REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.445 OF 2017
Shri Venkateshwara University ... Petitioner(s)
Through its Registrar and Another
Versus
Union of India and Another … Respondent(s)
J U D G M E N T
Dipak Misra, CJI.
In this writ petition preferred under Article 32 of the
Constitution of India, the petitioner-University and its functionary
have prayed for issue of a direction for quashment of the order
dated 31st May, 2017, contained in letter No.U-12012/
27/2016-ME-I [3084749] debarring the petitioners from admitting
the students in MBBS course for academic sessions 2017-2018
2
and 2018-2019 and authorizing the respondent No.2, the Medical
Council of India (MCI) not to encash the bank guarantee
furnished by the petitioners to the MCI and further to issue writ of
mandamus or any other direction in the nature of mandamus
directing the respondents to grant renewal of permission for
academic year 2017-2018 and further to admit the students in
the said academic session.
2. The assertions made in the writ petition and the
documents annexed thereto exposit the history of litigation which,
we are inclined to think, has a different colour. Suffice it to note
that for the academic session 2016-2017, the MCI had inspected
the Institution and found certain deficiencies. The summary of
assessment, which was submitted by a team of four doctors on
12th November, 2016, has been brought on record. Paragraphs 9,
10, 11 and 12 of the said summary of assessment read as
follows:-
“9. Any other remarks: Most of the faculty as
well as resident doctors has joined this institute in
last one & half month prior to the inspection. It is
not known or could not be verified whether those
faculties where considered by MCI in the same
academic year where they were previously working
or whether these faculty is appointed on
3
permanent basis or temporarily. Most of them did
not have permanent address proof. Patients in the
ward were admitted with very vague complains
which did not require admission, like pain
abdomen, itching, cough mild fever, joint pains,
irritation in the eyes, low back pains. In some
wards both Male and female patients were
admitted in the same ward (Like Psychiatry). In
pediatrics patients above age of 14 were admitted
with vague/no complain.
10. No patients were in labor. No Lscs, No
Normal Delivery on the date of inspection.
11. Only one major surgery on the day of
inspection (Open cholecystectomy) & One minor (D
& C).
12. College website does not show names of all
the faculty members (Like only one name appears
on website out of five present in Pharmacology.)”
3. We are not referring to other aspects of the summary of
assessment, as the deficiencies pointed out are within the
permissible limit. Be it noted, the deficiencies which are noted
earlier were by the inspecting team, and the Oversight Committee
constituted by this Court accepted the explanation offered by the
University and imposed certain conditions and recommended for
grant of Letter of Permission and eventually the same was granted
by the Central Government for the year 2016-17.
4
4. After the inspection that was conducted on 11th and 12th
of November, 2016, another inspection took place on 9th
December, 2016. The team of the assessors vide letter dated 9th
December, 2016, has communicated to the MCI, which reads as
follows:-
“We reached the Dean's office. The Dean was
present in his office. However, he left his chamber
immediately and was not to be seen for next 15
minutes. Whereafter he returned to inform us his
refusal to allow us to conduct the MCI assessment
today even after presenting MCI order to conduct
the assessment. He stated that it was a holiday
declared by their own university for Eid, which falls
5 days later. It was not national or State or local
holiday. He also mentioned that there were no
doctors in wards or OPD or Emergency as it was a
holiday. When questioned again, regarding the
patients' services can also stop on a holiday, he
had no answer.
He had no answer as to why the Dean and two or
three possible officers were working on a holiday, if
all the doctors were on a holiday.
We then asked him to give his refusal in writing. It
took two hours for the Dean to hand over the letter.
In the meantime the assessors went on rounds of
campus. There were no patients. There were no
doctors in campus. Hostel rooms and wards, OPD
had no patients or nurses to be seen. In all ICUs,
there were no patients admitted. Casualty area
and reception area there were no patients, in
laboratory, no patients for giving the samples.
Only 10 to 12 cars were patient in the campus. No
sign of a running hospital was seen in the entire
5
hospital. Infrastructure looked highly inadequate.
All beds were seen to be fresh. We, the assessors'
team, wondered how an entire hospital service can
take holiday as mentioned in the Dean's reply since
a hospital should run on a 24x7 basis for an entire
year.
The way, the Dean refused for the assessment
quoting invalid excuses shows and confirms the
non-functioning of the Hospital as well as Medical
College/classes which are self declared holidays
from 08.12.2016 to 12.12.2016. The dates looked
like tailored dates confirming with the assessment
dates as and when the assessment occurred also
the leter submitted to the MCI by the College on
08.12.2016 mentions holidays of 10th & 11th
December of Saturday and Sunday respectively
and Monday 12 for Eid. No mention is found of 9th
December as claimed by the Dean in his letter.
At the fag end of the process, another letter was
submitted to us with some of the key words
changed and we were pressurized to include this
and replace the first letter. So we are submitting
both the letter for your perusal.”
5. On the basis of the assessors report, the MCI vide letter
dated 26th December, 2016, recommended to the Ministry as
follows:-
“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 the
directions passed by the Supreme Court mandated
Oversight Committee and communicated vide
Ministry of Health & F.W. letter dated 12/09/2016
[para 1(i)]. The Executive Committee, after due
6
deliberation and discussion, has 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 and communicated vide Ministry of
Health & F.W. letter dated 12/09/2016 [in para
2(b)], 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 undertaking that they have fulfilled
the entire infrastructure for establishment of new
medical college at Gajaroula, Dist Amroha, Uttar
Pradesh by Shri Venkateshwara University, Meerut
(Trust name – Shri Bankey Bihari Educational &
Welfare Trust) under Shri Venkateshwara
University, Gajroula, Amroha, 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 12/09/2016 is liable to
be encashed.”
6. The Ministry granted a personal hearing to the
Institution on 17th January, 2017, by the Directorate General of
Health Services. The Hearing Committee, after permitting the
Institution to file written submissions, eventually, submitted its
report to the Ministry. The Ministry forwarded the report of the
Hearing Committee to the Oversight Committee for guidance. The
Oversight Committee vide letter dated 14th May, 2017, conveyed
the following views to the Ministry:-
7
“EC has not considered the assessment report of
assessment carried out on 11th-12th Nov. 2016.
As per the assessment report dated 11th – 12th Nov.
2016, there is no deficiency in infrastructure,
faculty/residents strength, clinical material and
investigation workload that would warrant
disapproval of the scheme. There are certain
remarks such as : (i) Most of the faculty and
resident doctors have joined in last one and a half
months prior to inspection. It is not known or
could not be verified whether those faculties were
considered by MCI in the same year, where they
were previously working or where these faculty
were appointed with permanent address proof.
There are no remarks given by the College.
However, it was the responsibility of the
assessment team to verify the above about the
faculty.
ii) Patients in the ward were admitted with very
vague complaints which did not require admission
like pain in abdomen, itching, cough, mild fever,
joint pains, irritation in the eyes, low back pains.
In some wards, both male and female patients were
admitted in the same ward (like Psychiatry). In
Paediatrics, patients above the age of 14 were
admitted with vague/no complaint.
The remarks about patients are not specific and
are general in nature.
iii) No patients were in labor. No LSCS. No
Normal delivery on date of assessment. This is a
subjective remark without MSR.
iv) Only 1 major & 1 minor surgery on date of
assessment. This is a subjective remark without
MSR.
8
v) It is reported in SAF that the College website
does not show name of all the faculty members
(only 1 name appears on website out of 5 present
in Pharmacology). Names of all faculty (including
Pharmacology) are shown on website
(http://vimshospital.edu.in/wp-content/uploads/
2016/12/Faculty-10-Nov-2016.pdf).”
7. Thereafter, the Union of India passed an order on
31st May, 2017. As the order was an unreasoned one, this Court
in Glocal Medical College and Super Specialty Hospital &
Research Centre vs. Union of India & Others [Writ Petition
(Civil) No.41 of 2017] had given certain directions and the present
matter was included. The direction given on 1st August, 2017, by
this Court reads as follows:-
“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
9
from today. The parties would unfailingly
co-operate in compliance of this direction to meet
the time frame fixed.”
8. In compliance of the aforesaid order, the Ministry
granted hearing to the Institution on 3rd August, 2017 and on 10th
August, 2017, passed the following order:-
“The college informed that compliance verification
was carried out by MCI on 11-12 November, 2016.
As per SAF form the deficiency was 1.5% in faculty
and 8.6% in residents.
The college had declared extended holiday
due to Eid and informed MCI on 08.12.2016. But
MCI conducted surprise inspection on 09.12.2016.
The college did not allow inspection as only one
compliance inspection was warranted as per OC
orders.
It is seen from assessors note that on their
visit to the college on 09.12.2016, the campus wore
a completely deserted look. There was no sign of a
functional hospital.
In the opinion of the Committee, MCI was
not precluded from conducting inspection subject
to sufficient reason and justification. The
Committee agrees with the decision of the Ministry
conveyed by letter dated 31.05.2017 to debar the
college for 2 years and also permit MCI to encash
bank guarantee.
Accepting the recommendations of the
Hearing Committee, the Ministry reiterates its
earlier decision dated 31.05.2017 to debar the
college from admitting students for a period of two
years i.e. 2017-18 and 2018-19 and also to
10
authorize MCI to encash the Bank Guarantee of
Rs.2 Crore.”
9. Criticizing the aforesaid order, it is submitted by
Mr. Mukul Rohatgi and Mr. Harin P. Raval, learned senior counsel
for the petitioners that the order passed by the Union of India is
absolutely unjustified, inasmuch as the inspecting team of the
MCI could not have conducted a surprise inspection on 9th
December, 2016. However, there is a subsequent amendment to
the Medical Council of India Regulations, which clearly states that
the MCI shall ensure that such inspections are not carried out at
least 2 days before and 2 days after important religious and
festivals holidays declared by the Central/State Government.
Learned senior counsel would further submit that the controversy
is squarely covered by the decision rendered by this Court on 30th
August, 2017, in Kanachur Islamic Education Trust (R) vs.
Union of India and Another [Writ Petition (Civil) No.468 of
2017].
10. Mr. Maninder Singh, learned Additional Solicitor General
supporting the order passed by the Union of India contended that
the inspection report clearly spells out the deficiencies in the
11
Institution and if the Letter of Permission is granted, it would be
travesty of justice. It is his further submission that the
controversy in the instant case is remotely not covered by the
decision rendered in Kanachur Islamic Education Trust (R)
(supra). Additionally, learned Additional Solicitor General would
harp upon the fact that the entire exercise has been carried out
for the academic session 2016-2017 and not for 2017-2018.
11. To appreciate the controversy in issue, it is necessary to
mention that on the basis of the recommendation of the Oversight
Committee, the Central Government had granted the Letter of
Permission. The Oversight Committee had imposed certain
conditions. One such condition was to furnish the bank guarantee
amounting to Rs.2 crores and to remove certain deficiencies and
file an affidavit of affirmation of removal of deficiencies that was
meant for 2016-2017. Though, Mr. Singh, has laid immense
press that the inspection was carried out for 2016-2017, we are
not inclined to accept the same. We are disposed to think that
the inspection was done for academic session 2017-2018 because
we have been apprised in the course of hearing that the
Institution had applied for grant of renewal of permission for the
12
academic session 2017-2018.
12. The thrust of the matter is whether the inspecting team
could have inspected on 9th December, 2016. It is worthy to note
that the Medical Council of India with the previous sanction of the
Central Government had amended the “Establishment of Medical
College Regulations 1999”. The amended clause 8(3)(1)(d) reads as
follows:-
”However, the office of the Council shall ensure
that such inspections are not carried out at least 2
days before and 2 days after important religious
and festival holidays declared by the Central/State
Govt.”
13. In Kanachur Islamic Education Trust (R) (supra),
while dwelling upon the same, this Court has held:-
“The fact that the petitioner's college/institution is
a minority institution and that a major festival for
the said community was scheduled on 12.12.2016
and that the day previous thereto i.e. 11.12.2016
was a Sunday, are facts which may not be wholly
irrelevant.”
14. Thereafter, the Court has proceeded to state thus:-
“The observation of the Hearing Committee that
petitioner’s college/institution has not explained
the deficiency of faculty is belied by its
representations and also the observations amongst
13
others of the Oversight Committee. The conclusion
that a few residents might have been on leave on
account of NEET (PG) examination but not all, also
seems to be inferential in the face of exhaustive
explanation provided by the petitioner's
college/institution. In this context, the observation
of the Oversight Committee in its communication
dated 14.5.2017 that eight colleges including the
petitioner’s college/institution had been assessed
twice in quick succession for the same purpose
though not authorized by it in its guidelines,
deserves attention. The Hearing Committee seems
to have ignored the explanation provided by the
Professor and Head of Department of Surgery,
explaining the treatment given to the three patients
named in clause xii (a) to (c) of the Inspection
Report in concluding that, the petitioner's
college/institution had not responded thereto. Its
deduction that there might have been more
instances of multiple entries in the OPD patient
statistics based on five such instances is also
visibly presumptive. The striking feature of the
observations of the Hearing Committee, on the
basis of which the impugned decision has been
rendered, is the patent omission on its part to
consider the relevant materials on record, as
mandated by this Court by its order dated
1.8.2017. The findings of the Hearing Committee,
in our comprehension, thus stands vitiated by the
non-consideration of the representations/
explanations of the petitioner's college/institution,
the documents supporting the same, the
recommendations/views of the MCI, the
observation of the earlier Hearing Committee,
DGHS and Oversight Committee, as available on
records. The Central Government as well readily
concurred with the observations of the Hearing
Committee in passing the impugned order, which
per se, in our estimate, is unsustainable in the
singular facts and circumstances of the case.”
14
15. On a careful reading of the aforesaid judgment, we do
not think that the clause has been interpreted as not to allow any
inspection on a Sunday, but the Court have said in the factual
matrix of the said case that the Institution was a minority
institution and a major festival for the said community was
scheduled on 12th December, 2016 and the day previous thereto
i.e. 11th December, 2016, was a Sunday and the said facts are not
wholly irrelevant. The said analysis cannot be regarded as the
construction of the clause.
16. Having said that, we shall proceed to analyze what the
clause precisely conveys. On a careful reading of the same, it is
quite clear and unambiguous that the obligation of the MCI is to
ensure that inspections are not to be carried out at least 2 days
before and 2 days after an important religious and festival
holidays declared by the Central/State Government. In the
clause, the words which gain significance are “important religious
and festival holidays”. On 12th December, 2016, it was
Milad-un-Nabi and it is the day of festival. The inspection was
done on 9th December, 2016, which was a Friday. The amended
clause of the notification state only covers 2 days before the
15
festival declared as a holiday by the Central/State Government
and 2 days thereafter. In the case at hand, the inspection team
had gone for inspection on 9th December, 2016, and they were
deprived to carry out the inspection. It was not covered by the
concept of two days of moratorium. In such a situation when the
Institution does not allow the team of the MCI or the assessors of
the MCI, it will be adding premium to deviancy. Conferment of
this kind of privilege is absolutely unwarranted. Therefore, the
directions sought for grant of renewal of Letter of Permission for
the academic session 2017-2018 is not acceptable.
17. Though we have so held, yet we think it appropriate that
the students who have been admitted in the Institution for the
academic session 2016-2017, shall continue their studies. The
MCI shall send the inspecting team to the Institution within a
period of two months. After the report is filed, the MCI shall
apprise the Institution with regard to the deficiencies and give a
date for removal of the same so that the Institution would be in a
position to do the needful. We may hasten to add that the
inspection that will be carried out and the further follow up action
shall be done for the academic session 2018-2019.
16
18. As we intend to appreciate the inspection report and the
deficiencies and the action taken up thereon by the Institution,
list the matter on 15th November, 2017. The renewal application
that was submitted for the academic session 2017-2018 may be
treated as the application for the academic session 2018-2019.
The bank guarantee which has been deposited shall not be
encashed and be kept alive.
…....................................CJI.
[Dipak Misra]
….......................................J.
[Amitava Roy]
….......................................J.
[A.M. Khanwilkar]
New Delhi,
September 01, 2017.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.445 OF 2017
Shri Venkateshwara University ... Petitioner(s)
Through its Registrar and Another
Versus
Union of India and Another … Respondent(s)
J U D G M E N T
Dipak Misra, CJI.
In this writ petition preferred under Article 32 of the
Constitution of India, the petitioner-University and its functionary
have prayed for issue of a direction for quashment of the order
dated 31st May, 2017, contained in letter No.U-12012/
27/2016-ME-I [3084749] debarring the petitioners from admitting
the students in MBBS course for academic sessions 2017-2018
2
and 2018-2019 and authorizing the respondent No.2, the Medical
Council of India (MCI) not to encash the bank guarantee
furnished by the petitioners to the MCI and further to issue writ of
mandamus or any other direction in the nature of mandamus
directing the respondents to grant renewal of permission for
academic year 2017-2018 and further to admit the students in
the said academic session.
2. The assertions made in the writ petition and the
documents annexed thereto exposit the history of litigation which,
we are inclined to think, has a different colour. Suffice it to note
that for the academic session 2016-2017, the MCI had inspected
the Institution and found certain deficiencies. The summary of
assessment, which was submitted by a team of four doctors on
12th November, 2016, has been brought on record. Paragraphs 9,
10, 11 and 12 of the said summary of assessment read as
follows:-
“9. Any other remarks: Most of the faculty as
well as resident doctors has joined this institute in
last one & half month prior to the inspection. It is
not known or could not be verified whether those
faculties where considered by MCI in the same
academic year where they were previously working
or whether these faculty is appointed on
3
permanent basis or temporarily. Most of them did
not have permanent address proof. Patients in the
ward were admitted with very vague complains
which did not require admission, like pain
abdomen, itching, cough mild fever, joint pains,
irritation in the eyes, low back pains. In some
wards both Male and female patients were
admitted in the same ward (Like Psychiatry). In
pediatrics patients above age of 14 were admitted
with vague/no complain.
10. No patients were in labor. No Lscs, No
Normal Delivery on the date of inspection.
11. Only one major surgery on the day of
inspection (Open cholecystectomy) & One minor (D
& C).
12. College website does not show names of all
the faculty members (Like only one name appears
on website out of five present in Pharmacology.)”
3. We are not referring to other aspects of the summary of
assessment, as the deficiencies pointed out are within the
permissible limit. Be it noted, the deficiencies which are noted
earlier were by the inspecting team, and the Oversight Committee
constituted by this Court accepted the explanation offered by the
University and imposed certain conditions and recommended for
grant of Letter of Permission and eventually the same was granted
by the Central Government for the year 2016-17.
4
4. After the inspection that was conducted on 11th and 12th
of November, 2016, another inspection took place on 9th
December, 2016. The team of the assessors vide letter dated 9th
December, 2016, has communicated to the MCI, which reads as
follows:-
“We reached the Dean's office. The Dean was
present in his office. However, he left his chamber
immediately and was not to be seen for next 15
minutes. Whereafter he returned to inform us his
refusal to allow us to conduct the MCI assessment
today even after presenting MCI order to conduct
the assessment. He stated that it was a holiday
declared by their own university for Eid, which falls
5 days later. It was not national or State or local
holiday. He also mentioned that there were no
doctors in wards or OPD or Emergency as it was a
holiday. When questioned again, regarding the
patients' services can also stop on a holiday, he
had no answer.
He had no answer as to why the Dean and two or
three possible officers were working on a holiday, if
all the doctors were on a holiday.
We then asked him to give his refusal in writing. It
took two hours for the Dean to hand over the letter.
In the meantime the assessors went on rounds of
campus. There were no patients. There were no
doctors in campus. Hostel rooms and wards, OPD
had no patients or nurses to be seen. In all ICUs,
there were no patients admitted. Casualty area
and reception area there were no patients, in
laboratory, no patients for giving the samples.
Only 10 to 12 cars were patient in the campus. No
sign of a running hospital was seen in the entire
5
hospital. Infrastructure looked highly inadequate.
All beds were seen to be fresh. We, the assessors'
team, wondered how an entire hospital service can
take holiday as mentioned in the Dean's reply since
a hospital should run on a 24x7 basis for an entire
year.
The way, the Dean refused for the assessment
quoting invalid excuses shows and confirms the
non-functioning of the Hospital as well as Medical
College/classes which are self declared holidays
from 08.12.2016 to 12.12.2016. The dates looked
like tailored dates confirming with the assessment
dates as and when the assessment occurred also
the leter submitted to the MCI by the College on
08.12.2016 mentions holidays of 10th & 11th
December of Saturday and Sunday respectively
and Monday 12 for Eid. No mention is found of 9th
December as claimed by the Dean in his letter.
At the fag end of the process, another letter was
submitted to us with some of the key words
changed and we were pressurized to include this
and replace the first letter. So we are submitting
both the letter for your perusal.”
5. On the basis of the assessors report, the MCI vide letter
dated 26th December, 2016, recommended to the Ministry as
follows:-
“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 the
directions passed by the Supreme Court mandated
Oversight Committee and communicated vide
Ministry of Health & F.W. letter dated 12/09/2016
[para 1(i)]. The Executive Committee, after due
6
deliberation and discussion, has 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 and communicated vide Ministry of
Health & F.W. letter dated 12/09/2016 [in para
2(b)], 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 undertaking that they have fulfilled
the entire infrastructure for establishment of new
medical college at Gajaroula, Dist Amroha, Uttar
Pradesh by Shri Venkateshwara University, Meerut
(Trust name – Shri Bankey Bihari Educational &
Welfare Trust) under Shri Venkateshwara
University, Gajroula, Amroha, 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 12/09/2016 is liable to
be encashed.”
6. The Ministry granted a personal hearing to the
Institution on 17th January, 2017, by the Directorate General of
Health Services. The Hearing Committee, after permitting the
Institution to file written submissions, eventually, submitted its
report to the Ministry. The Ministry forwarded the report of the
Hearing Committee to the Oversight Committee for guidance. The
Oversight Committee vide letter dated 14th May, 2017, conveyed
the following views to the Ministry:-
7
“EC has not considered the assessment report of
assessment carried out on 11th-12th Nov. 2016.
As per the assessment report dated 11th – 12th Nov.
2016, there is no deficiency in infrastructure,
faculty/residents strength, clinical material and
investigation workload that would warrant
disapproval of the scheme. There are certain
remarks such as : (i) Most of the faculty and
resident doctors have joined in last one and a half
months prior to inspection. It is not known or
could not be verified whether those faculties were
considered by MCI in the same year, where they
were previously working or where these faculty
were appointed with permanent address proof.
There are no remarks given by the College.
However, it was the responsibility of the
assessment team to verify the above about the
faculty.
ii) Patients in the ward were admitted with very
vague complaints which did not require admission
like pain in abdomen, itching, cough, mild fever,
joint pains, irritation in the eyes, low back pains.
In some wards, both male and female patients were
admitted in the same ward (like Psychiatry). In
Paediatrics, patients above the age of 14 were
admitted with vague/no complaint.
The remarks about patients are not specific and
are general in nature.
iii) No patients were in labor. No LSCS. No
Normal delivery on date of assessment. This is a
subjective remark without MSR.
iv) Only 1 major & 1 minor surgery on date of
assessment. This is a subjective remark without
MSR.
8
v) It is reported in SAF that the College website
does not show name of all the faculty members
(only 1 name appears on website out of 5 present
in Pharmacology). Names of all faculty (including
Pharmacology) are shown on website
(http://vimshospital.edu.in/wp-content/uploads/
2016/12/Faculty-10-Nov-2016.pdf).”
7. Thereafter, the Union of India passed an order on
31st May, 2017. As the order was an unreasoned one, this Court
in Glocal Medical College and Super Specialty Hospital &
Research Centre vs. Union of India & Others [Writ Petition
(Civil) No.41 of 2017] had given certain directions and the present
matter was included. The direction given on 1st August, 2017, by
this Court reads as follows:-
“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
9
from today. The parties would unfailingly
co-operate in compliance of this direction to meet
the time frame fixed.”
8. In compliance of the aforesaid order, the Ministry
granted hearing to the Institution on 3rd August, 2017 and on 10th
August, 2017, passed the following order:-
“The college informed that compliance verification
was carried out by MCI on 11-12 November, 2016.
As per SAF form the deficiency was 1.5% in faculty
and 8.6% in residents.
The college had declared extended holiday
due to Eid and informed MCI on 08.12.2016. But
MCI conducted surprise inspection on 09.12.2016.
The college did not allow inspection as only one
compliance inspection was warranted as per OC
orders.
It is seen from assessors note that on their
visit to the college on 09.12.2016, the campus wore
a completely deserted look. There was no sign of a
functional hospital.
In the opinion of the Committee, MCI was
not precluded from conducting inspection subject
to sufficient reason and justification. The
Committee agrees with the decision of the Ministry
conveyed by letter dated 31.05.2017 to debar the
college for 2 years and also permit MCI to encash
bank guarantee.
Accepting the recommendations of the
Hearing Committee, the Ministry reiterates its
earlier decision dated 31.05.2017 to debar the
college from admitting students for a period of two
years i.e. 2017-18 and 2018-19 and also to
10
authorize MCI to encash the Bank Guarantee of
Rs.2 Crore.”
9. Criticizing the aforesaid order, it is submitted by
Mr. Mukul Rohatgi and Mr. Harin P. Raval, learned senior counsel
for the petitioners that the order passed by the Union of India is
absolutely unjustified, inasmuch as the inspecting team of the
MCI could not have conducted a surprise inspection on 9th
December, 2016. However, there is a subsequent amendment to
the Medical Council of India Regulations, which clearly states that
the MCI shall ensure that such inspections are not carried out at
least 2 days before and 2 days after important religious and
festivals holidays declared by the Central/State Government.
Learned senior counsel would further submit that the controversy
is squarely covered by the decision rendered by this Court on 30th
August, 2017, in Kanachur Islamic Education Trust (R) vs.
Union of India and Another [Writ Petition (Civil) No.468 of
2017].
10. Mr. Maninder Singh, learned Additional Solicitor General
supporting the order passed by the Union of India contended that
the inspection report clearly spells out the deficiencies in the
11
Institution and if the Letter of Permission is granted, it would be
travesty of justice. It is his further submission that the
controversy in the instant case is remotely not covered by the
decision rendered in Kanachur Islamic Education Trust (R)
(supra). Additionally, learned Additional Solicitor General would
harp upon the fact that the entire exercise has been carried out
for the academic session 2016-2017 and not for 2017-2018.
11. To appreciate the controversy in issue, it is necessary to
mention that on the basis of the recommendation of the Oversight
Committee, the Central Government had granted the Letter of
Permission. The Oversight Committee had imposed certain
conditions. One such condition was to furnish the bank guarantee
amounting to Rs.2 crores and to remove certain deficiencies and
file an affidavit of affirmation of removal of deficiencies that was
meant for 2016-2017. Though, Mr. Singh, has laid immense
press that the inspection was carried out for 2016-2017, we are
not inclined to accept the same. We are disposed to think that
the inspection was done for academic session 2017-2018 because
we have been apprised in the course of hearing that the
Institution had applied for grant of renewal of permission for the
12
academic session 2017-2018.
12. The thrust of the matter is whether the inspecting team
could have inspected on 9th December, 2016. It is worthy to note
that the Medical Council of India with the previous sanction of the
Central Government had amended the “Establishment of Medical
College Regulations 1999”. The amended clause 8(3)(1)(d) reads as
follows:-
”However, the office of the Council shall ensure
that such inspections are not carried out at least 2
days before and 2 days after important religious
and festival holidays declared by the Central/State
Govt.”
13. In Kanachur Islamic Education Trust (R) (supra),
while dwelling upon the same, this Court has held:-
“The fact that the petitioner's college/institution is
a minority institution and that a major festival for
the said community was scheduled on 12.12.2016
and that the day previous thereto i.e. 11.12.2016
was a Sunday, are facts which may not be wholly
irrelevant.”
14. Thereafter, the Court has proceeded to state thus:-
“The observation of the Hearing Committee that
petitioner’s college/institution has not explained
the deficiency of faculty is belied by its
representations and also the observations amongst
13
others of the Oversight Committee. The conclusion
that a few residents might have been on leave on
account of NEET (PG) examination but not all, also
seems to be inferential in the face of exhaustive
explanation provided by the petitioner's
college/institution. In this context, the observation
of the Oversight Committee in its communication
dated 14.5.2017 that eight colleges including the
petitioner’s college/institution had been assessed
twice in quick succession for the same purpose
though not authorized by it in its guidelines,
deserves attention. The Hearing Committee seems
to have ignored the explanation provided by the
Professor and Head of Department of Surgery,
explaining the treatment given to the three patients
named in clause xii (a) to (c) of the Inspection
Report in concluding that, the petitioner's
college/institution had not responded thereto. Its
deduction that there might have been more
instances of multiple entries in the OPD patient
statistics based on five such instances is also
visibly presumptive. The striking feature of the
observations of the Hearing Committee, on the
basis of which the impugned decision has been
rendered, is the patent omission on its part to
consider the relevant materials on record, as
mandated by this Court by its order dated
1.8.2017. The findings of the Hearing Committee,
in our comprehension, thus stands vitiated by the
non-consideration of the representations/
explanations of the petitioner's college/institution,
the documents supporting the same, the
recommendations/views of the MCI, the
observation of the earlier Hearing Committee,
DGHS and Oversight Committee, as available on
records. The Central Government as well readily
concurred with the observations of the Hearing
Committee in passing the impugned order, which
per se, in our estimate, is unsustainable in the
singular facts and circumstances of the case.”
14
15. On a careful reading of the aforesaid judgment, we do
not think that the clause has been interpreted as not to allow any
inspection on a Sunday, but the Court have said in the factual
matrix of the said case that the Institution was a minority
institution and a major festival for the said community was
scheduled on 12th December, 2016 and the day previous thereto
i.e. 11th December, 2016, was a Sunday and the said facts are not
wholly irrelevant. The said analysis cannot be regarded as the
construction of the clause.
16. Having said that, we shall proceed to analyze what the
clause precisely conveys. On a careful reading of the same, it is
quite clear and unambiguous that the obligation of the MCI is to
ensure that inspections are not to be carried out at least 2 days
before and 2 days after an important religious and festival
holidays declared by the Central/State Government. In the
clause, the words which gain significance are “important religious
and festival holidays”. On 12th December, 2016, it was
Milad-un-Nabi and it is the day of festival. The inspection was
done on 9th December, 2016, which was a Friday. The amended
clause of the notification state only covers 2 days before the
15
festival declared as a holiday by the Central/State Government
and 2 days thereafter. In the case at hand, the inspection team
had gone for inspection on 9th December, 2016, and they were
deprived to carry out the inspection. It was not covered by the
concept of two days of moratorium. In such a situation when the
Institution does not allow the team of the MCI or the assessors of
the MCI, it will be adding premium to deviancy. Conferment of
this kind of privilege is absolutely unwarranted. Therefore, the
directions sought for grant of renewal of Letter of Permission for
the academic session 2017-2018 is not acceptable.
17. Though we have so held, yet we think it appropriate that
the students who have been admitted in the Institution for the
academic session 2016-2017, shall continue their studies. The
MCI shall send the inspecting team to the Institution within a
period of two months. After the report is filed, the MCI shall
apprise the Institution with regard to the deficiencies and give a
date for removal of the same so that the Institution would be in a
position to do the needful. We may hasten to add that the
inspection that will be carried out and the further follow up action
shall be done for the academic session 2018-2019.
16
18. As we intend to appreciate the inspection report and the
deficiencies and the action taken up thereon by the Institution,
list the matter on 15th November, 2017. The renewal application
that was submitted for the academic session 2017-2018 may be
treated as the application for the academic session 2018-2019.
The bank guarantee which has been deposited shall not be
encashed and be kept alive.
…....................................CJI.
[Dipak Misra]
….......................................J.
[Amitava Roy]
….......................................J.
[A.M. Khanwilkar]
New Delhi,
September 01, 2017.
