Astha Foundation for Education Society vs Union of India and Others

P.K. Jaiswal, J—The petitioner is aggrieved by the recommendation of the respondent No. 2 dated 11.5.2015 whereby, it has forwarded a negative recommendation to the Central Government to disapprove the petitioner''s scheme for the establishment of new medical college at Indore. The petitioner is also challenging the communication dated 15th June, 2015 of the respondent No. 1 - Union of India whereby, the respondent No. 1 has disapproved the scheme submitted by the petitioner - society and further direction is sought against the respondent No. 1 to issue letter of grant of permission to establish a new medical college at Indore with intake capacity of 150 students for the academic year 2015 - 16.

Brief facts of the case are that the petitioner - society submitted a scheme under Section 10-A of the Indian Medical Council Act, 1956 (in short ''IMC Act'') for establishing new medical college by the name of ''Modern Institute of Medical Science with intake capacity of 150 students per year in MBBS programme at Indore from academic year 2015 - 16. The MCI assessors inspected the premises of the petitioner - society on 21.1.2015 and 22.1.2015. After the inspection an assessment report was prepared and the same was placed before the MCI. The Executive committee of the MCI considered the assessment report and noted the following deficiencies :-

"1. Deficiency of faculty is 23.33% as detailed in report.

Shortage of Residents is 97.70% as detailed in report.

OPD attendance is 360 on day of assessment.

Bed occupancy is only 8.7% on day of assessment.

There are only 3 Major & NIL Minor operations on day of assessment.

There was no delivery - Normal or Caesarean - on day of assessment.

Radiological & Laboratory Investigations workload is grossly inadequate. Investigations in Microbiology, Serology, Histopathology and Cytology were NIL.

Average Statistics given by the institute is inflated and does not correlate with patient statistics on day of assessment. In the ward registers, fake data is entered. A patient named Jyoti from Gynaecology ward was found to be a fake entry. Case sheets in wards are not written property. Daily notes are not entered. In OPD, departmental registers are not maintained.

College building is under construction.

Lecture Theaters: In one lecture theater, benches with capacity 180 is available. No other facilities are available. In second, no seating arrangement or other facilities are available.

Central Library: It is under construction. Books are journals are kept in one separate room. Internet nodes are not available. Staff is inadequate.

Common Rooms for Boys & Girls are under construction.

Central photography Unit is not available.

Student''s Hostels: They are under construction.

Residents'' Hostel: It is not furnished. Mess is not available. Hygiene is poor. Visitor''s room. A.C. Study room with computer & Internet and Recreation room are not available. It is not occupied by Residents.

Nurses'' Hostel: Nursing College hostel is shown as Nurses'' quarters.

Residential quarters are under constructions."

OPD: Four examination rooms for various departments are available. Teaching area is not available. In Ophthalmology OPD, Dressing Room/Minor Procedure Room is not available. Facilities in Paediatrics & O.G. OPD, are not adequate.

Audiometry & Speech Therapy is not available.

Wards: Nursing stations are not located in a way which can have overview of all patients. Ancillary facilities like Examination cum treatment Room, Pantry, Store room are not available. Demonstration rooms are not available.

MRD: ICD X classification is not followed on case sheets.

Casualty: Separate casualty for O.G. is not available. Ventilator is not available.

O.T.: Only 3 O.T.s are available against requirement of 5 as per Regulations. No Minor O.T. Is available. Defibrillators are available.

ICUs: ICCU & SICU are not available. In MICU, PICU/NICU, ABG Analyzer & Ventilator are not available. In PICU/NICU, there was no patient.

Labour Room: Septic room & Eclampsia room are not available.

CSSD is not available.

Intercom is nonfunctional.

Website: Information provided is sketchy. Citizens'' charter is not available.

Preclinical departments of Anatomy, Physiology & Biochemistry departments are under construction and not functional.

With regard to the following faculty, it was found that they were doing private practice during working hours of the college which is not permissible as per Regulations. Hence they cannot be accepted as teaching faculty:

Other deficiencies as pointed out in the assessment report."

and forwarded a negative recommendation to the Central Government not to issue letter of permission for establishment new medical college for the academic year 2015 - 16 in favour of the petitioner.

The respondent No. 1 vide letter dated 3.3.2015 (Annexure P/6) pointed out that the council has recommended for disapproval of under graduate scheme for the academic year 2015 - 16 and in pursuance to the provisions contained in Section 10 (A) (4) of the IMC Act decided to grant an opportunity of hearing on 11.3.2015 at 2.00 PM by the committee constituted for this purpose.

No documents have been filed by the petitioner to show that they appeared before the Central Government on 11.3.2015. As per Annexure P/7, the petitioner submitted its compliance report to the Central Government on 11.3.2015, rectifying all the deficiencies pointed out in it''s report dated 31.1.2015. The assessors of respondent No. 2 decided to carry out the inspection of the petitioner''s medical college on 21.4.2015. The petitioner - society immediately written a letter and intimated that 21.4.2015 is declared as holiday in the M.P. and also enclosed Gazette Notification, diary of Government of M.P. and list of Government Holidays in M.P. After inspection of the petitioner college on 21.4.2015, the compliance verification assessment report was submitted to the MCI. The Executive Committee of the council considered the compliance verification assessment letter (21.4.2015) along with the previous assessment report (21 & 22.1.2015) and noted the following deficiencies :-

"1. Shortage of Residents is 33.77% as detailed in report.

OPD: In Surgery OPD, only 1 room has got instruments out of 4 examination rooms.

Wards: Nursing stations are not provided in Skin & VD, Psychiatry & TB & Chest wards.

ICUs: All emergency medicines are not available in emergency tray. There is only 1 patient in PICU & 2 patients each in ICCU, ICU.

There was NIL normal delivery & NIL. Cesarean section on day of assessment.

Laboratory investigations: Histopathology workload is NIL. Microbiology workload is inadequate.

Students'' Hostel: Construction is not complete. Mess is not available. Hygiene is poor.

Nurses'' Hostel: It is under construction. Deficiency is not rectified.

Residential Quarters: Construction is not yet finished. Deficiency remains as it is.

Common Rooms for Boys & Girls: They are not fully furnished.

Other deficiencies as pointed out in the assessment report."

It is submitted by the learned Senior counsel for the petitioner that no inspection on holiday can be conducted as prescribed in Regulation 8 (3) (i) (d) of the Establishment of Medical College Regulations, 1999. He submits that when the request of the petitioner - institute to conduct inspection on another day except the date of holiday was turned down, on request of Inspector, the petitioner - institute furnished undertaking on 21.4.2015 to the institute thereby undertaking following :-

"i) That the faculty tutor and senior resident doctors (7 in number) were on leave because of Government holiday on 21.4.2015;

ii) ''6'' resident doctors were present at the time of inspection and were having provisional registration from M.P. Medical Council and have already applied to Madhya Pradesh Medical Council for permanent registration but were not considered by inspectors of MCI on the pretext that they have no permanent registration with Madhya Pradesh Medical Council.

iii) It was undertaken that the AC study room and recreation room will be made available within a week, similarly resident hostile mess, separate nursing station, in skin, psychiatry, TB and chest as well as boys and girls common room will be furnished with recreation facility within a week;

iv) It was also undertaken that Nurses residence quarters / hostel will be completed within ''2'' seeks, similarly the additional facilities in boys hostel like mess, visitor room, AC reading room will be provided within one week."

On 22.4.2015 the petitioner society sent the compliance report thereby submitting registration details of doctors and photographs of AC study room, hostel mess, nursing station, emergency tray, records of Gynecology department, Histopathology and Microbiology work load. On 30.4.2015 the Executive Committee of respondent No. 2 passed the order thereby recommending disapproval of scheme for establishment of new medical college at Indore of the petitioner - institute pointing out 10 deficiencies.

The Executive Committee of the respondent No. 2 forwarded a negative recommendation on 11.5.2015 to the Central Government recommending disapproval of the scheme for establishment of a new medical college at Indore.

Thereafter, petitioner waited for more than one month and filed this writ petition on 19.6.2015. On 22.6.2015 this court issued notice to the respondents and also directed the petitioner to serve Humdast notice to them. On 2.7.2015 time was granted to the learned counsel for the respondents to file reply. On 29.6.2015 a detailed reply on behalf of respondent No. 2 - MCI was filed, but no reply was filed by the respondent No. 1 - Union of India. On 8.7.2015 an application for bringing subsequent facts on record was filed by the petitioner intimating the court that on 15.6.2015 (received on 1.7.2015), the respondent No. 1 Government of India decided to accept the disapproval of scheme of the respondent No. 2. Accordingly, the respondent No. 1 disapproved the scheme for establishment of new medical college at Indore and observed that petitioner is free to apply a fresh for next academic session strictly as per provisions of IMC Act of Regulations framed therein.

Learned Senior counsel for the petitioner submits that the Medical Council of India under the statutory obligation not to carry any inspection atleast three days before and 3 days after important religious and festival holidays declared by the Central/State Government. He submits that on 21.4.2015 on which the inspection was carried out by assessors of the Medical Council of India was Gazette holiday declared via notification issued by Government of India as there was ''Akshay Trutiya'' and ''Parshuram Jayanti'', hence, in view of the same the assessors ought not to have conducted inspection of the petitioner - college.

Regulation 8 (3) (i) (d) of the Establishment of Medical College Regulations, 1999 (amended up to August 2014) reads as under :-

"GRANT OF PERMISSION

However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 days after important religious and festival holidays declared by the Central/State Govt."

It is also submitted that communication dated 15.6.2015 of the respondent No. 1 is in violation of first proviso to Section 10-A (4) of the IMC Act which provide a hearing to the petitioner before refusing to grant permission for the MBBS course of the academic year 2015 - 16. To support the aforesaid contention, learned Senior counsel has drawn our attention to the unreported decision of the Principal Seat of this Court in the case of Gyanjeet Sewa Mission Trust v/s. Union of India & Ors. dated 1.7.2015 passed in W.P. No. 7915/2015 and the judgment of this court in the case of Sri Aurobindo Institute of Medical Sciences v/s. Govt. of India & Anr. dated 25.8.2014 passed in W.P. No. 4950/2014 and submits that communication dated 15.6.2015 of respondent No. 1 be quashed and matter be remitted to the Central Government to take a fresh decision on the scheme submitted by the MCI in accordance with law.

Per contra, Shri Vijay Assudani, learned counsel for the respondent No. 2 and Shri Anand Soni, learned counsel for the respondent No. 1 have submitted that the petitioner - society is the author of the situation. They submitted that persistent deficiency is pointed out in the inspection report dated 21.1.2015, 22.1.2015, 22.1.2015 and 21.4.2015. The inspection of the petitioner medical college took place in presence of its management including dean/principal who had signed the inspection report dated 21/22.1.2015 and 21.4.2015. They also submit that the petitioner medical college was obliged to be ready with the complete infrastructure, teaching faculty and other physical facilities in their medical college at the time of submitting their assessment and declaration forms for the grant of permission for the academic year 2015 - 16. The petitioner medical college was not ready for approval for the establishment of new medical college for the academic year 2015 - 16. They submit that it is not a case of the petitioner that MCI assessors have wrongly recorded the deficiencies or that the deficiencies did not exist at the time of inspection.

Shri Assudani, learned counsel for the respondent No. 2 further submitted that dean/principal of the petitioner medical college has admitted all the deficiencies while signing the report dated 21/22.1.2015 and 24.4.2015. It is submitted that on 3.3.2015 the committee of the Central Government granted opportunity of hearing and fixed the case for 11.3.2015 and thereafter, again inspection was made and as per assessors report all the deficiencies were found correct on 21.4.2015 and thus, it cannot be said that the communication dated 15.6.2015 of the Central Government is in violation of the provisions of Section 10A of IMC Act. It is pointed out that all the new applications under Section 10A for establishment of new medical college are necessarily required to be submitted with the Central Government between 1st August to 31st August of the year. The Apex Court in the case of Union of India and Others Vs. All India Children Care and Educational Development Society, Azamgarh and Another, AIR 2002 SC 1331 : (2002) 3 JT 30 : (2002) 2 SCALE 575 : (2002) 3 SCC 649 : (2002) 2 SCR 363 : (2002) 2 SCT 404 : (2002) AIRSCW 1153 : (2002) 2 Supreme 325 has held that only such applications which are complete in all respect as per the qualifying criteria laid down statutory deserved to be treated under Section 10A of the MIC Act, which then become eligible for consideration under Section 10A of the respective enactment.

He further submitted that the last date for council to send its recommendation being 15.5.2015 and the last date for the Central Government to issue letter of permission being 15th June, 2015, as of now both the last dates have already been over and in view of the law laid down by the Apex Court in the case of Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, AIR 2005 SC 666 : (2005) 1 CTC 764 : (2005) 2 ESC 198 : (2005) 1 JT 340 : (2005) 2 SCC 65 : (2005) 1 SCR 380 : (2005) AIRSCW 471 : (2005) 2 Supreme 658 and Priya Gupta Vs. State of Chhatishgarh and Others, AIR 2012 SC 2413 : (2012) 5 SCALE 328 : (2012) 7 SCC 433 : (2012) AIRSCW 3354 , it is impermissible for the respondents to reconsider and review any case by carrying out fresh inspections. Since both the above mentioned last dates have already been over and, therefore, respondent no. 1 rightly observed that the petitioner may apply a fresh for 2016 - 17 session. With the aforesaid, they prayed for dismissal of the writ petition.

In the present case, the reply of the MCI regarding inspection on 21.4.2015 in violation to 8 (3) (i) (d) of the Regulations is complete silent. Learned counsel for the respondent No. 2 very categorically admitted that the Medical Council of India was under statutory obligation not to carry out any inspection atleast three days before and three days after important religious and festival holidays declared by the State Government. In the case of Sri Aurobindo Institute of Medical Sciences v/s. Govt. of India & Anr (supra) this court quashed the order and directed the Central Government to take a fresh decision on the scheme submitted by the medical college.

In the case of Gyanjeet Sewa Mission Trust v/s. Union of India & Ors. (supra) the Division Bench while allowing the writ petition directed the respondent - Council to reconsider the scheme for establishment of new medical college submitted by the petitioner therein on all other issues; and forward its appropriate recommendation, expeditiously, preferably within one week, so that the Central Government may be in a position to take appropriate decision in the matter before the admission process for the academic year 2015 - 16 commences on the basis of entrance examination to be held on 15.7.2015.

The Apex Court in the case of Dr. B.R. Ambedkar Medical College & Ors) v/s. Union of India & Ors. vide judgment dated 19.8.2013 held that the establishment of Medical College Regulations, 1999, as amended by establishment of Medical College Regulations, (amended), 2012, provides for time schedule for grant of letter of permission by the MCI for establishment of Medical College as well as increase in admission capacity in MBBS course and Central Government has the power to modify the date in respect of any class or category of admission of IMC Act.

Section 10(A)(1)(b) of IMC Act deals with open of a new or higher course of students or training as well as increasing its admission capacity in any course of study or training.

Section 10A of the IMC Act contemplates grant of opportunity being heard at two stages. First stage would be at the level of MCI after the scheme is submitted to MCI under sub-section (2) of Section 10A of the Act. Once it is found by the MCI that all the parameters for granting permission are made, it recommends the grant of approval of scheme to the Central Government. In case, scheme is found to be deficient, Sub-section (3) (a) of Section 10A of the Act casts obligation on the part of MCI to give a reasonable opportunity for making a written representation and also to rectify the deficiencies, if any, specified by the MCI. Second stage of adherence to the principle of natural justice is provided at the level of Central Government at the time when it has to make final decision, after the receipt of the recommendation sent by the MCI. This requirement of hearing is stipulated in proviso to subsection (4) of Section 10-A, in the event the Central Government is proposing to disapprove the scheme. In the case in hand, since no such opportunity of being heard the requirement of sub-section (3) (a) and Subsection (4) of Section 10A of the Act was not afforded to the petitioner - Medical College, the decision dated 15.6.2015 of the Central Government is liable to be set aside on this ground alone.

In the present case, as per the assessment report dated 21.1.2015, 22.1.2015 and 21.4.2015 number of deficiencies were found and challenge to Central Government communication dated 15.6.2015 was only on the ground that no opportunity of hearing was granted to the petitioner while taking the aforesaid decision, which is in violation to sub-Section 4 of Section 10A of the Act. As per documents annexed along with the writ petition originally no averments about disapproval of scheme by the Government of India have been made in the writ petition. Later on, when reply of the MCI was filed, an application for bringing subsequent facts on record was filed by the petitioner - society on 9.7.2015 and along with the said application document dated 15th June, 2015 of the Government of India was filed. As per para 2 of the application (I.A. No. 3472/2015) on 1.7.2015 they received the aforesaid document. As no reply was filed by the Union of India - respondent No. 1 and, therefore, nothing on record as to whether any opportunity of hearing was granted under sub-Section 4 of Section 10-A of IMC Act to the petitioner before passing the aforesaid order, as a result of which, we relying on the decision of Gyanjeet Sewa Mission Trust v/s. Union of India & Ors. (supra) and Sri Aurobindo Institute of Medical Sciences v/s. Govt. of India & Anr. (supra), quash the impugned communication dated 15.6.2015 of the respondent No. 1 and direct the respondent No. 1 Government of India to take a fresh decision on the scheme submitted by the petitioner - society either require the MCI to re-assess / verify the compliance report, if it, so consider necessary or itself examine the matter of the committee constituted by the Central Govt. and direct the petitioner to submit compliance report, if it, so consider necessary, or can, direct the MCI to examine the compliance report. Such an exercise is required to be done expeditiously as the first counseling of MBBS course has started, we therefore, expect that the Central Government will take a decision expeditiously, within a period of two weeks'' from the date of filing of copy of order after complying the provisions of IMC Act, 1956 and Regulations of 1999 strictly as per the directions made by the Apex Court from time to time.

The writ petition is accordingly, allowed.

Parties to bear their own costs.