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Judgment
P.K. Jaiswal, J.—The petitioner by this writ petition under Article 226 of the Constitution of India impugns and seeks setting aside of the order dated 15.7.13 of the Board of Governors (in short "the Board") in Super session of Medical Council of India (MCI) denying permission to the petitioner to start MD/MS Courses in 12 subjects for the year 2013-14 and also cancelled the permission granted to start MS (Ophthalmology) course with annual intake capacity of one seat which was already approved. The petitioner was granted permission for establishment of Index Medical College, Hospital & Research Centre, Indore on 28.9.07 initially for a period of one year with a annual intake of 150 MBBS students.
The petitioner applied for permission to run P.G. Course as per norms laid down by the Medical Council of India in accordance with Section 10A of the Indian Medical Council Act, 1956 (herein after "the Act") to start M.D./M.S. Courses in 12 subjects for the year 2013-14 on 8.5.2012. On 27.12.12 and 4.1.13 letters were issued by the respondent no. 2 Board of Governors, thereby appointing assessors to make the assessment of the petitioner college for starting new P.G., M.D., M.S. Courses in all the 12 subjects. Accordingly, the assessors inspected the College for grant of permission in 12 subjects on respective dates. As per the inspection report of assessors (Annexure P/4), it was found that the petitioner has all the necessary infrastructure and eligibility for starting all the 12 courses. Out of 12 subjects letter of intent was issued only in one subject i.e., for Ophthalmology. The dispute is for remaining 11 subjects viz., MD (Anesthesia), MD (DVL), MS (ENT), MD (General Medicine), MS (General Surgery), MS (OBG), MS (Ophthalmology), MD (Paediatrics), MD (Psychiatry), MD (Radio-diagnosis) and MD (TB & Respiratory Medicine). The letters of disapproval were issued on 28.3.2013. The respondent no. 2 passed the order in all 12 subjects and by the said order, they have decided to disapprove the scheme submitted by the petitioner including the scheme for Ophthalmology. The letter of intent granted to the petitioner in Ophthalmology was also withdrawn and order of disapproval was passed on 28.3.13.
The petitioner challenged the said orders dated 28.3.2013 by filing two Writ Petitions No. 6293/2013 and 5059/2013, respectively. The learned Division Bench by order dated 26.6.13, directed the respondents to re-examine the case of the petitioner in accordance with law and to communicate the decision within 10 days thereafter. Order dated 26.6.2013 was passed in respect of grant of permission to start new P.G. Course MD/MS for 11 seats for the year 2013-14. Relevant para of the order reads as under:-
In this case, it was submitted that vide letter dated 11th of March, 2013, certain informations were sought from the petitioner with regard to serving Professor, Assoc. Professor about the previous employment details, whether any P.G. Seat was given against their name/presence in previous Medical Institutes ? and their full time presence in this college and not doing private practice in any other town. However, the information submitted by the petitioner was vague and evasion information regarding private practice etc. For example, in the reply, it was submitted that in the Department of Radio Diagnosis, Dr. A.K. Vyas has shown to be Assistant Professor for a period of 8 months and he has been promoted as Associate Professor within 8 months. Certain other deficiencies has been pointed out with respect to Dr. Gopal Purshottam of the same department. There were other deficiencies which are also pointed out in para 28 of the reply.
In view of the aforesaid, respondents denied the request made by the petitioner.
It has been submitted on behalf of the petitioner that requisite information was supplied by the petitioner in response to the letter dated 11th of March, 2013. However, perusal of the reply filed by the respondent goes to show that only two lines letter has been filed by the petitioner in reply to the letter dated 11th of March, 2013. Of course, according to the petitioner, number of documents were also filed along with the letter. However, it does not appear in proper response to show-cause notice dated 11th of March, 2013. Learned counsel for the petitioner submits that he will file appropriate reply by Monday i.e. 01/07/2013.
In view of the aforesaid, the respondents are directed to re-examine the case of the petitioner on receipt of reply as stated above within a period of ten days thereafter, in accordance with law and to communicate the decision within the same period.
With the aforesaid observations, present petition is disposed of.
In respect of cancelling the petitioner''s approval for starting M.S. Ophthalmology with annual intake capacity of one seat the learned Division Bench disposed of the said writ petition by order dated 3.7.13. Relevant para of the order reads as under
We have heard learned counsel for the parties at length, considered the pleadings and perused the documents filed by them.
On 11.03.2013, a letter of intent was issued in favour of the petitioner on the conditions enumerated therein. Thereafter, on 13.03.2013, the petitioner submitted an application for increase of number of seats along with summary of Ophthalmology Assessment Report. According to the petitioner, on 15.03.2013 (Annexure P/8) all the necessary documents, including copy of renewed Blood Bank License, were submitted to the Board of Governors with covering letter dated 14.03.2013. However, without looking to the documents and properly appreciating the affidavits and the letter of termination of services of Dr. Arvind Labhsetwar, which was submitted by the petitioner itself, the impugned order has been passed.
Admittedly, the petitioner itself had submitted the letter of termination of services of one of the professors'' viz. Dr. Arvind Labhsetwar out of the list of professors serving with it. In the circumstances, although in the morning the petitioner had submitted already sworn affidavit of Professor Dr. Arvind Labhsetwar, but on termination of his service, it was immediately informed to the Board of Governors. Thus, no undue benefit was taken on account of showing of name of that professor in the list of Professors and Assistant Professors. Having received the said information, the Board of Governors could have reduced the petitioner''s prayer for grant of seats proportionately, on account of termination of service of one of the professor. However, instead of doing the same, the letter of intent issued even for one seat was cancelled on that ground.
In the reply to the petition, for the first time, a case has been tried to be set up by the second respondent that renewal of blood component license has not been produced, and therefore, the approval was cancelled. We find that in the impugned order dated 28.03.2013 (Annexure P/1), there is no mention of non-furnishing renewal of the blood component license to be a reason for cancellation of the approval for permission.
In the circumstances, we allow this petition by quashing the impugned order dated 28.03.2013 (Annexure P/1) with a further direction to the second respondent - Board of Governors to reconsider the petitioner''s claim for grant of permission to start MS (Ophthalmology) Course with annual intake capacity one seat which was already approved and also for further more seats, as per the eligibility, if the petitioner is fulfilling all the conditions.
Let the petitioner to appear before the Board of Governors on 11.07.2013. The Board of Governors on that date, or within a week from that date, shall take appropriate decision in regard to the petitioner''s aforesaid claims. With these directions, the petition stands allowed to the extent indicated above. No order as to costs.
C.c. today.
It is contended that, the respondent no. 2 rejected the schemes furnished by the petitioner mainly on 3 grounds i.e., firstly irregularity of facilities, secondly consent of affiliation and active investigation against the petitioner by CBI.
In respect of CBI enquiry, it is submitted that after completion of enquiry final report has been filed by the investigating office u/s 173 of Cr.P.C., 1973 and till today, no charge has been framed against the petitioner. It is also submitted that 14 Colleges got permission inspite of CBI enquiry and, therefore, the said ground of the respondent no. 2 has no force.
It is also submitted that at the time of inspection nothing wrong was found in the inspection report and inspection report was in favour of the petitioner.
Learned counsel for the petitioner submits that the Board has not relied on the inspection report and without any basis issued an order of rejection. He submitted that if any such deficiencies are informed, the petitioner would have been rectified all those deficiencies and informed the respondent no. 2 by submitting the compliance report. He submits that without complying the provisions of Section 10A(3) & (4) the respondent no. 2 after a period of more than 2 months informed the petitioner three deficiencies by letters dated 11.3.13 and 13.3.13 excluding the department of Ophthalmology in which the letter of intent was issued.
Learned counsel for the petitioner has submitted that P.G. Committee has also recommended certain number of seats in some of the department and there is no material on record on the basis of which the respondent no. 2 could have taken different view and rejected the assessors'' report or P.G. Committee report. His contention is that the assessors, report was in favour of the petitioner then, it was incumbent for the Board to refer the matter to the Central Government for its final decision as per section 10A(4) of the Act. His next contention is that institute is having all the infrastructure facilities such as staff faculty, chemical material etc as per norms laid down by the MCI. The order is passed on incorrect statement of facts. He lastly submitted that pendency of CBI enquiry has no ground for rejecting the permission, in fact, the respondents have granted permission to several institutes inspite of pendency of CBI enquiry on them like Shri Rama Chandra Medical College & Research Institute, Chennai, Rohilkhand Medical College, Bareilly, KPC Medical College & Hospital, Kolkata, Shri Guru Ram Rai Institute of Medical & Health Sciences, Dehradun, Bhaskar M.C., Yenkapally, Hyderabad and Muzaffarnagar M.C., Muzaffarnagar, in the year 2013-2014, while the petitioner is refused the permission on the same ground on the same subject which is discriminatory.
On the other hand, Shri Vijay Assudani, learned counsel for the respondent No. 2 has submitted that in earlier round of litigation, this Court found that the information submitted by petitioner was vague and evasive. It is submitted that the petitioner in para 5.5 as well as in ground 6.4. of the petition has stated that the assessors in inspection report have found that petitioner is having all necessary infrastructures and eligibility of starting MD/MS course in all the subjects is in correct. The assessors have found number of difficulties in assessment report and thus, found the petitioner ineligible for starting MD/MS courses:-
a) There is no research publication from the faculty during last 3 years and some reference books and journals were deficit. The said assessment report pertains to MD (TB and Respiratory medicine);
b) That the declaration from of professors who were absent were not available and 3 Asstt. Professors were over-aged and one Senior Resident has also not given his residence proof and said assessment report pertains to MD (Pediatric);
c) The average daily OPD was inadequate as per MCI norms, this pertains to MD (DVL) and M.D. (Psychiatry) course;
d) Professors were not found to be registered with Madhya Pradesh Medical Council and HOD was on leave since August, 2012. All the Senior Residents were Diploma Holders, thus there were less patients in surgery. The said assessment report pertains to M.D. (Anaesthesiology);
e) That the age of Professors was more than norms and one of the professors did not submit residence proof and one Associate Professor who was absent, did not file his residence proof. The said assessment pertains to Ophthalmology.
It is also submitted by the respondent no. 2 that the time schedule is prescribed for grant of permission and the last date for issuance of letter of permission was 28th February, which in the present year had been extended upto 31st March, 2013, by order passed by Hon''ble Supreme Court in Civil Appeal No. 4318 of 2012 (Priya Gupta Vs. State of Chhatisgarh & Ors.), and the last date for submitting application was 30/4/13. Thus, the petitioner institute has not complied with the time schedule which is mandatory required to be complied with.
The contention of petitioner that there has been non compliance of Section 10A(3) and (4) of Medical Council of India Act, is also not tenable in law, it is more so when the powers of State Government have been vested in the Council in terms of Indian Medical Council (Amendment) Act 2010 as well as Gazette notification dated 21.5.13.
As per letter of Board dated 11.3.13 Annexure P/7, in respect of Scheme for starting MD (Anaesthesia) course, the Board pointed out the following deficiencies:-
(1) The institute is directed to submit information about the serving Professor and Assoc. Professor about the previous employment details, whether any PG seat was given against their name/presence in previous Medical Institute. The information is also required about the full time presence in the college and not doing private practice in any other town. This information needs to be submitted on an affidavit.
(2) The consent of affiliation does not mention the number of the seats requested for.
(3) Attested copy of Registration Certificate from Madhya Pradesh State Medical Council in respect of all faculty members to be submitted by college authority.
The respondent no. 2 has also taken a stand that when a show cause notice dated 10.6.13 has been issued to the petitioner-college to revoke permission granted for starting MBBS course then, in such circumstances, granting permission for P.G. courses will create further complication and the academic career of various students may be adversely affected. Learned counsel for the respondent no. 2 has submitted that there is no error in the impugned orders dated 15.7.13 entitling interference in this writ petition.
In respect of Scheme for starting MD (DVL) course, the Board pointed out the following deficiency:-
"Inadequate OPD - the average daily OPD - 43 which is less than MCI norm.
In respect of Scheme for starting MS (ENT) course, the Board asked the petitioner to remove the following deficiency:-
Due to inadequate operative workload, the major surgeries are 2 and minor are 4 which are less than MCI norms.
In respect of Scheme for starting MS (General Medicine) course, the Board pointed out the following deficiencies:-
(1) The institute is directed to submit information about the serving Professor and Assoc. Professor about the previous employment details, whether any PG seat was give against their name/presence in previous Medical Institutes. The information is also required about the full time presence in the college and not doing private practice in any other town. This information needs to be submitted on an affidavit.
(2) The consent of affiliation does not mention the number of the seats requested for.
(3) Attested copy of Registration Certificate from Madhya Pradesh State Medical Council in respect of all faculty members to be submitted by college authority.
In respect of Scheme for starting MS (General Surgery) course, the Board pointed out the following deficiencies:-
(1) The institute is directed to submit information about the serving Professor and Assoc. Professor about the previous employment details, whether any PG seat was give against their name/presence in previous Medical Institutes. The information is also required about the full time presence in the college and not doing private practice in any other town. This information needs to be submitted on an affidavit.
(2) The consent of affiliation does not mention the number of the seats requested for.
(3) Attested copy of Registration Certificate from Madhya Pradesh State Medical Council in respect of all faculty members to be submitted by college authority.
In respect of Scheme for starting MS (OBG) course, the Board pointed out the following deficiencies:-
(1) The institute is directed to submit information about the serving Professor and Assoc. Professor about the previous employment details, whether any PG seat was give against their name/presence in previous Medical Institutes. The information is also required about the full time presence in the college and not doing private practice in any other town. This information needs to be submitted on an affidavit.
(2) The consent of affiliation does not mention the number of the seats requested for.
(3) Attested copy of Registration Certificate from Madhya Pradesh State Medical Council in respect of all faculty members to be submitted by college authority.
In respect of Scheme for starting MS (Orthopedics) course, the Board pointed out the following deficiencies:-
(1) The institute is directed to submit information about the serving Professor and Assoc. Professor about the previous employment details, whether any PG seat was give against their name/presence in previous Medical Institutes. The information is also required about the full time presence in the college and not doing private practice in any other town. This information needs to be submitted on an affidavit.
(2) The consent of affiliation does not mention the number of the seats requested for.
(3) Attested copy of Registration Certificate from Madhya Pradesh State Medical Council in respect of all faculty members to be submitted by college authority.
In respect of Scheme for starting MD (Paediatrics) course, the Board pointed out the following deficiencies:-
(1) The institute is directed to submit information about the serving Professor and Assoc. Professor about the previous employment details, whether any PG seat was give against their name/presence in previous Medical Institutes. The information is also required about the full time presence in the college and not doing private practice in any other town. This information needs to be submitted on an affidavit.
(2) The consent of affiliation does not mention the number of the seats requested for.
(3) Attested copy of Registration Certificate from Madhya Pradesh State Medical Council in respect of all faculty members to be submitted by college authority.
In respect of Scheme for starting MD (Psychiatry) course, the Board pointed out the following deficiencies:-
(1) Inadequate average daily OPD - The average attendance is only 38 which is less than MCI norm
(2) Out of 2 professors 1 will complete 70 years of age in November, 2013.
In respect of Scheme for starting MD (Radio-diagnosis) course, the Board pointed out the following deficiencies:-
(1) The institute is directed to submit information about the serving Professor and Assoc. Professor about the previous employment details, whether any PG seat was give against their name/presence in previous Medical Institutes. The information is also required about the full time presence in the college and not doing private practice in any other town. This information needs to be submitted on an affidavit.
(2) The consent of affiliation does not mention the number of the seats requested for.
(3) Attested copy of Registration Certificate from Madhya Pradesh State Medical Council in respect of all faculty members to be submitted by college authority.
In respect of Scheme for starting MD (T.B. & Respiratory Medicine) course, the Board pointed out the following deficiencies:-
(1) The institute is directed to submit information about the serving Professor and Assoc. Professor about the previous employment details, whether any PG seat was give against their name/presence in previous Medical Institutes. The information is also required about the full time presence in the college and not doing private practice in any other town. This information needs to be submitted on an affidavit.
(2) The consent of affiliation does not mention the number of the seats requested for.
(3) Attested copy of Registration Certificate from Madhya Pradesh State Medical Council in respect of all faculty members to be submitted by college authority.
It is submitted by the learned counsel for the petitioner that the deficiency as pointed out by the Board has been rectified by the petitioner - institute and filed necessary documents before the Secretary Medical Council of India on 14.3.13. Thus, documents are filed along with this petition as Annexure P/8, which runs from page No. 261 to page No. 541. He submitted that without verifying from the aforesaid documents as to whether the deficiency as pointed out by the Board has been rectified or not, the learned authority rejected the scheme by passing the orders of disapproval in all 12 subjects on 28.3.13. This Court in the earlier round of litigation directed the respondents to re-examine the matter in all 12 subjects. The respondent no. 2 after re-examination of the matter again passed 12 different orders on 15.7.13.
By order dated 11.3.13 approval for starting of MS (Ophthalmology) course with annual intake of one seat was granted subject to renewal of blood component licence issued by the competent authority to the Council, which expired on 28th August, 2012. The said approval has been withdrawn on 15.7.13 in view of the lack of irregularity of the facility on the ground that as per assessment report dated 3.1.13, at that time there were three professors Dr. A.S. Thakur, Dr. S.R. Shrivas, Dr. A.S. Labhestwar and Dr. J.M. Qureshi. The Board of Governors taking into consideration of termination letter of Dr. A.S. Labhestwar, decided to disapprove the scheme and also decided to cancel the approval for permission of starting of M.S. (Ophthalmology) course with annual intake of 01(one) seat in earlier council order dated 11.3.13. The said order was passed on the ground that the sudden termination letter of Professor and Head of Dr. A.S. Labhestwar, Professor of Ophthalmology dated 15th March, 2013, after submission of the affidavit of the serving faculty by the institute at the time of personal hearing, raises doubts about the full time status of the serving senior faculty namely the Professors against whom the PG seats are sanctioned by the Council. The institute is also running the MBBS course with strength of 150 students per year and the lack of faculty has a serious impact on undergraduate medical education also. The withdrawal was also on the ground for carrying active investigation by CBI. It is also stated in the said order that the last date for communicating the decision u/s 10A by council has also crossed as per time frame defined in PG regulations, which was extended till 31.3.13 for the academic session 2013-14 and the compliance submitted cannot be considered for next academic session, therefore, application and representation of the institute cannot be considered further. The reply of the petitioner - institute was that all the five professors Dr. Renu Patel - Prof. Pediatrics and other faculty members viz., Dr. A.S. Labhsetwar - Prof. Ophthalmology, Dr. Varsha Sagdeo - Prof. Of Surgery, Dr. Lata Kate - Prof. O.B.G. and Dr. R.G. Salkar - Prof. Medicine Department were on probation and as their work was not found satisfactory their services were terminated by the petitioner, but even after their termination, the ratio of teachers and students were maintained as per MCI norms and, thus, removal of those five teachers/prof. does not cause any irregularity to refuse the permission asked by the respondent.
The next ground for refusal of the permission is that inadequate major surgeries. This ground is related to the department of ENT, where it is mentioned by the Board that there are only 2 major and 4 minor surgeries in the Department of ENT. The petitioner has submitted that it is not correct as per their assessment report the two major and nine minor surgeries are available in the department of ENT whereas, as per MCI norms total 9 surgeries are required, in the petitioner''s case, there are eleven surgeries. Similarly, in respect of department of Psychiatry and Skin the approval is not granted as there is inadequate clinical material. As per norms laid down by the MCI the attendance is 50, while in the case of the petitioner, it is alleged that it is 38. The data of 38 in Psychiatry and 43 in DVL is of 10 months, while as per MCI norms, 50 is required in a year, i.e., 12 months. It is the contention of the learned counsel for the petitioner that ratio of material is more than 50 in both the cases. In respect of consent of affiliation, it is submitted that petitioner has already submitted the consent of affiliation before the required date.
In respect of irregularities of faculty, it is submitted that these irregularities were pointed out only in 5 subjects not in all twelve subjects. Thus, permission cannot be refused in this count in remaining seven subjects. The petitioner prepared a separate chart of table showing the deficiencies pointed out by the respondent in all 12 subjects and factual position of petitioner - institute which is marked as Annexure P/18.
As per norms laid down for grant of permission, the ratio of professors and students is to be maintained at 1:2, while for Associate Professor, the ratio is 1:2.
As per assessment report of the inspection, in Medicine, the petitioner has 6 Professors and 4 Associate Professors, thus the petitioner has a facility for 16 seats. In Anaesthesiology, the petitioner has 4 professors and 3 associate professors, thus, has a capacity of 13 seats, in paediatrics, 4 professors and one associate professor is available with the petitioner and thus, 9 seats can be available for this subject. For TB & Chest, 3 professors and one associate professor are available and 7 seats can be sanctioned, for surgery, 8 professors and 5 associate professors are available and thus 21 seats can be created in the petitioner College. In skin & V.D., 2 professors and one associate professor are in the college and therefore, 5 seats can be sanctioned for this subject. In Orthopedics, 5 professors and 3 associate professors are available, thus, there is a facility for 13 seats, in OBG, 6 Professors and 3 associate professors are there and thus, 15 seats can be sanctioned against this subject. In Radio-diagnosis, 4 professors are available, thus, 8 seats can be created. In Psychiatry, 2 professors and 1 associate professor is available and thus, 5 seats can be sanctioned. In E.N.T., 1 professor and 2 associate professors are present, thus, 4 seats can be granted for this subject. Similarly, in Ophthalmology 3 professors and 1 associate was present during the time of inspection, 1 professor Dr. A.S. Labhshetwar was terminated after inspection, hence, remain 2 professors and 1 associate, thus, 5 seats can be granted for this subject. A separate chart has been prepared by the petitioner on the basis of Assessor Report to indicate the total number of seats and availability of Professors and associate professors in the College.
The case of the petitioner is that no deficiency was pointed out by the respondents after the inspection report. The inspection report was in favour of the petitioner, no deficiency could have been pointed out and it was incumbent on the respondent - Board to refer the matter to the Central Government as per Section 10A(4) of the Act for consideration of the Scheme.
The High Court of Judicature at Bombay, Nagpur Bench in PIL No. 6/13 (Indian Medical Association V/s. Medical Council of: India & Ors.) have held that:-
the respondent No. 1 - MCI is entrusted with the functions and duties, as are conferred upon the Central Government under the Act, including grant or refusal to grant permission to increase its admission capacity in the Post-Graduate Courses of study. It is thus, a public function duty, which is being performed by the statutory body. Hence, its action should conform to all the norms and standards of reasonableness, as are implicit under Article 14 of the Constitution of India, while passing an order returning the applications. No reasons are required to be assigned by the respondent No. 1-MCI, to conform its action to all such norms and standards of reasonableness, but the action not conforming to all such norms and standards need to be justified, supported or prompted by the sound and valid reasons. The normal rule should, therefore, to be utilize the time-gap provided, for the purpose of exercising the discretion to grant reasonable opportunity to the person or the college concerned to remove all such defects, deficiencies in the scheme and/or to supply information, clarification, particulars and documents, as are found necessary, and to verify the same, so as to consider the worth or the merits of the scheme.
The denial of such opportunity should be by way of exception and need to be supported by sound and valid reasons so as to rule out the possibility of arbitrariness and ensure fairness and equality of treatment. In the absence of this, the action on the part of the respondent No. 1-MCI can be struck down being violative Article 14 of the Constitution of India.
The Board of Governors reviewed the documents and verbal submission given by the institute on 15.3.2013 and decided to cancel the approval for permission for starting MS (Ophthalmology) with an annual intake of 0.1 seat and earlier order dated 11.3.2013.
The application for grant of permission for 12 subjects were rejected on 15.7.13, which are collectively marked as Annexure P/1. The application for grant of permission in 12 subjects were rejected on account of following deficiencies:-
1) MS (Ophthalmology):
i) Unit composition was incomplete because there was abrupt termination of the Professors of the Department of Ophthalmology.
ii) The affidavit submitted by faculties were incomplete and were without enclosing documents from the previous institutes served by the faculty;
iii) Faculty members were not registered with Madhya Pradesh Medical Council which is condition precedent for practicing in the State;
iv) The consent of affiliation issued by Devi Ahilya Vishwavidyalaya was not in extension to earlier submitted consent of affiliation and was submitted beyond the date for submission of application i.e. March 31, 2013, neither consent of affiliation mentions the academic session applied for;
v) That the sudden termination of Professor and Head on 15/3/13 raises doubt about the regularity and full time status of faculty, the said doubt was further clear from the fact that during applying for permission for running the MBBS courses the petitioner institute have shown false faculty and false bed occupancy which came into notice on account of CBI investigation as such the respondent No. 2 have issued a notice requiring as to why permission for running MBBS course be not withdrawn/revoked/cancelled.
vi) On going active investigation by CBI & filing of charge sheet by CBI.
vii) Show cause notice dated 10/6/13 has been served by respondent No. 2 asking petitioner to show cause to why permission for starting MBBS course be not withdrawn/revoked/cancelled.
(2) M.D. (Tb. & Respiratory) Medicine: In the said discipline following deficiencies were found:-
i) The affidavit submitted by faculty were incomplete and were without documents from the previous institutes served by the faculty;
ii) Faculty members were not registered with Madhya Pradesh Medical Council which is condition precedent for practicing in the State;
iii) There were no research publication from the faculty during last 3 years;
iv) Reference books and journals were deficient,
(v) Same deficiencies as regards consent of affiliation granted by University;
vi) Non availability of Regular faculty
vii) Non availability of full time faculty
On going active investigation by CBI.
Issuance of show cause notice dated 10/6/13.
(3) M.D. (Radio Diagnosis):
i) The affidavit submitted by faculty were incomplete and were without documents from the previous institutes served by the faculty;
ii) Faculty members were not registered with Madhya Pradesh Medical Council which is condition precedent for practicing in the State;
iii) Same deficiency in consent of affiliation granted by University;
iv) Non availability of regular faculty;
v) The faculty was not a full time faculty;
iv) On going active investigation by CBI.
vii) Issuance of show cause notice dated 10/6/13.
(4) M.D. (Pediatric)
i) The affidavit submitted by faculty were incomplete and were without documents from the previous institutes served by the faculty;
Faculty members were not registered with Madhya Pradesh Medical Council which is condition precedent for practicing in the State;
The faculty was over age;
Declaration form of faculty was not available;
Residence proof of Senior Residents was not available;
Non availability of regular faculty.
Non availability of full time faculty
On going active investigation by CBI.
(5) M.D. (Orthopedics):
(i) The affidavit submitted by faculty were incomplete and were without documents from the previous institutes served by the faculty;
ii) Faculty members were not registered with Madhya Pradesh Medical Council which is condition precedent for practicing in the State;
iii) Non availability of regular faculty;
iv) Non availability of full time faculty;
v) Consent of affiliation of Devi Ahilya Vishwavidyalaya was deficient;
vi) On going active investigation by CBI.
vii) Issuance of show cause notice dated 10/6/13;
(6) M.S. (ENT):
i) The affidavit submitted by faculty were incomplete and were without documents from the previous institutes served by the faculty;
ii) Faculty members were not registered with Madhya Pradesh Medical Council which is condition precedent for practicing in the State;
iii) The consent of affiliation of the University was not proper as it does not mentions the academic year and was submitted after due date;
vi) Non availability of regular faculty and their being full time employed;
v) On going active investigation by CBI.
vi) Issuance of show cause notice dated 10/6/13.
vii) Inadequate operative workload.
(7) M.D. (DBL):
i) Inadequate OPD;
ii) Non availability of regular faculty and they being full time employed;
iii) Consent of affiliation issued by Devi Ahilya Vishwavidyalaya was not as per norms;
iv) On going active investigation by CBI.
v) Issuance of show cause notice dated 10/6/13.
vi) Inadequate clinical material.
(8) M.S. (OBG):
i) Faculty affidavit were deficient and were not supported by documents from the previous institute;
ii) Faculty was not registered with Madhya Pradesh Medical Council;
iii) Fresh documents which were not submitted earlier were produced;
iv) Non availability of regular faculty and their being full time employed;
v) Consent of affiliation issued by Devi Ahilya Vishwavidyalaya was not as per norms.
vi) On going active investigation by CBI.
vii) Issuance of show cause notice dated 10/6/13.
(9) M.D. (Anesthesia):
i) Consent of affiliation issued by Devi Ahilya Vishwavidyalaya was not as per norms and was submitted after cut off date.
ii) Faculty was not registered with Madhya Pradesh Medical Council;
iii) The affidavit submitted by faculty were without proper documents;
iv) Non availability of regular faculty and their being full time employed.
v) On going active investigation by CBI.
vi) Issuance of show cause notice dated 10/6/13.
(10) M.D. (General Medicine):
i) Consent of affiliation issued by Devi Ahilya Vishwavidyalaya was not as per norms and was submitted after cut off date;
ii) Faculty members were not registered with Madhya Pradesh Medical Council;
iii) Affidavit submitted by faculty was without supporting documents;
iv) Non availability of regular faculty and their being full time employed;
v) Inadequate major surgery;
vi) On going investigation of CBI.
vii) Issuance of show cause notice dated 10/6/13.
(11) M.S. (General Surgery):
i) Consent of affiliation issued by Devi Ahilya Vishwavidyalaya did not mention academic year and was submitted after cut off date;
ii) The affidavits of faculty members were without supporting documents from the previous institute served by faculty;
iii) Faculty members were not registered with Madhya Pradesh Medical Council;
iv) Non availability of regular faculty and their being full time employed;
v) Ongoing active investigation by CBI;
vi) Inadequate major surgeries.
vii) Issuance of show cause notice dated 10/6/13.
(12) M.D. (Psychiatry):
i) Over age professors;
ii) Inadequate average daily OPD;
iii) Inadequate clinical material;
iv) Non availability of regular faculty and their being full time employed;
v) On going active investigation by CBI.
vi) Issuance of show cause notice dated 10/6/13.
vii) Representation submitted without supporting documents.
The Apex Court in the case of Priya Gupta Vs. State of Chhatishgarh and Others, issued number of directions in their strict compliance without demur and default, by all concerned. Direction no. i, iii and iv are relevant which reads as under:-
(i) The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to be approved/recognised by the Government of India by 15th July of each calendar year for the relevant academic sessions of that year.
(iii) After 15th July of each year, neither the Union of India nor the Medical or Dental Council of India shall issue any recognition or approval for the current academic year. If any such approval is granted after 15th July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15th July of the relevant year, the name of that college and all seats shall be included in both the first and the second counseling, in accordance with the Rules. (iv) Any medical or dental college, or seats thereof, to which the recognition/approval is issued subsequent to 15th July of the respective year shall not be included in the counseling to be conducted by the concerned authority and that college would have no right to make admissions in the current academic year against such seats.
In para 31 of the judgment Priya Gupta V/s. State of Chhattisgarh & Ors, (Supra), the Apex Court held that all the directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and Medical and Dental Colleges and the Management of the respective Universities or Dental and Medical Colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:-
a) Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc.
b) The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant.
c) Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default.
d) There shall be due channelization of selection and admission process with full cooperation and coordination between the Government of India, State Government, Universities, Medical Council of India or Dental Council of India and the colleges concerned. They shall act in tandem and strictly as per the prescribed schedule. In other words, there should be complete harmonisation with a view to form a uniform pattern for concerted action, according to the framed scheme, schedule for admission and regulations framed in this behalf.
e) The college which grants admission for the current academic year, where its recognition/approval is granted subsequent to 15th July of the current academic year, shall be liable for withdrawal of recognition/approval on this ground, in addition to being liable to indemnify such students who are denied admission or who are wrongfully given admission in the College.
f) Upon the expiry of one week after holding of the second counseling, the unfilled seats from all quotas shall be deemed to have been surrendered in favour of the respective States and shall be filled thereafter strictly on the basis of merit obtained in the competitive entrance test.
g) It shall be mandatory on the part of each college and University to inform the State and the central Government/competent authority of the seats which are lying vacant after each counseling and they shall furnish the complete details, list of seats filled and vacant in the respective states, immediately after each counseling.
h) No college shall fill up its seats in any other manner.
In the case of All India Council for Technical Education Vs. Surinder Kumar Dhawan and Others, the Apex Court has held that granting approval for new courses or programme requires examination of various academic/technical facets, which can be done by an expert body like the All India Council for Technical Education. This function cannot obviously be taken over or discharged by courts. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the Courts start entertaining petitions from individual institutions or students to permit the courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If however, any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in.
In the case of Medical Council of India Vs. State of Karnataka and Others, , the Apex Court held that in medical college or institution which wants to increase the admission capacity in the MBBS/higher courses (including diploma/degree/higher specialties) has to apply to the Central Government for the permission along with the permission of the State Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution, which is recognised by the Medical Council can so apply. The Apex Court further held that it is the Medical Council, which can prescribed the number of students to be admitted in medical courses in a medical college or institution, it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council.
Learned counsel for the respondent no. 2 failed to give any explanation with regard to the grant of permission to other institutions referred in the writ petition. Therefore, it is clear that inspite of pending of CBI cases and proceedings, those institutions were given permission by the MCI.
The Board is statutory body constituted for the purpose of quality of medical education. He should adopt uniform practice across the country.
It is not disputed by the learned counsel for the respondent no. 2 that after order dated 26.6.2013, no show-cause notice has been issued to the petitioner - institute in respect of deficiencies, which were not mentioned in the show-cause notices issued on 10.6.2013 vide Annexure P/13. It is also not in dispute that reply to the said show-cause notice was filed by the petitioner along with the relevant documents on 20th June, 2013 (Annexure P/15). Some of the grounds mentioned in the rejection order was not part of its case in the show-cause notice. It is well settled that unless the foundation of the case is made out in the show-cause notice, the authority cannot in Court argue a case not made out in its show-cause notice.
We may however, observed with respect to the attendance of the patient in OPD wherein, it is pointed out that at-least minimum patients as prescribed per day should received the treatment. This is not within the control of the institution as to how many patients should be received by hospital for the treatment. The only question would be that there should be sufficient infrastructures for the treatment of patients, therefore, in this respect, we only observed that sufficient infrastructure shall be provided by the petitioner. The non-availability of clinical material/patients are not mandatory, as held by the Division Bench of Principal Seat at Jabalpur, in the case of Unani Tibbi & Anr. V/s. Union of India & Ors., (W.P. No. 14267/2008) decided by the Division Bench on 15.4.2009.
When statutory functioning make an order based on certain grounds its validity must be judged by the reason so mentioned and cannot supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may by time it comes to Court on account of challenge gets validity by the additional ground later brought out. In the case in hand, the fresh grounds of rejection as mentioned in the order were not part of so called notice dated 10.6.2013.
The materials available on record clear shows that petitioner was treated differently by the MCI in the matter of grant of permission. The respondent No. 2 shall carry out the necessary inspection of the institution to ascertain whether deficiencies pointed out have been removed or not. We further direct the petitioner to intimate that deficiencies pointed out have been cured. Similar institutions were given of permission to admit student notwithstanding their involvement in the CBI Case, therefore, we are of the view that the impugned order dated 15.7.2013 passed by the Board denying the permission to the petitioner to start MD/MS courses in 12 subjects and cancellation of permission granted to start MS (Ophthalmology) course with annual intake capacity of one seat which was already approved for the academic year 2013-14 is quashed and the matter is remitted to the respondent no. 2 for fresh consideration for the academic year 2014-15. In case respondent No. 2 finds that deficiencies have not been cured, the petitioner shall be given a reasonable time to remove the deficiencies. The respondent no. 2 is directed to reconsider the matter and disposed of the application submitted by the petitioner for grant of permission expeditiously, as early as possible, after giving opportunity of hearing to the petitioner - institute and decide the matter by passing a speaking order strictly as per the Indian Medical Council Act & Regulations framed thereunder from time to time, so also the law laid down by the Apex Court in the case of Priya Gupta Vs. State of Chhatisgarh & Ors. (Supra) and other identical decisions passed by Apex Court. In the result, the writ petition is allowed in part to the extent as indicated herein above, but no orders as to costs.