IQ CITY FOUNDATION & ANR.versusUNION OF INDIA & ORS.

                         [2018] 2 S.C.R. 587                             587


                 IQ CITY FOUNDATION & ANR.                               A
                                  v.
                    UNION OF INDIA & ORS.
                (Writ Petition (Civil) No. 502 of 2017)
                        FEBRUARY 06, 2018                                B
          [DIPAK MISRA, CJI, AMITAVA ROY AND
                A. M. KHANWILKAR, JJ.]
       Medical Council Act, 1956 – s.10-A – Petitioner-College
sought renewal of permission for admission of 150 students in MBBS
                                                                         C
course for the academic year 2017-2018 – Rejected by first
respondent vide order dtd. 31.05.2017 – Writ petition filed by
petitioner for quashing of the said order and for issuing a direction
to the said respondent to grant the permission sought by Petitioner
– In view of the fact that the order passed by the first respondent
was not reasoned, Supreme Court inter alia directed it to afford a       D
further opportunity of hearing to the petitioner and thereafter take
a decision – Petitioner-institution afforded an opportunity of
hearing – First respondent, considering the remarks of the Hearing
Committee reiterated its earlier decision dtd. 31.05.2017 not to renew
the permission to admit MBBS students for the academic year
                                                                         E
2017-18 – Held: Hearing Committee, on verification of every aspect,
found that the deficiency of faculty members was 15.9 and the
deficiency of Resident Doctors was 25.88 and, accordingly, it did
not recommend for renewal – First respondent, in its turn, observed
that the deficiency found was not compatible with the MCI guidelines
– In such a situation, it is difficult to hold that there was any        F
perversity in the action of the authorities denying the renewal to
the institution – However, it is directed that the prayer for renewal
shall be considered for the year 2018-19 and any bank guarantee
that has been furnished shall be treated as deposit for the inspection
and consideration for the next year, i.e. 2018-19 – Education –
                                                                         G
Constitution of India – Art.32.
      Disposing of the writ petition, the Court
     HELD: 1.1 The petitioner-institution was afforded an
opportunity of hearing by the Hearing Committee. The Central
                                                                         H
                                  587
588            SUPREME COURT REPORTS                         [2018] 2 S.C.R.


A     Government, considering the remarks of the Hearing Committee,
      passed an order. The competent authority of the Central
      Government, considering various aspects, had reiterated the
      order. After the remand, the petitioner-institution filed certain
      documents before the Hearing Committee.[Paras 9-11, 13][594-
      D-E; 595-F-H]
B
            1.2 The Hearing Committee, on verification of every aspect,
      found that the deficiency of faculty members was 15.9 and the
      deficiency of Resident Doctors was 25.88 and, accordingly, it did
      not recommend for renewal. The Central Government, in its turn,
      observed that the deficiency found by the MCI was not compatible
C     with the MCI guidelines. In such a situation, it is difficult to hold
      that there was any perversity in the action of the authorities
      denying the renewal to the institution. Though the decision of
      the Central Government is approved, yet it is directed that the
      prayer for renewal shall be considered for the year 2018-19 and
D     any bank guarantee that has been furnished shall be treated as
      deposit for the inspection and consideration for the next year,
      that is, 2018-19. [Para 15][596-E-H; 597-A-B]
            Manohar Lal Sharma v. Medical Council of India and
            others (2013) 10 SCC 60 : [2013] 9 SCR 325; Medical
E           Council of India v. Kalinga Institute of Medical
            Sciences (KIMS) and others (2016) 11 SCC 530 : [2016]
            4 SCR 403; Royal Medical Trust (Registered) and
            another v. Union of India and another (2015) 10 SCC
            19 – referred to.

F                            Case Law Reference
      [2013] 9 SCR 325                referred to                 Para 5
      [2016] 4 SCR 403                referred to                 Para 5
      (2015) 10 SCC 19                referred to                 Para 5
            CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
G
      No. 502 of 2017.
            Under Article 32 of the Constitution of India.
            Mukul Rohatgi, Ajit Kumar Sinha, Vikas Singh, Sr. Advs., Kunal
      Vajani, Nikhil Rohatgi, Pranaya Goyal, Chiranjivi Sharma, Abhirath
H     Thakur, Vipin Kumar, R. K. Rathore, G. S. Makker, Gaurav Sharma,
 IQ CITY FOUNDATION & ANR. v. UNION OF INDIA & ORS.                               589


Ms. Amandeep Kaur, Prateek Bhatia, Dhawal Mohan, Advs. for the                    A
appearing parties.
       The Judgment of the Court was delivered by
       DIPAK MISRA, CJI 1. The present writ petition, as the
circumstances would have it,  st
                                 witnesses a second verdict. The first one
was disposed of by us on 1 August, 2017. At that time, we had noted               B
the facts to the effect that the petitioners had prayed for issue of a writ
of certiorari for quashment of the order dated 31.05.2017 passed under
Section 10-A of the Indian Medical Council Act, 1956 (for brevity, ‘thest
Act”) by the Secretary, Ministry of Health and Family Welfare, the 1
respondent herein, and further issue a directionth
                                                   to the said respondent to      C
grant permission to the petitioner-College for 4 renewal
                                                    th
                                                            for the academic
year 2017-2018 to facilitate admission of the 5 batch (150 students)
MBBS Course.
        2. The essential facts which have been noted in the earlier judgment
are that the Medical Council of India (MCI) had conducted an inspection           D
and granted the Letter of Permission (LOP) on 15.07.2013 for the
establishment of the new medical college at Burdwan, West Bengal
with an annual intake of 150 students with effect from the academic
year 2013-14. Vide letters dated 04.07.2014,
                                    nd   st
                                                 10.06.2015
                                                       rd   n
                                                              and 15.12.2015,
renewals
   rd
            of permission  for the 2   (1   renewal), 3   (2  renewal)  and 4th
(3 renewal) batches of MBBS students at the petitioner-College for                E
the academic years 2014-15, 2015-16 and 2016-17 respectively were
granted by the respondent No. 1. On 06.07.2016, the petitioner-College
                                                                 th
submitted its scheme along with the requisite fees for the 4 renewal   th
                                                                           for
the academic year 2017-18 which pertains to admission ofndthe 5 batch
of 150 students in MBBS course. On 09.07.2016, the 2 respondent                   F
informed the College that the assessment for renewal of permission for
the academic year 2017-18 would be undertaken by the Assessors
appointed by it at any time after 15.07.2016 and the petitioners were
asked to fill in the Standard Inspection Form A, Form B and Declaration
Form for the academic year 2017-18 and keep them ready for scrutiny
at the time of assessment. There was also a direction for submission of           G
the soft copies of the said Forms. As averred, the petitioners duly
submitted a compact disc containing soft copies of Form A, Form B and        nd
Declaration Form and upon receipt of the necessary documents, the 2
respondent constituted a team of Assessors and directed them to carry
out the assessment inspection of the College. The inspection team, that           H
590            SUPREME COURT REPORTS                          [2018] 2 S.C.R.


A     is, the Assessors, conducted a surprise inspection of the College on
      03.11.2016 and 04.11.2016. The Assessors pointed out certain deficiencies
      to the College and noted the same in the assessment report dated
      04.11.2016. It is put forth that in the Regular Inspection Report, the
      shortfall in Teaching Faculty and Resident Doctors were only 4.5% and
      3.50% respectively which were well within the prescribed limit. Two
B
      other deficiencies that were pointed out, as asserted, were completely
      remediable and were duly remedied by the College. On 22.12.2016, the
      Executive Committee of the respondent No.2 considered the Assessment
      Report of the Assessors and decided to recommend to the    th
                                                                    respondent
      No.1 not to renew the permission to the College for the 4st renewal for
C     the academic year 2017-18. It was also noted that the 1 respondent,
      by its letter dated 03.02.2017, communicated to the College the
      recommendation dated 28.01.2017 of the respondent       th
                                                                     No. 2 for
      disapproving the permission to the College for the 4 renewal for the
      academic year 2017-18 and called upon the College to submit a detailed
      point-wise compliance with documentary evidence. The College was
D
      further intimated about the hearing that was to be held on 09.02.2017
      before the Hearing Committee. A team of representatives of the College
      appeared before the Hearing Committee on the date fixed and submitted
      the compliance report keeping in view the remarks and observations
      made by the Assessors of the respondent No. 2. In the second week of
E     March, 2017, the petitionersst
                                          received a copy of the order dated
      01.03.2017 issued by the 1 respondent recording the recommendations/
      order passed by the Hearing Committee of the respondent No. 1 under
      Section 10-A(4) of the Act. The recommendation of the Hearing           nd
      Committee was to the effect that the deficiencies pointed out by the 2
      respondent were not such to warrant disapproval at that stage.   Despite
F                                                                st
      the aforesaid findings of the Hearing Committee, the 1 respondent,
      instead of taking a final decision, referred the matter back to the
      respondent No.2 to review the same in the light of the recommendations/
      findings of the Hearing Committee along with documents submitted by
      the petitioners and to furnish its recommendation.
                                                                 nd
G           3. On the earlier occasion, it was asserted that the 2 respondent,
      on 17.03.2017, constituted a team to carry out a Compliance Verification
      Assessment of the College. The team of Assessors, instead of carrying
      out a compliance verification, conducted a regular inspection on
      21.03.2017 in a random manner and proceeded to make a different kind
H
    IQ CITY FOUNDATION & ANR. v. UNION OF INDIA & ORS.                      591
                    [DIPAK MISRA, CJI]

of assessment instead of limiting to their scope of reviewing the           A
compliance of the remarks/observations of the Hearing Committee. At
this juncture, it was contended that though the Compliance Inspection
Report was submitted, yet the Assessors required the College to submit
a representation and, accordingly, the College submitted the necessary
representation to the respondent No. 2. The Assessors, as per the stand
                                                                            B
of the petitioners, noted certain deficiencies in their Compliance
Verification. The Executive Committee of the respondent No. 2 held its
meeting on 28.04.2017 but the minutes of the meeting were not uploaded
on the official website of the respondent No. 2 until 29.05.2017 and
were not communicated to the petitioners.
       4. On earlier  occasion, it was submitted that the petitioner had    C
                   st
approached the 1 respondent on 20.5.2017 and submitted a detailed
representation with regard to compliance verification of the deficiencies
found by thestassessors as pointed by the Respondent No. 2. Despite the
same, the 1 respondent, ndvide order dated 31.5.2017, accepted the
recommendation ofth the 2 respondent and rejected th
                                                          the scheme of     D
permission for the 4 renewal (Admission of the 5 batch of 150 students
in MBBS course) for the academic year 2017-2018. It was urged that
the order dated 31.5.2017 was communicated to the college on 30.6.2017.
That apart, it was highlighted that the entire approach of the MCI was
contradictory to the Act and the Establishment of Medical College
Regulations, 1999 (for short, ‘the Regulations’) and further when the       E
Central Government had sent back the matter to the MCI to have a
relook at certain aspects, it could not have proceeded for a fresh
compliance inspection.
      5. The contentions raised by the petitioners were opposed by the
MCI. This Court, referring to the decisions in Manohar Lal Sharma v.        F
Medical Council of India and others1, Medical Council of India v.
Kalinga Institute of Medical Sciences (KIMS) and others2 and Royal
Medical Trust (Registered) and another v. Union of India and
another3 and thereafter referring to Section 10-A of the Act and the
Regulations, opined thus:-                                                  G
       “29. On a reading of Section 10-A of the Act, Rules and the
       Regulations, as has been referred to in Manohar Lal Sharma
1
  (2013) 10 SCC 60
2
  (2016) 11 SCC 530
3
  (2015) 10 SCC 19                                                          H
592            SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A           (supra), and the view expressed in Royal Medical Trust (supra),
            it would be inapposite to restrict the power of the MCI by laying
            down as an absolute principle that once the Central Government
            sends back the matter to MCI for compliance verification and the
            Assessors visit the College they shall only verify the mentioned
            items and turn a Nelson’s eye even if they perceive certain other
B
            deficiencies. It would be playing possum. The direction of the
            Central Government for compliance verification report should not
            be construed as a limited remand as is understood within the
            framework of Code of Civil Procedure or any other law. The
            distinction between the principles of open remand and limited
C           remand, we are disposed to think, is not attracted. Be it clearly
            stated, the said principle also does not flow from the authority in
            Royal Medical Trust (supra). In this context, the objectivity of
            the Hearing Committee and the role of the Central Government
            assume great significance. The real compliant institutions should
            not always be kept under the sword of Damocles. Stability can be
D
            brought by affirmative role played by the Central Government.
            And the stability and objectivity would be perceptible if reasons
            are ascribed while expressing a view and absence of reasons
            makes the decision sensitively susceptible.”
            6. After so holding, the Court took note of the fact that the order
E     passed by the Central Government is not a reasoned one and in that
      backdrop, this Court directed:-
            “It is obligatory on its part to ascribe reasons. For the said purpose,
            we would like the Central Government to afford a further
            opportunity of hearing to the petitioners and also take the assistance
F           of the newly constituted Oversight Committee as per the order
            dated July 18, 2017 passed by the Constitution Bench in Writ
            Petition (Civil) No. 408 of 2017 titled Amma Chandravati
            Educational and Charitable Trust and others v. Union of India
            and another and thereafter take a decision within two weeks.
G           Needless to say, the decision shall contain reasons. We repeat at
            the cost of repetition that the decision must be an informed one.”
            7. To appreciate the controversy, we may first record the letter
      dated 21.3.2017 before the order of remand. The said letter written by
      the petitioner to the MCI reads thus:-
H
 IQ CITY FOUNDATION & ANR. v. UNION OF INDIA & ORS.                           593
                 [DIPAK MISRA, CJI]

      “In connection with the above subject I would like to submit the        A
      following paragraph for your kind consideration.
                                                            rd      th
      1. That during the last MCI inspection held on 3 and 4 Nov
      2016 our Faculty & Resident deficiency was 2.18 and 3.38
      respectively. However on 21.03.2017 surprise inspection and due
      to their personal commitment they could not come by 11 AM and           B
      could not appear before the assessors.
      2. Secondly, the State NEET Post Graduate counseling and the
      Diplomat in National Board (DNB) counseling in process, many
      of the senior and Junior Residents and few faculty members had
      gone to KOLKATA for their counseling hence were not able to             C
      appear in the inspection conducted on 21.03.2017.
      3. Thirdly most of these faculties and residents are working with
      us since long time and kind of documentary proof for the same
      can be submitted, but because of the counseling they were unable
      to make it.                                                             D
      4. It will not be out of place to mention here that our faculties and
      residents had gone to attend medical camps in suburban areas as
      such they could not reach by 11 AM to appear before the assessors.
      Hence their absence may kindly be considered to offset the faculty
      and resident deficiency.”                                               E
       8. Another letter was issued on 10.4.2017. The relevant part of
the said communication reads thus:-
                          th                                             rd
      “(3)thThat for our 4 renewal inspection we were inspected on 3
      & 4 November 2016      & a subsequent compliance inspection was
                        st                                                    F
      conducted on 21 March, 2017.
                     st
      (4) That on 21 March when the surprise compliance inspection
      was conducted, few of our facility & residents were on deputation
      for attending our regular Medical camps on the rural areas. In
      view of the inspection these facilities & residents were called
      back to the hospital & college but by the time they arrived the         G
      time for signing the attendance sheet was over i.e. 11 a.m. They
      were denied signing in the attendance sheet and were not
      considered during the head count which lead to deficiency of
      faculty and residents – 15.99% and 25.88% respectively, even
                                                                              H
594            SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A           though our deficiency
                                rd
                                   was less
                                        th
                                            than 5% for both categories in the
            inspection held on 3 and 4 November 2016.
                            nd
            (5) That on 22 March 2017 we also sent one representation
            letter along with photograph of few of our medical camps which
            were going on vide letter no IQMC/2016-17/09 dated 21/03/2017.
B           The photographs are once again enclosed.
            (6) That we are an established running medical college and hospital
            with more than thousand employees working having all the requisite
            infrastructure, faculties and residents and clinical materials as per
            the council norms.”
C     And again:-
            “Hence, it is requested that our faculty & resident deficiency on
            the day of the inspection may kindly be considered sympathetically
                                                                   th
            and permission may be accorded to us to admit the 5 batch of
            150 students and continue our services in Medical Education &
D           Health Care Services.”
            9. As the facts would show, the petitioner-institution was afforded
      an opportunity of hearing by the Hearing Committee which, thereafter,
      recorded the following findings:-
            “1. On detailed examination of the documents, the deficiency of
E
            the faulty still persisting. Hence not acceptable.
            2. The shortage of Residents is 25.88% (maximum acceptable is
            5%).
            3. It has been recorded in the Minutes of the MCI meeting that
F           the Assessor resorted to only random checking of OPDs in just
            three Departments, namely TB & Respiratory, ENT and Psychiatry
            Department and has arrived at a figure without counting the total
            number of patients registered in all the Departments, which seems
            unreasonable and inaccurate.
G           4. Student hostel: The college authorities are producing the
            Chartered Architect Certificate on completion and occupancy of
            the hostel (to be verified).
            5. The Anatomy Department had the requisite number of mounted/
            unmounted specimens on the date of inspection and is being treated
H           as complied with.
 IQ CITY FOUNDATION & ANR. v. UNION OF INDIA & ORS.                          595
                 [DIPAK MISRA, CJI]

      Conclusion: The deficiency of faculty found by assessor was            A
      15.9% and was accepted by the College. The reasons provided
      by the college for this deficiency are not compatible with MCI
      guidelines of acceptable leave. Also the deficiency of Residents
      was 25.88%. Therefore, renewal is not recommended.”
      10. The Central Government, considering the remarks of the             B
Hearing Committee, passed an order which is to the following effect:-
      “10. Now, therefore, in compliance with the above direction of
      Hon’ble Supreme Court, the Ministry granted hearing to the college
      on 22.08.2017. A Member of the newly constituted Oversight
      Committee also attended the Hearing Committee meeting. The             C
      Hearing Committee submitted its report to the Ministry with the
      following conclusion:-
          The deficiency of faculty by assessor was 15.9% and was
          accepted by the College. The reasons provided by the College
          for this deficiency are not compatible with MCI guidelines of      D
          acceptable leave. Also the deficiency was 25.88%. Therefore,
          renewal is not recommended.
             A copy of the Hearing Committee report containing their
          observations is enclosed.
      11. Accepting the recommendations of the Hearing Committee,            E
      the Ministry reiterates its earlier decision dated 31.05.2017 not to
      renew the permission to admit MBBS students at IQ City Medical
      College, Burdwan for the academic year 2017-18.”
      11. Thus, it is demonstrable that the competent authority of the
Central Government, considering various aspects, had reiterated the order.   F
       12. We have heard Mr. Mukul Rohatgi and Mr. P.S. Patwalia,
learned senior counsel for thest petitioners, and Mr. Ajit Kumar Sinha,
learned senior counsel for the 1 respondent, and Mr. Vikas Singh, learned
senior
  nd
       counsel along with Mr. Gaurav Sharma, learned counsel for the
2 respondent, MCI.                                                           G
       13. We may note here with profit that after the remand, the
petitioner-institution filed certain documents before the Hearing
Committee on 22.8.2017.

                                                                             H
596             SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A            14. The petitioner-institution also filed salary slips of the teaching
      faculty and salary slips of Senior Resident Doctors and Junior Resident
      Doctors before the Hearing Committee. The said documents have also
      been brought on record. Paragraph 14 of the letter dated 22.8.2017 by
      the petitioner-institution to the Secretary, Ministry of Health and Family
      Welfare, Government of India reads as under:-
B
            “It needs to be mentioned that our Teaching Hospital has received
            accolades from a team of 7 International Doctors headed by Dr.
            Partha Sadhu and Dr. Klas Erik Kaspersson of “SMILE” and
            “INGA-International Foundation” who are carrying out a major
            camp for corrective surgery of Cleft Lip/Cleft Palate in our Medical
C           College & Hospital from 16th August, 2017 to 24th August, 2017
            under the name and style called “OPERATION SMILE”. A total
            of 87 corrective surgeries for Cleft Lip and Cleft Palate have
            already been performed as of date in our Hospital during the said
            period. The Operation Smile and INGA International Foundation
D           have till date conducted more than 100 such camps and performed
            more than 29,000 surgeries, Pan India. The said “SMILE” and
            “INGA- International Foundation” have issued a letter of
            appreciation to our College and Hospital stating that it is rare to
            find such outstanding “State-of-the-Art” Medical and
            infrastructure facilities.”
E
             15. That apart, the details of OPD patients between 15.3.2017 to
      29.3.2017 have also been filed before the Hearing Committee as well as
      this Court. The grievance that has been vehemently agitated is that, had
      the Hearing Committee scrutinized the documents and appreciated the
      stand of the institution in proper perspective, the opinion of the Hearing
F     Committee would have been quite different and as a corollary, the view
      of the Central Government would have been guided in an affirmative
      way in favour of the institution. The aforesaid submission, on a first
      blush, looks quite attractive but, on a keener scrutiny, pales into total
      insignificance. We are disposed to think so inasmuch as the Hearing
G     Committee, on verification of every aspect, found that the deficiency of
      faculty members was 15.9 and the deficiency of Resident Doctors was
      25.88 and, accordingly, it did not recommend for renewal. The Central
      Government, in its turn, observed that the deficiency found by the MCI
      was not compatible with the MCI guidelines. In such a situation, it is
      difficult to hold that there has been any perversity in the action of the
H
 IQ CITY FOUNDATION & ANR. v. UNION OF INDIA & ORS.                                  597
                 [DIPAK MISRA, CJI]

authorities denying the renewal to the institution. Though we have given             A
the stamp of approval to the decision of the Central Government, yet we
are inclined to direct that the prayer for renewal shall be considered for
the year 2018-19 and any bank guarantee that has been furnished shall
be treated as deposit for the inspection and consideration for the next
year, that is, 2018-19. Be it clearly stated, our opinion is restricted to the
                                                                                     B
non-granting of renewal for the year 2017-18 and not an expression of
opinion with regard to the consideration of the prayer for 2018-19.
       16. The writ petition is accordingly disposed of without any order
as to costs.
                                                                                     C
Divya Pandey                                            Writ Petition disposed of.




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