IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
30. 09.2013 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.No.22241 of 2013 & M.P.Nos.1 and 2 of 2013 Mahatma Gandhi Medical College and Research Institute Rep. by its Chairman Pillaiyarkupam Pondicherry-607 402. ... Petitioner versus 1. The Union of India rep. by its Secretary to Government Ministry of Health and Family Welfare Department of Health and Family Welfare New Delhi- 110 001.
2. Medical Council of India Rep. by its Secretary Pocket 14, Sector 18 Dwaraka Phase I New Delhi 110 077. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the respondents pertaining to the orders of the 2nd respondent vide its E-Mail in Proc. No.MCI-258 (22)/2012- Med/101029-33 and Proc. No.MCI-258(22)/ 2012-Med/101055-59 dated 14.7.2013 (Sunday) rejecting the Application of the petitioner dated 12.9.2012 for increase of intake by one seat each DM - Cardiology and M.Ch - Urology Post Graduate Super Speciality Courses and quash the same and directing the respondents to forthwith permit the petitioner institution to have increase of one seat each in DM - Cardiology and M.Ch - Urology Post Graduate Super Speciality Courses pursuant to the Application of the petitioner dated 12.9.2012. For petitioner : Mr.K. Doraisamy Senior Counsel for M/s. Muthumani Doraisami For Respondents : Mr.V.P.Raman for R.2 --------- ORDER
Introductory: Whether pendency of criminal proceedings launched by Central Bureau of Investigation and initiation of consequential proceedings by the Ethics Committee would give authority to Medical Council of India (hereinafter referred to as MCI) to reject the application for sanctioning additional intake in Super Speciality Course, is the core issue that arises for consideration in this writ petition. Summary of facts:
2. The writ petition is directed against the order dated 14 July 2013, whereby and whereunder the Medical Council of India was pleased to reject the application for increase of seats in D.M. (Cardiology) and M.Ch. (Urology) in view of the criminal case registered against the institution by the Central Bureau of Investigation (hereinafter referred to as CBI) and the currency of proceedings before the Ethics Committee.
3. The petitioner is a Medical College established on the strength of the letter of permission issued by the Government of India. The institution commenced its operation from the academic year 2002-2003. The MCI granted renewal of permission year after year till the fifth renewal in the year 2006-2007. Thereafter permanent recognition was granted by the Department of Health and Family Welfare, Government of India pursuant to the recommendation made by MCI. The petitioner thereafter obtained permission to commence Post Graduate and Super Speciality courses, The petitioner for the purpose of increase in intake made an application before the MCI on 12 September 2012. The petitioner wanted one more seat in D.M. (Cardiology) and M.Ch. (Urology) for the academic year 2013-2014. The MCI after conducting extensive study through the Assessors placed the application before the Board of Governors for decision. The MCI having found that the petitioner was involved in a criminal case registered by the CBI disapproved the scheme for increase of seats. Feeling aggrieved by the decision taken by the MCI, the petitioner is before this Court.
4. The MCI filed a counter affidavit in answer to the contentions raised in the affidavit filed in support of the writ petition. The MCI contended that the CBI found several deficiencies besides manipulation of records and employment of faculty members on the basis of forged documents and the same resulted in initiation of criminal proceedings. The criminal case is now pending. The MCI, on the strength of the report received from the CBI referred the matter to the Ethics committee to recommend action against the College. The proceedings are now pending. According to MCI, in view of the serious allegations made against the petitioner and proceedings pending before the criminal Court and Ethics Committee, it was decided to disapprove the scheme for increase of seats in D.M. (Cardiology) and M.Ch. (Urology) for the academic year 2013-2014. Submissions in brief:
5. The learned Senior Counsel for the petitioner contended that the Assessors deputed by the MCI submitted a report indicating that the institution has all the institutional and infrastructural facilities required for increase of seats in two Super Speciality Courses. According to the learned Senior Counsel, initiation of criminal proceedings cannot be a reason to reject the application. Similarly, pendency of proceedings before the Ethics Committee also cannot be a reason to disapprove the scheme for increase in seats in D.M. Cardiology and M.Ch. Urology. The learned Senior Counsel submitted that this Court has already noted earlier that several other colleges were given extension of approval in spite of pendency of case registered by the CBI and proceedings before the Ethics Committee. The learned Senior Counsel submitted that MCI passed the impugned order in a highly arbitrary manner and the same is liable to be quashed.
6. The learned Standing Counsel for MCI contended that the search and subsequent enquiry conducted by the CBI revealed large scale manipulation of records by the petitioner. The petitioner made the MCI to believe as if the institution was having sufficient faculty members. Some of the faculty members were working elsewhere. The CBI also pointed out that few faculty members were not qualified to take classes. The petitioner on the basis of fabricated and forged documents and falsifying records misrepresented the matter before the MCI and obtained recognition. Since the allegations mentioned in the report submitted by CBI was so serious in nature, the MCI has taken a decision to disapprove the scheme. According to the learned Standing Counsel, the regulations permits MCI to take such a drastic step in larger public interest and as such the decision is not amenable to judicial review. Factual Analysis:
7. The petitioner is a Medical College established by Sri Balaji Educational and Charitable Trust. The petitioner was given deemed University Status by the Ministry of Human Resources vide notification dated 4 August 2008.
8. The petitioner institution, established on the strength of letter of permission dated 18 March 2002 was given recognition vide notification dated 2 January 2007 issued by the Ministry of Health and Family Welfare Department, Government of India.
9. The petitioner was granted permission for starting post graduate courses from the academic year 2007-2008 both for clinical and non clinical subjects.
10. Later the petitioner was given permission to conduct Super Speciality Courses in four subjects including D.M. (Cardiology) and M.Ch. (Urology).
11. The petitioner submitted an application for increase in intake in respect of the course in D.M. (Cardiology) and M.Ch. (Urology) for the Academic Year 2013-2014.
12. The Assessors deputed by MCI inspected the institution on 15 June 2013 and 20 June 2013 and satisfied about the institutional and infrastructural facilities required for increasing the intake.
13. The MCI without giving an opportunity of personal hearing rejected the application on the ground of pendency of CBI case and proceedings before the Ethics Committee.
14. The core issue is whether the MCI was justified in rejecting the application for additional intake solely on account of the CBI case and pendency of proceedings before the Ethics Committee. Statutory frame work:
15. The establishment of Medical College Regulation (Amendment) 2010 made certain radical changes in the existing regulations. ".8(3)(1)(d) Colleges which are found to have employed teachers with faked/forged documents: If it is observed that any institute is found to have employed a teacher with faked/forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission/recognition for award of M.B.B.S. degree/processing the applications for postgraduate courses for two Academic Years i.e. that Academic Year and the next Academic Year also. However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 days after important religious and festival holidays declared by the Central/State Government. 16. Regulation 3 of MCI Regulations 2013 is extracted below: 3. Eligibility to make application : (1) the application for enhance of annual intake capacity in the existing Medical Colleges may be made by the recognizations that have established the Medical College to the Board of Governors in supersession of the Medical Council of India. The format of application for Government and non-governmental owned Medical College is prescribed in Schedule I appended to these Regulations. (2) Only such existing Medical Colleges shall be eligible to apply under these Regulations that enjoy minimum ten years of standing from the date of grant of initial letter of permission by the Central Government and the MBBS qualification awarded by them stands included in the First Schedule of the Indian Medical Council Act, 1956 (Act No.102 of 1956). (3) The Medical Colleges with an annual intake of 50 or more but below 100 MBBS seats shall be eligible to apply for enhance for annual intake capacity to 100, as one-time measure. (4) The Medical Colleges with an annual intake of 100 or more but below 150 MBBS seats shall be eligible to apply for enhancement for annual intake capacity to 150, as one-time measure. (5) Such Medical Colleges that have not been granted letter of permission by the Board of Governors in Super-session of the Medical Council of India in accordance with clause 8(1)(3)(d) of the Establishment of Medical Colleges Regulations, 1999 (notified in the Official Gazette on 16.04.2010) and/or the person who has established the Medical College has been convicted by a Court of Competent jurisdiction in a criminal investigation initiated by the Central Bureau of Investigation or Police. 17. The petitioner has taken up a contention that the Amended Regulation would not apply to the case on hand in view of the registration of case by CBI, much before the Amendment Act.
18. The CBI in its report dated 31 May 2013 called upon the MCI to take appropriate action against the petitioner in view of the involvement of its Chairman in a Criminal Case and fabrication of records. The report reads thus: ".` Central Bureau of Investigation: Anti Corruption Branch Shastri Bhavan, III Floor, 26, Haddows Road, Chennai-600 006. Dt. 31.05.2013 No.C1/08(A)/2011/CBI/ACB/Chen To The Secretary Medical Council of India Pocket-14, Sector-8 Dwarka Phase I New Delhi-110 077. Sub: R.C.8(A)/2011 of CBI ACB, Chenai initiation of appropriate against M/s.Mahatma Gandhi Medical College and Research Institute, Pondicherry Cuddalore represented by Shri M.K.Rajagopalan, Chairman and others Self Contained Note forwarded action - requested. ------- A case in RC08A)/2011 was initially registered on 9.2.2011 against Shri M.K.Rajagopalan representing M/s. Mahatma Gandhi Medical College & Research Institute, Pondicherry Cuddalore, MCI Inspectors and unknown officials of Ministry of Health and Family Welfare and unknown officials of Ministry of Human Resources Development, Government of India and others for commission of irregularities in the matter of renewal/approval for the intake of MBBS students from 100 to 150 for the academic session 2006-2010 on submission of false information and incorrect declarations and violating the mandatory rules. During investigation, it came to light that during the inspection conducted by MCI on 30 & 31.1.2009, for the above purpose, S/Sri M.K.Rajagopalan, Dr. D.R.Gunasekaran and Dr.James Gnanadoss, the then Dean of M/s. Mahatma Gandhi Medical College & Research Institute, Pondicherry Cuddalore, had secured 68 faculty members/resident doctors knowing fully well that they were not the regular teaching faculty of the medical college. Declaration forms were also submitted in their names along with concocted appointment orders and fake experience certificates. Further, 4 Regular MCI Inspectors viz., C.A.Desai, M.C.R. Vyas Dr. G.R.Patel and Dr.S.B. Agarwal also committed certain acts of misconduct by wilfully submitting false and incorrect inspection reports. M/s. Mahatma Gandhi Medical College & Research Institute Pondicherry Cuddalore had obtained Capitation fee from a total number of 73 persons during 2007 under the guise of donation though the Hon'ble Supreme Court of India has categorically held that capitation fees could not be collected in any other form also. Enclosed please find a Detailed self Contained Note, mentioning the details of the omissions and commissions of the doctors, details of their appearance before MCI Inspection and the details of supporting oral and documentary evidence which is self explanatory. Certified copies of relevant documents (Declaration forms) in support of the note are also sent herewith, for taking action as detailed below:- (i) MCI may initiate action against Dr.James Gnanadoss the then Dean Director of Mahatma Gandhi Medical College & Research Institute, Pondicherry and Dr. D.R. Gunasekaran, the then Dean of Mahatma Gandhi Medical College & Research Institute, Pondicherry and presently vice chancellor of Balaji Vidyapeeth-Deemed University of Mahatma Gandhi Medical College & Research Institute, Pondicherry for their professional misconduct. (ii) MCI may initiate such action, as deemed fit, against regular MCI Inspectors viz., Dr.C.A.Desai, Dr.M.C.R.Vyas, Dr.G.R.Patel and Dr.S.B.Agarwal who had not only submitted cursory inspection report but also wilfully obtained the signatures of other nominated inspectors only on the covering letters instead of getting their signatures on the inspection report with a view to favouring the Institute by concealing shortage of faculty members/ Resident Doctors. (iii)MCI may initiate necessary action against Mahatma Gandhi Medical College & Research Institute, Pondicherry, considering the fact that the Deemed University i.e. Balaji Vidyapeeth had collected capitation fee from students for MBBS admission. (The list of statements of parents of the students who paid donation/capitation fee for MBBS admission is enclosed as Annexure A. The corresponding statements of parents and the receipts provided by the Institute are enclosed as Volume No.1.) (iv) MCI may initiate action against all the doctors who falsely appeared as Faculty Members and Resident Doctors under Professional Conduct (Ethics) Regulations 2002. (The list of doctors who falsely appeared as Faculty Members and Resident Doctors is enclosed as Annexure B. Copies of MCI files pertaining to relevant inspection reports and Declaration Forms of doctors who falsely appeared as Faculty Members and Resident Doctors are marked as D-2 to D-369 and enclosed as Book volume Nos.2 to 12. The list of witnesses marked as LW-1 to LW91 who have spoken in detail about aforesaid acts of accused is enclosed as Annexure C and their statements are enclosed as Book Volume No.13). It is requested to kindly initiate action as mentioned above and intimate the same to this office. Yours faithfully, Sd/ Head of Branch CBI ACB Chennai.".
19. The MCI pursuant to the report submitted by CBI referred the matter to its Ethics Committee for taking appropriate action. The Ethics Committee is now seized of the matter. The Criminal case is still pending before the Sessions Court, Pondicherry.
20. The learned Senior Counsel for the petitioner by placing reliance on the judgment dated 29 July 2013 in W.P.No.18413 of 2013 submitted that this Court has already taken a view that pendency of CBI case and proceedings before Ethics Committee cannot be a bar to consider the application for renewal of approval. According to the learned Senior Counsel, the said view was approved by the Division Bench in the related appeal. The learned Senior Counsel therefore wanted this Court to follow the judgment in Sathya Sai Medical College.
21. This Court had an occasion to consider the writ petition filed by another Medical College run by the very same Trust. This Court found that request for extension of approval made by other colleges facing CBI enquiry and proceedings before Ethics Committee were all favourably considered pending such proceedings. It was only under such circumstances, I have held that MCI was not correct in denying extension of approval to Sathya Sai Medical College. It is true that the said view was approved by the Division Bench.
22. The view taken by this Court and referred to above no longer holds good in view of the recent judgment of the Supreme Court in Rohilkhand Medical College & Hospital, Bareilly v. MCI (2013) 11 Scale 183.
23. The Supreme Court in Rohilkhand Medical College (cited supra) considered the issue raised by the institution regarding withdrawal of letter of permission granted for the academic year 2013-2014 on account of CBI investigation. Before the Supreme Court the medical college contended that pendecy of CBI investigation cannot be a reason to revoke the permission already granted and it is only after the conviction of the promoter, MCI would get jurisdiction to take action. The said contention was negatived by the Supreme Court. The Supreme Court observed that report submitted by a premier investigating agency like CBI would be sufficient to take action by MCI against the concerned institution.
24. The following observation made by the Honourable Supreme Court in Rohilkhand Medical College would make the position clear. ".35. The petitioners are governed by Establishment of Medical Colleges Regulations, (Amendment), 2010 (Part II), especially clause 8(3)(1)(d), in the event of which, when MIC finds that the college has employed fake/forged documents for renewal of permission/recognition for processing applications etc., that institute will not be able to be considered for renewal of permission/ recognition for award of MBBS Degree/ processing the application for post-graduate courses for two academic years i.e. that academic year and the next academic year. In this case, CBI letter was received on 11.07.2013 by the MCI and it was placed before the Board of Governors on 12.07.2013 and the revocation order was passed on 13.07.2013 revoking the renewal of permission for the 2nd batch of students against the increased intake from 100 to 150 students for the academic year 2013-14.
36. We are of the considered view that the MCI need not wait till the culmination of the trial initiated on the basis of the charge- sheet filed by the CBI. The investigation by a premier agency like the CBI has prima facie revealed that the college has used fake and forged materials to get sanction for the intake for the year 2008-09, in our view, that is sufficient for the MCI to take action in accordance with the Regulations 8(1)(3)(d) of Regulations 2013.".
25. The issue raised by the petitioner is therefore no more res integra in view of the judgement in Rohilkhand Medical College.
26. The petitioner is similarly placed. Therefore the judgment in Rohilkhand Medical College would apply to the petitioner institution. The action taken by MCI not to grant permission to increase the intake in two Super Speciality courses is now justified by the decision in Rohilkhand Medical College.
27. In Rohilkhand Medical College & Hospital, the Supreme Court expressed its deep concern in the following words. ".27. We can also take judicial notice of the fact that many a times the medical colleges and engineering colleges and others are being established after availing large amounts by way of loans from the financial institutions and other borrowings, with no funds of their own, and once the college gets approval and students are admitted, loan availed of is being repaid from the capitation fee charged from the students and ultimately that amount constitute their capital. Many a times, even without any sufficient facilities they put pressure on the various agencies and the Central Government and get approval overlooking the regulatory authority, like MCI, which adversely affects the quality of medical education in this country......
40. Mushrooming of large number of medical, engineering, nursing and pharmaceutical colleges, which has definitely affected the quality of education in this country, especially in the medical field which call for serious introspection. Private medical educational institutions are always demanding more number of seats in their colleges even through many of them have no sufficient infrastructural facilities, clinical materials, faculty members, etc. Reports appear in every now and then that many of the private institutions which are conducting medical colleges are demanding lakhs and sometimes crores of rupees for MBBS and for post graduate admission in their respective colleges. Recently, it is reported that few MBBS seats were sold in private colleges of Chennai. We cannot lose sight of the fact that these things are happening in our country irrespective of the constitutional pronouncements by this Court in TMA Pai Foundation that there shall not be any profiteering or acceptance of capitation fee etc. Central Government, Ministry of Health and Family Welfare, Central Bureau of Investigation or the Intelligence Wing have to take effective steps to undo such unethical practices or else self-financing institutions will turn to be students financing institutions. Conclusion:
28. It was only on account of the criminal prosecution launched by CBI and pending proceedings before Ethics Committee, the MCI rejected the request for additional intake in respect of two Super Speciality Courses. Similar course adopted by MCI in respect of Rohilkhand Medical College & Hospital was approved by the Supreme Court. Therefore, I do not find any merit in the contention taken by the petitioner.
29. In the upshot, I dismiss the writ petition. Consequently, connected miscellaneous petitions are closed. No costs. 30.09.2013 Index: Yes/no Internet: Yes/no Tr/ K.K.SASIDHARAN, J.
Tr To 1. The Union of India rep. by its Secretary to Government Ministry of Health and Family Welfare Department of Health and Family Welfare New Delhi- 110 001.
2. Medical Council of India Rep. by its Secretary Pocket 14, Sector 18 Dwaraka Phase I New Delhi 110 077. Pre-delivery order in W.P.No.22241 of 2013 30.09.2013