Board of Governors in Supersession of Medical Council of India vs Shri Sathya Sai Medical College and Others

M.M. Sundresh, J.—This writ appeal has been filed by the appellant being aggrieved against the order dated 29.07.2013 passed in W.P.

No. 18413 of 2013, in and by which, the proceedings dated 25.08.2013 was set aside with a direction to consider and dispose of the application

submitted by the first respondent for the renewal of the permission for the academic year 2013-2014. Facts in brief:

1.1. The first respondent is a medical Institution. It obtained permission from the appellant with effect from the academic year 2008-2009. It has

been periodically renewed by the appellant till the academic year 2012-2013.

1.2. The Central Bureau of Investigation probed into the Faculty of Doctors working with the appellant. Based upon its report that number of

Faculty members were fraudulently shown, the appellant initiated proceedings against the first respondent and also issued a show cause notice

dated 21.08.2012 to show cause as to why the permission given to the Institution shall not be withdrawn/cancelled. The matter was also taken up

by the Ethics Committee of the appellant and its decision is still pending.

1.3. As the permission was not granted for the year 2013-2014, the first respondent approached this Court. An application for amendment was

filed seeking to challenge the proceedings of the appellant dated 26/28.12.2012. The learned single Judge, after hearing all the parties, was pleased

to set aside the order impugned with a direction to the appellant to dispose of the application of the first respondent for the renewal of the

academic year 2013-2014 on or before 31.07.2013. Challenging the said order, the appellant is before us. Pending writ appeal, an interim order

was passed on 19.08.2013 directing the appellant to make an inspection on the deficiencies pointed out in the earlier assessment/Inspection

Report. The appellant has also filed a Report dated 30.08.2013 before us.

1.4. Pending this appeal, an application for impleading respondents 3 to 86 was filed by the students in M.P. No. 2 of 2013, which has also been

allowed.

Heard the learned counsels appearing for the parties.

Findings of the learned single Judge:

The learned single Judge was pleased to hold that the first respondent has complied with all the deficiencies and that is the reason why, the letter,

dated 14.07.2013, was modified subsequently on 15.07.2013. The very fact that permission was granted for the post graduate programmes itself

would be a sufficient factor to satisfy the due compliance. Number of other institutions similarly placed as the first respondent were granted

permission even though an enquiry is pending before the Ethics Committee apart from criminal cases initiated by the Central Bureau of

Investigation. Regulation 8(3)(1)(d) of the Medical Council of India cannot be applied to the case on hand. As per the Indian Medical Council

(Professional Conduct, Etiquette and Ethics) Regulations, 2002, the proceedings before the Ethics Committee will have to be completed within six

months, which has not been done. Therefore, on the abovesaid basis, the learned single Judge was pleased to allow the writ petition.

Submissions of the Appellant:

Mr. V.P. Raman, learned counsel appearing for the appellant would submit that the question as to whether there is any violation of Regulation 8(3)

(1)(d) has to be decided by the Ethics Committee of the appellant. The judgment relied upon by the learned single Judge is distinguishable on facts.

The learned single Judge has committed an error in comparing the permission given to the post graduate courses with that of the under graduate

courses. The requirements for the abovesaid courses are different. The learned single Judge has misconstrued the two proceedings of the appellant.

When there are deficiencies, it is for the appellant to decide about the grant of renewal of permission or recognition as the case may be. The

present Inspection Report with certain deficiencies will have to be placed before the appellant and the appellant has to take a decision based upon

the same. The learned single Judge has misconstrued relevant provisions contained in the Indian Medical Council (Professional Conduct, Etiquette

and Ethics) Regulations, 2002, which is applicable to a medical practitioner and not to an institution. Therefore, there is no question of limitation

that would arise. Hence, he submitted that the appeal will have to be allowed. In support of his contentions, the learned counsel has made reliance

upon the following judgments.

(i) Union of India Vs. Era Educational Trust and Another, ; and

(ii) Medical Council of India, New Delhi V. State of H.P. and Another (2005) 5 SCC 63

Submissions of the first Respondent:

5.1. Mr. N. Vijaya Narayanan, learned Senior Counsel appearing for the first respondent would submit that the appellant has not given sufficient

opportunities to the first respondent. In the proceedings dated 14.07.2013, there is absolutely no reference about the compliance vis-a-vis the

Assessment Report. That is the reason why, the subsequent letter was issued on 15.07.2013. The fact that similarly placed Institutions were given

permission is not in dispute. Even the earlier Assessment Report indicates only three substantial deficiencies. The subsequent Report filed before

this Court did not contain any serious deficiencies. In so far as the inadequate OPD attendance is concerned, curiously it was restricted upto 1.00

p.m. The first respondent submitted the records for the attendance of 1247 patients. The appellant has considered much more serious deficiencies

pertaining to various other Institutions and granted permission. Therefore, no interference is required.

5.2. In addition to the submissions made by the learned Senior counsel appearing for the first respondent, the learned Senior counsel appearing for

impleading respondents viz., Respondents 3 to 86, would submit that for the fault of the Institutions, the students cannot be made to suffer. At the

time of their study, the Institution was having valid permission. Therefore, appropriate orders will have to be passed to protect their interest.

DISCUSSION:

6.1. The learned Single Judge, making reliance upon the earlier decision rendered in Sri Venkateswaran Medical College V. Medical Council of

India (W.P. Nos. 15914 of 2010 and 17384 of 2011), has held that the Regulation 8(3)(1)(d) of the Establishment of Medical College Regulation

Act, 1989, cannot act as a bar for the grant of permission or recognition to the first respondent. Prima facie, the ratio laid down by this Court in the

said judgment does not apply to the case on hand. The facts involved therein are different. In that case, there was no material to hold that the

Institution had committed forgery or fraud regarding the documents produced by two of the faculty members. The faculty members gave

explanation to the effect that they voluntarily joined the services of the Institute by suppressing the fact that they were working earlier in some other

Institute. However, in the case on hand, the allegation against the first respondent is that the faculty members thrown are not genuine. This is a

matter which has to be considered by the appellant through its duly constituted Ethics Committee. Admittedly, the matter is pending consideration

with the appellant. Therefore, we are of the view that the learned single Judge ought not to have ventured into the said issue. It is settled law that in

academic matters, the role of this Court is very limited, that too, when a competent authority is adjudicating. Therefore, we are inclined to set aside

the finding rendered by the learned single Judge on the scope and applicability of the Regulation 8(3)(1)(d) of the Establishment of Medical College

Regulation, 1999.

6.2. In so far as the finding of the learned single Judge regarding the deficiencies and their compliance is concerned, we are of the view that the

same is also required to be set aside. There is nothing on record to suggest that the appellant was satisfied with the compliance of the deficiencies.

On a reading of the proceedings dated 14.07.2013 and 15.07.2013, it is very clear that the subsequent proceedings refers to the matter pending

before the Ethics Committee alone. That is the reason why the said letter says that all other entries in the letter referred to above shall remain

unchanged. That is also the reason why there is no mention about the compliance by the first respondent. We are also of the view that the learned

single Judge has also committed an error in comparing the post graduate courses with the under graduate course. The requirements for post

graduate courses and under graduate course are different. Few students are admitted in a post graduate course compared to an under graduate

course. Now the students are studying from the second year to fifth year with the first respondent in the under graduate course. Further more, the

question of compliance is the subjective satisfaction of the appellant and therefore, we hold that the finding of the learned single Judge in this regard

cannot be sustained.

6.3. The learned single Judge was pleased to hold that as per Regulation 8(4) of the Indian Medical Council Professional Conduct, Etiquette and

Ethics) Regulations, 2002, the appellant herein was not correct in debarring the Institution on the ground of pendency of the proceedings before the

Ethics Committee as it is barred by limitation. As rightly contended by the learned counsel appearing for the appellant, the abovesaid Regulation

deals with an action on a complaint against a delinquent physician, which shall be taken within a limited period of six months. Hence, the said

regulation is not applicable to the Institution like the first respondent. Therefore, we are also of the view that the said finding also cannot be

sustained.

6.4. However, we do find force in one submission made by the learned Senior counsel appearing for the first respondent. It is not in dispute that

the appellant has granted permission to some other Institutions, who are also facing cases initiated by the Central Bureau of Investigation as well as

the proceedings by the Ethics Committee of the appellant. In those cases, permission have been granted subject to the final decision to be taken.

Therefore, we find substance in the submissions made by the learned counsel appearing for the respondents. As rightly held by the learned single

Judge that mere pendency of the proceedings before the Ethics Committee and the show cause notice issued, by themselves cannot be a ground in

not renewing the permission, provided, the appellant is satisfied with the compliance of the deficiencies pointed out in the Report filed before us. As

held by the Honourable Apex Court, in Union of India Vs. Era Educational Trust and Another, and Medical Council of India, New Delhi v. State

of H.P. and Another (2005) 5 SCC 63 , this Court can neither take up the role of the appellant which is the expert body nor act as a superior

body, in its statutory functions. The said position is reiterated by the Supreme Court in the decision reported in Parshavanath Charitable Trust and

Others Vs. All India Council for Tech. Edu and Others, and Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of U.P. and Others, . As the

learned counsel for the appellant submitted that the Report dated 30.08.2013 filed before this Court is yet to be placed before the appellant, we

deem it fit to direct the appellant to consider the Report and send its recommendations to the second respondent for the purpose of considering the

recognition to the first respondent. In so far as the renewal of permission sought for by the first respondent is concerned, considering the fact that

the cut off date fixed is 30.09.2013, we direct the appellant to take a decision based upon the Report dated 30.08.2013 filed before us within a

period of one week from the date of a receipt of a copy of this order.

6.5. Accordingly, this writ appeal is disposed of with the following directions:

(i) The appellant shall consider the application for renewal of the first respondent within a period of one week from the date of receipt of a copy of

this order by taking into consideration of the Inspection Report dated 30.08.2013 filed before this Court;

(ii) While considering the renewal application filed by the first respondent for permission, the appellant shall not take note of the issue pending

before the Ethics Committee, show cause notice issued and the case initiated by the Central Bureau of Investigation as was done in the case of four

other similarly placed institutions.

(iii) In the event of the appellant granting permission to the first respondent, it shall impose the very same conditions stipulated on the similarly

placed four institutions.

(iv) The appellant shall take appropriate steps to send its recommendation/remarks on the question of recognition to the second respondent based

upon the Inspection Report dated 30.08.2013 expeditiously. The appellant shall comply with the said exercise within a period of two weeks from

the date of receipt of a copy of this order and the second respondent is directed to take a decision in accordance with law within a period of three

months from the date of receipt of the recommendation/remarks. No costs. Consequently, connected miscellaneous petition is closed.