Supreme Court of India
MEDICAL COUNCIL OF INDIAversusN.C. MEDICAL COLLEGE & HOSPITAL & ORS.
- Citation
- 2018 INSC 817
- Decided
- 13 September 2018
- Disposal
- Appeal(s) allowed
- Bench
- ARUN MISHRA
Holding
The High Court order granting permission to the college is unsustainable and is set aside.
Summary
The Medical Council of India (MCI) appealed against a Punjab & Haryana High Court order that allowed N.C. Medical College to admit 150 MBBS students for the 2018‑19 session. The High Court had directed the Central Government to grant permission by 31 May 2018, relying on a government order issued under that interim direction. The Supreme Court had earlier set aside the interim direction (29 May 2018) in Civil Appeal No. 6001/2018, rendering the subsequent government order invalid. The Court held that the High Court could not rely on the now‑void order, could not sit in appeal over the assessors’ inspection report, and that persistent deficiencies in faculty, residents, bed‑occupancy and other infrastructure precluded permission. Consequently, the appeal was allowed and the High Court judgment was set aside, leaving the college debarred for the 2018‑19 session.
Issues considered
- The validity of the High Court's reliance on the Central Government order dated 31.5.2018 issued under an interim direction that was later set aside.
- Whether a court can sit in appeal over the factual findings of the MCI inspection assessors.
- Whether the college satisfied the statutory and regulatory requirements for permission to admit students for the 2018‑19 academic session.
- Whether procedural fairness and opportunity of hearing were afforded to the college.
Legislation cited
Subjects
Medical Council of IndiaPermission to admit studentsInspection reportInterim orderJudicial proprietyDebarmentMedical college regulationArticle 226Supreme CourtHigh Court
Judgment
[2018] 12 S.C.R. 1 1
MEDICAL COUNCIL OF INDIA A
v.
N.C. MEDICAL COLLEGE & HOSPITAL & ORS.
(Civil Appeal No. 9519 of 2018)
SEPTEMBER 13, 2018 B
[ARUN MISHRA AND INDIRA BANERJEE, JJ.]
Education/Educational Institutions:
Medical College – Recommendation of Medical Council of
India (MCI) to Central Government not to renew permission for C
admitting students for academic session 2018-2019 – Writ petition
challenging the recommendation – High Court by interim order dated
29.5.2018 directed Central Government to grant permission to
College by 31.5.2018 – Central Government by G.O. dated
31.5.2018 granted permission in compliance of the order dated
D
29.5.2018 subject to outcome of the writ petition – Subsequently
the order dated 29.5.2018 was set aside by Supreme Court by its
order dated 4.7.2018 – High Court allowed the writ petition relying
on the G.O. dated 31.5.2018 passed by Central Government – On
appeal, held : The G.O. dated 31.5.2018 issued by Central
Government was a conditional order and was passed in compliance E
of the interim order dated 29.5.2018 – The interim order dated
29.5.2018 was also subsequently set aside by Supreme Court vide
its order dated 4.7.2018 – Thus, the order of High court lacks
judicial propriety and also tantamounts to ignoring the effect of
order dated 4.7.2018 – Court cannot sit in appeal over report of
F
the assessors – In view of the deficiencies found by the
assessors, permission could not have been accorded for the
session 2018-2019.
Allowing the appeal, the Court
HELD: 1. The impugned order of High Court is not G
sustainable. The High Court had issued a mandatory interim
direction on 29.5.2018 to Central Government to accord
permission by 31.5.2018. It was not open to High Court to rely
upon order dated 31.5.2018, which was a provisional order passed
in compliance of the interim order dated 29.5.2018, said order
H
1
2 SUPREME COURT REPORTS [2018] 12 S.C.R.
A was set aside by this Court. Once the order has been set aside,
the order of Government of India dated 31.5.2018 which was
passed pursuant to order dated 29.5.2018 could not have been
relied upon by the High Court to allow or to dispose of the writ
application holding that Central Government has tacitly accepted
the claim of the college. Thus, the order passed by the High
B
Court lacks judicial propriety and also tantamounts to ignoring
the effect of the order dated 4.7.2018 passed by this Court.
[Para 15] [12-F; 13-B-C]
2. The college was given permission by the Oversight
Committee of this Court for the session 2016-2017. It was a
C conditional permission as deficiencies existed at the given time.
The Government of India as well as MCI on their own, did not
grant permission at any point of time in view of the reports of
inspections which were undertaken time and again during the
last three years. [Para 16] [13-D]
D 3. The observations made by the High Court that
correspondence by MCI indicated that certain deficiencies have
been removed. The High Court has also referred to the website
contents of the college to hold the deficiencies of the faculty to
be 4-5% i.e., within permissible limit. The aforesaid reasonings
E and exercise done by the High Court is not in accordance with
law. As a matter of fact, when certain deficiencies have been
pointed out and paper compliance thereof has been reported by
the college that cannot by itself be said to be enough and it cannot
be presumed that by reporting paper compliance, it can be
assumed that in fact compliance had been made. Once the
F compliance report has been submitted that has to be verified by
making inspection and when it has been carried out and various
other deficiencies have been found, they have to be taken into
consideration and could not have been ignored as done by the
High Court. [Para 17] [13-E-H]
G 4. The Court cannot sit in appeal over the report of the
assessors. On the one hand, the High Court has doubted the
report of inspection and for that relied on the self-serving contents
of the website of the college. There is nothing to vouch for the
authenticity of the website information. It is not what the
H
MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE 3
& HOSPITAL
institution asserts on website but what is actually found on A
inspection, that has to be considered by the court. The deficiency
of faculty has been culled out in the inspection report in detail.
Report of the assessors cannot be faulted; the court cannot sit in
appeal over it and cannot go into the disputed facts.
[Para 18 and 20] [14-A-B; 15-E]
B
Medical Council of India v. Kalinga Institute of Medical
Sciences (KIMS) & Ors. (2016) 11 SCC 530 : [2016] 4
SCR 403 – relied on.
5. In the instant case fair opportunity has been given and
the reasons in detail were mentioned by the assessors and MCI. C
It was a case of repeated inspections having been made. In view
of deficiencies found, permission could not have been accorded
for session 2018-19. [Para 21] [16-E-F]
Kanachur Islamic Education Trust (R) v. Union of India
& Anr. (2017) 15 SCC 702 – referred to. D
6. In the present case, the date in the time schedule for
granting permission etc. under the MCI Regulations by which
date admissions etc. are to be granted, are over. Therefore, it is
not possible to issue directions at this juncture for the session
2018-2019. [Para 22] [16-F-H; 18-B] E
Ashish Ranjan & Ors. v. Union of India & Ors.
(2016) 11 SCC 225 ; Medical Council of India v. Rajiv
Gandhi University of Health Sciences & Ors. (2004) 6
SCC 76 : [2004] (3) SCR 1119 ; Medical Council of
India v. JSS Medical College & Anr. (2012) 5 SCC F
628 : [2012] 1 SCR 136 ; Dental Council of India v.
Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli &
Ors. (2017) 13 SCC 115 ; Ponnaiyah Ramajayam
Institute of Medical Sciences v. Union of India & Anr.
(2017) 16 SCC 719 – referred to.
G
Case Law Reference
[2004] 3 SCR 1119 referred to Para 10
[2012] 1 SCR 136 referred to Para 10
H
4 SUPREME COURT REPORTS [2018] 12 S.C.R.
A [2016] 4 SCR 403 relied on Para 10
(2017) 13 SCC 115 referred to Para 10
(2016) 11 SCC 225 referred to Para 13
(2017) 16 SCC 719 referred to Para 13
B (2017) 15 SCC 702 referred to Para 21
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9519
of 2018
From the Judgment and Order dated 07.08.2018 of the High
Court of Punjab and Haryana at Chandigarh in C.W.P. No. 13366 of
C
2018.
Vikramjit Banerjee, ASG, Vikas Singh, Sr. Adv., Prateek Bhatia,
Dhawal Mohan, Ms. Deepeika Kalia, Gaurav Sharma, Shubhendu Anand,
G. S. Makker, Ms. Anindita Barman, S.K. Gupta, Ms. Priyanka Das,
Ms. Rajee Mehrotra, Ms. Priya Mishra, Ankit Goel, Advs. for the
D
appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. Medical Council of India (in short, ‘the
MCI’) is in appeal as against the judgment and order passed by the High
E Court allowing the writ petition of the medical college to admit 150 students
for the academic year 2018-19 and in view of G.O. dated 31.5.2018
passed by the Government of India granting permission subject to the
outcome of the writ petition in view of mandatory interlocutory order
dated 29.5.2018 requiring the Government of India to accord approval
to the college by 31.5.2018, though the said interlocutory order dated
F 29.5.2018 also permitting provisional admissions was set aside by this
Court in Civil Appeal No.6001 of 2018.
2. The case has a chequered history. After the N.C. Medical
College had obtained Essentiality Certificate and affiliation of the
University and thereafter the conditional permission of the Oversight
G Committee enabled it to admit 150 students in the academic session
2016-2017.
3. Pursuant to the letter dated 11.8.2016 of the Oversight
Committee, the MCI took a verification inspection on 7/8.11.2016 and in
view of the deficiencies noticed by the Inspectors, recommendation was
H
MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE 5
& HOSPITAL [ARUN MISHRA, J.]
made to the Central Government to debar the college to admit students A
for two academic sessions 2017-2018 and 2018-2019. The Bank
Guarantee was ordered to be encashed. The recommendations of the
MCI were accepted by the Government of India vide its order dated
10.8.2017.
4. In the year 2015, on 9/10.12.2015 inter alia the deficiency of B
faculty was found to be 87.7%, shortage of Residents 100%; in all 22
deficiencies were found. On 1.4.2016 again inspection was carried out.
The deficiency of faculty was found to be 84.61%, shortage of residents
81.9%, OPD was found non-operational, bed occupancy was zero, in all
13 deficiencies were found. The Government of India accepted the
recommendations made by the Executive Council of the MCI on C
13.5.2016. However, the Oversight Committee gave conditional permission
to remove deficiencies. Letter of permission dated 20.8.2016 was issued
for academic session 2016-17.
5. Again after fresh assessment MCI considered the matter in its
meeting on 22.12.2016 and noted various deficiencies inter alia that of D
faculty 27.69%, residents’ shortage 36.95%, bed occupancy 46%, there
was no ICCU, in all 13 deficiencies were noted. MCI on 26.12.2016
informed the Government of India and recommended that the college be
debarred from admitting students for two academic sessions 2017-2018
and 2018-2019. Appellant was called for personal hearing by Government E
of India on 17.1.2017. Thereafter, report was forwarded to the Oversight
Committee vide letter dated 14.5.2017. The Oversight Committee
recommended that opportunity of hearing be given to the college which
was afforded on 29.5.2017. The recommendations of Committee made
after hearing were accepted by MCI and the college was debarred vide
letter dated 9.6.2017 from admitting students for two academic sessions F
i.e. 2017-2018 and 2018-2019.
6. The petitioner filed W.P. No.432/2017 in this Court in which
this Court directed the Central Government to consider afresh the material
on record after giving opportunity of hearing to the college to the extent
necessary. Thereafter, petitioner was again granted opportunity of hearing G
on 3.8.2017 by Government of India and Hearing Committee. In view of
a large number of deficiencies, the decision was reiterated by Government
of India to debar the college for two years and also to permit MCI to
encash the bank guarantee of Rs.2 crores.
H
6 SUPREME COURT REPORTS [2018] 12 S.C.R.
A 7. On 9.10.2017, this Court directed fresh inspection to be carried
out for the year 2018-2019. The MCI in compliance of order dated
9.10.2017 carried out the inspection assessment on 17.11.2017 and
18.11.2017. Deficiencies of faculty were found to be 9%, shortage of
residents 10.2%, in all, 18 deficiencies were noted by inspectors.
B 8. This Court vide order dated 17.1.2018 directed MCI and
Government of India to consider the case for the year 2018-2019 by
31.3.2018. On 19.1.2018 college was given an opportunity of hearing.
College submitted certain documents. On the basis of documents, college
was informed on 9.2.2018 by MCI that as per documents there were 13
deficiencies which were required to be removed. The college submitted
C the reply, that was considered by Sub-Committee of MCI on 5.3.2018.
Appellant again filed a compliance letter dated 15.3.2018 pointing out
that certain deficiencies have further been removed. MCI carried out
the inspection on 13.4.2018 in order to verify the compliance that was
reported by the college by submitting documents, again following
D deficiencies were found:
1. “Deficiency of faculty is 9% as detailed in the report.
2. Shortage of Residents is 28.57% as detailed in the report.
3. 0n random verification, 14 Residents were found to be not
E staying in the Residents’ hostel.
4. Engineering college girls _Kajal Sharma, Anju, Sapexh & Pallavi
– are staying in room nos. 303, 310 & 316 allotted to junior
Residents.
5. IN SR hostel, Room # 315 was allotted to Annu Khatri. SR,
F O.G; however on verification it was found that wife of Dr. Abu
Siddiq, Asst. Prof. of Pharmacology was staying.
6. List of faculty & Residents joined or promoted after last
assessment was not produced.
7. OPD data as given by the Institute are inflated when
G correlated with investigations being carried out.
8. Bed Occupancy at 10 a.m. on day of assessment as 50%.
9. Patients: 32 patients were not considered in departments of
Surgery, Medicine, Psychiatry, TBCD, Orthopedics, General
H Medicine:
MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE 7
& HOSPITAL [ARUN MISHRA, J.]
· Patient Balkishna admitted in female medical ward with A
complaints of muscle pain, Rash (there was no rash).
· Mrs. Dhanpati IP no. 70318262 admitted in female ward for
Cataract operation, with controlled diabetes.
· Pt. Shantidevi IP no. 50418176 admitted for controlled Diabetes
and no complaints. B
· Patient Renu IP no. 120418621 admitted with diagnosis of
Obesity.
· Patient Aminaben IP no. 1204181621 without any symptoms
with diagnosis of Anemia. C
· In Psychiatry Department patient Deepak IP no.030418314 was
admitted from 3rd April with complaints of Anxiety.
· Patient IP no.03041840 was admitted for mild depression.
· Another patient was admitted for alcohol withdrawal tremors.
D
· In female psychiatry ward patient Santro was admitted with
mild depression.
· In TB Chest ward Pt. Sube Singh was having only mild
weakness and burning sensations on tongue.
· Patient Savitri Devi was admitted for COPD but no symptoms E
were seen.
· In Surgery ward patient Parveen IP no. 120418317 was
admitted with complaints of Mild.
· Patient Aminaben was kept after laparoscopic Cholecystectomy F
done on 4th April having no symptoms.
· Pt. Santosh was indoor for Excision Biopsy for Breast lump for
dressing only.
· Patient Mrs. Suman No.10041833 admitted with Diagnosis of
Ureteric stone but USG was normal. G
· Pt. Sunita No.03041837 was operated for laparoscopic
Cholecystectomy on 4th April and kept without any symptoms.
· Patient Seema IP no. 2803182 ureteric stone removal kept for 4
days without any symptoms.
H
8 SUPREME COURT REPORTS [2018] 12 S.C.R.
A · Pt. Angrejo 260318432 was kept after laparoscopic
Cholecystectomy done on 4th April without any symptoms.
· Patient Saroj IP no. 24031878 was kept after ureteric stone
removal for 8 days without any symptoms.
· Patient Azar admitted in male surgical ward complained of
B burning all over the body and no surgical complaints.
· Patient Tejbir Singh operated for Inguinal hernia kept since 3rd
April without any complaints.
· Patient Ramesh IP 10041828 admitted with very small umbilical
C hernia, which patient did not complain of.
· Pt. Paleram 1304187 admitted with very small umbilical hernia,
which the patient did not complain of.
· Another patient Paleram had incision and draingage of small
abcess.
D
· Patient Mr.Nanu admitted with diagnosis of BPH had no USG
done although he was admitted on 7lh April.
· In Orthopedics patient Ritesh was admitted with small hand
injury.
E · Patient Kidara 0204183 was admitted since 2nd April with
diagnosis of Cervical Spondylosis, on asking. the patient com-
plaint of kneelpain.
· Patient Sunii admitted without any Diagnostic X Ray.
· Total 32 such patients were not counted.
F
· Hence 32 patients were deducted out of 182 admitted patients.
So bed occupancy is calculated at 150 patients.
10. There were only 6 Major & 4 Minor Operations on day of
assessment.
G 11. There was NIL Normal Delivery on day of assessment.
12. CT Scan is not available.
13. In many wards, Demonstration rooms are non-functional &
not furnished.
H 14. Other deficiencies as pointed out in the assessment report.”
MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE 9
& HOSPITAL [ARUN MISHRA, J.]
On consideration of report of assessors, the Executive Committee A
of MCI decided to recommend to Central Government not to renew the
permission for academic session 2018-2019. On 4.5.2018, a decision
was taken by the Oversight Committee to approve the decision of the
Executive Committee.
9. At the aforesaid stage even before the decision was taken by B
Government of India W.P. [C] No.13366/2018 came to be filed in the
High Court of Punjab & Haryana at Chandigarh, in which interlocutory
order was passed by the High Court on 29.5.2018.The High Court
directed provisional admissions for current year i.e. 2018-2019 and
mandatory interim directions to Government of India to grant permission
to College by 31.5.2018. Following interim order was passed by the C
High Court:
“We permit the provisional admission for the current Session
2018-19 but subject to the following condition:-
The MCI shall conduct the inspection as indicated above within D
a period of 2 weeks from today and in case the College is still
found deficient, it shall apprise the college within one week of its
inspection so that they can make the college compliant with respect
to the latest inspection of the MCI.
MCI would then again conduct an inspection within a period E
of one week of the compliance report submitted by the College,
to ensure no deficiency.
Report in this regard would also be submitted to the Court by
the next date of hearing. The students shall be put on notice while
granting them admission about the pendency of the instant writ F
petition. The petitioner institute shall also furnish an undertaking
that they would abide by all the conditions required by the MCI in
this regard.
The UOI shall issue necessary Letter of Permission by
31.05.2018.
G
To come up on 11.07.2018 for further proceedings.”
10. The aforesaid interlocutory order was questioned in this Court
in C.A. No.6001/2018. This Court on 4.7.2018 allowed the appeal and
order dated 29.5.2018 was set aside. It was noted by this Court that
H
10 SUPREME COURT REPORTS [2018] 12 S.C.R.
A inspection was taken repeatedly, deficiencies were found, scheme was
never approved by the MCI and Central Government. It was only
because approval accorded by this Court mandated Oversight Committee,
college was permitted to make admissions for the academic year 2016-
17 and thereafter a decision was taken to debar the college for two
years. On physical verification in compliance of the order passed by this
B
Court, again deficiencies were found and when the matter was pending
at the level of Central Government, writ petition was filed in which
aforesaid interim direction was passed. This Court relying upon the
decisions in Medical Council of India v. Rajiv Gandhi University of
Health Sciences & Ors. (2004) 6 SCC 76, Medical Council of India
C v. JSS Medical College & Anr.(2012) 5 SCC 628, Medical Council of
India v. Kalinga Institute of Medical Sciencess (KIMS) & Ors. (2016)
11 SCC 530 and Dental Council of India v. Dr. Hedgewar Smruti
Rugna Seva Mandal, Hingoli & Ors. (2017) 13 SCC 115 observed
that the High Court was not at all justified in passing interim directions.
D 11. Thereafter, the High Court by yet another interim order directed
fresh inspection to be made by MCI within seven days during the
pendency of the writ petition in the High Court. Against the said interim
order also SLP was filed by MCI in this Court and vide order dated
30.7.2018 in SLP [C] No.19405/2018, this Court observed that the High
Court should have taken a call whether further inspection was required
E at the time of hearing of the case finally as inspection report was not to
be considered by the High Court. This Court directed that the matter be
decided finally. Thereafter by impugned judgment and order, allowing
the writ petition, has been passed by the High Court. High Court has
relied upon the order dated 31.5.2018 passed by Central Government
F though it was passed pursuant to the mandatory interim direction issued
on 29.5.2018 and was subject to ultimate outcome of writ application by
the High Court. The High Court has held that since the Central
Government has granted permission and there is candid acceptance of
the claim of petitioner by the Government, the petition had been allowed.
Following is the operative portion of the order passed by High Court:
G
“During the course of hearing the Government granted its
approval to the College but observed it is conditional, without
specifying any of them. For the purpose of reference, the relevant
portion of the communication dated 31.5.2018 is extracted
herebelow:
H
MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE 11
& HOSPITAL [ARUN MISHRA, J.]
”i. This permission is valid for one year and for admitting only one A
batch of 150 MBBS seats during the academic year 2018-19.
Admission in next batch of students for the year 2019-20 will be
made only after renewal permission of the Central Govt.
ii. Admissions made in violation of the above conditions will be
treated as irregular and shall be liable for action under lMC Act B
1956 & Regulations made thereunder.
iii. The aforesaid permission shall be subject to further orders to
be passed by Hon’ble High Court of Punjab & Haryana in this
Writ Petition.
4. The permission is further subject to the conditions stipulated by C
the Hon’ble High Court in the interim order dated 29.5.2018.”
This exposes them equally to a charge of arbitrariness and
also betrays that the left hand knows not what the right is doing.
We are thus of the opinion that the impugned orders debarring the
college for making admission for two academic sessions and D
encashment of Bank guarantee suffer from the vice of arbitrariness
and deserve to be set aside.
In view of the fact that the Government has granted an
approval to the College for the academic session 2018-19 which
was, however, made subject to the orders passed by this Court, E
we are of the opinion that in view of the candid acceptance of the
claim of the petitioner by the Government, instant petition deserves
to be disposed of.”
12. The High Court has also taken into consideration the
correspondence and compliance reports which were filed by the college F
and has considered the contents of even what was placed on the website
as information by the college as to the strength of its faculty. As per that,
the deficiency was of three members i.e. 4.6% as such the report of
MCI assessors that the deficiency was 9.2% has been rejected. High
Court has observed that once the compliance report was submitted and
G
in response thereto MCI had written that still there were few specific
deficiencies, the High Court inferred that in view of the letter of MCI,
other deficiencies had been removed. As such the fresh inspection report
finding out the new deficiencies has been discarded. High Court has
H
12 SUPREME COURT REPORTS [2018] 12 S.C.R.
A also observed that due and proper opportunity has not been given to the
college.
13. It was urged by learned senior counsel on behalf of MCI that
the High Court has virtually tried to sit in appeal on the report of assessors.
The deficiencies were found by a team of inspectors consisting of
B independent persons of repute, there was nothing to doubt its correctness.
Permission accorded by Government of India on 31.5.2018 could not
have been relied upon by the High Court. Even the self-serving website
contents ofthe college, have been taken into consideration for ignoring
the report of the inspectors. High Court has committed illegality while
allowing the writ application. The impugned order is liable to be set aside.
C Learned counsel has relied upon decisions of this Court in Ashish Ranjan
& Ors. v. Union of India & Ors. (2016) 11 SCC 225 and Ponnaiyah
Ramajayam Institute of Medical Sciences v. Union of India & Anr.
(2017) 16 SCC 719.
14. On the other hand, learned senior counsel appearing on behalf
D of the college, made an endeavor to convince this Court that report of
the assessors based on inspection dated 13.4.2018 deserves to be
discarded. Deficiencies of faculty and residents were not there and as
some of them reported late and few were on leave, the members of
faculty and residents have been excluded by the assessors on
E impermissible grounds. Bed occupancy was also adequate. Patients were
wrongly excluded. There was normal delivery on the date of inspection.
Anyhow or somehow deliberately the deficiencies have been culled out
in the inspection report. Thus, the decision of the High Court is
appropriate and does not call for interference.
F 15. After hearing the learned counsel, we are of the opinion that
order of High Court is not sustainable. It is apparent from impugned
judgment and order that High Court has totally ignored and overlooked
that order dated 29.5.2018 passed by it had been set aside by this Court
in CA No.6001/2018. The High Court had issued a mandatory interim
direction on 29.5.2018 to Central Government to accord permission by
G 31.5.2018, it was not open to High Court to rely upon order dated
31.5.2018, which was a provisional order passed in compliance of the
interim order dated 29.5.2018, said order was set aside by this Court in
C.A. No.6001/2018 as it was not legally permissible to pass such order.
Nothing more need be said about the interim order. Once the order has
H been set aside, the order of Government of India dated 31.5.2018 which
MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE 13
& HOSPITAL [ARUN MISHRA, J.]
was passed pursuant to order dated 29.5.2018 could not have been relied A
upon by the High Court to allow or to dispose of the writ application
holding that Central Government has tacitly accepted the claim of the
college. It was wholly impermissible act and it virtually gave premium
to the college on the basis of the interim order that was set aside by this
Court. The High Court gravely erred in law to rely upon the very
B
permission granted by Government of India under an interim mandatory
order dated 29.5.2018, which could not have been passed and was set
aside. The Government of India has clearly mentioned in the order dated
29.5.2018 that the permission was subject to condition stipulated by the
High Court in interim order dated 29.5.2018. High Court could not have
acted upon it as that is clearly derogatory to order of this Court dated C
4.7.2018 passed in C.A. No.6001/2018.Thus, the order passed by the
High Court lacks judicial propriety and also tantamounts to ignoring the
effect of the order dated 4.7.2018 passed by this Court.
16. It is apparent that the college was given permission by the
Oversight Committee of this Court for the session 2016-2017. It was a D
conditional permission as deficiencies existed at the given time. The
Government of India as well as MCI on their own did not grant permission
at any point of time in view of the reports of inspections which were
undertaken time and again during the last three years.
17. The observations made by the High Court that correspondence E
by MCI indicated that certain deficiencies have been removed. The
High Court has also referred to the website contents of the college to
hold the deficiencies of the faculty to be 4-5% i.e., within permissible
limit. The aforesaid reasonings and exercise done by the High Court is
not in accordance with law. As a matter of fact, when certain deficiencies
have been pointed out and paper compliance thereof has been reported F
by the college that cannot by itself be said to be enough and it cannot be
presumed that by reporting paper compliance it can be assumed that in
fact compliance had been made. Otherwise, it would become easy to
report paper compliance in no time without doing it actually in the hospital/
college. As a matter of fact, there has to be actual verification of G
authenticity of such claim in the inspection. Once the compliance report
has been submitted that has to be verified by making inspection and
when it has been carried out and various other deficiencies have been
found, they have to be taken into consideration and could not have been
ignored as done by the High Court.
H
14 SUPREME COURT REPORTS [2018] 12 S.C.R.
A 18. On the one hand, the High Court has doubted the report of
inspection and for that surprisingly relied on the self-serving contents of
the website of the college. There is nothing to vouch for the authenticity
of the website information. It is not what the institution asserts on website
but what is actually found on inspection, that has to be considered by the
court and while exercising judicial review it is settled law that court
B
cannot sit in appeal over the report of the assessors as observed in
Medical Council of India v. Kalinga Institute of Medical Sciences
(KIMS), (2016) 11 SCC 530 thus :
“21. A perusal of the decision of the High Court clearly indicates
that it considered the latest report of the Inspection Team as if it
C was hearing an appeal against the report. In doing so, the High
Court went into great details on issues relating to the number of
teaching beds in the hospital, the limitations in the OPD Department,
the number of units available in the subjects of General Medicine,
Pediatrics etc., bed occupancy, number of Caesarean sections,
D discrepancy in data of major and minor operations, computerization
in the institution, number of patients in the ICU, number of static
X-ray machines, deficiency of examination halls, lecture theatres,
library, students hostel, interns hostel, playground etc. etc. Surely,
this was not within the domain of the High Court in exercise of its
jurisdiction under Article 226 of the Constitution.
E
22. The High Court did not appreciate that the inspection was
carried out by eminent Professors from reputed medical institutions
who were experts in the field and the best persons to give an
unbiased report on the facilities in KIMS. The High Court under
Article 226 of the Constitution was certainly not tasked to minutely
F examine the contents of the inspection report and weigh them
against the objections of KIMS in respect of each of its 18 items.
In our opinion, the High Court plainly exceeded its jurisdiction in
this regard in venturing into seriously disputed factual issues.”
19. It was contended on behalf of college that deficiency of faculty
G has been found to be 9% as given in the report of MCI. In fact, there
was no deficiency. Two faculty members were on leave. The
appointments of two more faculty members were under process. The
residents’ doctors shortage has also been found to be 28.57%. CT scan
machine was stated to be under installation. Bed occupancy was found
H
MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE 15
& HOSPITAL [ARUN MISHRA, J.]
at 10 a.m. at 50%, 32 patients were excluded as they were not genuine A
as per the assessors for reasons given in the report. Major and minor
surgeries were found to be very less. College contended that patients
were genuine and adequate surgeries were done. Other deficiencies
found on inspection have also been disputed by the college.
20. In our opinion, the contentions are baseless, the deficiency of B
faculty has been culled out in the inspection report in detail. There was
deficiency of 9 members of teaching faculty and deficiency of 14 resident
doctors out of a total of 49. Some girls getting engineering education
were found to be staying in the residents’ hostel. Duty roster of faculty
and Residents was not produced till 2.00 p.m. List of faculty and Residents
joined after the last assessment was not produced. In many wards, C
demonstration rooms were not functional and non-furnished. It was
submitted that certain members of faculty reported late on that day and
one member suffered fracture and brother of another member was ill
who breathed his last on the same day. Even if 2 incumbents on leave
are excluded still there was shortage, 11.00 a.m. time was fixed in D
guidelines so as to make the assessment. The Faculty Members came
too late, cannot be a ground to find fault with the report of the assessors
which has to be undertaken as per norms fixed for them. At the time of
inspection, the Faculty should be present otherwise in a few hours any
number of members can be arranged, otherwise very purpose of
inspection would be defeated. Be that as it may. Report of the assessors E
cannot be faulted; the court cannot sit in appeal over it and cannot go
into the disputed facts.
21. In Kanachur Islamic Education Trust (R) v. Union of India
& Anr. (2017) 15 SCC 702 it has been observed that affected party
should be given an opportunity to meet the case effectively and the F
passing of just decision supported by reasons is part of fair hearing. It is
the duty of the adjudicator to ensure fairness in procedure and action,
the Court observed:
“21. No endeavour whatsoever, in our comprehension, has
been made by the Respondents and that too in the face of an G
unequivocal direction by this Court, to fairly and consummately
examine the materials on record in details before recording a final
decision on the issue of confirmation or otherwise of the LOP
granted to the Petitioner’s college/institution as on 12.09.2016.
H
16 SUPREME COURT REPORTS [2018] 12 S.C.R.
A True it is that the Regulations do provide for certain norms of
infrastructure to be complied with by the applicant college/
institution for being qualified for LOP depending on the stages
involved. This, however, does not obviate the inalienable necessity
of affording a reasonable opportunity of hearing to the person or
the college/institution concerned vis-à-vis the scheme for
B
establishment of a college before disapproving the same. The
manner in which the Respondents, in the individual facts of the
instant case, have approached the issue, leads to the inevitable
conclusion that the materials on record do not support
determinatively the allegation of deficiency, as alleged. The
C Respondents having failed to persuasively establish the said
deficiencies, as noted in the impugned order dated 10.08.2017,
inspite of opportunities available including the one granted by this
Court, such a determination cannot be sustained in the facts and
circumstances of the case. We are of the considered opinion that
in view of the persistent defaults and shortcomings in the decision
D
making process of the Respondents, the Petitioner’s college/
institution ought not to be penalised. Consequently, on an overall
view of the materials available on record and balancing all relevant
aspects, we are of the considered opinion that the conditional LOP
granted to the Petitioner’s college/institution on 12.09.2016 for
E the academic year 2016-17 deserves to be confirmed.”
There is no dispute with the aforesaid proposition. However, in
the instant case fair opportunity has been given and the reasons in detail
were mentioned by the assessors and MCI. It was a case of repeated
inspections having been made. In view of deficiencies found permission
F could not have been accorded for session 2018-19.
22. Yet for another reason we do not propose to interfere. In
Ashish Ranjan v. Union of India, (2016) 11 SCC 225, this Court has
referred the time schedule for granting permission etc. under the MCI
Regulations by which date admissions etc. are to be granted thus:
G “1.(i) These Regulations may be called the ‘Regulations on
Graduate Medical Education, 2015.
(ii) They shall come into force from the date of their publication in
the Official Gazette.
2. In the ‘Regulations on Graduate Medical Education, 1997’,
H Appendix E shall be replaced as under:
MEDICAL COUNCIL OF INDIA v. N.C. MEDICAL COLLEGE 17
& HOSPITAL [ARUN MISHRA, J.]
TIME SCHEDULE FOR COMPLETION OF THE A
ADMISSION PROCESS FOR FIRST MBBS COURSE
Sl.os. Schedule for Seats to be filled up Seats to be filled
admission by the Central up by the State
Government through Government/Insti
the All-India tution B
Entrance
Examination
1. Conduct of Between 1st to 7th Between 10 th to
entrance May 17th May
examination
2. Declaration of By 1 st June By 1st June
the result of the C
qualifying exam/
entrance exam
3. 1st round of To be over by 25th Between 6 th July
counselling/admi June to 15 th July
ssion
4. Last date for By 5 th July By 22 nd July D
joining the
allotted college
and the course
5. 2nd round of Between 23r d July to Between 10 th to
counselling/admi 30 th July 22nd August
ssion for E
vacancies.
6. Last date of By 9 th August By 28 th August
joining for the
2nd round of
counselling/admi
ssion.
7. Commencement 1st of August 1 st of August F
of academic
session/term
8. Last date up to By 31 st August
which students
can be
admitted/joined G
against vacancies
arising due to
any reason.
Note 1.- All India Quota Seats remaining vacant after last date for joining,
i.e. 9th August will be deemed to be converted into state quota. H
18 SUPREME COURT REPORTS [2018] 12 S.C.R.
A 2. Institute/college/courses permitted after 31st May will not be
considered for admission/allotment of seats for current academic
year.
3. In any circumstances, last date for admission/joining will not be
extended after 31st August.”
B The aforesaid dates are over, as such, in the instant case, it is not
possible to issue directions at this juncture for the session 2018-2019.
In view of the deficiencies and the law enunciated by this Court in the
aforesaid decisions, the High Court has clearly exceeded its power while
allowing the writ application, passing of repeated interim orders was
C also not warranted.
23. Thus, unhesitatingly we have no option except to set aside the
judgment and order passed by High Court. At the same time, it would be
open to the college to apply for the next academic year 2019-2020 by
depositing requisite fees etc. Thus, we allow the appeal and set aside
D the judgment and order passed by the High Court.
No costs.
Kalpana K. Tripathy Appeal allowed.
E
F
G
H
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