IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 21.9.2011
+W.P.(C) No.6916/2011
Shree Chhatrapati Shivaji
Education Society ......Petitioner
Through: Mr. Rajshekhar Rao, Adv.
Vs.
Board of Governors in supersession of
Medical Council of India & Ors. ......Respondents
Through: Mr. P.S.Patwalia, Sr. Advocate with
Mr. Ashish Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.Oral :
*
1. By this petition filed under Article 226 of the
Constitution of India, the petitioner institute seeks to
W.P.(C) No. 6916/2011 Page 1 of 19
challenge the order dated 16.9.2011 passed by the
respondent no.1/MCI, whereby the request of the petitioner
to grant approval for establishment of a new medical college
for the academic session 2011-12 has been rejected.
2. Mr. Rajshekhar Rao, learned counsel appearing for
the petitioner submits that the petitioner institute has duly
complied with all the deficiencies as set out by the
respondent MCI in their rejection letter dated 30.8.2011.
Counsel submits that sufficient time was not given by the
respondent to remove the deficiencies and some of the
deficiencies which were pointed out in the letter were
remedial and curable. Counsel also submits that some of the
deficiencies which were pointed out by the respondent in
their rejection letter dated 30.8.2011 were never pointed out
in earlier rejection letter dated 13.7.2011. Counsel further
submits that the blood bank as on date is also in place and
therefore the said deficiency pointed out by the respondent
now does not exist. Counsel submits that the petitioner vide
letter dated 8.9.2011 also made a request for grant of less
W.P.(C) No. 6916/2011 Page 2 of 19
number of seats as per the norms, i.e. reducing the seats from
100 to 50 or 75, but the said request of the petitioner was
also not considered by the respondent. Counsel also submits
that in fact the impugned order passed by the respondent
goes beyond the inspection report; which inspection was
carried out by the visiting team of the respondent pursuant to
the orders of this Court. In support of his arguments, counsel
has placed reliance on the following judgments:
1. Al-Karim Educational Trust & Anr. vs State of Bihar &
Ors., (1996) 8 SCC 330.
2. Integrated Education Development Organisation vs
Union of India, 82(1999) DLT 888.
3. Opposing the present petition, Mr. P.S. Patwalia,
learned Senior Advocate appearing for the respondent submits
that sufficient opportunity was granted to the petitioner to
rectify the deficiencies but the deficiencies still existed even
at the time when an opportunity of hearing was given to the
petitioner by the respondent. Counsel also submits that the
deficiencies as were pointed out in the rejection letter dated
30.8.2011 cannot be treated as curable or remedial as they
W.P.(C) No. 6916/2011 Page 3 of 19
are the basic and essential requirements as laid down by the
MCI under its regulations. Counsel also submits that so far as
academic session 2011-2012 is concerned, the last date for
the second counseling for the state quota was 30.8.2011 and
there exists no provision for 3rd counseling. Counsel thus
states that so far the present academic session is concerned,
the case of the petitioner now cannot be considered for the
grant of recognition. Counsel also submits that the entire
exercise is carried out by the respondent based on the request
made by the applicant, seeking approval for a particular
number of seats in their college and the same cannot be
reduced or increased at any stage and the decision is taken
by the respondent as per the request made by the applicant.
Counsel also submits that 30.9.2011 is the deadline for
admissions against the left over seats, the same are there, if
any.
4. I have heard learned counsel for the parties at the
admission stage itself and given my thoughtful considerations
to the submissions made by them.
W.P.(C) No. 6916/2011 Page 4 of 19
5. The petitioner had applied to Medical Council of
India to seek permission to start 100 seats medical college at
Mayani, Taluka Khatav, Satara District, Maharashtra.
Necessarily the application of the petitioner had to satisfy the
requirements of the regulations framed by the respondent
under Section 33 of the Indian Medical Council Act, 1956.
Earlier, the said application of the petitioner was rejected by
the respondent as the petitioner failed to place on record the
Essentiality Certificate before the stipulated date fixed by the
respondent for receiving the new applications. Feeling
aggrieved with the said decision of the respondent to reject its
application on the ground of non-filing of the Essentiality
Certificate before the specified date, the petitioner had filed
writ petition No. 3549/2011 to challenge the said decision of
the respondent MCI and vide order dated 26 th May, 2011 this
Court had dismissed the said writ petition filed by the
petitioner. The order of the Single Judge of this Court was
challenged by the petitioner in LPA no. 544/2011 and vide
W.P.(C) No. 6916/2011 Page 5 of 19
order dated 10th June, 2011 the Hon’ble Division Bench of this
Court on the interim application of the petitioner directed the
respondent to consider the application of the petitioner
without raising the objection of non-filing of the Essentiality
Certificate and the Consent of Affiliation certificate before the
dead line of 30th November, 2010. The said interim order of
the Hon’ble Division Bench was challenged by the respondent
MCI in SLP No. 16233/2011 and vide orders dated 17 th June,
2011 the Hon’ble Supreme Court gave the following
directions:-
“(a) The application of the College will not be rejected on the two
grounds alone which are indicated in the impugned order passed
by the High Court.
(b) The Council shall be at liberty to consider the application in
accordance with the Rules, Regulations and the parameters
provided for grant of approval of such Colleges. If as per the
wisdom of the Council, conditions are not satisfied it will be at
liberty to decline the approval.
(c) We extend the period by two weeks for considering and
granting/refusing the approval to the medical colleges. The
Council will be at liberty to inspect the College through Experts
as contemplated under the Rules.
(d) The High Court would bear the matter on 14 th July 2011, the
date already fixed. On that day the order passed by the Council
shall be placed before the High Court.
W.P.(C) No. 6916/2011 Page 6 of 19
All questions are left open for final decision of the writ petition by
the High Court and the order is without prejudice to the
contentions of the parties.”
6. Complying with the said directions of the Hon’ble
Supreme Court and of the Hon’ble Division Bench of this
Court, fresh assessment was carried out by the visiting team
deputed by the respondent on 29th and 30th June, 2011 and
based on the assessment report, the respondent vide their
letter dated 13th July, 2011 had again rejected the application
of the petitioner for the grant of approval to establish a new
medical college. Since the said LPA filed by the petitioner was
still pending consideration before the Hon’ble Division Bench
and thus in the said LPA vide order dated 14 th July, 2011 it
was again directed to the respondent Board of Governors to
afford an opportunity of hearing to the petitioner on 19th July,
2011 and thereafter pass a speaking order. The Hon’ble
Division Bench felt that proper opportunity of hearing was not
afforded by the respondent before the said order of rejection
dated 13th July, 2011 was passed by the respondent.
Complying with the said direction of the Hon’ble Division
Bench, the respondent had afforded an opportunity of hearing
W.P.(C) No. 6916/2011 Page 7 of 19
to the petitioner on 18th July, 2011 and then again passed a
detailed order pointing out various gross deficiencies still
existing in the petitioner institute in terms of the faculty,
clinical material, infrastructure, nursing staff etc. The said
order dated 20th July, 2011 passed by the respondent was
again brought to the notice of the Hon’ble Division Bench in
the said LPA and vide orders dated 21st July, 2011 the Hon’ble
Division Bench gave further directions to the respondent to
depute an inspecting team for fresh inspection of the
petitioner institute on the petitioner’s depositing the
necessary inspection fee and then again pass a reasoned order
after giving due opportunity of hearing to the petitioner. It
was also directed that the inspection of the petitioner institute
shall be carried out by the inspecting team within a fortnight
from the date of the deposit of the amount. Pursuant to the
said directions given by the Hon’ble Division Bench, yet
another inspecting team was deputed by the respondent
comprising of 3 experts and based on the said report
submitted by the assessment team the respondent Medical
W.P.(C) No. 6916/2011 Page 8 of 19
Council of India vide their letter dated 30th August, 2011
intimated the various deficiencies still existing in the
petitioner institute and rejected the application again. The
deficiencies pointed out by the respondent in their rejection
letter dated 30.8.2011 are reproduced as under:-
“i) Funds, Budget and Audit : The Institution does not have a clear
budget, or fund allocation or audit Report for last 3 years.
ii) Staff : There is substantial shortage of teaching staff and
residents and no proof of their employment like salary slips and
joining report have been submitted.
iii) Paramedical staff details are not available from assessment done
this time.
iv) Clinical Material : Clinical material shows unacceptable
shortages, in terms of Bed Strength, OPD Attendance,
Admissions and Investigation.
v) Infrastructural deficiencies.
vi) Essentiality certificate is not as per Regulation of MCI. The
certificate does not clearly state that students will be adjusted by
the State Govt. in other Govt. institutions in case the present
institution closes down which is mandatory requirement.
vii) Other deficiencies as noted in the Assessment
Report.”
7. Disputing the said deficiencies a detailed
reply/representation dated 2.9.2011 was filed by the petitioner
in reply to the said rejection letter and yet again due
opportunity of hearing was granted to the representatives of
the petitioner by the respondent Board on 2.9.2011. After
W.P.(C) No. 6916/2011 Page 9 of 19
granting the said opportunity of hearing to the petitioner andafter having considered the reply/representation made by the
petitioner, the respondent still found that the petitioner failed
to meet the requirements of the regulations and, therefore,
was not found entitled for the grant of approval by the
respondent. The respondent in their impugned letter dated
16.9.2011 pointwise dealt with the deficiencies pointed out by
the respondent in their rejection letter dated 30.8.2011 and
the response submitted by the petitioner. With regard to the
said deficiencies, the petitioner was found wanting and
lagging in fulfilling the laid down requirements as stipulated
in the regulations. Feeling aggrieved with the said decision of
the respondent, the petitioner has now approached this Court
again by way of the present writ petition.
8. It is a settled legal position that for seeking
permission for establishing a new medical college, such a
college has to fulfill the norms laid down and the regulations
framed by the respondent MCI under Section 10A read with
Section 33 of the Indian Medical Council Act. In para 6 of the
W.P.(C) No. 6916/2011 Page 10 of 19
impugned letter dated 16.9.2011, the Board of Governors has
clearly observed that the statutory provisions contained in
Section 10A(7) of Indian Medical Council Act, 1956 envisages
that the scheme for the establishment of a new Medical
college should meet; firstly, the prescribed minimum
standards of medical education; secondly, person seeking to
establish the medical college has adequate financial
resources; thirdly, necessary facilities in respect of staff,
equipment, accommodation, training and other facilities to
ensure proper functioning of medical college; fourthly,
adequate hospitals facilities; fifthly, programme drawn to
impart proper training to students likely to attend such
medical college; and sixthly, the requirement of manpower in
the field of practice of medicine. The respondent Medical
Council of India in the impugned letter has in detail dealt with
contentions raised by the petitioner disputing the existence of
deficiencies in the petitioner institute or their rectification by
them and in the final analysis has rejected the application of
the petitioner institute.
W.P.(C) No. 6916/2011 Page 11 of 19
9. There can be no dispute with the legal position that
the rules and regulations framed by the MCI in exercise of the
powers conferred by it under section 33 of the Act have a
statutory force and not in any circumstance the requirements
or compliance with them can be compromised. The petitioner
has stated at bar that some of the deficiencies pointed out in
the impugned letter are curable in nature. For instance, one
of the requirements laid down in the regulations is that there
should be a blood bank in place, which was one of the
deficiencies pointed out in the impugned letter. Counsel for
the petitioner during the course of the arguments very fairly
admitted the fact that blood bank was not operational even till
the date of the hearing granted by the respondent. This Court
does not find any infirmity in the reasoning given by the
respondent that an operational blood bank is vital for the
functioning of a teaching hospital and in the absence of such a
blood bank, clearly the proposed medical college to be
established by the petitioner is deficient in terms of the
infrastructure facilities. This Court cannot appreciate the
W.P.(C) No. 6916/2011 Page 12 of 19
arguments advanced by the counsel for the petitioner that the
establishment of the blood bank is a curable and remedial
defect. The existence of blood bank is an essential and
necessary part of the infrastructure and requirement provided
in the regulations and the same should have been in existence
at least till the stage of the last visit made by the team of
assessors but despite the fact that the petitioner had applied
to seek its approval about a year ago, it still did not have the
basic infrastructure as that of existence of a blood bank. There
were other various infrastructural deficiencies pointed out in
the impugned letter which still exist even after rectification of
the many deficiencies as claimed by the petitioner, such as the
Intensive Care Unit equipments were still not arranged by the
petitioner. Another instance which came to light was that how
the petitioner could be paying salaries to its faculty members
in cash for the period w.e.f. January to July, 2011 with no proof
of statutory deductions like provident fund, income tax, etc
being produced by the petitioner before the team of assessors
or before the appeal committee. The petitioner also could not
W.P.(C) No. 6916/2011 Page 13 of 19
satisfy the respondent about the recruitment of the teaching
staff and in fact the admission was made by the petitioner
before the appeal committee that the teaching staff was
attached to some other medical colleges and they would join
after the college gets permission from the Medical Council of
India. Hence looking at the deficiencies as pointed out in the
impugned letter prima facie, this court is not persuaded that
there is any infirmity or perversity in the order passed by the
respondent MCI rejecting the application of the petitioner.
10. Hence, a bare perusal of the impugned letter shows
that the deficiencies pointed out broadly are under the head of
funds, budget and audit; staff; clinical material and
infrastructural deficiencies. These findings have been arrived
at by the inspecting body after carry out the inspection
pursuant to the orders of this court. Inspection is a fact finding
exercise and in the present case the impugned letter is a
decision of the respondent which itself is an expert body and
after consideration of the opinion of an expert body which is
the inspecting team. It is a settled legal position that this
W.P.(C) No. 6916/2011 Page 14 of 19
court will not ordinarily interfere in the findings of facts
arrived at by an expert body, till they are shown to be patently
perverse, illegal or arbitrary. It will useful here to refer to the
judgment of the Apex Court in the case of The Dental
Council Of India vs. Subharti K.K.B Charitable Trust &
Anr. (2001) 5 SCC 486 wherein it was held that the Court’s
jurisdiction to interfere with the discretion exercised by
expert’s like the MCI is limited. It further held that:
“At present, there is tremendous change in social values and
environment. Some persons consider nothing wrong in commercializing
education. Still however, private institutions cannot be permitted to
have educational, `shops’ in the country. Therefore, there are statutory
prohibitions for establishing and administering educational institution
without prior permission or approval by the concerned authority. On
occasions, the concerned authorities, for various seasons, fail to
discharge their function in accordance with the statutory provisions,
rules and regulations. In some case, because of the zeal to establish
such educational institution by persons having means to do so,
approach the authorities, but because of red-racism or for extraneous
reasons, such permissions are not granted or are delayed. As against
this, it has been pointed out that instead of charitable institutions,
persons having means, considering the demands of the market rush for
establishing technical educational institutions including medical college
or dental college as a commercial venture with sole object of earning
profits and/or for some other purpose. Such institutions fail to observe
the norms prescribed under the Act or the Regulations and exploit the
situation because of ever increasing demand for such institutions .In
such cases, permissions is refused by the authorities without there
being any bias or extraneous considerations. It is, therefore, submitted
that Courts normally should not interfere with a decision taken by the
expert body such as Medical Council or Dental Council by straightaway
issuing mandamus directing the authority to grant approval or
permission to establish such institution. Where the authority has
refused approval, the institution may not be well equipped to import
education and may not have qualified teachers, staff or otherW.P.(C) No. 6916/2011 Page 15 of 19
infrastructure necessary for running the institution. If permission is
straightaway granted by the Court, society, education and ultimately
the student suffer.
………… There cannot be any dispute that normally the court should not
interfere with the functioning of the educational institutions,
particularly, expert bodes like the MCI or the DCI. Still however, the
question is posed that if such bodies act arbitrarily for some ulterior
purpose, whether the court has the power to set right such arbitrary
exercise of power by such authorities. We find the answer to this
question in the affirmative.We also agree with the learned Solicitor
General that educational institutions should not be permitted to be
commercialized for earning money, but at the same time, the court can
do very little in this filed as it is the function of the expert bodies, such,
as.Medical Council of India or the Dental Council of India. However,
citizens would loose faith in such institutions if the allegations made in
this appeal are repeatedly made with regard to the Inspection Reports
and granting of approval by the Central Government.We leave this
question for the Central Government to deal with appropriately as it is
the function of the concerned authorities to plug the loopholes and see
that in such matters nothing hanky panky happens.”
The ambit of the writ jurisdiction in case like the present one
has thus been well settled through judicial pronouncements
like the above mentioned. Here it would also be pertinent to
refer to the judgment of the Apex Court in the case of Union
of India vs. Era Educational Trust and Anr. (2000)5 SCC
57 wherein the court held that:
“Apart from Order XXXIX even with regard to the Medical education,
there are various decisions of this Court laying down the principle
that normally Court should not interfere and even if interference is
required in a case of unsustainable order, the authority should be
directed to reconsider the case on the norms prescribed under the
W.P.(C) No. 6916/2011 Page 16 of 19
Act and/or the Rules. In Shivaji University v. Bharti Vidyapeeth and
Ors. : [1999]1SCR1142 , after considering the order passed by the
University, the Court directed the University to reconsider the
question in the light of the observations made in the judgment. In
similar set of circumstances, in Civil Appeal Nos. 5045 and 5046 of
1998 in Medical Council of India, New Delhi v. State of H.P. and
Anr., this Court on 16.2.2000 observed that since the refusal was
based on deficiencies for running a Medical College, it would have
been appropriate for the High Court to have remitted the matter to
the Medical Council of India or the Union of India for
reconsideration, even if it was of the opinion that the order of the
Medical Council of India deserved to be set aside and the Court
ought not to have issued a writ of Mandamus directing grant of
permission. Further, in Andhra Pradesh Christian Medical
Educational Society v.Government of Andhra Pradesh :
[1986]2SCR749 , it was held that even in a case where students
were admitted in the Medical Colleges and who have continued their
studies for more than a year, this Court refused to recognise such
admission and observed:
We regret that the students who have been admitted into the
college have not only lost the money which they must have spent to
gain admission into the college, but have also lost one or two years
of precious time virtually jeopardising their future careers. But that
is a situation which they have brought upon themselves as they
sought and obtained admission in the college despite the warnings
issued by the University from time to time.
The Court further observed:
Any direction of the nature sought by Shri Venugopal would be in
clear transgression of the provisions of the University Act and the
regulations of the University. We cannot by our fiat direct the
University to disobey the statute to which it owes its existence and
the regulations made by the University itself. We cannot imagine
anything more destructive of the rule of law than a direction by the
court to disobey the laws.
8. Similarly in Krishna Priya Ganguly and Ors. v. : [1984]1SCR302 ,
for granting interim order, this Court cautioned thus:
…that whenever a writ petition is filed provisional admission should
not be given as a matter of course on the petition being admitted
unless the court is fully satisfied that the petitioner has a cast-iron
case which is bound to succeed or the error is so gross or apparent
that no other conclusion is possible.
The Court further observed:
W.P.(C) No. 6916/2011 Page 17 of 19
Unless the institutions can provide complete and full facilities for the
training of each candidate who is admitted in the various
disciplines, the medical education will be incomplete and the
universities would be turning out doctors not fully qualified which
would adversely affect the health of the people in general.”
Hence as is evident from above that in exercise of writ
jurisdiction this Court should be slow to interfere with the
findings arrived at by the expert bodies until something so
perverse or arbitrary is shown so as to persuade this court to
show its indulgence. Looking into the impugned letter and
taking a prima facie view, this court does not find the present
to be a fit case to exercise its writ jurisdiction.
11. The judgment of the Apex Court in the case of Al-
Karim (supra) cited by the petitioner would not be applicable
to the facts of the case at hand as there the institution was
already functioning and the delay was with regard to
affiliation by the university and not permission by the MCI.
Even otherwise, the court categorically held that the even the
Supreme court has been constrained to exercise its
jurisdiction and would not mean that the importance of
fulfilling the essential prerequisite set by the Medical Council
W.P.(C) No. 6916/2011 Page 18 of 19
for granting recognition be diluted. The judgment of this court
in the case of Integrated Education Development
Organisation(supra) cited by the petitioner also reiterates that
the requirements and the parameters of the expert bodies like
the Dental Council of India are sine qua non for establishment
of these kinds of institutions and the same requirement cannot
be diluted. The said judgment would not help the case of the
petitioners as in the said case the two deficiencies pointed out
were unreasonable whereas in the case at hand, even on a
cursory glance the deficiencies pointed are weighty and
cannot be given a go by for granting permission.
12. Hence, in the light of the above discussion , this
court does not find any merit in the present petition and the
same is hereby dismissed.
Dasti under signatures of the Court Master.
September 21, 2011 KAILASH GAMBHIR, J
mg/rkr
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