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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2015
:PRESENT:
THE HON’BLE MR. JUSTICE N.KUMAR AND THE HON’BLE MR.JUSTICE G.NARENDAR WP NOS.32499-32500/2015 & 33549-33698/2015 (EDN MED-ADM)
BETWEEN:
SRI SRINIVASA EDUCATIONAL AND CHARITABLE TRUST HAVING ITS REGISTERED OFFICE AT NO.619/G, 36TH CROSS RAJAJINAGAR 2ND BLOCK BENGALURU 560010 REPRESENTED BY ITS CHAIRMAN SRI G.DAYANAND 2. SAPTHAGIRI INSTITUTE OF MEDICAL SCIENCES AND RESEARCH CENTRE NO.15, CHIKKASANDRA HESARAGHATTA MAIN ROAD BENGALURU 560090 REPRESENTED BY ITS PRINCIPAL DR C.M.RAMESH
... PETITIONERS
(BY SRI D.N.NANJUNDA REDDY, SENIOR COUNSEL FOR SRI NISHANTH A V, ADVOCATE)
AND:
UNION OF INDIA MINISTRY OF HEALTH & FAMILY WELFARE NIRMAN BHAWAN, MOTILAL NEHRU MARG AREA, NEW DELHI 110011 REPRESETNED BY SECRETARY 2. MEDICAL COUNCIL OF INDIA POCKET 14, SECTOR 8, DWARKA NEW DELHI - 110077 REPRESENTED BY SECRETARY .. RESPONDENTS (BY SRI KRISHNA S.DIXIT, ASGI FOR R1; SRI N.KHETTY, ADVOCATE FOR R2)
* * *
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH LETTER DTD.15.6.2015 ISSUED BY R-1 AT ANNEX-X, WHEREBY THE R-1 HAS NOT RENEWED PERMISSION FOR 5TH BATCH OF MBBS COURSE IN THE PETITIONER NO.2 INSTITUTION FOR ACADEMIC YEAR 2015-16 AND TO QUASH THE COMMUNICATION DTD.11.5.2015 PASSED BY R-2 AT ANNEX-V, WHEREBY THE R-2 HAS RECOMMENDED FOR DISAPPROVAL OF PETITIONERS SCHEME FOR RENEWAL OF PERMISSION.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, N.KUMAR J., MADE THE FOLLOWING:
O R D E R
The first Petitioner Sri Srinivasa Educational and Charitable Trust and Sapthagiri Institute of Medical Sciences And Research Centre have preferred these petitions seeking a writ of certiorari for quashing the order dated 15.06.2015 issued by the first respondent-Union of India refusing to renew the permission for the 5th batch of MBBS course and also seeking to quash all the communications issued by the second respondent dated 11.05.2015 recommending disapproval of the petitioners scheme for renewal of permission and for other consequential reliefs. 2. The first petitioner is a trust formed with the object of rendering various educational and charitable services and in pursuance of the same, the first petitioner has established the second petitioner to provide the quality based medical education. The petitioner institution was even granted affiliation by the Rajiv Gandhi University of Health Sciences, Karnataka, Bengaluru to start the MBBS Course.
The Medical Council of India has granted permission on 21.06.2011 to the second petitioner to run the medical college with an intake of 150 students. The Government of Karnataka has issued essentiality and feasibility certificate on 18.08.2010. The permission was renewed for all the academic years 2012-2013, 2013-2014 and 2014-2015. On 10.09.2014, the petitioner sought for renewal of permission for conducting 5th batch of MBBS Course for the academic year 2015-2016. In pursuance to the said request, an inspection of the petitioners’ institution was conducted by the Medical Council of India on 21st and 22nd November 2014. In the said inspection, they found the following deficiencies. (i) RICU is not available.
(ii) RHTC: Residential accommodation is not available. It is under construction.
(iii) Other deficiencies as pointed out in the assessment report.
On that basis, the Medical Council of India submitted its report to the Central Government recommending for disapproval of the petitioners’ scheme. In respect of the said recommendation, the first respondent- Union of India issued notice dated 13.01.2015 directing the petitioners to appear on 20.01.2015 before the committee constituted by the Ministry of Health and Family Welfare (Department of Health & Family Welfare) in this regard. The petitioners’ after rectifying the deficiencies submitted the compliance report on 19.01.2015 to the respondents. The committee of Undergraduate Courses in its proceedings, after hearing the petitioners and on perusal of the report observed that the deficiencies pointed out were rectified and the compliance made by the college be verified and the college be considered for approval. Thereafter, the Medical Council of India directed for verification of compliance of deficiencies by the second petitioner-College for renewal of permission for admission of 5th batch of MBBS Course. On 24.03.2015, the verification of compliance of the petitioners’
institution was conducted and in the course of inspection, the Medical Council of India was satisfied with the aforesaid deficiencies having been complied. However, they pointed out for the first time, the following deficiencies: (i) Shortage of Residents is 7.8% as detailed in report.
(iv) The number of major operations for the whole hospital performed on day of assessment was NIL.
(v) Although bed occupancy is claimed to be 85% the fact that Major operations were NIL at the time of assessment reflects poorly on the quality of patients admitted in the departments of General Surgery, Orthopedics, Ophthalmology, END & O.G.
(vi) There was no patient in Labour at the time of assessment. There was only 1 Normal delivery & NIL caesarean section on day of the assessment.
(vii) Availability & quality of clinical material needs to be improved.
(viii) Radiological investigations in form of plain X-rays is inadequate.
(ix) RHTC: Dining & kitchen facilities are not functional.
(x) Other deficiencies as pointed out in the assessment report.”
Acting on the said report, the Medical Council of India decided to recommend that renewal permission may not be granted to the first petitioner for the academic year 2015-2016. On 07.05.2015, the first respondent directed the Medical Council of India to carry out the inspection of the compliance and thereafter case of the petitioner may be considered for approval.
On 11.05.2015, without considering the verification and inspection of the compliance of the defects and merely relying on compliance verification report dated
24.03.2015, the Medical Council of India forwarded the impugned communication to the first respondent recommending non renewal of permission and the first respondent accepted the recommendation and by its communication dated 15.06.2015, denying the grant of permission for renewal to the petitioners’ institution. Aggrieved by the same, the petitioners are before this Court.
Heard the learned Counsel for the parties.
Sri D.N.Nanjunda Reddy, learned Senior Counsel appearing for the petitioners submitted that after coming to know of the fresh deficiencies pointed out by the inspection visit, a comprehensive reply dated 23.05.2015 has been given to the Central Government stating that some of the deficiencies pointed out are without any substance and even otherwise all the deficiencies have been complied with. The Central Government without hearing the petitioner, without application of mind, acting on the said report of the second respondent has passed the impugned order.
Therefore, the order passed by both the first and second respondent is in violation of principles of natural justice and requires to be set aside. As all the deficiencies pointed out are duly removed and complied with, the application of the petitioner for renewal has to be considered expeditiously as otherwise not only the institution would suffer, the students and the society would suffer.
Per contra, Sri. Khetty, the learned counsel for the second respondent contended that, the law provides that an opportunity of being heard should be given to the petitioner- medical college when deficiencies are noticed in the course of inspection. Once such an opportunity is given and petitioner contends that all the deficiencies have been removed, in order to verify the correctness of the same, an inspection team visits the petitioner and if during such inspection if any fresh deficiencies are noticed, the question of hearing the petitioner or giving him an opportunity to have his say in the matter or to comply or remove the deficiencies would not arise. Neither the Act nor the regulations stipulate any such
opportunity being given to the petitioner for the second time and, therefore, the contention that the impugned orders are passed in violation of the principles of natural justice is without any substance. Further he contends that, as could be seen from the contents of the Writ Petition, the petitioner has accepted all the deficiencies, he has given explanation which are not acceptable nor legal and, therefore, the authorities were not justified in passing the impugned order in the light of those deficiencies.
The Assistant Solicitor General of India, Sri Krishna S Dixit, the learned counsel appearing for the first respondent submits that, though law expressly provides for an opportunity being given to the petitioner when deficiencies are pointed out in the course of inspection, when in the surprise inspection done to find out the veracity of the reply given by the petitioner, if any fresh deficiencies are noticed and on that basis renewal is to be refused, such an order of refusal to renewal would have serious civil consequences and the aggrieved person requires to be heard.
In the instant case, the Central Government neither gave a show cause notice nor heard the petitioner in so far as fresh deficiencies are concerned. As the second respondent has acted on the recommendation of the expert body, they cannot be found fault with.
In the light of the aforesaid facts and the rival contentions, the point that arise for our consideration in this Writ Petition is as under : -
When during the course of a surprise inspection to find out whether compliance report removing the deficiency is acceptable or not, if fresh deficiencies are noticed, whether there is any obligation on the part of the first and second respondents to confront the petitioner with those adverse remarks, give an opportunity to have his say in the matter, hear him before passing orders refusing renewal for permission.
Permission for admission to new medical colleges, new course of studies and renewal of permission which are already existing in previous years either for establishing new
medical college or for increasing intake capacity of the existing medical college has been the subject matter of litigation before the Apex Court in several cases. In fact the law on the point is fairly well settled where the scope of Section 10A of the Act has been interpreted in extenso. The Apex Court in more than one judgment has tried to bridge the gap by laying the guidelines in the matter of admission to professional courses and prescribing time schedule which is held to be the law of the land as declared by the Apex Court under Article 141 of the Constitution of India. The Apex Court has further held that, as the guidelines issued by them is the law declared by the Apex Court neither the Central Government nor the Medical Council of India or the University or College can act contrary to the directions and guidelines issued by the Apex Court. In view of the same, now the admission to these professional courses, in particular, medical courses, is governed by those guidelines prescribed by the Apex Court. In fact a time schedule is given. Acting on the aforesaid guidelines, the MCI has also
issued a schedule for receipt of applications for establishment of new medical colleges and increase of admission capacity in an existing medical college and processing of the applications by the Central Government and the Medical Council of India and also schedule in the case of rejection of permission of an existing medical college by the Central Government and the Medical Council of India. In fact, in a recent judgment of the Apex Court, after reviewing the entire case law and after referring to various judgments of the Apex Court in the case of ROYAL MEDICAL TRUST (REGISTERED) AND ANOTHER vs UNION OF INDIA AND OTHER [2015 SCC ONLINE 740] the law on the point has been summarized. 12. In the aforesaid judgment, the Apex Court has affirmed the law declared in SWAMI DEVI DAYAL HOSPITAL AND DENTAL COLLEGE vs UNION OF INDIA AND OTHERS [(2014) 13 SCC 506] rejecting the interpretation placed by the High Court of Punjab and Haryana that Section 10-A of the Act only deals with permission for establishment of new
dental colleges, new course of studies, etc., but it did not apply to the case of renewal of such permission as well. Thereafter, the Apex Court proceeded to hold that, “13. the procedure prescribed in Section 10- A contains the requirement of following this principle of natural justice at two stages. In the first place, by DCI when it finds deficiencies while examining the school in the second stage at the level of the Central Government before it passes away adverse orders, as it is the final administrative authority vested with powers to pass such an order. The law, thus, specifically requires that at the stage of a decision by the Central Government, again an opportunity of being heard is to be provided. This proviso, thus, acknowledges the need of and confers a very valuable right in favour of the petitioner”.
In the aforesaid case, referring to the judgment in the case of Sahara India (Firm) vs. CIT [ (2008) 14 SCC 151 where it was held at para 19 as under : -
“19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial.”
Thereafter, they proceeded to hold that, “15. …. even in the absence of specific provisions of giving hearing, the hearing is required in such cases unless specifically excluded by a statutory provision. In such a situation the proviso to sub-section (4) of Section 10-A has to be liberally construed to encompass the cases of renewal of permission as well”.
In fact, in the Royal Medical Education Trust’s case, the learned senior counsel appearing for MCI fairly submitted that, in view of sub-section (4) of Section 10 A of the Act, before any disapproval of Scheme was recorded, reasonable opportunity ought to have been given and that such opportunity is available even in Renewal Cases in Category III. In the aforesaid Swamy Devi Dayal Hospital’s case, the expression “opportunity of being heard” is explained which is accepted by the Apex Court in the Royal Medical Education Trust’s case also. Para 22.3 reads as under : - “22.3. The expression “opportunity of being heard” occurring in this proviso would mean that the material that goes against the applicant and is to be taken into consideration, is to be supplied to the applicant within an opportunity to make representation. For this purpose either the report of DCI itself can be supplied or at least the deficiencies pointed out in the report have to be communicated by the Central Government to the applicant with an opportunity to furnish its comments thereupon.
At that stage while giving its reply, if the applicant claims personal hearing, such a personal hearing should also be accorded.”
Thereafter, at para 25 dealing with renewal cases it was held as under : - “25. As regards cases of renewal, it was laid down in Priyadarshini that the process of decision making for grant of fresh or initial permission for establishment of a new college is exhaustive and elaborate when compared to such decision making in regard to grant of renewal of permission for the four subsequent years. It was further stated that before grant of initial permission the aspects whether the institution would be in a position to offer the minimum standards of education in conformity with the Act and Regulations and whether the institution has adequate resources and whether the institution has provided or will be able to provide within the time limit specified in the Scheme all the required facilities and faculty are required to be considered and scrutinized very closely. On the other hand for the purposes of grant of renewal
what is required to be considered is whether the prescribed faculty and infrastructure is available. Considering renewal cases on a parameter distinct and different from that relating to establishment of a new college for the first time, it was observed that the entire process of verification and inspection relating to renewal ought to be done well in time so that the existing colleges have adequate and reasonable time to set right the deficiencies or offer explanation to the deficiencies.”
They have proceeded to hold that,
“27. The MCI and the Central Government have been vested with monitoring powers under Section 10A and the Regulations. It is expected of these authorities to discharge their functions well within the statutory confines as well as in conformity with the Schedule to the Regulations. If there is inaction on their part of non-observance of the time Schedule, it is bound to have adverse effect on all concerned. The affidavit filed on behalf of the Union of India shows that though the number of seats had risen, obviously because of permissions granted for establishment of new
colleges, because of disapproval of renewal cases the resultant effect was net loss in terms of number of seats available for the academic year. It thus not only caused loss of opportunity to the students community but at the same time caused loss to the society in terms of less number of doctors being available. The MCI and the Central Government must therefore show due diligence right from the day when the applications are received”.
The Supreme Court held that, the Schedule giving various stages and time limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. Then, they have discussed the various stages which are provided in the Schedule. According to the schedule in the case of renewal of permission in existing Medical College by the Central Government under the Medical Council of India, 30th September is prescribed as the last date for seeking renewal to the MCI. On such application by 31st January, the Medical Council has to
inspect and communicate the deficiency, if any, to the College. The Central Government has to hear the college under Section 10A(4) between the 1st to 20th February. 28th February is fixed as the last date for compliance where compliance verification is required. 15th May is the last date prescribed for issuance of letter of permission or not to grant renewal of permission. If the Central Government decides to issue the letter of permission, it should be done by 15th June. As far as possible, this time schedule has to be adhered to. The said schedule is modified by insertion of a note to the following effect:
The admission schedule indicated above may be modified by the Central Government for reasons to be recorded in writing in respect of class or category of applicants.
This note probably became necessary in view of the judgment of the Apex Court in Priya Gupta’s case where a direction was given that the schedule to the regulations must be strictly and scrupulously observed. Subsequent to
the said decision, the regulation stood amended incorporating the above note empowering the Central Government to modify the status and time limits to the schedule to the Regulations. Therefore, the Central Government is thus statutorily empowered to modify the schedule in respect of class or category of applicants for reasons to be recorded in writing. Because of subsequent amendment and incorporation of the note, as aforesaid, the matter is now required to be seen in the light of the same and in accordance with Priya Gupta’s case where a similar note was considered by the Apex Court. Therefore, they proceeded to hold that the directions in Priya Gupta’s case must now be understood in the light of the statutory empowerment and they declared that it is open to the Central Government in terms of the note to extend or modify the time limits in the schedule to the regulations. However, it was made clear that the dead line namely 30th September for making admissions to the First MBBS course as laid
down by the Apex Court in Madhu Singh’s case is always to be observed.
From the aforesaid judgment, now it is clear that the admissions to First MBBS course has to be done before 30th September. However, the time schedule prescribed in the schedule can be modified for reasons to be recorded in writing by the Central Government.
It is to be noticed that neither in the Regulation nor in the Act nor in the Schedule, is there any express provision stipulating that the college is not entitled to be heard in respect of fresh deficiencies noticed in the surprise inspection (conducted in order to verify the compliance of the earlier report). In Swamy Devi Dayal’s case, the Apex Court has categorically held that the expression ‘opportunity of being heard’ in the face of such a provision, stated in the proviso to Section 10-A of the Act would be that the material that goes against the applicant, which is to be taken into consideration, is to be supplied to the applicant with an
opportunity of making a representation. For this purpose, the report of the Medical Council of India has to be supplied by the MCI itself or at least the deficiencies pointed out in the report have to be communicated by the Central Government to the applicant with liberty to furnish his comments there upon. At that stage, while giving its reply, if the applicant claims personal hearing, such a personal hearing would also have to be accorded. The Apex Court in the case of M/S Sahara India (Firm), Lucknow vs Commissioner Of Income Tax dealing with rules of natural justice and after referring to the earlier Judgments held, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has serious and adverse civil consequences for the party affected. The principle will hold
good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial. Following the said Judgment, the Apex Court in Swamy Devi Dayal’s case has held that even in the absence of specific provision of giving hearing, the hearing is required in such cases unless specifically excluded by a statutory provision. In such a situation the proviso to sub-section (4) of Section 10-A has to be liberally construed to encompass the cases of renewal of permission as well. Therefore, in the absence of any specific provision the principles of natural justice either in the schedule or in the Regulations or in the Act, has to be read into the schedule of the Act and under Regulation.
It is not in dispute that the renewal as sought for by the petitioner in the fourth renewal in respect of the fifth batch. The said renewal permission was sought on 10.9.2014. The second petitioner-college was originally sanctioned an intake of 150 students in the year 2011. Thereafter the first renewal of permission was granted in
2012-13 and thereafter it was again renewed in 2013-14 and also for the academic year 2014-15. Now the respondents have denied the fourth renewal for the fifth batch of students thereby leaving in lurch the students who are already admitted to the course and also raised a question mark over the survival of the Institution. It cannot be in doubt that the college provided necessary infrastructure and facilities in terms of the Act and the Regulations. This can be safely inferred from the fact that the college was granted permission and thereafter granted renewals for four successive academic years and it is not the case that there have been rampant complaints either by the students or parents regarding inadequacies in the infrastructure. It is seen from the report dated 22.11.2014 that two deficiencies were pointed out and the two are : a) RICU (Respiratory ICU) is not available; b) RHTC (Rural Health Training Centre) residential accommodation is not available and it is under construction.
Based on this report of its inspectors, the MCI recommended to the Central Govt. not to renew the permission by its recommendation dated 22.12.2014. The Central Government acting under Section 10A(4) of the Indian Medical Council Act directed the petitioner to appear for hearing on 20.1.2015. The petitioner/college appeared for hearing and prior to that submitted a report /statement to the Medical Council of India whereby it pointed out that the alleged deficiencies were non-existent. A copy of the report dated 19.1.2015 is also placed before this Court as Annexure-Y. A perusal of the same shows that photographs have been annexed to the report and in one such photograph the inspectors are shown entering the RICU ward. The petitioner has also produced the photographs of the RHTC which was alleged to be under construction. Thus effectively indicating compliance thereby negating the report by the inspectors of the MCI.
The Central Government upon going through the same, directed the MCI to verify the documentary evidence placed before it. It is alleged that the MCI after a lapse of more than two months appears to have inspected the petitioner’s premises and yet again submitted a report. This time around pointing out seven other deficiencies, which deficiencies were not noticed by the earlier inspectors, and submitted a report on 24.3.2015. It appears that the MCI inspectors without confining themselves to the task of verifying the compliance report, have proceeded to conduct an exercise afresh. The second surprise visit effectively has turned out to be a fresh inspection and not a compliance verification inspection as directed by the Central Government.
The Learned Senior Counsel also draws attention of this Court to the assessment reports of the previous years which is produced as Annexure-Z to the writ petition. The first assessment report is dated 10th & 11th of May 2011 and 17th and 18th of January, 2012. The said report confirms
the existence of the RICU ward with the clinical facilities and equipment. The next assessment report also confirms the availability of RICU. So also 3rd assessment report dated 9th and 10th of 2014 confirms the said fact. In the previous assessment reports there was a specific column for providing details of RICU. In the assessment report dated 24.11.2014 there is no such column provided for RICU and the same has resulted in the confusion leading to the MCI erroneously arriving at the conclusion that the RICU ward was not available. Thus the petitioners have effectively canvassed and convinced this Court that the finding regarding RICU and RHTC are unfounded. Despite this a different set of inspectors have made the second surprise inspection on 24.3.2015 and have deemed it fit to conduct a fresh exercise and have proceeded to point out deficiencies which were not part of the earlier inspection report dated 22.11.2014.
In the light of these inconsistent reports the Central Government called upon the State Government to carry out the inspection and submit a report regarding the
compliance of the two deficiencies i.e., first pointed out by the MCI in its report dated 22.11.2014. The State Government has also sent a report after inspecting the Institution. The State Government report dated 29.2.2015 corroborates the stand of the Institution. In the meanwhile the MCI acting hastily, without even affording an opportunity of hearing to the petitioners nor even furnishing a copy of the report to them, made a recommendation to the Central Government not to renew permission for the 5th batch. The said recommendation dated 29.4.2015 is produced as Annexure-S to the writ petition. The Central Government once again by its communication dated 7.5.2015 directed the MCI to verify the compliance of its report dated 22.11.2014. The MCI instead of complying with the direction of the Central Government by its letter dated 14.5.2015 stated that the verification of compliance has already been carried on 24.3.2015 and further enclosed its second recommendation along with letter dated 11.5.2015. The petitioner after coming to know of the same once again submitted the
compliance report consisting of three volumes. The same was submitted on 23.5.2015, but the MCI refused to look into the same. The Central Government thereafter on 15.6.2015 by its impugned order and acting mechanically on the recommendation of the MCI refused the fourth renewal for the fifth batch of students to the Central Government and further directed not to admit student for the academic year 2015-16.
It appears that the Institution aggrieved by the same approached the Hon’ble Apex Court directing by way of a Writ Petition No.370/2015 (Civil) and the same came to be dismissed with liberty to the petitioners to approach this Court.
It is clear from the compliance report that the deficiencies pointed out in the inspection held on 22.11.2014 are non-existent and the petitioner has demonstrated that there is no truth in the same. They have placed on record their statements and materials and given it to the Medical
Council of India. It is for verification of the said compliance, the second surprise visit was conducted on 24.03.2015. It is not in dispute that the deficiencies pointed out earlier did not exist on the date of the second surprise visit. In other words, even if the deficiencies pointed out were correct, it was duly complied with and therefore, the petitioner was entitled for fourth renewal which they have sought for as they have complied with all the legal requirements. It is in the second surprise visit several deficiencies were pointed out. The schedule did not provide for the same.
Assuming for arguments sake, that the Medical Council of India, being the Apex body which is established for the maintenance of the standards in Medical Education, found deficiencies in the second surprise visit, on that ground, if they have to submit report to the Central Government recommending not to renew the permission it has serious civil consequences, insofar as the petitioners’ college is concerned. Similarly, if the Central Government were to accept the report and reject renewal permission it
would also have serious civil consequences. Therefore, both Medical Council of India and the Central Government were under an obligation to furnish a copy of the report to the college, point out the said deficiencies, give them an opportunity to have their say and also give them an opportunity to rectify the deficiencies, and if requested to give them personal hearing and then on consideration of the same pass appropriate orders in accordance with law. The said procedure is not followed either by the Medical Council of India or by the Central Government. Without following the said procedure, the impugned orders are passed. The said impugned orders are in violation of principles of natural justice. The said orders seriously affect the rights of the petitioner. In fact, it also affects all meritorious students who are eligible for MBBS Seat and therefore, it is unsustainable and accordingly it requires to be quashed.
Now the appropriate course for this Court to do, is to permit the petitioner to have its say insofar as the fresh deficiencies pointed out in the second surprise inspection on
24.03.2015. If the deficiencies exist and if they have been complied with by removing the same, they can also file the compliance report. The said exercise shall be done on or before 31.08.2015. Thereafter, the Medical Council of India shall consider the same giving them personal hearing and pass appropriate orders on or before 10.09.2015. The Medical Council of India shall submit its report to the Central Government forthwith and the Central Government shall pass appropriate orders after hearing the petitioners on or before 18.09.2015.
The Medical Council of India and the Central Government also to take note of the fact that in pursuance of the consensus agreement entered into between the petitioners’ institution and the Government of Karnataka, 25% of the seats are to be surrendered to the Government for being filled up on merit basis. Any denial of permission would affect public at large and the students who have found place in the merit list prepared by the Karnataka Examination Authority.
In this context it is useful to refer to the observation made by the Apex Court in Priyadarshini Dental College & Hospital v. Union of India [(2011) 4 SCC 623], wherein it was observed that, applicants for renewal were existing dental colleges, which were functioning for three or four years and each college had admitted hundreds of students either directly or through the state Government allotment. The colleges had the benefit of initial permission and several renewals of permission. Refusal of renewal of permission in such cases should not be abrupt nor for insignificant or technical violations. Nor should such applications be dealt in a casual manner, by either granting less than a week for setting right the ‘deficiencies’ or not granting an effective hearing before refusal. The entire process of verification and inspection relating to renewal of permission should be done well in time, so that such existing colleges have adequate and reasonable time to set right the deficiencies or offer explanations to the deficiencies. The object of providing for annual renewal of permissions for four years,
is to ensure that the infrastructural and faculty requirements are fulfilled in a gradual manner and not to cause disruption. The need for renewal of permission emanates from the fact that a newly established college is not required to have in place, full complement of the teaching faculty and complete infrastructure in the first year itself. This is because, during the first year, the college will be catering only to a limited number of first year students. During the second, third and fourth and fifth years, the student strength will increase and every year correspondingly the infrastructure and faculty will have to be increased. 30. The Apex Court in the case of Al-Karim Educational Trust v. State of Bihar [(1996) 8 Supreme Court Cases 330], at paragraph No.11 has observed that, it is impractical to insist, for a fool proof or absolute adherence to all requirements without regard to their importance or relevance, for the purpose of imparting education, in a practical way, especially because the institution has begun to function, students admitted to institution have taken the
examination and the fate of a good many number of students should not hang in the balance in an unending or everlasting manner. The question to be posed, is whether there exists the minimal and satisfactory requirements to keep the matter going, and not whether better arrangements that will render the set up more efficient and more satisfactory, should be insisted as "a wooden" rule. It may be that there are some minor deficiencies here and there which call for rectification. Time can certainly set right such matters. What is required is a total, practical, overall view and not literal compliance with the deficiencies pointed out. Finally, in paragraph No.12 it is observed that, the totality of the circumstances disclosed in the said case and having regard to the fact that at each stage new deficiencies are being pointed out and they were satisfied beyond any manner of doubt, that the deficiencies have been substantially complied with and minor deficiencies pointed out in the last mentioned report are not such as to permit withholding of the affiliation to which the appellants' institution is entitled, from the manner in which the
deficiencies have been pointed out from time to time, each time the old deficiencies are shown to have been removed, new deficiencies are shown, gives the impression that the affiliation is unnecessarily delayed. Once the institution feels secure on the question of affiliation, we have no doubt that these minor deficiencies, if they exist, shall be taken care of by those in charge of the institution. For taking such further steps, the grant of affiliation need not wait. Therefore, the deficiencies which come in the way of renewal are of such a nature which are fundamental and even minimum requirements are not satisfied. Therefore, both the Medical Council of India as well as the Central Government shall bear in mind the aforesaid observations of the Hon’ble Supreme Court while considering the compliance report submitted by the college in answer to the fresh deficiencies pointed out on 11.04.2015 which was noticed during second surprise visit. 31. It is made very clear when the MCI inspects the college for verification of the compliance report they shall
confine that inspection only to find out whether the deficiency as pointed out is complied with or not and they shall not point out any fresh deficiencies raised for this academic year. 32. Hence, we pass the following order : - (a) Writ Petitions are allowed.
(b) The impugned letter dated 15.6.2015 issued by respondent No.1 at Annexure-X and the communication dtd.11.5.2015 passed by respondent No.2 at Annexure- V are hereby quashed.
(c) Petitioners are given liberty to file a compliance report on or before 31.8.2015 in respect of the deficiencies pointed out in the second surprise inspection on 24.3.2015.
(d) The second respondent-Medical Council of India shall consider the same giving them personal hearing and pass appropriate orders on or before 10.9.2015.
(e) Thereafter, the Medical Council of India shall submit its report to the Central Government and the Central Government shall pass appropriate orders after hearing the petitioners on or before 18.9.2015.
No costs.
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JUDGE
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KSR/rs