1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.515 OF 2017
(With I.A. No.76155 of 2017)
Saraswati Educational
Charitable Trust and Anr. ….Petitioner(s)
Versus
Union of India and Anr. …..Respondents
J U D G M E N T
A.M. KHANWILKAR, J.
1. The petitioner Saraswati Educational Charitable Trust,
Lucknow, made an application to the Ministry of Health &
Family Welfare, Government of India, for establishment of a
new medical college at Unnao, Uttar Pradesh, in the name
and style of “Saraswati Medical College, Unnao, Uttar
Pradesh”, for the academic session 2016-17. That
application was forwarded to the Medical Council of India for
2
evaluation and making recommendations to the Ministry
under Section 10A of the Indian Medical Council Act, 1956,
for academic session 2016-17.
2. The petitioners have filed this writ petition under Article
32 of the Constitution of India assailing the order dated 31st
May, 2017, passed by the Union of India, respondent No.1
herein, whereby the petitioner college has been debarred
from admitting students in MBBS course for the academic
sessions 2017-18 and 2018-19 and further permitting
respondent No.2 Medical Council of India to encash Bank
Guarantee of Rs.2 crores furnished by the petitioners. This
Court pronounced its judgment on 1st August, 2017 in group
of cases involving similar issues, in the following terms:
“24. Having regard to the fact that the Oversight
Committee has been constituted by this Court and is
also empowered to oversee all statutory functions
under the Act, and further all policy decisions of the
MCI would require its approval, its recommendations,
to state the least, on the issue of establishment of a
medical college, as in this case, can by no means be
disregarded or left out of consideration. Noticeably,
this Court did also empower the Oversight Committee
to issue appropriate remedial directions. In our view,
in the overall perspective, the materials on record
bearing on the claim of the petitioner
3
institutions/colleges for confirmation of the
conditional letters of permission granted to them
require a fresh consideration to obviate the
possibility of any injustice in the process.
25. In the above persuasive premise, the Central
Government is hereby ordered to consider afresh the
materials on record pertaining to the issue of
confirmation or otherwise of the letter of permission
granted to the petitioner colleges/institutions. We
make it clear that in undertaking this exercise, the
Central Government would re-evaluate the
recommendations/views of the MCI, Hearing
Committee, DGHS and the Oversight Committee, as
available on records. It would also afford an
opportunity of hearing to the petitioner
colleges/institutions to the extent necessary. The
process of hearing and final reasoned decision
thereon, as ordered, would be completed
peremptorily within a period of 10 days from today.
The parties would unfailingly co-operate in
compliance of this direction to meet the time frame
fixed.”
3. Pursuant to the liberty granted to the petitioners by the
aforementioned order, the petitioners submitted a fresh
detailed representation to respondent No.1, pointing out that
the petitioners have complied with all the conditions
specified by the Oversight Committee (“OC” for short)
constituted by this Court, as noted in the letter granting
permission for academic session 2016-17. The petitioner
college was given an opportunity of being heard by the
4
Hearing Committee on 3rd August, 2017. During the hearing,
the petitioners pointed out the observations made by the OC
as noted in its letter dated 14.5.2017:
“The EC did not bring out any deficiency either from
assessment reports dated 18th – 19th Nov. 2016 or
21st – 22nd Dec. 2016, though they had considered
both the reports in their meeting on 13.01.2017.
Even then the College had represented against the
observations made by the assessors in their
assessment report dated 18th -19th Nov. 2016.
The deficiencies reported in the assessment report in
respect of faculty is 1.5% and residents is 6.52% and
are within acceptable limits. The other deficiencies
are subjective. No MSR.
LOP Confirmed.”
4. The petitioners had demonstrated before the Hearing
Committee that the deficiencies noticed earlier were
insignificant and within the permissible norms. With regard
to the core matters, regarding infrastructure and academics,
all facilities required as per norms were fulfilled by the
petitioner college.
5. The Hearing Committee, after considering the records
and oral and written submissions of the petitioner college,
submitted its report to the Ministry for consideration. The
Competent Authority of the Government of India accepted
5
the recommendations of the Hearing Committee, not to
permit admission of students in the MBBS course for the
academic session 2017-18 and that the petitioner college
should apply afresh for renewal of permission for academic
session 2018-19 as per MCI Regulations. The reason which
weighed with the Competent Authority of the Government of
India can be discerned from paragraphs 17 and 18 of the
impugned Communication-cum-Order dated 10th August,
2017, issued under the signature of the Under Secretary to
the Government of India. The same read thus:
“xxx xxx xxx
17. Now, in compliance with the above direction
the Hon’ble Supreme Court dated 1.8.2017, the
Ministry granted hearing to the college on
03.08.2017. The Hearing Committee after
considering the records and oral and written
submission of the college submitted its reports to the
Ministry. The observation of hearing committee is as
under:
The college submitted that MCI conducted
compliance verification as per OC orders on 18-19
November 2016. However, without assigning any
reason, MCI visited the college again on 21
December, 2016 to re-inspect. In the submission of
the college, since MCI was required to conduct
compliance verification only once for confirmation of
LOP for 2016-17, it did not allow the 2nd inspection to
happen. The college representatives also informed
6
that on the day i.e. 21.12.2016 they contacted OC
over telephone. It was informed by OC that MCI was
authorized for only one inspection. The college was
asked if they obtained the same confirmation from
OC in writing to which they replied in the negative.
After the November inspection the college vide letter
dated 20.11.2016 raised its objection with the OC
that they were not allowed to put the dissent note by
the assessor and this was prejudicial to the college.
They also informed the OC about the date for major
and minor surgeries with photo and video proofs.
They also submitted other information pertaining to
OPD, investigations to the OC.
It is also seen from November SAF report that there
was faculty deficiency of 1.5% only and residents
deficiency of 6.52%.
The college did not submit any compliance since as
per its version neither MCI nor OC conveyed any
deficiency to it.
In the opinion of the Committee, MCI was not
precluded from conducting inspection subject to
sufficient reason and justification. But no adverse
comments such as the college/hospital was closed
has been made by the assessor during the 2nd visit to
the college. The November inspection had no major
deficiencies.
In the peculiar facts of the case, the Committee
recommends that LOP for 2016-17 may be confirmed.
No fresh batch for 2017-18 may be allowed. For the
session 2018-19, the college may apply for renewal
permission to MCI.
18. Accepting the recommendations of the Hearing
Committee, the Ministry confirms the conditional
permission granted to the College in 2016-17.
Further, it has been decided not to permit admission
of students in MBBS courses for the academic
session 2017-18 at the College. The College may
apply afresh for renewal of permission for the
academic session 2018-19 as per MCI Regulation.
19. Admission made in violation of above conditions
will be treated as irregular and action will be taken
7
as per provision of IMC Act, 1956 and the
Regulations made there under.”
(emphasis supplied)
6. Being aggrieved by this decision the petitioners have
filed I.A. No.76155 of 2017 in the pending writ petition
before this court praying for quashing the aforementioned
order dated 10th August, 2017, to direct the respondents to
grant renewal of permission for 2nd year and to permit the
petitioner college to admit 150 students in MBBS course for
the academic session 2017-18 and further, allow the
petitioner college to participate in the ongoing central
counselling process.
7. According to the learned counsel for the petitioners, the
petitioners were advised that second inspection was not
permissible after 15th December, 2016. The petitioners,
therefore, questioned the necessity for the second inspection
by the Assessing Team on 21st and 22nd December, 2016.
Inspection was already completed in November, 2016, during
which no major or serious deficiency was found. From the
available record, as has been rightly noted by the OC, the
8
deficiencies reported in the Assessment Report in respect of
faculty were 1.5% and residents 6.52% which were within
acceptable limits and the other deficiencies were subjective
sans any express stipulation therefor. It was submitted that
the petitioners are willing to comply with all the formalities
that may be necessary and further conditions, if any. The
petitioners are willing to provide inspection of the college to
MCI if the Court so directs. It is submitted that considering
the fact that the petitioner college has already started
functioning from academic session 2016-17 and fulfills all
the infrastructure and academic facilities, it ought to
continue by confirming the LOP 2016-17, and admitting
students even for the academic session 2017-18. The
petitioners have placed emphasis on the observation made
by the Competent Authority that in the Inspection carried
out in November, 2016, no major deficiency has been
noticed, which itself is a valid reason to permit the petitioner
college to admit students in MBBS course even for academic
session 2017-18.
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8. According to the respondents, the inspection conducted
in November, 2016 will be of no avail to the petitioner
college. For granting permission to the petitioner college to
admit students for academic session 2017-18, a fresh
inspection was inevitable. There has been no inspection in
that regard as of now. Hence, the relief as claimed by the
petitioner college cannot be acceded to. It is submitted that
since the petitioners were responsible for not providing
second inspection, it is not open to them to find fault with
the decision of the Competent Authority of the Government
of India. It is submitted that no permission can be granted to
any professional college, much less medical college imparting
MBBS course, without proper scrutiny and inspection.
According to the respondents, this writ petition as well as
the application are devoid of merits and deserve to be
dismissed.
9. Having considered the rival submissions, it is noticed
that the OC in its communication dated 14.5.2017 has
clearly noted that there was no major deficiency. The
10
deficiencies reported in the assessment report in respect of
faculty were only 1.5 % and residents 6.52 %. These were
within the acceptable limits. The petitioner college has been
functioning from academic session 2016-17. Even the
Competent Authority in the impugned decision has not
opined that the deficiencies noticed earlier were significant
or critical. On the other hand, in paragraph 17, the
Competent Authority has plainly noted that the November
SAF Report mentions that there was faculty deficiency of
1.5% and residents deficiency of 6.52% only. Such
deficiencies by no standard can be said to be critical. The
same, as rightly observed by the OC, were within permissible
limits.
10. On a perusal of the record it is noticed that the
Assessors of the MCI had inspected the college on 18th and
19th November, 2016, as is evident from the Assessment
Form for 150 MBBS Admissions Report submitted to the
MCI, running into 36 pages (Annexure-P/12) to this writ
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petition. The Summary of Assessment recorded in the
prescribed format reads thus:
“Summary of Assessment
1. Saraswati Medical College, Unnao is run by Trust
‘Saraswati Educational Charitable Trust’
2. The college has got LOP from GOI with intake of 150
seats for last academic year 2016-17 with reference
to the conditional approval accorded by Oversight
Committee
3. Type of assessment: Regular – LOP No. of seats:
150
4. PG courses : No
5. Deficiency of the infrastructure of college and
hospital if any: Pl. Mention category wise:
6. Deficiency of clinical material if any: Pl mention
category wise:
Only one major operation (C-section) was done till
12.30 pm. No minor surgeries done till 1.00 pm
Investigations both Radiological and Laboratory
inadequate. Cross verified by assessors. On an
average only 1 unit of blood being dispensed per
day. Total of 7 units were stored on the day of
assessment. Most of the OPDs had few patients.
7. Deficiency of teaching staff if any:
Shortage of teaching faculty is 1.5 %
8. Deficiency of resident doctors if any:
Shortage of resident doctors is 6.52 %
9. Any other Remarks: As mentioned in the report”
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After this assessment report was submitted, another
surprise inspection was proposed on 21st December, 2016.
Since the said inspection was scheduled after 15th December,
2016, the Principal of the petitioner college questioned the
said action and placed the objection on record in writing vide
letter dated 21.12.2016 which reads:
“SARASWATI MEDICAL COLLEGE
LIDA, Madhu Vihar, P.O. Asha Khera, NH-25,
Lucknow Kanpur Highway, Unnao (UP), Pin-209859
Tel: (+91) 515-307000,
Email: smc@saraswaticolleges.com
___________________________________________________
Ref. No. SMC/MCI/2016-17/014 Dated:
21/12/2016
To,
The Secretary,
Medical Council of India,
New Delhi.
Sub: Surprise Assessment of Saraswati Medical
College on 21st
December, 2016.
Sir/Madam,
In reference to MCI Letter no.MCI-34(41)
(UG)/2017-18 Med./dt.21/12/2016 regarding
Surprise Assessment of Saraswati Medical College,
Unnao on 21st December, 2016. I have to submit the
following,
1. Compliance Assessment & Verification of Physical
and other facilities of Saraswati Medical College,
Unnao, as per the direction of the OC, has already
been conducted by MCI on 18th & 19th November,
13
2016 vide letter no.MCI-34(41)/2016 – Med./
dt.18/11/2016.
2. MCI vide letter no. MCI-34(41)(R-107)/2016-
Med./142566 dt. 08/11/2016 has informed the
college that assessment Inspection will be held upto
15th December 2016 only.
3. LOP has already been granted to the College by the
Ministry of Health and Family Welfare and per
direction of the OC an inspection verifying our
compliance has already been undertaken by the MCI
on 18th & 19th Nov., 2016.
Since the OC has given no further direction for
re-inspection of the Compliance Inspection held by
MCI on 18th & 19th Nov., 2016 and since the MCI has
categorically communicated to the college that
inspection will be carried out only upto 15th
December, 2016, the college does not see any merit
to undergo any further Compliance inspection for the
session 2016-17, hence denied the inspection on 21st
December, 2016 BY THE MCI team.
Regards,
SD/-
Prof. B.P. MATHUR
Principal”
It is noticed that the inspecting team did not insist on the
second inspection and chose to leave the college on account
of the stand taken by the Principal of the petitioner college.
That fact was reported to the MCI and the Executive
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Committee of the MCI considered the proposal in its meeting
held on 13th January, 2017 and noted as follows:
“…The Executive Committee of the Council also
perused the letter dated 21/12/2016 from the
appointed team of Council Assessors stating therein
as under:-
With reference to email letter no.
MCI-34(41)/2016-Med./dated 21.12.2016 for the
above cited subject, we went to the college and
reached there at 10 am and met the Principal, Dr.
B.P. Mathur who informed us that they did not want
the assessment to be done and gave a letter stating
the same. The letter from the Principal is attached
along with the filled SAII form.”
The Committee further perused the letter dated
21/12/2016 from the Principal, Saraswati Medical College,
Unnao. The Committee submitted its recommendation to
MCI vide letter dated 15.01.2017 as under:-
“In view of the above, the college has failed to abide
by the undertaking it had given to the Central Govt.
that there are no deficiencies as per clause 3.2(i) of
the directions passed by the Supreme Court
mandated Oversight Committee vide communication
dated 11/08/2016. The Executive Committee, after
due deliberation and discussion, have decided that
the college has failed to comply with the stipulation
laid down by the Oversight Committee. Accordingly,
the Executive Committee recommends that as per the
directions passed by Oversight Committee in para
3.2(b) vide communication dated 11/08/2016 the
college should be debarred from admitting students
in the above course for a period of two academic
years i.e. 2017-18 & 2018-19 as even after giving an
15
undertaking that they have fulfilled the entire
infrastructure for establishment of new medical
college at Unnao, Uttar Pradesh by Saraswati
Educational Charitable Trust, Lucknow, Uttar
Pradesh under Chhatrapati Shahuji Maharaj
University, Kanpur, the college was found to be
grossly deficient. It has also been decided by the
Executive Committee that the Bank Guarantee
furnished by the college in pursuance of the
directives passed by the Oversight Committee as
well as GOI letter dated 20/08/2016 is liable to be
encashed.”
11. On the basis of the recommendation of the MCI, the
Ministry decided to grant a personal hearing to the college on
8
th February, 2017 by the DGHS. The Hearing Committee
after examining the oral and written submissions of the
college, submitted its report to the Ministry. The report of the
Hearing Committee was forwarded to the OC for guidance.
The OC after examining the matter, vide letter dated 14th
May, 2017 noted that the Executive Committee of MCI did
not point out any deficiency from the assessment reports. On
the other hand, the deficiency reported in the assessment
report in respect of faculty was only 1.5% and residents of
6.52% which was within the acceptable norms. The OC
further noted that the rest of the deficiencies were subjective
16
sans any express stipulation in that behalf and therefore
commended confirmation of Letter of Permission.
12. Considering the above, we find that the inspection for
issuance of Letter of Permission for academic session
2017-18 was duly carried out on 18 and 19th November,
2016. We reject the contention raised by the respondents
that no inspection in relation to academic session 2017-18
has been carried out as of now. Indeed, the petitioners
objected to the second surprise inspection intended on 21st
and 22nd December, 2016 as the same was after the cut off
date 15th December, 2016. The purpose for which the second
surprise inspection became necessary, when the earlier
report was pending consideration and that too after the cut
off date 15th December, 2016, has not been explained or
noted either by the Executive Committee in its meeting held
on 13th January, 2017 or for that matter by the Hearing
Committee and more so by the Competent Authority of the
Central Government. Significantly, it is not a case where the
college officials prevented the inspecting team from entering
17
the college. The petitioner college only placed their objection
on record as per the advice given to them that such
inspection by the MCI after the cut off date was not
permissible. The inspecting team chose to leave the college
without doing any inspection. The Competent Authority,
however, mechanically acted upon the recommendation of
the MCI to debar the petitioner college for two years and
authorised the MCI to encash the Bank Guarantee of Rs.2
crores vide order dated 31st May, 2017.
13. The said order dated 31st May, 2017, passed by the
Ministry has been assailed in the present writ petition. As
noted earlier, the writ petition was heard along with the
connected cases on 1st August, 2017 on which date this
Court directed the Central Government to reconsider the
matter afresh and record reasons. Pursuant to the said
directions, the petitioners submitted representation before
the Central Government and also participated in the hearing
before the Hearing Committee on 3rd August, 2017. The
Hearing Committee without reference to the relevant
18
matters, once again reiterated the position taken earlier, that
the petitioner college did not permit second inspection to
happen. Neither the purpose of second inspection has been
elaborated nor any justification has been given by the
Hearing Committee as to why the second inspection was
required and moreso when the first inspection was done
about a month earlier. The Central Government has
mechanically accepted the recommendation of the Hearing
Committee and has passed the impugned decision on 10th
August, 2017, as can be discerned from the observations in
paragraphs 17 and 18 of the impugned decision.
14. We have no hesitation in taking the view that the
Hearing Committee as well as the Central Government have
failed to consider all the relevant aspects of the matter and
the conclusion reached by the said authorities is, on the face
of it, without application of mind, if not perverse. We are
conscious of the fact that there is nothing in the Regulations
which expressly or for that matter by implication prohibits
the MCI from undertaking multiple inspections. However,
19
when that action is questioned, it is expected that the MCI
must offer some justification for the second surprise
inspection when its Assessors had already carried out that
exercise recently on 18th and 19th November, 2016 and
submitted an elaborate report running into 36 pages in the
prescribed format in that regard (Annexure-P/12). The
Hearing Committee as well as the Competent Authority of
the Central Government were expected to examine this
aspect of the matter before taking any final decision,
especially when the inspection report on record did not point
out any deficiency except the marginal deficiency of faculty
of 1.5% and residents of 6.52% which were obviously within
the permissible norms.
15. The question is: whether this approach of the
Competent Authority can be an impediment for
consideration of prayer to allow the petitioner college to
admit students in MBBS course for academic session
2017-18? Notably, the Competent Authority has already
confirmed the conditional permission granted to the college
20
for the academic session 2016-17 but has not permitted the
petitioner college to admit students in MBBS course for the
academic session 2017-18. Further, the impugned decision
even if read as a whole nowhere mentions the cause for the
second inspection when only one month back on 18th and
19th November, 2016 a proper inspection was done and a
comprehensive report was submitted in that regard in the
prescribed format and which was pending consideration
before the MCI. The argument now raised by the
respondents that the petitioners having objected to second
inspection are not entitled for the relief, therefore, does not
commend us. Considering the fact that the petitioner college
fulfills the infrastructure and academic requirements and
has already become functional from academic session
2016-17, by admitting the first batch of students in MBBS
course and as even the Competent Authority has noticed
that there are no major deficiencies, in the larger public
interest, we allow this petition and the application filed by
the petitioners. We are also inclined to issue further
directions to the respondents as have been issued in the
21
judgment of Dr. Jagat Narain Subharti Charitable Trust and
Anr. vs. Union of India and Ors., delivered on 30th August,
2017.
16. We, accordingly, quash and set aside the impugned
decision to the extent it bars the petitioners to admit upto
150 students in the academic session 2017-18. Instead, we
direct the respondents to permit the petitioner college to take
part in the current year counselling process. The cut-off
date for completing the admissions in respect of the
petitioner college, however, is extended till 5th September,
2017. The respondents shall forthwith make available
students willing to take admission in the petitioner college
through central counselling in order of their merit. This
direction is being issued in exercise of plenary powers of this
Court under Article 142 of the Constitution of India, in the
peculiar facts of the present case to do complete justice and
in larger public interest, so that the aspiring students who
have not been admitted to the 1st year MBBS course for the
academic session 2017-18, in order of their merit in NEET
22
examination, will get opportunity to be admitted in the
petitioner college. At the same time we make it clear that the
MCI or the Competent Authority of the Central Government
is free to inspect the petitioner college as and when deemed
fit and, if any deficiency is found after giving opportunity to
the petitioner college, may suitably proceed against the
college in accordance with law. This arrangement will
subserve the ends of justice.
17. No order as to costs.
……………………………….CJI.
(Dipak Misra)
………………………………….J.
(A.M. Khanwilkar)
.………………………………...J.
(Dr. D.Y. Chandrachud)
New Delhi,
Dated: September 1, 2017.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.515 OF 2017
(With I.A. No.76155 of 2017)
Saraswati Educational
Charitable Trust and Anr. ….Petitioner(s)
Versus
Union of India and Anr. …..Respondents
J U D G M E N T
A.M. KHANWILKAR, J.
1. The petitioner Saraswati Educational Charitable Trust,
Lucknow, made an application to the Ministry of Health &
Family Welfare, Government of India, for establishment of a
new medical college at Unnao, Uttar Pradesh, in the name
and style of “Saraswati Medical College, Unnao, Uttar
Pradesh”, for the academic session 2016-17. That
application was forwarded to the Medical Council of India for
2
evaluation and making recommendations to the Ministry
under Section 10A of the Indian Medical Council Act, 1956,
for academic session 2016-17.
2. The petitioners have filed this writ petition under Article
32 of the Constitution of India assailing the order dated 31st
May, 2017, passed by the Union of India, respondent No.1
herein, whereby the petitioner college has been debarred
from admitting students in MBBS course for the academic
sessions 2017-18 and 2018-19 and further permitting
respondent No.2 Medical Council of India to encash Bank
Guarantee of Rs.2 crores furnished by the petitioners. This
Court pronounced its judgment on 1st August, 2017 in group
of cases involving similar issues, in the following terms:
“24. Having regard to the fact that the Oversight
Committee has been constituted by this Court and is
also empowered to oversee all statutory functions
under the Act, and further all policy decisions of the
MCI would require its approval, its recommendations,
to state the least, on the issue of establishment of a
medical college, as in this case, can by no means be
disregarded or left out of consideration. Noticeably,
this Court did also empower the Oversight Committee
to issue appropriate remedial directions. In our view,
in the overall perspective, the materials on record
bearing on the claim of the petitioner
3
institutions/colleges for confirmation of the
conditional letters of permission granted to them
require a fresh consideration to obviate the
possibility of any injustice in the process.
25. In the above persuasive premise, the Central
Government is hereby ordered to consider afresh the
materials on record pertaining to the issue of
confirmation or otherwise of the letter of permission
granted to the petitioner colleges/institutions. We
make it clear that in undertaking this exercise, the
Central Government would re-evaluate the
recommendations/views of the MCI, Hearing
Committee, DGHS and the Oversight Committee, as
available on records. It would also afford an
opportunity of hearing to the petitioner
colleges/institutions to the extent necessary. The
process of hearing and final reasoned decision
thereon, as ordered, would be completed
peremptorily within a period of 10 days from today.
The parties would unfailingly co-operate in
compliance of this direction to meet the time frame
fixed.”
3. Pursuant to the liberty granted to the petitioners by the
aforementioned order, the petitioners submitted a fresh
detailed representation to respondent No.1, pointing out that
the petitioners have complied with all the conditions
specified by the Oversight Committee (“OC” for short)
constituted by this Court, as noted in the letter granting
permission for academic session 2016-17. The petitioner
college was given an opportunity of being heard by the
4
Hearing Committee on 3rd August, 2017. During the hearing,
the petitioners pointed out the observations made by the OC
as noted in its letter dated 14.5.2017:
“The EC did not bring out any deficiency either from
assessment reports dated 18th – 19th Nov. 2016 or
21st – 22nd Dec. 2016, though they had considered
both the reports in their meeting on 13.01.2017.
Even then the College had represented against the
observations made by the assessors in their
assessment report dated 18th -19th Nov. 2016.
The deficiencies reported in the assessment report in
respect of faculty is 1.5% and residents is 6.52% and
are within acceptable limits. The other deficiencies
are subjective. No MSR.
LOP Confirmed.”
4. The petitioners had demonstrated before the Hearing
Committee that the deficiencies noticed earlier were
insignificant and within the permissible norms. With regard
to the core matters, regarding infrastructure and academics,
all facilities required as per norms were fulfilled by the
petitioner college.
5. The Hearing Committee, after considering the records
and oral and written submissions of the petitioner college,
submitted its report to the Ministry for consideration. The
Competent Authority of the Government of India accepted
5
the recommendations of the Hearing Committee, not to
permit admission of students in the MBBS course for the
academic session 2017-18 and that the petitioner college
should apply afresh for renewal of permission for academic
session 2018-19 as per MCI Regulations. The reason which
weighed with the Competent Authority of the Government of
India can be discerned from paragraphs 17 and 18 of the
impugned Communication-cum-Order dated 10th August,
2017, issued under the signature of the Under Secretary to
the Government of India. The same read thus:
“xxx xxx xxx
17. Now, in compliance with the above direction
the Hon’ble Supreme Court dated 1.8.2017, the
Ministry granted hearing to the college on
03.08.2017. The Hearing Committee after
considering the records and oral and written
submission of the college submitted its reports to the
Ministry. The observation of hearing committee is as
under:
The college submitted that MCI conducted
compliance verification as per OC orders on 18-19
November 2016. However, without assigning any
reason, MCI visited the college again on 21
December, 2016 to re-inspect. In the submission of
the college, since MCI was required to conduct
compliance verification only once for confirmation of
LOP for 2016-17, it did not allow the 2nd inspection to
happen. The college representatives also informed
6
that on the day i.e. 21.12.2016 they contacted OC
over telephone. It was informed by OC that MCI was
authorized for only one inspection. The college was
asked if they obtained the same confirmation from
OC in writing to which they replied in the negative.
After the November inspection the college vide letter
dated 20.11.2016 raised its objection with the OC
that they were not allowed to put the dissent note by
the assessor and this was prejudicial to the college.
They also informed the OC about the date for major
and minor surgeries with photo and video proofs.
They also submitted other information pertaining to
OPD, investigations to the OC.
It is also seen from November SAF report that there
was faculty deficiency of 1.5% only and residents
deficiency of 6.52%.
The college did not submit any compliance since as
per its version neither MCI nor OC conveyed any
deficiency to it.
In the opinion of the Committee, MCI was not
precluded from conducting inspection subject to
sufficient reason and justification. But no adverse
comments such as the college/hospital was closed
has been made by the assessor during the 2nd visit to
the college. The November inspection had no major
deficiencies.
In the peculiar facts of the case, the Committee
recommends that LOP for 2016-17 may be confirmed.
No fresh batch for 2017-18 may be allowed. For the
session 2018-19, the college may apply for renewal
permission to MCI.
18. Accepting the recommendations of the Hearing
Committee, the Ministry confirms the conditional
permission granted to the College in 2016-17.
Further, it has been decided not to permit admission
of students in MBBS courses for the academic
session 2017-18 at the College. The College may
apply afresh for renewal of permission for the
academic session 2018-19 as per MCI Regulation.
19. Admission made in violation of above conditions
will be treated as irregular and action will be taken
7
as per provision of IMC Act, 1956 and the
Regulations made there under.”
(emphasis supplied)
6. Being aggrieved by this decision the petitioners have
filed I.A. No.76155 of 2017 in the pending writ petition
before this court praying for quashing the aforementioned
order dated 10th August, 2017, to direct the respondents to
grant renewal of permission for 2nd year and to permit the
petitioner college to admit 150 students in MBBS course for
the academic session 2017-18 and further, allow the
petitioner college to participate in the ongoing central
counselling process.
7. According to the learned counsel for the petitioners, the
petitioners were advised that second inspection was not
permissible after 15th December, 2016. The petitioners,
therefore, questioned the necessity for the second inspection
by the Assessing Team on 21st and 22nd December, 2016.
Inspection was already completed in November, 2016, during
which no major or serious deficiency was found. From the
available record, as has been rightly noted by the OC, the
8
deficiencies reported in the Assessment Report in respect of
faculty were 1.5% and residents 6.52% which were within
acceptable limits and the other deficiencies were subjective
sans any express stipulation therefor. It was submitted that
the petitioners are willing to comply with all the formalities
that may be necessary and further conditions, if any. The
petitioners are willing to provide inspection of the college to
MCI if the Court so directs. It is submitted that considering
the fact that the petitioner college has already started
functioning from academic session 2016-17 and fulfills all
the infrastructure and academic facilities, it ought to
continue by confirming the LOP 2016-17, and admitting
students even for the academic session 2017-18. The
petitioners have placed emphasis on the observation made
by the Competent Authority that in the Inspection carried
out in November, 2016, no major deficiency has been
noticed, which itself is a valid reason to permit the petitioner
college to admit students in MBBS course even for academic
session 2017-18.
9
8. According to the respondents, the inspection conducted
in November, 2016 will be of no avail to the petitioner
college. For granting permission to the petitioner college to
admit students for academic session 2017-18, a fresh
inspection was inevitable. There has been no inspection in
that regard as of now. Hence, the relief as claimed by the
petitioner college cannot be acceded to. It is submitted that
since the petitioners were responsible for not providing
second inspection, it is not open to them to find fault with
the decision of the Competent Authority of the Government
of India. It is submitted that no permission can be granted to
any professional college, much less medical college imparting
MBBS course, without proper scrutiny and inspection.
According to the respondents, this writ petition as well as
the application are devoid of merits and deserve to be
dismissed.
9. Having considered the rival submissions, it is noticed
that the OC in its communication dated 14.5.2017 has
clearly noted that there was no major deficiency. The
10
deficiencies reported in the assessment report in respect of
faculty were only 1.5 % and residents 6.52 %. These were
within the acceptable limits. The petitioner college has been
functioning from academic session 2016-17. Even the
Competent Authority in the impugned decision has not
opined that the deficiencies noticed earlier were significant
or critical. On the other hand, in paragraph 17, the
Competent Authority has plainly noted that the November
SAF Report mentions that there was faculty deficiency of
1.5% and residents deficiency of 6.52% only. Such
deficiencies by no standard can be said to be critical. The
same, as rightly observed by the OC, were within permissible
limits.
10. On a perusal of the record it is noticed that the
Assessors of the MCI had inspected the college on 18th and
19th November, 2016, as is evident from the Assessment
Form for 150 MBBS Admissions Report submitted to the
MCI, running into 36 pages (Annexure-P/12) to this writ
11
petition. The Summary of Assessment recorded in the
prescribed format reads thus:
“Summary of Assessment
1. Saraswati Medical College, Unnao is run by Trust
‘Saraswati Educational Charitable Trust’
2. The college has got LOP from GOI with intake of 150
seats for last academic year 2016-17 with reference
to the conditional approval accorded by Oversight
Committee
3. Type of assessment: Regular – LOP No. of seats:
150
4. PG courses : No
5. Deficiency of the infrastructure of college and
hospital if any: Pl. Mention category wise:
6. Deficiency of clinical material if any: Pl mention
category wise:
Only one major operation (C-section) was done till
12.30 pm. No minor surgeries done till 1.00 pm
Investigations both Radiological and Laboratory
inadequate. Cross verified by assessors. On an
average only 1 unit of blood being dispensed per
day. Total of 7 units were stored on the day of
assessment. Most of the OPDs had few patients.
7. Deficiency of teaching staff if any:
Shortage of teaching faculty is 1.5 %
8. Deficiency of resident doctors if any:
Shortage of resident doctors is 6.52 %
9. Any other Remarks: As mentioned in the report”
12
After this assessment report was submitted, another
surprise inspection was proposed on 21st December, 2016.
Since the said inspection was scheduled after 15th December,
2016, the Principal of the petitioner college questioned the
said action and placed the objection on record in writing vide
letter dated 21.12.2016 which reads:
“SARASWATI MEDICAL COLLEGE
LIDA, Madhu Vihar, P.O. Asha Khera, NH-25,
Lucknow Kanpur Highway, Unnao (UP), Pin-209859
Tel: (+91) 515-307000,
Email: smc@saraswaticolleges.com
___________________________________________________
Ref. No. SMC/MCI/2016-17/014 Dated:
21/12/2016
To,
The Secretary,
Medical Council of India,
New Delhi.
Sub: Surprise Assessment of Saraswati Medical
College on 21st
December, 2016.
Sir/Madam,
In reference to MCI Letter no.MCI-34(41)
(UG)/2017-18 Med./dt.21/12/2016 regarding
Surprise Assessment of Saraswati Medical College,
Unnao on 21st December, 2016. I have to submit the
following,
1. Compliance Assessment & Verification of Physical
and other facilities of Saraswati Medical College,
Unnao, as per the direction of the OC, has already
been conducted by MCI on 18th & 19th November,
13
2016 vide letter no.MCI-34(41)/2016 – Med./
dt.18/11/2016.
2. MCI vide letter no. MCI-34(41)(R-107)/2016-
Med./142566 dt. 08/11/2016 has informed the
college that assessment Inspection will be held upto
15th December 2016 only.
3. LOP has already been granted to the College by the
Ministry of Health and Family Welfare and per
direction of the OC an inspection verifying our
compliance has already been undertaken by the MCI
on 18th & 19th Nov., 2016.
Since the OC has given no further direction for
re-inspection of the Compliance Inspection held by
MCI on 18th & 19th Nov., 2016 and since the MCI has
categorically communicated to the college that
inspection will be carried out only upto 15th
December, 2016, the college does not see any merit
to undergo any further Compliance inspection for the
session 2016-17, hence denied the inspection on 21st
December, 2016 BY THE MCI team.
Regards,
SD/-
Prof. B.P. MATHUR
Principal”
It is noticed that the inspecting team did not insist on the
second inspection and chose to leave the college on account
of the stand taken by the Principal of the petitioner college.
That fact was reported to the MCI and the Executive
14
Committee of the MCI considered the proposal in its meeting
held on 13th January, 2017 and noted as follows:
“…The Executive Committee of the Council also
perused the letter dated 21/12/2016 from the
appointed team of Council Assessors stating therein
as under:-
With reference to email letter no.
MCI-34(41)/2016-Med./dated 21.12.2016 for the
above cited subject, we went to the college and
reached there at 10 am and met the Principal, Dr.
B.P. Mathur who informed us that they did not want
the assessment to be done and gave a letter stating
the same. The letter from the Principal is attached
along with the filled SAII form.”
The Committee further perused the letter dated
21/12/2016 from the Principal, Saraswati Medical College,
Unnao. The Committee submitted its recommendation to
MCI vide letter dated 15.01.2017 as under:-
“In view of the above, the college has failed to abide
by the undertaking it had given to the Central Govt.
that there are no deficiencies as per clause 3.2(i) of
the directions passed by the Supreme Court
mandated Oversight Committee vide communication
dated 11/08/2016. The Executive Committee, after
due deliberation and discussion, have decided that
the college has failed to comply with the stipulation
laid down by the Oversight Committee. Accordingly,
the Executive Committee recommends that as per the
directions passed by Oversight Committee in para
3.2(b) vide communication dated 11/08/2016 the
college should be debarred from admitting students
in the above course for a period of two academic
years i.e. 2017-18 & 2018-19 as even after giving an
15
undertaking that they have fulfilled the entire
infrastructure for establishment of new medical
college at Unnao, Uttar Pradesh by Saraswati
Educational Charitable Trust, Lucknow, Uttar
Pradesh under Chhatrapati Shahuji Maharaj
University, Kanpur, the college was found to be
grossly deficient. It has also been decided by the
Executive Committee that the Bank Guarantee
furnished by the college in pursuance of the
directives passed by the Oversight Committee as
well as GOI letter dated 20/08/2016 is liable to be
encashed.”
11. On the basis of the recommendation of the MCI, the
Ministry decided to grant a personal hearing to the college on
8
th February, 2017 by the DGHS. The Hearing Committee
after examining the oral and written submissions of the
college, submitted its report to the Ministry. The report of the
Hearing Committee was forwarded to the OC for guidance.
The OC after examining the matter, vide letter dated 14th
May, 2017 noted that the Executive Committee of MCI did
not point out any deficiency from the assessment reports. On
the other hand, the deficiency reported in the assessment
report in respect of faculty was only 1.5% and residents of
6.52% which was within the acceptable norms. The OC
further noted that the rest of the deficiencies were subjective
16
sans any express stipulation in that behalf and therefore
commended confirmation of Letter of Permission.
12. Considering the above, we find that the inspection for
issuance of Letter of Permission for academic session
2017-18 was duly carried out on 18 and 19th November,
2016. We reject the contention raised by the respondents
that no inspection in relation to academic session 2017-18
has been carried out as of now. Indeed, the petitioners
objected to the second surprise inspection intended on 21st
and 22nd December, 2016 as the same was after the cut off
date 15th December, 2016. The purpose for which the second
surprise inspection became necessary, when the earlier
report was pending consideration and that too after the cut
off date 15th December, 2016, has not been explained or
noted either by the Executive Committee in its meeting held
on 13th January, 2017 or for that matter by the Hearing
Committee and more so by the Competent Authority of the
Central Government. Significantly, it is not a case where the
college officials prevented the inspecting team from entering
17
the college. The petitioner college only placed their objection
on record as per the advice given to them that such
inspection by the MCI after the cut off date was not
permissible. The inspecting team chose to leave the college
without doing any inspection. The Competent Authority,
however, mechanically acted upon the recommendation of
the MCI to debar the petitioner college for two years and
authorised the MCI to encash the Bank Guarantee of Rs.2
crores vide order dated 31st May, 2017.
13. The said order dated 31st May, 2017, passed by the
Ministry has been assailed in the present writ petition. As
noted earlier, the writ petition was heard along with the
connected cases on 1st August, 2017 on which date this
Court directed the Central Government to reconsider the
matter afresh and record reasons. Pursuant to the said
directions, the petitioners submitted representation before
the Central Government and also participated in the hearing
before the Hearing Committee on 3rd August, 2017. The
Hearing Committee without reference to the relevant
18
matters, once again reiterated the position taken earlier, that
the petitioner college did not permit second inspection to
happen. Neither the purpose of second inspection has been
elaborated nor any justification has been given by the
Hearing Committee as to why the second inspection was
required and moreso when the first inspection was done
about a month earlier. The Central Government has
mechanically accepted the recommendation of the Hearing
Committee and has passed the impugned decision on 10th
August, 2017, as can be discerned from the observations in
paragraphs 17 and 18 of the impugned decision.
14. We have no hesitation in taking the view that the
Hearing Committee as well as the Central Government have
failed to consider all the relevant aspects of the matter and
the conclusion reached by the said authorities is, on the face
of it, without application of mind, if not perverse. We are
conscious of the fact that there is nothing in the Regulations
which expressly or for that matter by implication prohibits
the MCI from undertaking multiple inspections. However,
19
when that action is questioned, it is expected that the MCI
must offer some justification for the second surprise
inspection when its Assessors had already carried out that
exercise recently on 18th and 19th November, 2016 and
submitted an elaborate report running into 36 pages in the
prescribed format in that regard (Annexure-P/12). The
Hearing Committee as well as the Competent Authority of
the Central Government were expected to examine this
aspect of the matter before taking any final decision,
especially when the inspection report on record did not point
out any deficiency except the marginal deficiency of faculty
of 1.5% and residents of 6.52% which were obviously within
the permissible norms.
15. The question is: whether this approach of the
Competent Authority can be an impediment for
consideration of prayer to allow the petitioner college to
admit students in MBBS course for academic session
2017-18? Notably, the Competent Authority has already
confirmed the conditional permission granted to the college
20
for the academic session 2016-17 but has not permitted the
petitioner college to admit students in MBBS course for the
academic session 2017-18. Further, the impugned decision
even if read as a whole nowhere mentions the cause for the
second inspection when only one month back on 18th and
19th November, 2016 a proper inspection was done and a
comprehensive report was submitted in that regard in the
prescribed format and which was pending consideration
before the MCI. The argument now raised by the
respondents that the petitioners having objected to second
inspection are not entitled for the relief, therefore, does not
commend us. Considering the fact that the petitioner college
fulfills the infrastructure and academic requirements and
has already become functional from academic session
2016-17, by admitting the first batch of students in MBBS
course and as even the Competent Authority has noticed
that there are no major deficiencies, in the larger public
interest, we allow this petition and the application filed by
the petitioners. We are also inclined to issue further
directions to the respondents as have been issued in the
21
judgment of Dr. Jagat Narain Subharti Charitable Trust and
Anr. vs. Union of India and Ors., delivered on 30th August,
2017.
16. We, accordingly, quash and set aside the impugned
decision to the extent it bars the petitioners to admit upto
150 students in the academic session 2017-18. Instead, we
direct the respondents to permit the petitioner college to take
part in the current year counselling process. The cut-off
date for completing the admissions in respect of the
petitioner college, however, is extended till 5th September,
2017. The respondents shall forthwith make available
students willing to take admission in the petitioner college
through central counselling in order of their merit. This
direction is being issued in exercise of plenary powers of this
Court under Article 142 of the Constitution of India, in the
peculiar facts of the present case to do complete justice and
in larger public interest, so that the aspiring students who
have not been admitted to the 1st year MBBS course for the
academic session 2017-18, in order of their merit in NEET
22
examination, will get opportunity to be admitted in the
petitioner college. At the same time we make it clear that the
MCI or the Competent Authority of the Central Government
is free to inspect the petitioner college as and when deemed
fit and, if any deficiency is found after giving opportunity to
the petitioner college, may suitably proceed against the
college in accordance with law. This arrangement will
subserve the ends of justice.
17. No order as to costs.
……………………………….CJI.
(Dipak Misra)
………………………………….J.
(A.M. Khanwilkar)
.………………………………...J.
(Dr. D.Y. Chandrachud)
New Delhi,
Dated: September 1, 2017.
