Medical Council Of India vs Lord Buddha Education Society on 9 October, 2018

caselaws

Supreme Court of India
Medical Council Of India vs Lord Buddha Education Society on 9 October, 2018Author: … J.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10352 OF 2018
( @ SPECIAL LEAVE PETITION [C] NO.23284 OF 2018 )

MEDICAL COUNCIL OF INDIA …  APPELLANT(S)

VERSUS

LORD BUDDHA EDUCATIONAL SOCIETY & ORS.… RESPONDENTS

J U D G M E N T  

ARUN MISHRA, J.

1. The background of the case indicates that the College was

established   pursuant   to   the   directive   issued   by   the   Oversight

Committee   vide   letter   dated   20.8.2016.   The   negative

recommendation   was   made   by   the   MCI   to   the   Government   of

India. However, in view of the Oversight Committee’s letter dated

20.8.2016,   conditional   permission   was   granted   by   the

Government   of   India   to   set   up   a   medical   college   w.e.f.   the

academic   year   2016­17   with   an   annual   intake   capacity   of  150

MBBS   students.   The   conditions   stipulated   that   during   the

subsequent   inspection   if   it   was   found   that   the   College   was
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deficient   then   the   medical   college   shall   be   debarred   for   two

academic years. 

2. On 7/8.11.2016, the assessment was carried out by a team

of the MCI to ascertain whether the College had complied with

the   conditions   imposed   by   the   Oversight   Committee   and   the

Government of India vide letter dated 20.8.2016 by removing the

deficiencies. On consideration of the report of the assessors the

Executive   Committee   of   the   MCI   in   its   meeting   held   on

22.12.2016   found   gross   deficiencies   in   the   College   and   it   was

observed   that   the   College   had  failed to  remove  the  deficiencies

and   to   fulfill   the   conditions   imposed   and  also   failed  to   comply

with   the   undertaking   and   as   such   on   26.12.2016   a

recommendation was made to debar the College for two years i.e.

2017­18 and 2018­19 and to encash the bank guarantee of Rs.2

crores furnished by the College.

3. The   Government   of   India   on   due   consideration   of   the

recommendation   of   the   Council   made   to   it,   accepted   the

recommendation   and   debarred   the   College   for   two   academic

years,   and   also   permitted   the   Council   to   encash   the   bank

guarantee vide order dated 31.5.2017.

4. The College filed W.P. [C] No.1825/2017 in the High Court

of Chhattisgarh and it was disposed of vide order dated 3.8.2017.
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The   Court   directed   the   Government   of   India   to   reconsider   the

case of the College and decide the representation of the College

by a reasoned order. Pursuant thereto, the Government of India

again   granted   an   opportunity   of   hearing   to   the   College   and

passed a reasoned order on 14.8.2017 and the earlier decision to

debar   the   college   from   admitting   students   and   to   encash   the

bank guarantee was reiterated. 

5. Aggrieved   by   the   order   dated   14.8.2017   passed   by   the

Government of India, the College filed W.P. [C] No.776/2017 in

this Court. This Court vide order dated 13.11.2017 directed the

MCI to consider the application for renewal of permission for the

academic year 2017­18 to be valid for the academic year 2018­19

and to process the same in accordance with law.

6. Thereafter, pursuant to the order passed by this Court on

13.11.2017   in   the   aforesaid   writ   petition,   the   Assessors   of   the

MCI again carried out the inspection on 5/6.12.2017. The report

of the Assessors was placed before the Executive Committee in its

meeting held on 14.12.2017. Gross deficiencies were found in the

College with respect to infrastructure, clinical material, teaching

faculty,   and   other   attendant   physical   facilities   etc.   Hence,   the

Executive Committee of the Council recommended to the Central

Government   not   to   grant   renewal   of   permission   for   admitting
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third batch of 150 MBBS students for the academic year 2018­19

and also to invoke Regulation 8(3)(1)(a) of the Establishment of

New   Medical   College   Regulations,   1999   as   the   deficiency   of

‘teaching faculty’, residents and bed occupancy was found much

below the percentage prescribed in the said Regulations so as to

renew   them   in   the   same   academic   year.   The   decision   of   the

Executive Committee was considered by the Oversight Committee

and   thereafter   the   Council   considered   the   matter   and   sent   its

recommendations to the Government of India on 6.1.2018. The

Government   of   India   granted   an   opportunity   of   hearing   as   is

apparent from communication dated 12.2.2018. The Government

of   India   requested   the   Council   in   view   of   the   documents   of

compliance filed by the appellant, to consider the same and to

review the decision.

7. On 23.2.2018 the case of the College was placed before the

Sub­Committee   of   the   Council   in   its   meeting   on   21.2.2018.

Regulation   18(3)(1)(a)   of   the   Regulations   of   1999   had   been

invoked against the College. The matter was then referred to the

Oversight Committee vide letter dated 23.2.2018. Before the final

decision was reached, the College approached the High Court of

Delhi by filing W.P. [C] No.2022/2018. The High Court vide order
 5

dated 6.3.2018 disposed of the petition and directed the MCI to

take a decision within a period of 5 weeks.

8. The   Oversight   Committee   considered   the   matter   and   vide

letter dated 8.3.2018 approved the decision of the MCI and it was

observed   that   once   Regulation   8(3)(1)(a)   had   been   invoked,   as

such it was impermissible for the Council/Government of India to

consider the compliance reported by the College.

9. The   case   of   the   College   was   placed   before   the   Executive

Committee   of   the   Council   on   24.3.2018.   The   Executive

Committee in view of the decisions of this Court and considering

the   said   Regulation   decided   to   reiterate   the   earlier   decision   to

recommend  to the Central Government not to grant renewal of

permission   for   the   third   batch   of   150   MBBS   students   for   the

academic   year   2018­19.   The   decision   of   the   Council   was

communicated   to   the   Oversight   Committee   on   28.3.2018.

Ultimately it was communicated to the Government of India vide

letter dated 13.4.2018. 

10. Before the Government of India could take the final call, the

College   filed   W.P.   [C]  No.4897/2018 which was  decided by  the

High Court vide order dated 8.5.2018 and directed the Central

Government to take a decision in the case of the College within a

period of 10 days. The Central Government after considering the
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recommendation passed an order on 31.5.2018 and in view of the

gross   and   serious   deficiencies   found   in   the   assessment   report,

decided not to grant renewal of permission for admission for the

academic year 2018­19.

11. The College as against order dated 31.5.2018, filed W.P. [C]

No.6656/2018. The High Court has allowed the same vide order

dated   1.8.2018   and   has   ordered   the   College   to   submit

compliance and directed the MCI to conduct an inspection of the

College   in   order   to   reconsider   the   case   for   grant   of   renewal   of

permission for the academic year in question i.e. 2018­19.

12. The High Court has opined that in view of the direction in

the   order   passed   by   this   Court   on   13.11.2017   to   grant

opportunity to make compliance and remove deficiencies, ought

to have been granted. Though this Court while passing the order

did   not   consider   the   applicability   of   Regulation   8(3)(1)(a),   the

direction   was   binding   as   no   clarification   was   sought   from   this

Court. 

13. Shri   Vikas   Singh,   learned   senior   counsel   appearing   on

behalf   of   the   appellant,   has   submitted   that   while   this   Court

decided   the   matter   on   13.11.2017,   it   was   never   intended   to

decide as to the applicability of Regulation 8(3)(1)(a) as that was

dependent   upon   the   outcome   of   the   inspection   to   be   made   in
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future and, in ordinary course, an opportunity of compliance has

to be given, subject to exception contained in the cases  covered

under the proviso to Regulation 8(3)(1). However, considering the

nature   of   the   deficiencies   which   were   found   in   the   inspections

made,   in   compliance   of   the   direction   issued   by   this   Court   on

13.11.2017,  it  was  open  to take a decision in accordance with

law   and   only   in   case   deficiencies   were   not   so   much   gross   as

contemplated   under   Regulation   8(3)(1)(a),   an   opportunity   was

required to be given to make compliance and not otherwise. He

has relied upon the decisions of this Court in Medical Council of

India & Ors. v. Vedantaa Institute of Academic Excellence Pvt. Ltd.

& Ors. (2018) 7 SCC 225 and  Medical Council of India v. Malla

Reddy Institute of Medical Sciences & Ors. – C.A. No.4812/2016

decided on 27.4.2016.

14. Per contra, on behalf of the respondents, it was contended

that the direction of this Court was clear that an opportunity has

to be granted to make compliance and the compliance reported

ought to have been considered. Thus, there is a flagrant violation

of   the   direction   issued   by   this   Court,   hence,   no   case   for

interference is made out as the order of the High Court directs

only to comply with the direction issued by this Court.
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15. What emerges from the factual scenario of the case is that

the College had never been granted permission by the MCI. The

Government of India was compelled to grant permission on the

conditional basis that too in view of the direction issued by the

Oversight Committee. As there were deficiencies and it was a case

of conditional permission, thus deficiencies were required to be

removed and thereafter in the inspection that was made in the

year 2016 and again in 2017, it was found that the College had

not removed the deficiencies and did not fulfill conditions. After

the   Oversight   Committee   of   this   Court   decided   to   grant

conditional   permission   for   the   academic   session   2016­17,   the

Government   of   India   had   to   accept   it   as   is   apparent   from   the

communication   dated   20.8.2016.   It   was   clearly   a   conditional

permission by the Government of India’s order that in case the

College  was   found   to  be   deficient in complying with conditions

then   it   shall   be   debarred   for   two   academic   years.   Such

conditional permissions are not ordinarily to be granted while a

new   College   is   required   to   be   established.   Nonetheless,   it   was

granted in the wake of aforesaid facts and circumstances.

16. Thereafter,   an   assessment   was   carried   out   in   view   of   the

conditional   permission   on   26.12.2016   and   serious   deficiencies

were   found   in   the   College.   Thus,   a   decision   was   taken   by   the
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Government of India on 9.6.2017 to debar the College for 2 years

and   to   encash   the   bank   guarantee.   The   College   filed   a   writ

petition in the High Court of Chhattisgarh. It was directed by the

High Court vide order dated 3.8.2017 to reconsider and to decide

the   representation   of   the   College.   The   Government   of   India

considered   the   recommendation,   granted   the   hearing   and

reiterated its earlier decision vide order dated 14.8.2017.

17. Thereafter,   a   writ   petition   was   filed   directly   in   this   Court

under   Article   32   of   the   Constitution   of   India   i.e.   W.P.   (C]   No.

776/2017   in   which   on   13.11.2017   this   Court   has   passed   the

following order :

“This writ petition under Article 32 of the Constitution of
India has been filed with the following prayers:-
(i) Quashing of the decision dated 14.8.2017 of the Ministry of
Health and Family Welfare, Government of India, directing the
petitioner-institute not to admit students in the MBBS Course for
the academic years 2017-18 and 2018-19 and also authorising
the respondent no.2-Medical Council of India (MCI) to encash
the bank guarantee of Rs. 2 crores submitted by the petitioner-
institute.
(ii) Quashing of the recommendations dated 26.12.2016 made by the
respondent no. 2-Medical Council of India (MCI) to the Ministry
of Health & Family Welfare, Government of India, in respect of
the petitioner-institute.
(iii) Issuance of directions to the respondent no.1-Union of India to
grant first renewal permission for the academic year 2018-18 in
terms of the Oversight Committee’s recommendation dated
14.5.2017, and also permit the petitioner-institute to admit 150
MBBS students for the academic year 2017-18.
(iv) Issuance of directions to the respondent no. 1-Union of India to
confirm conditional Letter of Permission (LOP) in terms of the
Oversight Committee’s recommendations dated 14.5.2017 and
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directions to the respondent no.2 – Medical Council of India not
to encash the bank guarantee of Rs.2 crores.

The petitioners have also moved an application for direction
(IA No.82637 of 2017), with the same prayer as mentioned at
S.No. (iii) above.

Heard learned counsel for the petitioners, Mr. Maninder
Singh, learned Additional Solicitor for the respondent no.1-
Union of India and Mr. Gaurav Sharma, learned counsel for the
respondent no.2-Medical Council of India.

Having heard learned counsel for the parties and keeping in
view the recent decisions of this Court in Royal Medical Trust
and Anr. vs. Union of India and Anr., [In WP [C] No.747/2017
decided on 12.9.2017], Annai Medical College & Hospital and
Anr. vs. Union of India and Anr., [In WP [C] No.525/2017
decided on 14.9.2017] and Medical Council of India vs. Ananta
Charitable Educational Society and Ors., [In SLP [C]
No.17732/2017 decided on 30.10.2017], it is directed that MCI
shall allow the students admitted in the petitioner-institute on the
basis of conditional LOP for the academic year 2016-17 to
continue their studies. MCI shall send a team for inspection of
the petitioner-institute as per schedule for the academic year
2018-19. The application filed by the institution for the academic
year 2017-18 for renewal shall be treated as an application for
the academic year 2018-19. If deficiencies are noted by the
Inspection Team, the same shall be brought to the notice of the
institution, and it shall be granted liberty to remove the same
within a specified time. Thereafter, the matter shall be placed
before the Executive Committee of MCI. If any deficiency is still
required to be removed, the same shall be removed by the
institution within a specified time, and if the institution is a
compliant institution, the request for confirmation of LOP for the
academic year 2016-17 and renewal of permission for the
academic year 2018-19 may be dealt with appropriately.
The Ministry shall take a final decision within one month of
the receipt of the recommendation from the MCI by taking the
assistance of the Hearing Committee as constituted by the
Constitution Bench of this Court in Amma Chandravati
Educational and Charitable Trust and Ors. vs. Union of India and
Anr. [In WP [C] No.408/2017 decided on 18.7.2017] or other
directions in the said decision and in accordance with law.
We further direct that until the final decision is taken by the
Ministry and communicated to the institution, the Bank
Guarantee offered by the institution in the sum of Rs.2 crores
shall not be encashed by MCI but the institution shall keep the
same alive. If the Bank Guarantee has already been encashed by
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MCI in the meantime, the amount shall be refunded to the
institution, which shall furnish a fresh Bank Guarantee in the like
amount to the MCI within two weeks from the date of receipt of
the amount.
Mr. Gaurav Sharma learned counsel for the MCI would submit
that the petitioners will be required to pay the inspection fee if it
is not paid, for the inspection to be conducted in terms of this
order for considering confirmation of LOP for the academic year
2016-17 and renewal application for the academic year 2018-19.
In the event, the final decision of the Competent Authority of
the Central Government is adverse to the institution, it will be
open to the institution to take recourse to such remedies as may
be permissible in law.
We further make it clear that the respondent no.2 shall treat the
renewal application submitted by the institution for the academic
year 2017-18 as having been made for the academic year 2018-
19 and process the same in accordance with law with
promptitude.
The writ petition and IA No.82637 of 2017 are disposed of in
the above terms, with no order as to costs.”

18. The inspection was carried out on 5/6.12.2017 by the Assessors of the

MCI in which various gross deficiencies were found. It is also apparent that the

Executive Committee of the MCI after considering the assessment report dated

5/6.12.2017 recommended to the Ministry vide its letter dated 6.1.2018 to

invoke Regulation 8(3)(1)(a) and thereby to disapprove the application filed on

behalf of the College. The said decision of the Executive Committee was

approved by the Oversight Committee on 3.1.2018. On the aspect of

Regulation 8(3)(1)(a), the College was granted a hearing on 5.2.2018. On

12.2.2018 the Ministry directed the MCI to consider the review and to make

recommendations. The Sub-Committee of the MCI in its meeting on 21.2.2018

referred the matter to the Oversight Committee to consider the question of

whether verification assessment was required to be carried out.
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19. Questioning the decision of the Executive Committee of MCI dated

6.1.2018, the College filed W.P. (C) No. 2022/2018 which was disposed of by

the High Court of Delhi on 6.3.2018. Following is the order passed by the High

Court:

“Learned counsel for the petitioners submits that after the
respondent No.2 had issued the impugned order dated 6.1.2018
recommending disapproval of the renewal of permission to the
petitioner, respondent No.1 had granted a hearing to the petitioner
on 5.2.2018 and upon hearing the petitioners, the respondent No.1
had remitted the matter back to respondent No.2 with a request to
review the application of the petitioner.

Today, the learned counsel for the petitioner submits that for the
present, he would be satisfied, if a direction is given to respondent
No.2 to review the case of the petitioner in a time-bound manner. He
submits that keeping in view the deadline as laid down under the
Regulations and the decision of the Supreme Court, grave prejudice
would be caused in case, the respondents do not take a timely
decision.

Learned counsel for the respondents, who appear on advance notice,
assure the Court that the decision on the review of the petitioner’s
application will be taken by respondent No.2 within 5 weeks in
accordance with the Regulations as also the contents of the letter
dated 13.2.2018 written by respondent No.1 to respondent No.2.

The present petition is accordingly disposed of binding respondent
No.2 to the statement to decide the petitioner’s application within 5
weeks.

Needless to say that the present order, has been passed without
prejudice to the rights and contentions of both the parties.

In case the petitioners are still aggrieved by any order passed by the
respondents, they may take legal recourse as permissible under law.”

It is apparent from the aforesaid order that in spite of the fact that

College was aware that in view of Regulation 8(3)(1)(a), fresh inspection was

not to be carried out in view of the deficiencies found by the Assessors and the
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compliance could not have been considered, the College in the aforesaid writ

petition pressed only the prayer for review in a time-bound manner. It did not

insist that the compliance should be considered as per orders of this Court;

whereas the provisions of the aforesaid Regulations were already attracted.

20. The Oversight Committee opined that compliance could not have been

considered in view of the gross deficiencies found as provided in Regulation

8(3)(1)(a), in the following manner, and the decision of the Oversight

Committee is extracted hereunder:

“In view of the provision of Regulation 8(3)(1)(a) of the
Establishment of Medical College Regulations, 1999 referred
above, wherein it is provided that “compliance of rectification of
deficiencies from such an institute will not be considered for
renewal of permission in that Academic Year”, it is not permissible
in law for the Council to consider the compliance/representation
submitted by the College.”

Thereafter the MCI had recommended disapproval of the renewal

application for the academic year 2018-19.

21. It is apparent from the aforesaid that the petitioner was well-aware that in

view of the gross deficiencies found, an opportunity could not have been

granted in view of Regulation 8(3)(1)(a). The College filed W.P. [C]

No.4897/2018 which was decided by the High Court on 8.5.2018. Following is

the order passed by the High Court :

“Vide the present petition, the petitioners/Institutes have
sought to quash of the decision dated 24 th March 2018 passed by
respondent no.2, recommending disapproval of the petitioners’
application to respondent no.1 for renewal/permission of the third
batch of MBBS course (150 seats) for the Academic Year 2018-19.
The petitioners have also sought issuance of direction to respondent
no.2, to accept the Scheme of the petitioners as submitted for
renewal of permission in respect of the aforesaid batch and if
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necessary grant an opportunity to furnish compliance verification
and, therefore, issue a letter of permission.
At this stage, learned counsel for the petitioners submits that
vide order dated 6th March 2018, this Court had recorded the
undertaking of respondent no. 2/MCI to decide the petitioners’
pending application and forward the same to respondent no.1
within five weeks. He submits that till date, the respondent no.1 has
not informed the petitioners about any decision of respondent no.2.
Ms. Arora, who appears on advance notice for the
respondent no.1 submits that within ten days of receipt of the
recommendations from respondent no.2, the respondent no.1 will
pass a final order deciding the petitioners’ pending application.
On the one hand, Mr. T.Singhdev, learned counsel for
respondent no.2, submits that its recommendations in respect of the
petitioners’ application have already been sent to respondent no.1
on 13th April 2018 itself.
In view of the categoric statement made by learned counsel
for the respondent no.2 that the recommendations have already
been forwarded on 13th April 2018, the respondent no.1 is directed
to take a final decision on the petitioners’ application within ten
days from today.
It is made clear that in case the respondent no.1 is still not in
possession of recommendations made by respondent no.2 vide its
order dated 13th April 2018, respondent no.1 would be at liberty to
seek immediately a fresh copy of the same from respondent no.2.
Needless to say that the said final decision taken by
respondent no.1, will be communicated to the petitioner who will
be free to take legal recourse as permissible under law.
The petition and pending applications are disposed of in the
aforesaid terms.”

It is apparent from the aforesaid order that the College again did not insist

that fresh inspection should be carried out and it may be permitted to comply

with the deficiencies.

22. Pursuant to the direction issued, the Government considered the

recommendations of the MCI and passed the impugned order on 31.5.2018

disapproving the scheme of the institution and declined to renew the permission

for admission of 150 MBBS students for the academic year 2018-19. Following

deficiencies were noted by the Government of India :
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“The Executive Committee of the Council considered the
assessment report (5th and 6th December 2017) carried out in
compliance of the Order dated 13.11.2017 passed by the Hon’ble
Supreme Court of India in Writ Petition (C) No.776/2017 filed by
Lord Buddha Educational Society & Anr. Vs. Union of India & Anr.,
and noted the following: –

1. Deficiency of faculty is 21% as detailed in the report.
2. Shortage of Residents is 24.48% as detailed in the report.
3. In respect of Dr. Nitika Jain, morning & evening signatures are
not matching.
4. In respect of Dr. R.W. Kamble, appointment order is as Asst.
Prof. of Tb & Chest but has presented as Senior Resident.
5. As many as 27 faculty & residents cannot be considered due to
reasons mentioned in detail in the assessment report.
6. Patients
A. In the department of Gen. Medicine of the 38 patients on 72 beds
with respective case files, 22 are invalid for UG teaching purposes
because of following reasons: 8 cases of fever without any
investigative work up or relevant treatment, not actually requiring
hospitalization, 9 patients of hypertension without any investigative
work up or relevant treatment not requiring hospitalization, 1 patient
of acidity not requiring hospitalization, 2 patients of acute
gastroenteritis without prescription of any IV fluids or relevant
investigations and treatment suggesting that patient does not have an
illness worth hospitalization, 1 patient of renal colic without any
investigative evidence and relevant treatment not requiring
hospitalization, 1 with vague abdominal pain without any
investigations and relevant treatment not requiring hospitalization.
Of all these patients, 5 were admitted today and as many as 9 were
admitted on 4.12.2017. Surprisingly the dates of admission as
recorded on the case files did not match with what was told by the
patients to the assessor when they were asked by the assessor as to
when they were admitted in the hospital. Many patients could not
tell the exact date of admission and looked up to either staff nurse or
Medical Superintendent or the Doctor or accompanying the assessor.
All these observations suggest non-genuineness of these patients.
Admission discharge register had no proper entry like a diagnosis for
so many cases. This leaves a Total of 16 valid patients to be counted
as clinical material.

B. In the Department of Pediatrics of the 20 patients on 24 beds, 14
are invalid because of following reasons: – 10 beds had no patients
but case files were lying on the bed, 3 patients had URI without any
treatment or even an x-ray. 1 patient was of UTI without any
evidence on case file and any relevant treatment. 1 patient Bhisma of
operated PUJ was hospitalized for no valid reason.
 16

C. In the department of TB & Respiratory Medicine on the 8 beds 6
patients were available on beds. Case file of none had any diagnosis;
all were receiving the same treatment in an injectable form asking to
show the drugs, they were neither available neither with the patient
nor in the ward with the sister or in the ward store suggesting that
entire thing is on paper and not genuine.

D. In the Department of Psychiatry on the 8 beds 6 patients were
available on beds, case files of none had any diagnosis; all were
receiving the same treatment in injectable form. On asking to show
the drugs, they were neither available neither with the patient nor in
the ward with the sister or in the store suggesting that entire things
are on paper and not genuine.

E. In the Department of Dermatology of the 6 patients available on 8
beds, all 6 had a diagnosis of scabies and appeared to be persons
from destitute homes/old age homes. On asking to show the drugs
being administered, no drug could be shown either with the patient
or with the sister at the nursing station or in the store of the ward.

F. In the department of Gen. Surgery 42 patients were available on
90 beds. Following 15 patients are not considered valid for counting
as follows: – 2 patient of UTI without any evidence on investigation
or treatment not requiring hospitalization. 2 patients of gastritis not
requiring hospitalization. 1 patient Gayatri’s case file showed the
diagnosis of acute appendicitis on the front page of the case sheet but
inside it was written as diabetic foot exam of her foot, it was found
normal. 1 patient Minakshi’s attendant told that she had been
admitted for not being able to speak but on file the diagnosis written
was Hernia and on examination of the patient by the assessor, no
hernia anywhere was found. 1 patient Durpati was admitted as
operated lipoma on 2.12.2017 but on examination by the assessor, no
dressing or operated sutured incision or any dressing on the operated
lipoma was found. 1 patient Sunita Bai was admitted as operated
fibroadenoma on 2/12/17 but on examination by the assessor, no
dressing or operated sutured incision was found. 1 patient Pacho Bai
had the symptom of headache on asking by the assessor but case file
showed the diagnosis of Acute Appendicitis. 1 patient Hiteshwari
had features of vague abdominal pain but diagnosis documented on
case file was lipoma and on examination, there was no lipoma. 1
patient Kunj Rani was admitted with the diagnosis of hypertension in
surgical ward (not a surgical patient). 1 patient Sridhar was admitted
with multiple joint pains in surgery wad (not a surgical patient). 1
patient Lekhroo was admitted with pain elbow in surgery ward (not a
surgical patient). 1 patient Chelliya Sahu was admitted with
osteoarthritis in surgery was (not a surgical patient). 1 patient Nand
Lal was admitted with backache in surgery ward (not a surgical
patient).
 17

G. In the department of Orthopedics of the 24 patients admitted on
30 beds, 9 are invalid for following reasons for UG teaching
purposes: – 6 were admitted with lumbar radiculopathy without and
clinic investigative evidence suggesting they have been admitted to
show increased count but actually do not have an illness worth
hospitalization. They were lying comfortably and were not
prescribed appropriate treatment. 1 patient of claudication was
admitted in ortho ward. 1 patient of claudication was admitted in
Ortho ward. 1 patient of osteoarthritis and 1 of polyarthralgia were
admitted without a clinico-investigative evidence without any proper
treatment.

H. In the department of ENT 6 patients on 10 beds, which 2 are not
be counted. 1 was admitted with acute pharyngitis without any
clinical evidence and relevant treatment thus suggesting that it did
not require hospitalization and the other was a cataract patient
admitted in ENT.

I. In the department of OB & GYN, 25 patients were on 40 beds. 10
Gynec patients and 15 obstetric patients. They can be taken as valid
patients.

7. Most of the patients in General Medicine, Psychiatry, Skin &
VD, Tb & Chest wards appeared to be brought from Destitute
homes/old age homes.

8. In view of the above, Bed occupancy of genuine patients was 33%
as detailed in the report at 10 a.m. on the day of assessment.

9. OPD attendance up to 2 p.m. on the day of assessment as
verified by Assessors was 521 against the requirement of 750.

10. PNDT approval is not available for USG machines.

11. OPD: Various sections of OPDs are haphazard and spread here
and there and are highly disorganized.

12. Data of Radiological & Laboratory investigators as submitted by
the Institute appear to be inflated.

13. Casualty: Separate Casualty for O.G. is not available. Disaster
Trolley, Crash Cart is not available.

14. ICUs: There was NIL patient in ICCU & 1 patient each in
SICU, NICU/PICU on the day of assessment.
 18

15. 2 Static X-ray machines are available against the requirement of
3.

16. Lecture Theaters: Only 2 Lecture Theaters are available against
the requirement of 3. Arrangement is not proper as detailed in the
report.

17. Students’ Hostels: Accommodation is available for 292 students
against the requirement of 339.

18. Residents’ Hostel: Rooms on I floor are not furnished.

19. Anatomy department: Only 5 cadavers are available.

20. RHTC: It is actually a CHC and the Institute is only permitted to
use it. The control is not with the Dean. All registers are maintained
by the staff of CHC and not by college staff. Activities under
National Health Programmes are done by the staff of CHC & not by
the staff of the college.

21. UHC: Survey/MCH/Immunization/FP registers are not
available. Specialists’ visits are not organized.

22. Website: Information uploaded is sketchy as detailed in the
report.

23. MEU: It is not available as per regulations.

24. Other deficiencies as pointed out in the assessment report.

The Executive Committee noted that Regulation 8(3)(1)(a) of
the Establishment of Medical College Regulation (Amendment),
2010 (Part II), dated 16th April 2010 and amended on 18th March
2016 provides as under: –
“8(3)(1) ….
(a) Colleges in the stage of Letter of Permission up to II renewal
(i.e. Admission of the third batch)

If it is observed during any inspection/assessment of the institute that
the deficiency of teaching faculty and/or Residents is more than 30%
and/or bed occupancy is <50% (45% in North East, Hilly terrain etc.), compliance of rectification of deficiencies from such an institute will not be considered for issue of Letter of Permission (LOP)/renewal of permission in that Academic Year.” In view of the deficiencies as noted above, the Executive Chairman of the Council decided to recommend to the Central Govt. to invoke Regulation 8(3)(1)(a) of the Establishment of Medical  19 College Regulation, 1999 and disapprove the application of the Raipur Institute of Medical Sciences, Raipur, Chhattisgarh under Chhattisgarh Ayush and Health Sciences University, Raipur u/s 10A of the IMC Act, 1956 for renewal of permission of MBBS course 3 rd batch (150 seats) for the academic year 2018-2019.” The Government of India also considered Regulation 8(3)(1)(a) and the decisions are taken by the Oversight Committee and the MCI while passing the aforesaid order. The deficiency of the faculty was 21%, shortage of residents was 24.48%, bed occupancy was found to be 33%, OPD attendance was also found less than the requirement. There were other deficiencies of equipment’s and infrastructure as noted above. Regulation 8(3)(1)(a) was clearly attracted which is extracted hereunder: “8. GRANT OF PERMISSION: (3)(1). The permission to establish a Medical College and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the Medical College and expansion of the hospital facilities are completed and a formal recognition of the Medical College is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies. Note: In the above clause, "six months" shall be substituted by "as per latest time schedule”: Provided that in respect of--- (a) Colleges in the stage of letter of permission up to II renewal (i.e. admission of third batch) If it is observed during any inspection/assessment of the institute that the deficiency of teaching faculty and/or Residents is  20 more than 30% and/or bed occupancy is <50% (45% in North East, Hilly terrain, etc.), compliance of rectification of deficiencies from such an institute will not be considered for issue of letter of permission (LOP)/renewal of permission in that academic year.” 23. In view of the gross deficiencies found, no compliance verification could have been made in view of Regulation 8(3)(1)(a). It was already a case of conditional permission which was granted subject to removal of deficiencies and in successive inspections, it was found that the College was not compliant and had not removed the deficiencies. When this Court has passed an order on 13.11.2017, no doubt about it that this Court has observed that inspection should be carried out and College should be given an opportunity to make compliance of deficiencies. In concluding portion it was observed that the decision has to be in accordance with law. This Court never decided the question in case deficiencies were found to be gross as contained in Regulation 8(3)(1)(a) whether the said Regulation has to be ignored. The observations which were made by this Court were obviously based upon the main provision which requires an opportunity to be given unless the deficiencies are such which can be termed to be “gross” as contemplated in proviso (a) to Regulation 8(3)(1)(a) that has been amended. 24. The effect the Regulations as well as the decision in Royal Medical Trust (Registered) & Anr. v. Union of India & Anr. (2015) 10 SCC 19 came up for consideration of this Court in Vedantaa (supra). Regulation 8(3)(1)(a) provides that if the deficiencies of teaching faculty and/or residents are found to be more than 30% and/or bed occupancy less than 50%, College shall not be entitled to  21 make them good and compliance of deficiencies will not be considered for issuance of letter of permission for same academic year. This Court held that compliance verification could not have been ordered in view of Regulation 8(3) (1)(a). The relevant observations in Vedantaa (supra) are extracted hereunder: “10. Though Regulation 8(3)(1)(a) was challenged in the writ petition filed by Respondents 1 and 2, they did not press the relief. They restricted their challenge to the manner in which the inspection was done and for a direction to the appellant-Council to carry out a fresh inspection. The interpretation of Regulation 8(3)(1)(a) by the High Court is patently erroneous inasmuch as the High Court did not take note of the proviso to Regulation 8(3)(1). Without a proper examination of the provision, the High Court fell in error in holding that Regulation 8(3)(1) (a) would be applicable only to the Colleges seeking second renewal i.e. admissions of the third batch. Admissions up to the second renewal i.e. admissions to the third batch would fall under Regulation 8(3)(1)(a). In other words, the proviso is not restricted only to second renewal cases. Even the first renewal is covered by proviso (a) to Regulation 8(3)(1) as the language used is "up to second renewal". We do not see any conflict between Section 10-A (3) and (4) of the Act on one hand and Regulation 8(3)(1)(a) on the other. Regulation 8(3)(1) (a) is complementary to Section 10-A of the Act. Fixing minimum standards which have to be fulfilled for the purpose of enabling a medical College to seek fresh inspection would not be contrary to the scheme of Section 10-A. In fact, Regulation 8(3)(1) provides that an opportunity shall be given to the Medical College to rectify the defects. But, the proviso contemplates that certain minimum standards are to be satisfied i.e. there should not be a deficiency of teaching faculty and/or residents more than 30 percent and/or bed occupancy should not be less than 50%. This prescription of standards for availing an opportunity to seek reinspection is not ultra vires either the Regulation or Section 10-A of the Act. 11. On perusal of the material on record, we are of the opinion that the conclusion reached by the High Court regarding the manner in which inspection was conducted is also not correct. Bed occupancy at 45.30 percent on random verification was the claim of Respondents 1 and 2. However, the inspection report shows that out of the required minimum of 300 patients only 3 were available at 10.00 am on 25th September 2017. This Court in Medical Council of India v. Kalinga Institute of Medical Sciences, (2016) 11 SCC 530 has held that medical education must be taken very seriously and when an expert body certifies that the facilities in a medical College are inadequate, it is not for the Courts to interfere with the assessment, except for very cogent jurisdictional reasons such as malafide of the inspection team, ex facie perversity in the inspection, jurisdictional error on the part of the M.C.I., etc. The  22 submission relating to the cyclone being a reason for the number of patients being less is not acceptable. We are in agreement with the submission made on behalf of the Appellant that the Resident Doctors are required to be in the hospital at all points of time.” 25. It   is   apparent   that   the   College   had   filed   successive   writ applications in the High Court of Delhi in 2018 but did not pray for fresh inspection in terms of the order passed by this Court knowing fully well that the MCI and the Oversight Committee had decided   and   again   reiterated   their   decision   that   due   to   gross deficiencies   found   as   per   Regulation   8(3)(1)(a),   compliance verification could not have been made. It was incumbent upon the College to timely press for the relief of considering compliance which it did not insist and thereafter it was too late in the day to order it by the High Court vide impugned order dated 1.8.2018 passed by the High Court even if it was permissible. 26. What   this   Court   intended   by   passing   the   order   on 13.11.2017   was   that   the   College   be   inspected   afresh   for   the academic year 2018­19 but it was not even in contemplation of this Court at the time what would be the nature of deficiencies to be   found   on   fresh   inspection.   The   observation   has   to   be considered   only   with   respect   to   when   deficiencies   have   been found   to   be   such,   more   than   30%   of   faculty   and   of   residents and/or   the   bed   occupancy   is   less   than   50%,   no   further  23 compliance verification opportunity has to be given. The decision of this Court cannot be taken to be a decision with respect to it when   deficiencies   are   found   to   be   gross   where   the   proviso   to Regulation 8(3)(1) comes into play. The decision of this Court is based on the main provision that ordinarily an opportunity has to be   given   to   removing   the   deficiencies   which   are   removable   not falling   within   the   aforesaid   percentage   in   Regulation   8(3)(1)(a). Thus,   Court   never   intended   to   bye­pass   the   provision   of Regulation 8(3)(1)(a). It was not ordered that notwithstanding the provision of Regulation 8(3)(1)(a), compliance opportunity is to be afforded. A decision is an authority for the question considered and decided. This Court had not decided the aforesaid aspect nor was it germane as fresh inspection had not been carried out by 13.11.2017. Thus, the observations made by this Court cannot be taken to mean that though deficiencies are found to be more than 30% of faculty and residents and bed occupancy is 50% and notwithstanding the provisions contained in Regulation 8(3)(1)(a), compliance   opportunity   should  be given. Thus, the  High Court has erred in law in considering purport of the order of this Court and   the   ratio   of   the   decision   in  Vedantaa  (supra)   was   clearly applicable in the case.  24 27. Considering   the   nature   of   the   deficiencies   that   had   been found on fresh assessment and also the fact that the College had in fact never been granted clear recognition by the Government of India   or   MCI,   it   was   only   on   the   insistence   of   the   Oversight Committee appointed by this Court that conditional permission was granted and gross deficiencies were found. Thus, the College was not entitled to any further indulgence; more so, in view of Regulation 8(3)(1)(a), that too after the period of grant of sanction etc.   was   over   and   also   the   admissions.   The   High   Court   has ignored   the   academic   calendar   also.   In   such   facts   and circumstances, the fresh inspection could have been directed for the   academic   year   2018­19,   and   the   fresh   decision   by   the Government of India and the MCI. 28. Resultantly, we find that no case for quashing order dated 31.5.2018   passed   by   the   Government   of   India   had   been   made out. The judgment and order passed by the High Court are thus liable to be set aside and the appeal deserves to be allowed. The judgment   and   order   are   set   aside   and   the   appeal   is   hereby allowed. Parties to bear their own costs.  25 …………………………. J. (Arun Mishra) New Delhi; …………………………J. October 9, 2018. (Vineet Saran)