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Judgment
Rakesh Kumar Jain, J.—The petitioner is an unaided self-financing Medical College at Jalandhar, set up in Public Private Partnership (PPP) Mode in the year 2011, with the intake capacity of 150 seats for the M.B.B.S. Course. It is affiliated to Baba Farid University of Health Sciences, Faridkot, and granted permission by the Medical Council of India (MCI) for admissions to 150 seats. The petitioner submitted an application for renewal of permission for admission of 3rd batch of 150 M.B.B.S. students for the academic session 2013-14. The inspection was carried out by the Council''s Assessors on 1st & 2nd March, 2013. After considering the assessment report, the Board of Governors of the MCI found the following deficiencies:-
The Board of Governors noted the following deficiencies:
Although total number of Faculty is adequate, department wise shortage is observed as under:
(i) shortage of Assoc. Prof. 01 each in Psychiatry, Community Medicine, Pediatrics & ENT
No mention of Residential Quarters for Teaching & Non-Teaching staff.
AERB approval-documentary proof is only application for renewal.
No documentary proof of PNDT approval.
Other deficiencies as pointed out in the assessment report.
In view thereof, a show cause notice was issued on 20.04.2013 calling upon the petitioner to submit their compliance report within 15 days. The petitioner submitted the compliance report on 02.05.2013 in the following manner:-
No. 1 Associate professor in Psychiatry, Community Medicine, Pediatrics and ENT. Following Professors have been recruited in the department of Psychiatry, Community Medicine and Pediatrics and will cover the shortage of Associate professors. Copies of their declaration forms and other documents are being enclosed.
Dr. Gurpreet Singh, Professor of Psychiatry
Dr. Elkam Elijah Daniel, Professor of Community Medicine
Dr. A.S. Parate, Professor of Pediatrics
As regards ENT department one Professor Dr. Harvinder is working in this Institution since 1-11-12 and Dr. Sonia Seth is working as Associate professor since 8-2-2010 scanned copies of Declaration forms and other documents have already been submitted along with the application and original at the time of inspection. Both were present at the time of inspection on 1 and 2-3-2013. However documents are being submitted again.
No. 2 Residential quarters for teaching and Non-teaching staff
Teaching staff:- Furnished Residential accommodation has been provided to the Director Principal, Medical Superintendent and other faculty members in the faculty accommodation inside the PIMS campus as has already been submitted in their declaration forms alongwith allotment letter, copies being enclosed. Faculty members have also been provided with accommodation near the campus in rented accommodation. Rent deeds have already been submitted. Non-Teaching staff:- Residential accommodation has been provided to non-teaching staff inside the campus. Allotment list is being enclosed.
Construction of separate new building is under progress and will be completed within one year. Undertaking of the same, already submitted at the time of inspection on 2-3-2013. Photographs of construction site being enclosed.
No. 3 Approval from AERB is being submitted.
No. 4 Documentary proof of PNDT approval being
submitted.
Hard copies, soft copies and CD of all the above documents are being enclosed.
On receipt of the compliance report, the matter was again considered by the respondents and a compliance verification assessment to verify the physical and other teaching facilities was carried out on 28th & 29th June, 2013 and on the basis of its report and the report of the undergraduate Committee, considered by the Board of Governors of the MCI at their meeting held on 04.07.2013 and in view of the deficiencies noted, it was decided to not to approve the grant of renewal of permission for admission of third batch of M.B.B.S. students for the academic year 2013-14. Accordingly, the MCI vide its letter dated 10.07.2013, conveyed the decision of the Board of Governors to the petitioner-college. It is also pertinent to mention that the petitioner represented on 08.07.2013 requesting the Council for personal hearing, which was considered by the respondents and it was decided to reiterate the earlier decision dated 04.07.2013 and vide letter dated 14.07.2013, communicated the decision of the Board of Governors to the petitioner-college.
The petitioner challenged the orders dated 04.07.2013 and 10.07.2013 by way of CWP No. 14880 of 2013 which was decided on 22.08.2013 by this Court on the ground that the orders offended the principle of natural justice as no opportunity of hearing was given to the petitioner before rejecting the prayer for renewal of permission on the grounds which were not the part of the show cause notice served upon it. However, the respondents was directed to take a fresh decision regarding the grant of renewal of permission after affording opportunity of hearing to the petitioner and taking into consideration its reply, if any. The petitioner was directed to appear before the MCI on 03.09.2013 at 11.00 a.m. and the MCI was directed to decide the matter afresh by passing a speaking order in accordance with law, within one week after the appearance of the petitioner before it.
After the aforesaid order, the respondents granted opportunity of hearing to the petitioner on 03.09.2013 in which the petitioner had alleged that the deficiency in faculty on the day of assessment was due to the fact that half of the staff was on summer vacation and the college followed for grant of leave the schedule prescribed by Baba Farid University of Health Sciences. However, vide order dated 09.09.2013, the grant of renewal of permission for admission of 3rd batch of 150 M.B.B.S. students for the academic session 2013-14 in the petitioner-college was declined, with the following observations:-
The Board of Governors after the hearing on 03.09.2013 directed the Undergraduate Section to examine the documents submitted by the College authorities during the course of hearing. Thereafter, the UG committee considered the documents submitted by the college authorities at the time of hearing (i.e. on 03.09.2013) on 06.09.2013 and noted as under:
It is observed that:
(a) There is discrepancy in various lists, like the faculty shown in regular assessment, figure in surprise assessment also, yet their names are not in vacation roaster.
(b) There is huge mismatch in the pattern of staff posting in vacation.
The Board of Governors has also taken note of the assessment report dated 28th & 29th June, 2013, that in a medical college and hospital where almost 50 per cent of Senior Residents, 80 per cent of Junior Residents, 51 per cent of Associate Professors, 27 per cent of Assistant Professors, 55 per cent of Tutors are absent on the plea of summer vacation, the hospital cannot be said to be functional. The Board of Governors also noted that the requirement as laid down in Minimum Requirements for 150 M.B.B.S. Admissions annually Regulations, 1999 and noted the following provision:
B. TEACHING HOSPITAL
B.1 GENERAL REMARKS
B.1.1 A functional teaching hospital with 300 beds having a minimum of 60% indoor bed occupancy shall be available at the time of submission of application to Medical Council of India, at the time of inception of the hospital by Medical Council of India and upto 2nd renewal of the medical college. There shall be a minimum of 75% bed occupancy at the time of inspection for third renewal and thereafter for subsequent renewals and recognition.
A perusal of above provision shows that a functional hospital is required throughout year and on the ground that there was summer vacation and therefore, the medical faculty was not available as per requirement is indicative of the fact that the teaching hospital is hardly functional. Any hospital cannot function if 50 per cent senior residents and 80 per cent junior residents are not available in the hospital. Residents are the backbone of a teaching hospital. The teaching hospital cannot be closed down during summer vacation of the medical college and it continues to function but not with skeleton staff as noticed by the Assessors during surprise assessment. Therefore, the Board of Governors is of the opinion that no permission can be granted to admit 150 more students as there is every possibility that the increase in number of students which will go upto 450 if the permission is granted may not be adequately and properly trained to treat human being.
It has been found by the team of Assessor that shortage of residents/teaching faculty during inspection was more than 30 per cent and therefore, in terms of Regulation 8(3)(1)(a), the college cannot be considered for renewal of permission for current academic year. Moreover, the leave of the medical faculty from the hospital cannot be in violation of the above provisions. Hence on this ground also, no permission can be granted.
Aggrieved against the order dated 09.09.2013, which is allegedly given to the petitioner on 16.09.2013, the present writ petition has been filed in which learned counsel for the petitioner has submitted that the Undergraduate Committee constituted by the Board of Governors of the MCI has wrongly noted the deficiencies, which has been explained in para 22 of the writ petition, in the following manner:-
That still further the finding recorded by the Undergraduate Committee constituted by the Board of Governors has wrongly noted and observed (as produced in the impugned order) the notations by the Undergraduate Committee and the correct position on facts is given as under:-
It is further submitted that the deficiencies pointed out by the respondents is because of the confusion created by it in mis-interpreting the vacation roster of the hospital. It is alleged that the vacation roster prepared by the petitioner is in terms of the roster of the Baba Farid University of Health Sciences, which is followed by all other medical colleges in the State of Punjab.
Counsel for the petitioner has further submitted that the hearing granted by the respondents in view of the order passed by this Court on 22.08.2013 was a farce because it is alleged in the impugned order that the explanations and documents submitted by the petitioner during the hearing cannot become the substitute to remarks made by the Assessors.
Counsel for the petitioner has also submitted that the impugned order is based upon the regular inspection and not on the surprise inspection as it is mentioned that "during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is 60%, such an institute will not be considered for renewal of permission in that Academic Year...". It is further submitted that the regular inspection was carried out on 1st & 2nd March, 2013 and, thereafter, the compliance report was submitted by the petitioner which was not accepted by the respondents and the surprise inspection was carried out which has become the bone of contention in the present case.
Counsel for the petitioner has further submitted that in case the renewal of permission is not granted then the respondents be saddled with the liability of Rs. 38.5 Crores which has been a loss by the petitioner on account of fee which could have been received from 150 admissions.
Counsel for the respondents has submitted that during the inspection dated 28th & 29th June, 2013, the deficiencies in the faculty and the residents were found more than 30% which is the maximum relaxation permissible under the Regulations at a given point of time and it is clear from the language of the proviso (a) to Regulation 8(3)(1) that such an institution will not be granted renewal for that academic year. It is further submitted that although no details have been given in the reply in respect of the averments made in paragraph 22 of the writ petition but he has submitted that the explanation given by the petitioner is the justification in the presentie. It is further submitted that wherever they say that the concerned faculty had resigned or was on leave, no record has been attached with the writ petition and it is further submitted that the Board of Governors of the MCI, after hearing the petitioner on 03.09.2013, directed the Undergraduate Section to examine the documents submitted by the College authorities during the course of hearing and the Undergraduate Committee, after considering the documents submitted by the college authorities at the time of hearing, noted the deficiencies on 09.09.2012 which is provided in para 4 of the impugned order.
Counsel for the respondents has further submitted that even otherwise no renewal of permission can be granted in the current academic session in view of the judgment of the Supreme Court in the case of Priya Gupta Vs. State of Chhatishgarh and Others, and he has also relied upon two decisions of the Supreme Court in the cases of Manohar Lal Sharma v. M.C.I. and others, Writ Petition (Civil) No. 590 of 2013, decided on 12.09.2013 and Medical Council of India v. Chintpurni Medical College and & Hosp. & Ors., Special Leave to Appeal (Civil) No. 28480 of 2012, decided on 27.09.2012. It is contended that as per the time schedule provided in Priya Gupta''s case (supra), no approval for the current year can be granted after 15.07.2013. It is further submitted that the order declining the prayer for renewal of permission to the petitioner was passed on 10.07.2013 and even the admission cannot be granted after 30.09.2013 because it is the last date meant for the seats remaining vacant in exceptional circumstances or surrender of seats.
I have heard learned counsel for the parties and perused the record. The writ petition is filed by the petitioner on 19.09.2013, listed for preliminary hearing on 20.09.2013, notice issued to the respondents for 25.09.2013 and it was ordered to be shown in the urgent list. On the adjourned date, respondents appeared and asked further time to file reply and the case was adjourned to 27.09.2013 for reply and arguments.
No doubt that in the first inspection, which is called regular inspection by the petitioner, certain deficiencies were found. Surprise inspection was conducted and certain more deficiencies were also noticed and the renewal of permission was declined but keeping in view the principles of natural justice, one more opportunity was given to the petitioner to explain the deficiencies noticed and relied upon by the respondents for declining the renewal of permission. The petitioner, by producing documents, explained to the Undergraduate Committee that there were no deficiencies which have been pointed by the Inspection Committee or the Assessors, but still in the impugned order, the deficiencies have been maintained which are in the nature of fake faculty on the record which were not found in person at the spot. The petitioner has tried to explain in para 22 of the writ petition about the deficiencies pointed out by the respondents and has contended that it was all because of mis-appreciation and confusion in interpreting the vacation roster of the hospital, which has been strongly denied by the respondents on the ground that it is only a ploy to justify the deficiencies at this stage.
Be that as it may, the pivotal question is as to "whether the petitioner can be granted renewal of permission at this stage or not?" In this regard, it would be relevant to refer to the decision in Priya Gupta''s case (supra) in which the Apex Court had laid down the schedule for completion of admission process, which is reproduced as under:-
APPENDIX E
TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE
The other relevant portions of the said judgment are as under:-
46.3 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.
46.4 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 authority concerned and that college would have no right to make admissions in the current academic year against such seats.
46.7 If any seats remain vacant or are surrendered from all-India quota, they should positively be allotted and admission granted strictly as per the merit by 15th September of the relevant year and not by holding an extended counselling. The remaining time will be limited to the filling up of the vacant seats resulting from exception circumstances or surrender of seats. All candidates should join the academic courses by 30th September of the academic year.
47.5 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.
Further more, recently, in Manohar Lal Sharma''s case (supra), the issue was with regard to renewal of permission to the Chintpurni Medical College & Hospital for the academic year 2013-14. In that case, there was the inspection and surprise inspection and, ultimately, the following order was passed by the Supreme Court:-
MCI, with the previous sanction by the Central Government, in exercise of its powers conferred by Sections 10A and 33 of the Indian Medical Council Act, 1956, made the Regulations known as the Establishment of Medical College Regulations, 1999. Regulation 8 of the Regulations 1999 deals with grant of permission for establishment of new college. Application/scheme submitted by the applicants is evaluated and the verification takes place by conducting physical inspection by the team of inspectors of the MCI. The Board of Governors may grant LoP to the applicant for making admissions in the first year of M.B.B.S. course in the medical college and the permission is renewed every year subject to the college achieving the yearly target mentioned in "Minimum Standard Requirements for the Medical College for 150 Admissions Annually Regulations, 1999". Schedule I of the above mentioned Regulation provides for accommodation in the medical college and its teaching hospital. Schedule II deals with equipment required for various departments in the college and hospital. The requirements are statutorily prescribed and, therefore, the Board of Governors has no power to dilute the statutory requirements mentioned in the above mentioned Regulations.
We have also gone through the report of the surprise Inspection Team dated 06.07.2013 submitted by Dr. Mukesh Kalra and Dr. Ajay Aggarwal. The MCI has got the power to conduct a surprise inspection to find out whether the deficiencies pointed out by the MCI have been rectified or not, especially when the College submits a compliance report. Surprise inspection naturally contemplates no notice, if the notice is given in advance, it would not be a surprise inspection and will give room for the College to hoodwink the assessors by springing a surprise, by making perfect what was imperfect. Surprise inspection, in this case, was conducted to ascertain whether compliance report could be accepted and to ascertain whether the deficiencies pointed out in the regular inspection were rectified or not. By pointing out the deficiencies, MCI is giving an opportunity to the College to rectify the deficiencies, if any noticed by the Inspection Team. It is the duty of the College to submit the compliance report, after rectifying the deficiencies. The MCI can conduct a surprise inspection to ascertain whether the deficiencies had been rectified and the compliance report be accepted or not.
MCI, while deciding to grant permission or not to grant permission, is not functioning as a quasi-judicial authority, but only as an administrative authority. Rigid rules of natural justice are, therefore, not contemplated or envisaged. Rule 8(3)(1) of the Establishment of Medical College Regulations (Amendment) Act, 2010 (Part II), provides for only an "opportunity and time to rectify the deficiencies". Compliance report is called for only to ascertain whether the deficiencies pointed out were rectified or not. If the MCI is not satisfied with the manner of compliance, it can conduct a surprise inspection. After that, no further time or opportunity to rectify the deficiencies is contemplated, nor further opportunity of being heard, is provided.
We have already dealt with, in extenso, the deficiencies pointed out by the MCI team in its report dated 06.07.2013. In our view, the deficiencies pointed out are fundamental and very crucial, which cannot be ignored in the interest of medical education and in the interest of student community. MCI and the College authorities have to bear in mind, what is prescribed is the minimum, if the MCI dilutes the minimum standards, they will be doing violence to the statutory requirements. MCI is duty bound to cancel the request if fundamental and minimum requirements are not satisfied or else College will be producing half-backed and poor quality Doctors and they would do more harm to the society than service. In our view, the infirmities pointed out by the Inspection Team are serious deficiencies and the Board of Governors of the MCI rightly not granted approval for renewal of permission for the 3rd batch of 150 M.B.B.S. students for the academic year 2013-14.
We are also of the view that such an order is not vitiated by violation of principles of natural justice, especially, when no allegation of bias or mala fide has been attributed against the two doctors who constituted the Inspection Team, which conducted the surprise inspection on 06.07.2013. When the Inspection Team consists of two doctors of unquestionable integrity and reputation, who are experts in the field, there is no reason to discard the report of such inspection. In such circumstances, we are of the view that the MCI has rightly passed the order of rejecting the approval for renewal of permission of 3rd batch of 150 M.B.B.S. students granted for the academic year 2013-14. Consequently, Writ Petition (C) No. 590 of 2013 is allowed and IA No. 2 of 2013, filed in SLP (C) No. 28480 of 2012, is disposed of, as above.
In view of the above, the renewal of permission for admission of 3rd batch of 150 M.B.B.S. students for the academic session 2013-14 cannot be granted to the petitioner and I also do not find any reason to accept the alternative prayer of the petitioner for compensation as no mala fides have been alleged against the respondents and the respondents has acted, in exercise of their powers, in accordance with law.
Thus, the present writ petition is dismissed accordingly.