Apollo Institute of Medical Sciences & Research and Ors. v. Union of India and Anr.

Judgment

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 496of2017. Under Article 32 of the Constiti.ltion oflndia. Amitesli Kumar, Ms.Priti Kumari, Mritunjay Kumar Sinha, Advs. for the Petitioners. Gaurav Sharma, Pfateek Bhatia,. Dhawal Moh!ln, Ad vs. for the Respondents. [2017) 9 S.C.R .. The Judgment of the Court was delivered by , A.M. KHANWILKAR, J.

1The petitioners made an application to the Ministry of Health and Family Welfare, Government of India for establishment of a new medical college at Murukambattu Village, Chittoor, Andhra Pradesh, in the name and style of 'Apollo Institute of Medical Sciences & Research' for the academic session 2016-17. The Ministry forwarded the application to the Medical Council of India (for short "MCI") for evaluation and for making recommendations to the Ministry under Section lOA of the Indian Medical Council Act. 1956, (for short "1956 Act") for the academic session 2016-17. MCI submitted an assessment report after which the respondent No. I Central Government declined to issue a letter of permission to the petitioners' college. An opportunity of hearing was accorded to the petitioners' college under Section lOA (4) of the 1956 Act on 24.02.2016 and the case was referred back to MCI for review. MCI, in tum, returned the application with a negative recommendation. Consequent thereto, the Ministry, upon D. accepting the recommendation of MCI, disapproved the application submitted by the petitioners for establishment of a new medical college for the academic session 2016-17 vide its letter dated 15.06.20 l 6.

2The Oversight Committee (for short "OC") constituted under the directions of this Court, however, issued directives, as a res111t of which the Ministry asked for and obtained a fresh compliance from :ue college and forwarded the same to MCI vide letter dated 22.06.2017. MCI then submitted its rep011, citing various reasons and that report, in tum, was forwarded to the OC for its guidance. The OC approved of the scheme submitted by the petitioner college for the academic session 2016-17 vi de letter dated 29.08.2016, subject to certain conditions. On the basis of the approval of the OC, the respondent No. I Central Government issued a Letter of Pennission on 12.09.2016 in favour of the petitioners' college for the academic session 2016-17, with conditions imposed by the OC. Assessment and verification of compliance was undertaken by MCI which submitted its report on the basis of the o inspection.

The Executive Committee of the MCI, in its meeting held on 22.12.2016, noticed the deficiencies and decided to send a negative recommendation to the Ministry. The Ministry/Director General of Health Services (for short "DGHS") then afforded personal hearing to the college on 17.0 l.2017. The Hearing Committee did not accept the explanation offered by the petitioner college and submitted its negative finding. The RESEARCH v. UOI AND ANR. (A.M. KHANWILKAR, J.] said report was forwarded to the OC for guidance, The OC, in tW'n, vide letter dated 14.05.2017 conveyed its opinion to the Ministry in which it observed thus: "1. Faculty:- Once 7 membe'rs faculty are considered, the dejlciency becomes 1.53%, which is within· the acceptable fl. Resident:- Once 3 residents are considered, the dejlciency becomes 2.17%, which is within the acceptable limits. Ill. OTs:- EC pointed out that OT in General Surgery, ENT,' Ophthalmf!logy and OG iwve 2 tables which is not, as per norms.

There is no such mention in the SAF Jn SAF 2.10 ii C has been marked a.; 9 Major OTs against required 4 and 2 Minor OTs as required, which is more than the MSR. Hence there is no deficiency. JV.1CUs:- This deficiency is subjective: No MSR. .. V. Mobile X-ray machines:- This deficiency is subjecti~;e. No MSR. Vi. USG machine:- PNDT approval for 1 USG macl1ine is available and applied/or the other. Vil. MRD:- This deficiency is subjective. No MSR: LOP Confirmed"

3The Ministry, however, acting upon the negative recommendation of MCI vide.lettcr dated 31.05.Z017, debarred the ' . petitioner college from admitting students for two years and authorised MCI to encash the Bank Guarantee offered by the petitioners. That decision was assailed by the petitioners before this Court in the present writ petition.

4On 01.08.2017, this Court called upon the respondent No.I · Central Government to reconsider the materials on record pertaining to · the issue of confirmation, including the _letter 9f permission granted to the petitioners' college, as was the case of other colleges whose matters were heard together by this Court. Pt\rsuant to the said directions .• the_ Ministry afforded a personal hearing to the petitioner college on 04.08.2017. The Hearing Committee made favourable observations with regard to the deficiencies and while recommending to the Ministry to , H A confirm the conditional permission granted to the college in 2016- l 7, however recommended not to permit the petitioners' college to admit students in the MBBS course for the academic session 2017-18 and to apply afresh for renewal of permission for the academic session 2018- 19, as per MCI Regulations. On the basis of the said recommendation, the Ministry passed an order on 10.08.2017.

The relevant portion of the said order reads thus: . ·· 11. Now, in compliance with the above direction of Hon 'ble Supreme Court dated 01.08.2017, the Ministry granted hearing to the college on 04.08.2017. 711e Hearing Committee after considering the record and oral & written submission of the college submitted its report to the Ministry. The findings of the Hearing Committee are as under: The college does not seem to have any infi·astructurul deficiency. MCI has pointed out faculty and resident deficiency at 12.3% and 8. 69%. The deficiency is not of high orde1: The contention of college that 7 of the 8 faculty shown as deficient were assigned/or medical cainp organized on the day of inspection is · .supported by the note written by Principc..1 of the college on the last page of the SAF form which is also signed by all the four assessors. The Principal has mentioned that :.'·:! 7 faculty and 3 residents had already left for the camp be.fan the surprise inspection.

The Committee has also noted the medical camp order dated 19.11.2016 and that the deficiencies offaculty correspond to those sentfor the camp duty. Howeve1; the assessors have not noted the 10 names in the SAF form as 'faculty/residents present but not counted' if they had come late. Further the column on RHTC in the SAF form is devoid of' any details and no reference to camp could be seen. The college has submitted a cert(ficate fi'om MCI vendor which states that 158 faculty have been enrolled on 26.07.2017/or biometric attendance system. The other deficiencies regarding 2 tables in OTs, AERB and PNDT approval have been rectified post assessment as per documentary evidence furnished. RESEARCH v. UOI AND ANR. [A.M. KHANWILKAR, J.] In view o(the above, the Committee is of the opinion that the deficiencv of facultv and residents is marginal.

The submission of the college regarding medical camp on the dav of assessment as a result of which i 0 doctors could not be available tor head count seems bonafide but cannot be confirmed. In such case debarring the college fo~ two vears seems excessive even though the recom111endatiofi is as per the conditions o(OC approval. The committee recommend1· that conditi'ona!'LoP/01; 2oi6- 17 may be COf!firmed. No,fi-esh batchfor20/7-18 may be allowed. The college may apply for renewal per111is.vio11 to C MCI.fa~ the session 2018-19. 18. Accepting the recommendations of the Hearing Coti1mittee, the Ministry con.firms the conditional permission granted to the College in 2016-17. Further, it has been decided not to , permit admissiOn of students in MBBS courses for the academic session 2017-18 at the Colleg_e. TheCollege may . D apply afresh for renewal of permission for the academic session 2018-19 as per MCI Reg~lation. - 19.

Admission made in violation of above conditions will be ·treated as irregular and action will" be taken as· per provision of IMC Act, 1956 and the Regulatioi:s made thereunder." · (emphasis supplied)

5The petitioners would contend that in view of the favourable · . observations by the Hearing Committee, it is incomprehensible as to · why the petitioners' college should be deprived from admitting students for the academic session 2017-18 and especially when no significant deficiency has been noticed by either the Hearing Committee or the Competent Authority of the Central Government which would justify the drastic order passed against the petitioners' college. The petitioner. enjoys high reputation. The petitioners' college aims to·impart•quality education. It is submitted that the coriclusion reached by the Hearing G Committee or, for that matter, by the Competent Author.i.ty, against the . petitioners' college, cannot stand the test o:f'judi~ial~cruti!Jy. No tangible . reason has been assigned to deprive:the petitioners' college from admitting students in the MBBS course for the academic sessiqh 2017-18. This . i A Court ought to intervene and issue appropriate directions against the respondents.

6The respondents, on the other hand, have supported the conclusion arrived at by the Hearing Committee and the Competent ' Authority. According to the respondents, it may not be permissible to sit over the subjective satisfaction of the. expert body and to issue directions to the contrary. The respondents have prayed for dismissal of the writ petition and the interlocutory application.

7Having considered the rival submissions, we have no hesitation in taking the view that the Hearing Committee, as well as the Competent Authority of the Central Government, have shown complete disregard · to the faCt situation and moreso when they have found that the infrastructure and academic requirements were fully in place in so far as the petitioners' college is concerned. lnfact, we find that the impugned · order acknowledges the fact that the petitioners' college is a compliant college in respect of infrastructure and academic matters. In such a situation, we are at a loss to discern as to what weighed with the Hearing Committee and Competent Authority of the Central Government to prohibit the petitioners' college from admitting students in the MBBS course for the academic session 2017-18. No tangible reason whatsoever has been assigned by the said authorities in that regard, leave alone any reason.

8We have no hesitation in observing that the approach of the statutory authorities is bordering on abdication of their statutory duty and is against the letter and spirit of the direction given by this Court on the earlier occasion to reconsider the case of the petitioners' college afresh on the basis of material available on record. Admittedly, the p. petitioners' college has started functioning from the academic session 2016-17, on the basis ofa conditional Letter of Permission. The conditions specified therein have been substantially fulfilled in all respects including infrastructure and academic requirements. Therefore. we allow this petition and the application filed by the petitioner§ in the larger public interest.

9Considering the fact that the petitioners' college has fulfilled the infrastructure and academic requirements and has already operated the college for the academic session 2016-17 by admitting the first batch of students in the MBBS course and further, even the Competent Authority has noticed that there are no major deficiencies, we allow this .. · · RES~~~~~o;,N~~~T~~; ~~E[~~~~~T~~rfiA1'. r) .. 705 . ".-l·.·· I petition. an'd the application filed by the petitioners iii the.larger public A .· interest.We are itlSo indined't9 issue further directions. to. theresponclei;its' .as ha:ve been issued Jn the judgment of Dr. Jagat Narain Subharti. Charitahle Trust and Am: Vs. UniOn of India and Ors:, ·defrv~red Oil · 301h August, 2017. . . .

10We, accordingly, quash and set aside the impugned d~cisiorito .. B· ; . the extent it bars the petitioners to adrrih upto }50 student$ for the academic se.ssion 2017~ 18. lnsteacl, we direct the respondents to permit the petitioners' college to.take part in the current-yearcourisellingprocess · which is still in progress .. The cut-off date for compieting theadrriissions in respect of the petitioners' college, however, will starid exten·d~dtilJSth · September, 2017. The respondents shall make available students willing . to take admission. in the petitioners' college through central counsel)ing, . · . . ip order of their merit. This direction is being issued\n exercise of plenary· . · powers of this Court under Article 142 of the Constitution oflndta; in.the pecu1iarfacts of the present case, to do complete justite and 'in the . . . larger publidnterest, so that aspiring stlide'nts wllo have .not'been a~rhitted;··.

D · ·. to-the.1" ye;1r MBBS course forthe academic sessic)n 2017~·1.8_, fo orclei of the if merit in NEET examination, will get an opportunity" to be admitted in the petitioner college, At the l)arile time, we make it clear that the . MCI or the Competent Authority of the Central Government is free to inspect the petitioners' college as and w.hen deemed fit and, if ant deficiency is found after giving opport~nity to the petitioners' college: it .E .. • rrtay,suitably proceed against the said college in aceordance with l~v;. : .·. Tfiis arrangement will subserve the ends of j1fs!ice: '.":: · .

11No order as to costs. Divya Pandey Petition allowed.