affected the quality of
education in this country, especially in the medical field which call
for serious introspection.
Private medical educational institutions
are always demanding more number of seats in their colleges even
though many of them have no sufficient infrastructural facilities,
clinical materials, faculty members, etc. Reports appear in every now
and then that many of the private institutions which are conducting
medical colleges are demanding lakhs and sometimes crores of rupees
for MBBS and for post-graduate admission in their respective colleges.
Recently, it is reported that few MBBS seats were sold in private
colleges of Chennai.
We cannot lose sight of the fact that these
things are happening in our country irrespective of the constitutional
pronouncements by this Court in TMA Pai Foundation that there shall
not be any profiteering or acceptance of capitation fee etc.
Central
Government, Ministry of Health and Family Welfare, Central Bureau of
Investigation or the Intelligence Wing have to take effective steps to
undo such unethical practices or else self-financing institutions will
turn to be students financing institutions.
41. We notice that the current policy of the Central Government in
the higher education is to provide autonomy of institutions, but
adoption of unfair practices is a serious violation of the law. Few
States, like Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra,
Kerala, Delhi etc. have passed some legislation to prohibit
demand/collection of capitation fee which have no teeth, the
institutions who indulges in such practices can get away by paying
some fine, which is meager.
42. We, therefore, emphasise the extreme necessity of a
Parliamentary Legislation for curbing these unfair practices, which is
the demand of our society.
“The Prohibition of Unfair Practices in
Technical Educational Institutions, Medical Educational Institutions
and University Bill, 2010” has already been presented to both the
Houses of Parliament.
It is reported that the States have welcomed
such a legislation, but no further follow up action has been taken.
We are confident, earnest efforts would be made to bring in proper
legislation, so that unethical and unfair practices prevalent in
higher technical and medical institutions can be effectively curbed in
the larger public interest.
43. We, therefore, find no good reason to invoke Article 32 of the
Constitution of India and none of the fundamental rights guaranteed to
the petitioners stand violated. The Petition, therefore, lacks merits
and is dismissed.
……………………….…J.
(K.S. Radhakrishnan)
………………………….J.
(A.K. Sikri)
New Delhi,
September 06, 2013
