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Friday, September 25, 2015

Time Schedule - The Essentiality Certificate and the consent of affiliation were admittedly not annexed along with the application filed under Section 10A of the said Act. According to the petitioner, the Essentiality Certificate was issued on 28.8.2014 and the consent of affiliation was communicated on 30.8.2014. After about 10 days i.e. 10.9.2014, the petitioner submitted Essentiality Certificate and Certificate of Affiliation. The application so submitted by the petitioner was, however, rejected on 15.10.2014 on the ground that the certificates aforesaid were not submitted before the cut-off date i.e. 31.8.2014. By the said order, the petitioner was given liberty to apply for the next academic year. In the facts and circumstances of the case, no directions can be issued to the respondent to consider the case of the petitioner-college for the academic year 2015-2016 and 2016-17, since the matter is yet to be decided by the Central Government. However, we do not express any opinion with regard to the recommendation made by the Council to the Central Government disapproving the scheme for the academic year 2016-2017 also. Hence, it is for the petitioner to move the appropriate forum as against the decision of disapproval for the academic year 2016-2017.

                                                                  REPORTABLE

                         IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


              SPECIAL LEAVE PETITION (CIVIL) NO. 14838 OF 2015


POONAIYAH RAMAJAYAM INSTITUTE
OF SCIENCE AND TECHNOLOGY TRUST      …….. PETITIONER(S)

                            VERSUS

MEDICAL COUNCIL OF INDIA AND ANOTHER ……. RESPONDENT(S)



                                  O R D E R

M.Y. EQBAL, J.
      We have heard Dr. Rajeev Dhawan, learned senior counsel appearing  for
the petitioner and Mr. Vikas Singh, learned  senior  counsel  appearing  for
Respondent No.1 – Medical Council of India (MCI).

2.    Aggrieved by the judgment and order dated 5th May, 2015 passed by  the
Division Bench of the Delhi High Court  in  L.P.A.  No.  234  of  2015,  the
petitioner filed this special leave petition.

3.    By the impugned judgment, the Division Bench allowed the appeal  filed
by the respondent-Medical Council  of  India  and  set  aside  the  judgment
passed by the learned Single Judge in the Writ Petition.

4.    Indisputably, the petitioner submitted application, as required  under
Section 10A of the Medical Council of India Act, 1956 (hereinafter  referred
to as 'the Act') for establishment of new medical college for  the  academic
year  2015-2016.   The  Essentiality  Certificate   and   the   consent   of
affiliation were admittedly not annexed along  with  the  application  filed
under Section 10A of  the  said  Act.   According  to  the  petitioner,  the
Essentiality  Certificate  was  issued  on  28.8.2014  and  the  consent  of
affiliation was  communicated  on  30.8.2014.   After  about  10  days  i.e.
10.9.2014,   the   petitioner   submitted   Essentiality   Certificate   and
Certificate of Affiliation.  The application so submitted by the  petitioner
was, however, rejected on 15.10.2014 on the  ground  that  the  certificates
aforesaid were not submitted before the cut-off  date  i.e.  31.8.2014.   By
the said order, the petitioner was given  liberty  to  apply  for  the  next
academic year.

5.    Against the aforesaid order,  the  petitioner  moved  the  Delhi  High
Court by filing Writ Petition being Writ Petition No.  7424  of  2014.   The
learned Single Judge, after hearing the parties, by judgment dated  8.4.2015
allowed the Writ Petition and directed  the  Medical  Council  of  India  to
consider the application of the petitioner and make recommendations.

6.    The respondent-Medical Council of India assailed  the  impugned  order
passed by the learned Single Judge by filing a  Writ  Appeal  being  Letters
Patent Appeal No. 234 of 2015.  The Division Bench,  by  a  reasoned  order,
allowed the appeal and set aside  the  judgment  and  order  passed  by  the
learned  Single  Judge.   The  Division  Bench  rejected  the  plea  of  the
petitioner based on the need for medical assistance in the country  and  the
resulting disuse of the infra structure for one year.  The  petitioner-Trust
dissatisfied with the order passed by the Division Bench, filed the  instant
special leave petition.

7.    The matter was firstly heard on 15th July,  2015  by  this  Bench  and
after taking note of the facts of the case and sequence of events,  disposed
of the application with a direction to  the  respondent-Medical  Council  of
India to consider the petitioner’s application and make  its  recommendation
within a period of three weeks from that day.  The matter  was  directed  to
be listed after four weeks  to  enable  the  respondent-Medical  Council  of
India to submit the recommendation in a sealed cover.

8.    The relevant portion of the order dated 15th July, 2015 is  reproduced
herein below:-
“4.   Indisputably, the petitioner as far back  as  on  25.8.2014  submitted
application as required under Section 10A  of  the  Indian  Medical  Council
Act,  1956  for  the  establishment  of  the  Institute.   The  Essentiality
Certificate was issued by the State of Tamil Nadu only  on  28.8.2014.   The
said communication was received by the petitioner only in the  1st  week  of
September, 2014.  Similarly, the Tamil Nadu MGR University  granted  Consent
of Affiliation for starting  of  MBBS  Degree  course  in  the  new  medical
college.  On receipt of this communication, the  petitioner  immediately  on
10.9.2014   submitted   Essentiality   Certificate   and   Certificate    of
Affiliation.  Curiously enough after about a month, the  respondent  no.2  –
Central Government rejected the application on the ground that  Essentiality
Certificate was not submitted before the cut-off date i.e. 31.8.2014.
5.    Aggrieved by the said rejection of application, the  petitioner  filed
writ petition being W.P. No.7424 of 2014.  The learned Single Judge  of  the
High Court by a detailed judgment and order allowed the  writ  petition  and
directed the respondent no.1 MCI to consider the  case  of  the  petitioner.
Instead of doing so, the respondent no.1  being  dissatisfied  assailed  the
said judgment of the learned Single Judge by filing writ appeal.   The  said
appeal was heard and disposed of on 5th  May,  2015.   The  Division  Bench,
after giving reasons, refused to uphold the direction issued by the  learned
Single  Judge  for  processing  the  application  of  the   petitioner   and
consequently the direction was set aside.

6.    From the aforesaid facts narrated in brief, we do not find any  fault,
laches or negligence from the side  of  the  petitioner  in  the  matter  of
submission of application and other required documents.  As  noticed  above,
although the Essentiality Certificate and Certificate  of  Affiliation  were
filed on 10.9.2014, but after  a  month  application  was  rejected  by  the
Central Government merely on the ground that  the  same  was  not  submitted
before the cut-off date i.e. 31.8.2014.  This reason given  by  the  Central
Government is highly  unjustified.   The  Division  Bench  in  the  impugned
judgment also took note of the fact and  held  that  the  rejection  of  the
application merely on the ground that the said documents were not  submitted
along with application would not be  proper  since  such  pedantic  approach
serve no purpose.  For better appreciation, paragraph  39  of  the  impugned
judgment is quoted hereinbelow:

“39. However, when the deficient documents are available  with  the  Central
Government  as  on  the  date  of  consideration  of  the  applications  for
reference to the MCI for  their  recommendations,  it  appears  to  us  that
nothing precludes the Central Government to  consider  the  applications  on
merits. Rejection of the applications in such circumstances  merely  on  the
ground  that  the  said  documents  were  not  submitted  along   with   the
applications may not be proper since such pedantic approach does  not  serve
any purpose.  Therefore,  we  too  agree  that  the  Central  Government  in
appropriate cases may exercise the discretion in favour  of  the  applicants
and consider the applications which are complete  in  all  respects  by  the
date  of  consideration  under  Section  10A(2)  of  the   MCI   Act.   Such
consideration in our considered opinion cannot be  found  fault  with  since
the same would not affect the adherence  to  the  statutory  time  schedule.
However, the question with which we are concerned in  the  present  case  is
whether the failure of the Central Government to  exercise  such  discretion
can be held to be erroneous and contrary  to  law  and  whether  a  positive
direction can be issued by this court to consider the  applications  of  the
petitioners particularly at the fag end of the statutory time schedule.”

7.    Prima facie, therefore, we are of the  view  that  in  the  facts  and
circumstances of the case, the respondents have not  discharged  their  duty
in accordance with the provisions of  the  Act  and  Rules  made  thereunder
rather acted in a biased manner.

8.    We, therefore, dispose of this application with  a  direction  to  the
respondent Medical Council of India to consider  the  application  and  make
its recommendation within a period of three weeks from today.

9.    Let the matter be listed after four weeks to  enable  the  respondents
to submit the recommendation in a sealed cover.”

9.    In compliance  of  the  aforesaid  direction,  the  respondent-Medical
Council of India conducted inspection and submitted its report in  a  sealed
cover.  Thereafter the matter was again listed before us for hearing.

10.    Dr.  Rajeev  Dhawan,  learned  senior  counsel  appearing   for   the
petitioner, assailed the impugned report submitted by  the  Medical  Council
of India on various  grounds  including  that  the  same  is  arbitrary  and
biased.
11.   Dr. Rajeev Dhawan has drawn our attention  to  the  Inspection  Report
and submitted that as a matter of fact, the Medical  Council  of  India  was
fully aware that the inspection was carried out for the academic year  2015-
2016 and, therefore, there is no reason why the petitioner-Trust  shall  not
be granted permission for the academic year 2015-2016.  Dr.  Dhawan  further
drawn our attention to the decision rendered  by  a  three-Judges  Bench  of
this Court in the case of Royal Medical Trust (Regd.) and Another vs.  Union
of India and Another, reported in 2015 (9) SCALE 68, and submitted that  the
respondent-Medical Council of India  totally  failed  in  the  discharge  of
their duties and acted in  a  totally  biased  manner.  Dr.  Dhawan  further
submitted that the decision of Medical  Council  of  India  recommending  to
cancel the prayer for approval not only for the academic year 2015-2016  but
also for the academic year 2016-2017 is wholly illegal and  arbitrary.   The
petitioner,  therefore,  reserves  its   right   to   challenge   the   said
recommendation before the appropriate forum in accordance with law.

12.   On the other hand, Mr. Vikas Singh, learned senior  counsel  appearing
for the respondent-Medical Council of India,  drawn  our  attention  to  the
inspection report submitted by the Medical Council of  India  and  contended
that in addition to various deficiencies  which  are  not  remediable,  fake
faculty was also found in the said Institution.

13.   Mr. Vikas Singh further  submitted  that  the  instant  special  leave
petition was heard along with Special Leave Petition (Civil)  No.  15043  of
2015 titled as Padmashree Dr. D.Y.  Patil  Medical  College  versus  Medical
Council of India and Another and in the similar facts and  circumstances  of
the case, this Court,  by  a  reasoned  judgment  dated  31st  August,  2015
dismissed the special leave petition mainly after considering the  statutory
time schedule which is already over and held that no positive direction  can
be issued for the academic year 2015-2016.

14.   Before we consider the rival contentions made by the learned  counsel,
we would like to  refer  the  report  and  the  decision  of  the  executive
committee of MCI dated 5.8.2015 in compliance to our order dated  15.7.2015.
 From the said report, it  reveals  that  the  executive  committee  of  the
council  considered  the  council’s  assessment  report   and   noted   many
deficiencies. Some of the major deficiencies are extracted hereinbelow:-
“1) Deficiency of teaching faculty is 83% as detailed in the report.
2)  Shortage of residents is 100% as detailed in the report.
4)  As many as 42 Senior/Junior Residents as detailed  in  the  report  have
provided wrong information in the Declaration Form regarding  address  proof
as during  round it was found that no staff  member/faculty/resident  doctor
is staying/residing in the staff quarters/residents’ hostel in the campus;
6). OPD: Attendance was 150-175  on  day  of  assessment  which  is  grossly
inadequate. Institute has given figure of 707 which is inflated.   When  the
assessors arrived in the morning,  few  patients  were  found.   After  some
time, during rounds, around 150  people  were  found  sitting  in  front  of
registration counters,  with  only  3-4  patients  actually  registering  at
counters.  When visited again in the afternoon, the same people  were  found
sitting there without any intention of registering  at  OPD  counter.   Many
patients in the  OPD  were  having  very  minor/fake  complaints  for  which
normally  no  person  will  come  to  the  hospital.   In  departmental  OPD
registers, no information regarding admitted patients was given. In  Medical
OPD, at 1 p.m., 61 patients were claimed to have been  seen  but  there  was
not a single patient was admitted.   There  was  no  display  board  of  OPD
timings, doctor’s name, Unit information.
7).   There was NIL patient in Casualty on day of assessment.
12).  There were NIL Major & Minor operations in  the  hospital  on  day  of
assessment.
13).  There  were  NIL  Normal  Delivery  &  Caesarean  Section  on  day  of
assessment.
16).  MEU: It is not furnished.
24).  ICUs: There was NIL patient in ICCU &  SICU  and  only  1  patient  in
NICU/PICU on day of assessment.
31).  There is Engineering college in the same campus.  Engineering books  &
instruments were found in some rooms  of  medical  college  hostel/quarters.
It appears as if the hostels  &  quarters  shown  for  Medical  College  are
actually used by Engineering College.
32).  Dean has refused to sign the report after reading it for  1  hour  due
to instruction from the management.
33).  Other deficiencies as pointed out in the assessment report.”


15.    The  executive  committee,  therefore,  decided   to   apply   clause
8(3)(1)(d) of the Establishment of Medical College  Regulation  (Amendment),
2010 and further  decided to return the application for establishment  of  a
new  Medical  College  of  the  petitioner   to   the   Central   Government
recommending disapproval of the scheme under Section 10A of  IMC  Act,  1956
for the academic year 2015-2016 and 2016-2017.

16.   Indisputably, now it is for  the  Central  Government  to  approve  or
disapprove and to take a final decision  on  the  report  of  the  executive
committee of the Council.

17.   The crucial question that falls for consideration  is  as  to  whether
this Court having regard to the facts of the case and the decision taken  by
the Council, which is not even looked into by the Central  Government,  this
Court can issue any direction to consider the grant  of  permission  to  the
petitioner for the academic year 2015-2016.

18.   Another Special Leave Petition being SLP (C) No.  15043  of  2015  was
heard along with this case at the preliminary stage and decided by  judgment
dated 31.08.2015, in which one of us (M.Y. Eqbal, J.) was a  member  of  the
Bench.   In that case, this Court elaborately discussed  the  time  schedule
which has to be strictly adhered and followed in catena of decisions.  After
discussing the ratio laid down in number of cases, the Bench observed:-


“20. On an analysis of the aforesaid decisions, it  is  crystal  clear  that
the time schedule is required to be strictly observed. Hence, it  would  not
be appropriate to issue any  direction  for  consideration  of  petitioner’s
case for the ongoing academic session 2015-16 in which inspection is yet  to
be made. It is too late in the day to  direct  inspection  for  the  session
2015-16 as all the dates fixed in the time schedule are  over  and  fixation
of time schedule has a purpose behind it and  from  a  particular  date  the
session has to commence and part of seats to  be  filled  by  a  competitive
examination held on all-India basis. Any relaxation  in  the  time  schedule
would make holding of examinations  on  an  all  India  basis  a  farce  and
several complications would  arise.  Everything  cannot  be  allowed  to  go
haywire. The entire curriculum would be unsettled in  case  breach  of  time
schedule is permitted. The power given to Central Government  to  relax  can
be exercised in exceptional circumstances and that  too  without  disturbing
the academic session.  The  decision-making  process  after  inspection  has
various steps and it cannot be ordered to be done in haste resulting in sub-
standard education and half-baked doctors.

21. On behalf of the petitioner, reliance has been placed on a  decision  of
this Court in S.L.P. [C] No.14838/2015 – Ponnaiyah  Ramajayam  Institute  of
Science and Technology Trust v. Medical Council of India & Anr. (decided  on
15.7.2015) wherein this Court has directed the inspection to be made and  to
submit the recommendation in a sealed cover after four weeks to this  Court.
No doubt about it that the application which was filed was for the  academic
session 2015-16  but  this  Court  has  not  decided  the  question  whether
inspection would enure for the benefit of the ongoing academic session 2015-
16 and in case on inspection it is decided  to  recommend  the  prayer  made
whether it would be for academic year 2016-17 or  for  the  ongoing  session
2015-16 and also question of breach of time  schedule.  What  has  not  been
decided, cannot be  deduced  by  inferential  process.  What  would  be  the
ultimate recommendation on inspection, can  also  not  be  anticipated.  The
requisite Committee of the MCI and Central  Government  have  to  ultimately
consider  the  report/recommendations.  Various   aspects   including   time
schedule are required to be taken into consideration  for  issuance  of  any
positive direction as to session.
                                   Xxxxxx

23. Considering the statutory time schedule and that  the  same  is  already
over and in the facts and  circumstances  of  the  case,  it  would  not  be
appropriate to direct inspection to be made and thereafter a decision to  be
taken for the current academic session 2015-16 as that would  be  in  breach
of the law laid down in various decisions of this Court  which  is  binding.
Thus, we direct that  the  application  which  has  been  submitted  by  the
college for  the  academic  session  2015-16  be  considered  for  the  next
academic session, subject to fulfilment of other requisite  formalities,  as
may be necessary, and thereafter the MCI shall conduct an  inspection  well-
in-time as per the time schedule fixed under the Regulations  of  1999.  The
Special  Leave  Petition  is  dismissed  with  the  aforesaid  modification.
Ordered accordingly”



19.   In the facts and circumstances of  the  case,  no  directions  can  be
issued to the respondent to consider the case of the petitioner-college  for
the academic year 2015-2016 and 2016-17, since  the  matter  is  yet  to  be
decided by the Central Government.  However, we do not express  any  opinion
with regard to the  recommendation  made  by  the  Council  to  the  Central
Government disapproving the scheme for the  academic  year  2016-2017  also.
Hence, it is for the petitioner to move the  appropriate  forum  as  against
the decision of disapproval for the academic year 2016-2017.

20.   With the aforesaid directions and  observations,  this  special  leave
petition stands disposed of.



                                                  ........................J.
                                                    (M.Y. EQBAL)



                                                 .........................J.
                                 (C. NAGAPPAN)
New Delhi,
September 17, 2015










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