Ashok Bhushan, C.J.
1. These Writ Appeals have been filed against the common judgment dated 18.08.2015 by which W.P(C) Nos.22658, 22771 and 21098 of 2015 have been dismissed. The Writ Appeals raising common question of facts and law are being decided by this common judgment.
2. Brief facts giving rise to the three Writ Appeals are as follows:
W.A. No.1872 of 2015 (arising from W.P(C) No.22658 of 215). The 1st petitioner, a Charitable and Educational Trust, is running DM Wayanad Institute of Medical Sciences. Permission to start Medical College with an intake of 150 students was granted in the academic year 2013-14 after conducting due inspection by the Medical Council of India (fort short, "the MCI"). Letter of permission was issued on 15.07.2013. After establishment of the Medical College, petitioners have been conducting the Medical College. An application was made for renewal of the permission for academic year 2014-15, pursuant to which inspection was conducted, by the Medical Council of India and it having been found that all infrastructural and instructional facilities being available, renewal of permission was granted for the academic year 2014-15 for an intake of 150 students. For the renewal of the third year, i.e., 2015-16, an application was made well in advance by the petitioners. The Medical Council of India deputed assessors to assess the facilities available in the College for the second renewal. The Assessors conducted a visit in the College on 12th and 13th December, 2014. The Assessors did not find any defects for declining permission for the second renewal. Based on the report submitted by the Assessors, the proposal for the second renewal was placed before the Executive Committee of the MCI on 13.01.2015. The Executive Committee deferred the matter for consideration for the next meeting. On 06.02.2015, another inspection was conducted by the Assessors. The Assessors came to the college at around 3.00 p.m. and informed the Dean that they had come for another inspection. The Assessors instructed the Dean to arrange a meeting with faculty members and the meeting was arranged in the academy hall by 3.30 p.m. The Dean although sent message to the faculty members, only a few could reach the hall before 3.30 p.m. Lot of faculty members who hail from other Districts have gone home for the weekend after finishing their classes on Friday. Several faculty members who were in different places in the college compound could not reach. The Assessors closed the door of the hall and took head count of the faculty members. Head count of the resident Doctors was also conducted. A lot of residents were on leave to appear for the State Level PG Entrance Test scheduled to be held on 08.02.2015 being conducted at centres in cities far away from Wayanad. The Assessors had forwarded an e-mail of the 2nd respondent instructing the Assessors to proceed to the petitioner Medical College for inspection at 2.17 p.m. on 06.02.2015. The Assessors visited the campus on the next day to prepare the inspection report. In the inspection report, the Assessors failed to record several facilities in spite of they being available. The Executive Committee of the MCI met on 10.02.2015 and considered the question of renewal of the third year permission and decided not to recommend renewal of the permission by applying Regulation 8(3)(1)(a) of the Establishment of Medical College Regulations, 1999 (for shot, "the 1999 Regulations ). The decision of the Executive Committee was communicated to the Union of India, 1st respondent. The 1st respondent sent a letter dated 04.03.2015 to the petitioners informing for hearing on 13.03.2015. Petitioner appeared in the hearing and gave a written statement apart from making oral submission. The 2nd petitioner explained the reason why various faculties were not present for head count. Written submissions were submitted in advance of the hearing. The 1st respondent by its communication 24.03.2015 requested the MCI to conduct a review/assessment of its earlier recommendation. The MCI declined to conduct further inspection/re-assessment. Such a decision was taken by the Executive Committee of the MCI on 29.04.2015. The MCI relying on the opinion of the Additional Solicitor General of India, opined that in cases of the Medical Colleges wherein Council has invoked Regulation 8(3)(1) (a), 8(3)(1)(b) and 8(3)(1)(c) of the 1999 Regulations after an inspection by the MCI Assessors there is no statutory provision either in the Act or Regulations to process the application further. Letter dated 15.06.2015 was sent by the Government of India informing that on the basis of the recommendation dated 11.05.2015 of the MCI not to renew the permission for admission to the 3rd batch petitioners were directed not to admit students in the 3rd batch. Petitioners directly approached the Apex Court by filing a Writ Petition under Article 32 of the Constitution of India being W.P. No.441 of 2015 which was dismissed by the Apex Court on 23.07.2015 giving opportunity to the petitioners to agitate their grievance before the High Court having jurisdiction to deal with the matter. This Writ Petition was filed with the following reliefs:
(i) call for the records leading to Exhibits P13, P14, P17 and P20 and quash the same by issuance of a writ of certiorari or othere writ, order or direction.
(ii) ssue a writ of mandamus or other writ, order or direction directing the respondents to renew the approval of the second petitioner College for the year 2015-16 based on its first inspection report condcuted on 12 and 13 Decemebr, 2014 and further direct the first respondent to issue a letter of renewal for itake of 150 students in its MBBS programme for the academic year 2015-16 and if necessary by a further inspection to assess the facilities afailable in the second petitioner college; and
(iii) issue such other writ order or direction as may be necesary in the interest of justice.
W.A. No.1879 of 2015 (arising out of W.P(C) No.22771 of 2015). The 1st petitioner is a Trust running P.K.Das Institute of Medical Sciences, whereas the 2nd petitioner is the Principal of the Medical College. After completion of all necessary pre-conditions, petitioners were issued letter of permission on 10.07.2014 for establishment of Medical College with annual admission capacity of 150 seats for the academic year 2014-15. Petitioners submitted an application with requisite documents and CD seeking renewal of permission for the year 2015-16. A surprise inspection was conducted by the Assessors of the MCI on 5th and 6th of January, 2015. The assessing team verified the availability of Faculties, Nurses and other infrastructures in the premises. The inspection team clearly found that all the requisite number of faculties, doctors, nurses and patients, etc., are available in the College. The assessing team further found that there was no deficiency concerning the infrastructure facilities and amenities in the College, Hospital, clinical material, the like. The Officer of the Nehru Groups of Institutions consisting of 7 Colleges including the petitioners' College had issued a Circular dated 30.12.2014 intimating that the inter-collegiate cultural competitions were to be conducted in the Nehru College of Engineering and Research Centre Campus at Pampady, Thiruvillamala from 11 to 12th February, 2015. Further, the Palakkad fest sponsored by the Nehru Group of Institutions including the College jointly with M/s.Malayala Manorama News Paper Publications was to be held at the Indira Gandhi Municipal Stadium, Palakkad for 11 days for the benefit of the members of the public. The Principal of the College had issued a Circular dated 09.02.2015 intimating all concerned that classes of the Medical College would remain suspended from 11.02.2015 to 17.02.2015. 11.02.2015 was declared a holiday for the College. At about 10.45 a.m. on 11.02.2015 a team consisting of 3 persons came to the College to conduct a surprise inspection. The Principal handed over a detailed memorandum giving reasons as to why the classes were suspended on that day. Although all the faculties who availed leave were directed to be present in the College after cancelling their leave most of the faculties had arrived in the college by about 12.45 noon, but their heads were not included in the count. A detailed letter dated 23.02.2015 was sent by the Principal to the MCI explaining various reasons for deficiency of faculties in the College on 11.02.2015. The said letter contained detailed explanation with documents appendix A to M. A Letter was also addressed to the Union of India on 28.02.2015. The Executive Committee of the MCI met on 02.03.2015 and considered the reports of the Assessors pursuant to their inspection held on 5th and 6th January, 2015 and 11.02.2015. The MCI reccommended to the Government of India not to permit renewal for admission to the second batch for the year 2015-16. A communication dated 05.03.2015 was received by the petitioners informing about the hearing on 10.04.2015. Petitioners submitted a compliance report dated 08.04.2015 with relevant details. After conduct of the hearing, the Government of India issued a letter dated 17.04.2015 to the Secretary of the MCI where it was mentioned that the Hearing Committee after giving personal hearing and looking into the compliance report submitted by the College in support of their claim has recommended that the case may be referred back to the MCI for their review/assessment with their respective recommendation in respect of the colleges mentioned therein. The 3rd respondent University in the meantime has also deputed its inspection team on 11.06.2015 which inspected the college and submitted a report pointing out that there was no deficiency and defect. The MCI has put in the website the list of disapproved Colleges for renewal of permission for the academic year 2015-16 in which the petitoners' College was also included. The 2nd petitioner also received a communication dated 15.06.2015 from the Union of India along with the communication from the 2nd respondent, MCI dated 11.05.2015 wherein the MCI has relied on the opinion of the Additional Solicitor General of India wherein the MCI has reiterated the earlier decision to recommend to the Central Government not to renew the permission for the year 2015-16. The petitioner approached the Apex Court directly by filing a Writ Petition No.441 of 2015 under Article 32 of the Constitution of India which was dismissed by the Apex Court giving opportunity to the petitioners to approach the High Court having jurisdiction under Article 226 of the Constitution of India dealing with the matter. The petitioners have filed this Writ Petition with the following reliefs:
(i) to issue a writ in the nature of certiorari or other appropriate writ or order quashing Exhibit P27 of the first respondent in so far as the same concernes the exclusion of the College of the petitioners.
(ii) To issue a writ in the nature of certiorari or other appropriate writ or order quashing Exhibits P20 and P22 of the second respondent.
(iii) To issue a writ in the nature of certiorari or other appropriate writ or order quashing Exhibit P29 of the second respondent.
(iv) To issue a writ in the nature of certiorari or other appropriate writ or order quashig Exhibit P30 of the first respondent.
(v) To issue a writ in the nature of mandamus or other appropriate writ or order directing respondents 1 and 2 to accord renewal of permission to the petitioner's Medical College so as to enable them to resort to admissions of students to the MBBS course for the Academic year 2015-16.
(vi) To issue a declaration that the petitioner has a fundamental right to conduct the Medical College and approved courses therein which could not have been curtailed merely based on certain findings of deficiencies in an inspection conducted on a declared holiday after all the previous inspections had revealed all adequate facilities including faculties, nurses, etc., were available in the College without any deficiency.
(vii) To issue a writ in the nature of mandamus directing the MCI to consider the case of the petitioner's college for being renewed with permission to them to conduct the College and MBBS course during the Academic year 2015-16.
(viii) To grant such other reliefs as may be prayed for and to which this Hon'ble Court may deem fit just and necessary in the facts and circumstances of the case.
W.A.No.1880 of 2015 (arising out W.P(C) No.21098 of 2015). Petitioner College was established in the year 2014 with an intake of 100 students for the academic year 2014-15. Petitioner submitted an application for renewal of the first batch well in time. An inspection was conducted by the MCI on 5th and 6th January, 2015. The MCI sent a letter dated 12.02.2015 to the Central Government communicating its decision not to recommend renewal of permission for admission to the second batch for the academic year 2015-16. Certain deficiencies were also pointed out in the letter dated 12.02.2015. The MCI as per letter dated 12.02.2015 has also given opportunity to submit a detailed point wise compliance with documentary evidence in respect of the rectification of deficiencies on or before 11.03.2015. It is submitted that another surprise inspection of the College was carried out by the Council's Inspectors on 10th and 11th February, 2015 which revealed several deficiencies in clinical materials, deficient staff and resident Doctors. Further compliance assessment verification assessment was conducted on 17.04.2015 which found deficiencies in the teaching faculty and resident doctors. Thereafter letter was sent to the Central Government for not renewing the permission for the year 2015-16. Petitioner submitted a compliance report by Ext.P2 to the MCI and by subsequent letter dated 11.03.2015 to the Government of India. Petitioner was called for a hearing by the Central Government. The Central Government directed the Medical Council of India to have a review. Another inspection was conducted by the MCI on 17.04.2015. On 15.04.2015 one of the Assistant Professors of Anatomy died in a road accident and on account of that tragedy, 17.04.2015 was declared a holiday for the staff of the institution. The aforesaid was communicated to the MCI on 21.04.2015 and the MCI by letter dated 11.05.2015 recommended to the Government of India not to renew permission for admission for the academic year 2015-16. Deficiencies were referred to in the letter dated 11.05.2015, consequent to which a decision was taken not to recommend renewal. On the basis of the recommendation of the MCI, the Government of India decided not to renew the permission for the year 2015-16. Aggrieved by the said action, Writ Petition has been filed with the following reliefs:
(i) issue a writ of certiorari or other appropriate writ or direction to quash Exts.P3 and P9.
(ii) to issue a writ of mandamus or other appropriate order or direction to direct the Central Government to reconsider Exts.P8 and to pass fresh orders taking into consideration the documents available and the explanations submitted by the petitioner.
(ii(a) to issue a writ in the nature of mandamus or other appropriate writ or order directing respondents 1 and 2 to accord renewal of permission to the petitioner's Medical College for the academic year 2015-16 so as to enable the college to resort to admissions of students to the MBBS Course.
(iii) Grant such other reliefs as are just and proper in the nature of this case.
3. Petitioners, aggrieved by the common judgment dated 18.08.2015 had filed these Writ Appeals. This Court after hearing the learned counsel for the appellants as well as the MCI and the Union of India admitted the appeals.
4. The appellants submitted that in spite of the direction issued by the Central Government after hearing the appellants, the MCI did not carry out any inspection and stuck to its earlier decision not to recommend renewal. Appellants contended that the deficiencies pointed out in different inspections have been rectified. Considering the submissions of learned counsel for the appellants and after hearing the learned counsel for the MCI, this Court passed an interim order dated 21.08.2015 directing the MCI to conduct either surprise or regular inspection as they deem fit and file a report. The MCI did not carry out any inspection as directed by the Division Bench of this Court on 21.08.2015 rather filed a special leave to appeal, No.26218 of 2015 before the Apex Court. The last date of admission being coming to close, learned counsel for appellants prayed for issuing appropriate direction to the Government to complete the process of allotment. Learned counsel for the appellants relied on the judgment of the Bombay High Court in Writ Petition No.5481 of 2015. The Division Bench of this Court noticing the fact that all the appellants have already established the College in earlier academic year and what was under consideration in the appeal was only renewal for the year 2015-16, and that in spite of the order of this Court dated 21.08.2015, the MCI did not conduct any inspection, this Court passed an interim order on 15.09.2015. Paragraph 5 of the order is relevant which is quoted below:
5. It is relevant to note that in W.A.No.1872/2015, the petitioners have established the college in the Academic Year 2013-14 and permission had been renewed for the academic year 2014-15. What remains is renewal of permission for the academic year 2015-16. In respect of the appellant in W.A.No.1879/2015, their college was granted permission for the academic year 2014- 15 and what remains is renewal of permission for the academic year 2015-16. In respect of the petitioner/appellant in W.A.No.1880/2015, they were granted permission during the academic year 2014-15 and what remains is renewal of permission for the academic year 2015-16. It is taking into consideration the prima facie case established on behalf of the appellants that we have admitted the writ petition and directed MCI to conduct inspection. According to them, they were unable to conduct inspection due to various reasons and that apart, they have challenged the orders passed by us before the Supreme Court. Learned counsel for the appellants would submit that the time for admission for the students for the academic year 2015-16 is fast expiring and unless the allotment and admissions are completed, the appellants will not be in a position to conduct the courses for the academic year 2015-16. Having regard to the aforesaid factual situation, we are of the view that necessary interim orders are to be passed during the pendency of the appeal as under:
i) That the Central Government shall grant provisional permission to the appellants to conduct the course for the academic year 2015-16, which will be subject to further orders to be passed by us.
ii) That the State Government shall start the process of allotment and the admission shall be made by the respective colleges subject to the result of the writ appeal.
iii) The allotment and admission shall be made after giving information to the students regarding the pendency of the appeals and that the admission will be subject to the result of the Writ appeals.
5. Learned counsel for the parties has brought to the notice of this Court that a SLP was also filed against the interim order dated 15.09.2015, SLP No.26218 and other connected SLPs. The Apex Court after quoting the interim order passed by this Court disposed of the Special Leave Petitions on 21.09.2015 by the following order:
We have heard learnd counsel senior counsel for the parties.
All these special leave petitions arose out of interim oreder(s) passed by the High Court granting relief in the following words:-
Having regard to the aforesaid factual situation, we are of the view that necessary interim orders are to be passed during the pendency of the appeal as under:
i) That the Central Government shall grant provisional permission to the appellants to conduct the course for the academic year 2015-16, which will be subject to further orders to be passed by us.
ii) That the State Government shall start the process of allotment and the admission shall be made by the respective colleges subject to the result of the writ appeal.
Iii) The allotment and admission shall be made after giving information to the students regarding the pendency of the appeals and that the admission will be subject to the result of the Writ appeals.
It has ben brought to our notice that the writ appeal against the judgment passed by the learned Single Judge is still pending and the next date fixed for hearing is 23rd September, 2015.
Mr.Vikas Singh, learned senior counsel appearing on behalf of the petitioner-Medical Council of India assailed the interim order only on the ground that without any approval by the Government, the High Court ought to have granted provisional permission to the respondents to conduct the course for the academic year 2015- 2016.
We find that in the interim order sufficinet safeguards have been given inasmuch all such permission/admissions shall be subject to the result of the appeal pending in the High Court.
We only modify the impugned order to the extent that neither the respondents nor the students will claim any equity on the basis of approval/permisison for admission.
With these directions and observations, all these special leave petitions stand disposed of.
We reuest the High Court to expeditiously dispose of the appeal keeping in view all the facts of the case.
6. All the appeals have been finally heard.
7. Shri S.Sreekumar, learned Senior Advocate and Shri George Jacob appearing in W.A. Nos.1872 and 1879 of 2015 raised the following arguments: In reference to the renewal applications filed by the appellants, first inspection was held on 12th and 13th December, 2014 (in W.A. No.1872 of 2015) and 5th and 6th February, 2015 (in W.A. No.1879 of 2015) in which the Assessors did not find any defects for the renewal as applied for. Although in pursuance of the inspection report, renewal ought to have been allowed, the Executive Committee of the MCI deferred the renewal. Subsequently, on 06.02.2015 (in W.A.No.1872 of 2015) and on 11.02.2015 (in W.A. No.1879 of 2015) inspections were conducted, in which inspections deficiencies regarding faculties, infrastructure, staff, etc., were noticed. Appellants were issued notice by the Government of India for appearing for a hearing in the context of the renewal. Appellants submitted compliance report informing compliance of the deficiency found in the second inspection. The Central Government after affording hearing and after considering the compliance reports submitted by the appellants directed the MCI to reconsider its recommendation by which it recommended for non-renewal of the permission. The MCI, after receipt of the direction of the Government of India, obtained a legal opinion from the Additional Solicitor General of India and took a decision not to re-inspect the institutions and reiterated its earlier view recommending not to grant renewal. Learned counsel for the appellants submitted that the aforesaid facts clearly indicate that the MCI in not re-verifying the deficiencies which were rectified by the appellants has acted against the statutory scheme of the 1999 Regulations and the direction of the Central Government. The decision of the MCI not to conduct any re-inspection on the basis of the legal opinion received from the Additional Solicitor General of India is unsustainable. The MCI was obliged to follow the directions of the Central Government for conducting the re-verification of the deficiencies which were claimed to have been rectified. It is submitted that due to the above reasons the appellants have made out a case for grant of renewal for the year 2015-16. In pursuance of the interim order granted by this Court on 15.09.2015, allotment of seats by the State both under merit quota and management quota has been completed and studies are going on in the Colleges. It is further submitted by the learned counsel for the appellants that proper explanation for certain deficiencies which were found in the second surprise inspection were submitted by the appellants which were not considered in the right perspective by the MCI and the Central Government. Hence the decision of the Central Government relying on the recommendation of the MCI is unsustainable. Both MCI and the Central Government are obliged to look into the substance of the matter and insignificant deficiencies are to be ignored. It is submitted that appellants have already been granted permission to establish Medical Colleges and the Government was satisfied with regard to the infrastructure, faculties and other requirements in all earlier inspections including the first inspection conducted for renewal, no such deficiencies were found which may deny renewal to the appellants. The second inspection can be conducted only to find out whether the deficiencies noted in the earlier inspection have been rectified or not. There is violation of principles of natural justice since the MCI on the basis of its second surprise inspection did not grant any opportunity to the appellants to rectify the deficiencies found therein, if any. Further inflated figures of deficiencies have been mentioned in the second surprise inspection report whereas truth of the matter is otherwise while the inspections were carried out contrary to the guidelines framed by the MCI for carrying out the inspection. With regard to the surprise inspection conducted on 06.02.2005 as mentioned above, the inspecting team sent e-mail at 2.17 p.m. and they entered into the College at 3.00 p.m. All the faculty members could not assemble in the Central Hall and even those who came after 3.30 were not permitted to enter into the Hall nor they were included in the head count. The details regarding faculty was faulty and incorrect. In so far as the inspection which was held on 11.02.2015 as noted above, the College has informed that 11.02.2015 having been declared holiday due to conduct of inter collegiate competition and the Palakkad fest on 11.02.2015 all faculty members could not be present. In the context of the inspection on 06.02.2015 it has been further stated by the appellants that lot of residents have taken leave to appear in the PG Entrance Examination scheduled to be held on 08.02.2015 in different cities of the State, were all relevant facts, which were not considered. Reliance of the invocation of provision of Regulation 8(3)(i)(a) of the 1999 Regulations by the MCI for refusing to process application for renewal further is contrary to the statutory scheme and direction issued by the Central Government.
8. Shri Kurian George Kannanthanam, learned Senior Advocate appearing for the appellant in W.A. No.1880 of 2015 has submitted that the College has submitted renewal application well within the time and inspection was conducted on 5th and 6th January, 2015. It is submitted that copy of the inspection report has now been brought on record as Ext.R2(b) where the Assessors have concluded that there is no deficiency of the infrastructure, clinical material or shortage of faculty and the resident Doctors. It is submitted that in view of the report dated 05.01.2015 produced as Annexure R2(b) there was no reason to refuse renewal and letter dated 12.02.20015 addressed by the MCI to the Central Government referring to the deficiencies was uncalled for and the letter indicate that in spite of clear recommendation that there was no deficiency, Certain deficiencies were sought to be made out from the report. In any view of the matter appellants by letter dated 11.02.2015 were directed to remove the deficiencies by 11.03.2015. It is submitted that when the appellants had time to remove the deficiency till 11.03.2015 there was no occasion to carry out another surprise inspection on 10th and 11th February, 2015. Appellants in reference to the inspection conducted on 5th and 6th January sent a compliance report dated 07.03.2015 (Ext.P2) with regard to which another surprise inspection was conducted on 17.04.2015. The procedure adopted by the MCI in rushing for second inspection whereas time granted to rectify the deficiencies were not even over was uncalled for. The deficiencies which were pointed out in the second inspection were never communicated to the petitioner nor any Sexplanation called for. Without communicating the deficiencies pointed out in the second inspection the said material cannot be relied and the reliance of the materials both by the Central Government and MCI is in violation of the principles of natural justice. Second inspection and third inspection carried out were not in accordance with the guidelines framed by the MCI for carrying out the inspection. It is submitted that in pursuance of the interim order dated 15.09.2015 State has allocated the students to the College who have taken admission before 30.09.2015 and are carrying on their studies.
9. Shri K.Jayakumar, learned Senior Advocate assisted by Advocate Titus Mani Vettom appearing for the MCI refuting the submissions of the learned counsel of the appellants contended that decision of the Central Government refusing renewal of the permission for the year 2015-16 is based on valid materials, i.e., inspections conducted by the MCI, which needs no interference by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India. It is submitted that apart from the regular inspections, the MCI is fully empowered to conduct surprise inspection as and when it deems fit. It is submitted that surprise inspection is conducted to find the true position of the faculty, infrastructure, staff, etc. and no advance notice is given so that Colleges are not able to manipulate the figures or make temporary arrangement for rectifying the deficiencies. Hence even after the first inspection where no substantial deficiencies were found, MCI has power to conduct surprise inspection. It is submitted that explanation submitted by the appellants regarding deficiencies in faculty, infrastructures, staff on the date of surprise inspection were unsatisfactory and were rightly not accepted by the learned Single Judge. It is submitted that declaration of holiday on the date of inspection cannot improve the case of the appellants since the hospitals which are running attached to the Medical College cannot be closed and there can never be a holiday for the Hospitals. Surprise inspection yielded results which proved that there are substantial deficiencies in faculty, infrastructure, staff, etc. It is submitted that this Court in exercise of the jurisdiction under Article 226 shall not interfere with the findings of the Assessors recorded on the basis of the inspection conducted by it. The MCI decided not to conduct re-inspection or fresh inspection for re-verification of the deficiencies as was directed by the Central Government, on the basis of the legal opinion obtained from the Additional Solicitor General of India and in view of the provisions of the 1999 Regulations. It is submitted that from the month of April in each year there is a lot of work for the MCI and it is not possible to carry out fresh inspections thereafter. It is submitted that inspection reports were considered by the Executive Committee of the MCI and on the basis of the deficiencies pointed out in the inspection, the Central Government has recommended not to grant permission for renewal for the academic year 2015-16. The MCI has rightly relied and applied Regulation 8(1)(iii)(a) of the 1999 Regulations as amended in 2010. It is further submitted that with regard to renewal pertaining to the year 2016-17 a further inspection was conducted on 4th and 5th November, 2015 in which inspection report deficiencies have been found which reports have also been brought on record by the MCI. It is submitted that there are no grounds for interfering with the decision of the MCI and the Central Government refusing the renewal for the year 2015-16.
10. Learned counsel for the parties in support of their respective submissions have relied on various judgments of the Apex Court which shall be referred to while considering the submissions in detail.
11. From the submissions of the learned counsel for the parties and the pleadings on record, the following are the issues which arise for consideration.
I. Whether the MCI was obliged to carry out review/assessment of its recommendations whereby it had recommended not to renew the permission for the academic year 2015-16 in view of the orders of the Central Governemnt dated 24.03.2015 and 17.4.2015 passed on the basis of the recommendation of the hearing committee respectively in the context of the first two appeals and refusal of the MCI to carry out review/assessment is not in accordance with law?
II. When the hearing committee being satisfied with the explanation given by the Appelalnts (in W.A. Nos.1872 and 1879 of 2015) in reference to the recommendation of the MCI directed the MCI to review/assess its recommendation and the MCI having refused to carry out the directions, whether the Central Government could have refused the renewal that too without giving any opportunity to the appellants?
III. Whether the Executive Committee of the MCI in making its recommendation to the Central Government not to renew the permission for the academic year 2015-16 could have applied Regulation 8(3)(i)(a) of the 1999 Regulations as amended on 16.04.2010.
IV. Whether the explanation suibmitted by letter dated 21.4.2015 (in W.A.No.1880 of 2015) in reference to the inspection dated 17.04.2015 was requried to be considerd by the MCI while sending its recommendation dated 11.05.2015?
V. Whether in the facts of the present case where in pursuance of the interim order dated 21.08.2015 no inspection was carried out by the MCI and further in pursuance of the interim order dated 15.09.2015 the State Government has allotted students for admission, the interim orders passed by the court deserves to be made absolute?
12. Before we proceed to consider the above issues, it is relevant to note the Statutory provisions regulating the field. Section 10A of the Indian Medical Council Act, 1956 (for short, the Act ) provides for permission for establishment of new Medical Colleges, new course of study. Relevant portions of Section 10A are as follows:
10-A. Permission for establishment of new medial college, new course of study, etc. (1) Notwithstanding anything contained in this Act or any other law for the time being force-
(a) No person shall establish a medical college; or
(b) no medical college shall-
(i) open a new or higher course of study or training including a post-graduate course of study or training) which would lenable a student of such course or training to qualify himself for the award or any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or traiing (including a post-graduate course of study or training).
except with the previous permission of the Central Government obtained in accordance with the provision of this section.
Explanation 1.- For the purposes of this section, person includes any University or a trust but does not include the Central Government.
Explanation 2.- For the purpose of his section, admission capacity , in relation to any course of study or training (including post-graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course of training.
(2) (a) Every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.
(b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme by the Council under subsection (2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medial college concerned, and thereafter it may,-
(a) if the scheme is defective and does not obtain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council;
(b) consider the scheme, having regard to the factors referred to in sub-sectoin (7), and submit the scheme together with its recommendations thereon to the Central Government.
(4) The Central Government may, after consider the scheme and the recommendations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in subsection (7) either approve (with such conditions, if any as it may consider necessary or disapprove the scheme and anuy such approval shall be a permission under sub-section (1):
Provided that no scheme shal be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard:
Provided further that nothing in this sub-section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under sub-section (2).
In exercise of the power under Section 10A read with Section 33, the MCI with the previous sanction of the Central Government has made the 1999 Regulations. The Regulations provides for form and procedure of making an application, evaluation by the MCI, report of the MCI and thereafter grant of permission. Regulation 6 provides for evaluation by the MCI and thereafter Regulation 7 requires submission of report by the MCI to the Central Government. Regulation 7 further provides that where the Council recommends for not issuing Letter of Intent, it shall furnish to the Central Government its reasons for not granting the Permission and documents/facts on the basis of which the Council recommends the disapproval of the scheme. Regulation 8 provides for grant of permission. Regulation 8 has been amended by Notification dated 16.04.2010. Regulation 8(3) as amended by Notification dated 16.04.2010 which is relevant for the case is quoted below:
(3)(1). The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.
PROVIDED that in respect of -
(a) Colleges in the stage upto II renewal (i.e. Admission of third batch):
If it is observed 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.
(b) Colleges in the stage from III renewal (i.e. Admission of fourth batch) till recognition of the institute for award of M.B;B.S. degree:
If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is 70 %, such an institute will not be considered for renewal of permission in that Academic Year.
(c) Colleges which are already recognized for award of M.B.B.S. Degree and/or running Postgraduate Courses:
If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 10% and/or bed occupancy is 80 %, such an institute will not be considered for processing applications for postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendation for withdrawal of recognition of the courses run by that institute should not be made for Undergraduate and Postgraduate courses which are recognized u/s 11(2) of the IMC Act, 1956 along with direction of stoppage of admissions in permitted Postgraduate courses.
(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 Govt.
(2) The recognition so granted to an Undergraduate Course for award of MBBS degree shall be for a maximum period of 5 years, upon which it shall have to be renewed.
(3) The procedure for Renewal of recognition shall be same as applicable for the award of recognition.
(4) Failure to seek timely renewal of recognition as required in subclause
(a) supra shall invariably result in stoppage of admissions to the concerned Undergraduate Course of MBBS at the said institute.
At the end of Regulation 8 under the heading Reconsideration the following provision is made:
Wherever the Council in its report has not recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. The Council shall, thereafter, submit its report in the same manner as prescribed for the initial report.
13. In all the above appeals permission to establish Medical College had already been granted by the Central Government after due recommendation by the MCI on the basis of the inspections carried out by the MCI. The issues in the Writ Petitions arose when application was submitted by the College for renewal for the academic year 2015-16.
ISSUE NOS.I TO III
14. Issues I to III being interconnected are taken together. Proviso to Section 10A(4) of the Act provides that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard. What is the mode and manner of giving reasonable opportunity of being heard has been explained by the Apex Court in several decisions. It has also been held by the Apex Court that opportunity of hearing has also to be provided to the College at the time of renewal of the permission and the same procedure is to be followed both at the time of establishment of the college and renewal of the permission for an academic year. In Swamy Devi Dayal Hospital and Dental College v. Union of India ([2014] 13 SCC 506) it was held that in a case a scheme is found to be deficient, an obligation is caste on the Dental Council of India for giving reasonable opportunity and also to rectify the deficiencies. It was held that principles of natural justice has to be followed in two stages. In the first stage the DCI when it finds deficiency while examining the scheme and in the second stage at the level of the Central Government before it passes any adverse orders. Paragraphs 9, 10, 12, 13, 16, and 22.3 which are relevant for the present case are quoted below:
9. A bare reading of sub-section (4) makes it abundantly clear that even the Central Government, before taking a decision on the recommendation of the DCI is required to give a reasonable opportunity of being heard in case it proposes to disapprove the scheme submitted by an educational institution. It was, however, argued before the High Court that such a hearing is required only when the question of permission for establishment of new dental college or new course or studies comes up for consideration and Section 10A does not deal with the cases of renewal of permission. The High Court has accepted this contention of the Government. This becomes apparent from the following discussion contained in the impugned judgment of the High Court:
"Thus, in my considered opinion, the proviso of section 10A (4) of the Act cannot be read in the case of renewal of permission as it deals with a specific situation. Had it been the intention of the Legislature to provide an opportunity of hearing in the case of renewal of permission to be given by the Government of Indian on the recommendation of the DCI, it would have been a part of the Act itself but here is a case in which the petition had admittedly been given an opportunity for rectification of their errors because after first inspection of the DCI, the deficiencies noted were communicated to the petitioner, who allegedly removed the deficiencies and submitted the compliance report and in order to verify the compliance, another inspection team was sent, but still shortcomings/deficiencies were found which cannot be even condoned as it goes against the regulations. Hence, in the absence of any statutory provision with regard to an opportunity of hearing by the Government of India while with negative recommendations of DCI in the case of renewal of permission, the impugned order dated 30.3.2013 cannot be held to be illegal."
10. With respect to the High Court, we are unable to subscribe to the aforesaid interpretation given to the provision of Section 10A of the Act. No doubt, heading of this section suggests that it deals with "permission for establishment of new dental college, new courses of study, etc." However, holistic reading of the provisions of this section prescribing the scheme containing the procedure for establishment of new dental college and new courses of study etc. would clearly demonstrate that this provision applies even to the cases of renewal of such permission as well.
12. When the permission to start courses in two specialties in question was granted for the academic session 2012- 13 intake of three students, for seeking renewal for the next academic session 2013-14 it was to seek fresh permission to have the same admission capacity for this year as well. We are, therefore, of the opinion that the cases of renewal cannot be excluded from the provisions of Section 10A of the Act. It was not disputed before us that when the petitioner-college applied for renewal of the permission, the application was processed in accordance with the procedure laid down in section 10A. As per this procedure, when a request is received in the form of a requisite scheme, as required in sub-section (2) of Section 10A of the Act, the same is to be processed in the manner provided under sub-section (3) thereof. Once it is found by the DCI that all the parameters for granting permission are met, it recommends the grant of approval of the scheme to the Central Government. In case Scheme is found to be deficient, sub-section (3) (a) of Section 10A of the Act casts an obligation on the part of the DCI to give a reasonable opportunity for making a written representation and also to rectify the deficiencies, any, specified by the DCI. After the recommendation is sent by the DCI to the Central Government, Central Government is required to process the same in accordance with the procedure contained in sub-section (4) of Section 10A. It can either approve or disapprove the Scheme. However, in case the Central Government is proposing to disapprove the Scheme, a final decision in this behalf can be taken only after giving the concerned person, authority or institution, a reasonable opportunity of being heard. This is the mandate of the proviso to Section 10A (4) of the Act.
13. Thus, the procedure prescribed in Section 10A contains the requirement of following this principle of natural justice at two stages. In the first place, by the DCI when it finds deficiencies while examining the school in the second stage at the level of the Central Government before it passes away adverse orders, as it is the final administrative authority vested with powers to pass such an order. The law, thus specifically requires that at the stage of a decision by the Central Government, again an opportunity of being heard is to be provided. This proviso, thus, acknowledges the need of and confers a very valuable right in favour of the petitioner.
16. In fact, this case itself provides an excellent example of the importance of such a hearing and adhering to the principle of natural justice viz. audi alteram partem. According to the DCI, even after second inspection some deficiencies were found. On that basis and without confronting the petitioner any further, it sent its report to the Central Government recommending denial of permission. However, as per the petitioner, there were no such deficiencies. It had filed the additional affidavit dated 2.7.2013 in the High Court in its attempt to refute the stand of the DCI regarding deficiencies. To demonstrate, one of the deficiencies pointed out by the DCI was that total number of surgeries major as well as minor, conducted by the petitioner-college were far less than the benchmark stated in the Regulations to enable the petitioner to seek renewal of permission.
22.3. The expression "opportunity of being heard" occurring in this proviso would mean that the material that goes against the applicant and is to be taken into consideration, is to be supplied to the applicant with an opportunity to make representation. For this purpose either the report of the DCI itself can be supplied or at least the deficiencies pointed out in the report have to be communicated by the Central Government to the applicant with an opportunity to furnish its comments thereupon. At that stage while giving its reply, if the applicant claims personal hearing, such a personal hearing should also be accorded.
15. The provisions of Dentists Act 1948 and Indian Medical Council Act 1956 are pari-materia.
16. In Writ Appeal No.1872 of 2015, the first inspection for renewal was conducted on 12th and 13th December, 2014 and thereafter a surprise inspection on 06.02.2015 at 3.00 p.m. The Executive Committee of the MCI considered the inspection reports in its meeting held on 10.02.2015 and recommended to the Government on 12.02.2015 recommending it not to renew permission. Government of India by letter dated 04.03.2015 called the appellants for a hearing by the hearing committee on 13.03.2015. Appellants by letter dated 12.03.2015 has submitted detailed explanation along with documents in respect of the deficiencies pointed out by the MCI. On the recommendation of the hearing committee, the Central Government wrote to the MCI to review/reassess its recommendation for not renewing the permission. The MCI in its meeting dated 29.04.2015 had recorded the aforesaid facts in the resolution. Resolution dated 29.04.2015 has been filed as Ext.P17. The Executive Committee recorded the following in the meeting:
The Committee further observed that the Central Government vide its communication dated 24.03.2015 has requested the Council to review/assess the scheme in the light of the documents submitted by the college/appellants in compliance and recommendations of the Committee with the request to take necessary action(s) for review and furnish its recommendations accordingly to the Ministry.
Similarly, in W.A. No.1879 of 2015, the first inspection was done on 5th and 6th January, 2015 and thereafter second inspection on 11th and 12th February, 2015. The Principal vide its letter dated 23.02.2015 (Ext.P18) gave detailed explanation regarding the deficiencies pointed out by the MCI in its inspection. Letter dated 28.02.2015 was also sent to the Government by the appellants explaining the deficiencies and praying for renewal. The Executive Committee of the MCI vide its resolution dated 02.03.2015 recommended to the Government of India not to renew permission for 2015-16. After receiving the above recommendation from the MCI, letter dated 31.03.2015 was sent by the Central Government calling the appellants for hearing on 10.04.2015 and hearing was conducted on 10.04.2015. The appellants also sent letter dated 08.04.2015 (Ext.P13) giving its explanation. Government of India on 17.04.2015 wrote to the MCI (Ext.P26) directing the MCI to review/reassess its recommendation as per the recommendation of the hearing committee. It is relevant to extract the letter dated 17.04.2015 which contains the list of 36 institutes in which at serial No.35 name of the appellant was also mentioned:
No.U-12012/1057/2015-ME (P-II) (Part.I)
Government of India
Ministry of Health and Family Welfare
ME P-II Section)
Nirman Bhawan, New Delhi -11
Dated 17th April, 2015.
To
The Secretary,
Medical Council of India,
Pocket - 14, Sector - 8,
Dwarka, New Delhi 75.
Subject:- Establisment of New Medical College/Increase of MBBS seats/Permission for Renewal of MBBS course at existing Medical Colleges for the academic year 2015-16. Hearing granted to applicant/Medical Colleges where MCI has recommended for disapproval of schemes - reg.
Madam,
I am directed to refer to the subject noted above and to say that as per the proviso under Section 10(A)(4) of IMCA Act, 1956, a committee has been constituted for granting opportunity of personal hearing the Ministry in case of disapproval/non-renewal recommendations of the Council in case of UG courses for the year 2015-16. The Committee has given personal hearing to the authorized representatives of the Medical Colleges/applicants on 9th and 10th April, 2015. Based on the compliance submitted by the colleges concerned in support of their claim, the Committee has recommended that the case may be referred back to MCI for review/assessment with their respective recommendations in respect of the following schemes. The compliance report submitted by the colleges concerned in original along with recommendation of the committee and its observation are also sent herewith as per detail given below:
| SL. | College/Proposer | Observation of the Committee |
| 35 | P.K. Das Institute of MedicalSciences, Palakkad, Kerala (Renewal of Permission) | Review by MCI may be considered |
The MCI again considered the recommendation of the hearing committee and letter dated 17.04.2015 of the Government of India in its meeting dated 29.04.2015 and decided not to proceed with the review/reassessment of its earlier recommendation. The MCI reiterated its earlier recommendation for not recommending the permission for renewal for 2015-16. Proceedings dated 29.04.2013 has been communicated to the Government vide letter dated 11.05.2015 (Ext.P29). The Executive Council of the MCI has relied on the opinion obtained from the Additional Solicitor General of India. It was further stated that the Executive Committee of the MCI has decided to apply Regulation 8(3)(I)(a) in view of the legal opinion received from the Additional Solicitor General of India, the Executive Committee of the MCI decided to reiterate its earlier decision to recommend to the Central Government not to renew permission for 2015-16. Proceeding dated 29.04.2015 in the letter dated 11.05.2015 is to the following effect:
No.MCI-34(41)(401-/2014-mED./106845
11.05.2015
The Secretary,
Government of India,
Ministry of Health and Family Welfare,
Nirman Bhawan,
New Delhi - 110 011.
Sub- Renewal of permission for MBBS course for 2nd batch (50 seats) of P.K.Das Institute of Medical Sciences, Palakkad,Kerala undert Kerala University of Health Seciences, Thrissuru/s 10A of the IMC Act, 1956 fort the academic yeare 2015-16.
Sir,
Please refer to your letter No.U.12012/1057/2015-ME(P-II) (Part-I) dated 17.04.2015, on the subject noted above.
I am directed to inform you that the matter with regard to grant of renewal of permission for MBBS course for 2nd batch (50 seats) of P.K.Das Institute of Medical Sciences Palakkad, Kerala under Kerala University of Health Sciences, Thrissur u/s 10A of the IMC Act, 1956 for the academic year 2015-2016 was re-considered by the Executive Committee of the Council at its meeting held on 29.04.2015 and it was decided under:-
The Executive Committee of the Council observed at its meeting dated 02.03.2015, the Executive Committee had decided as under:
The Executive Committee of the Council considered the Council Assessors report (05th and 06th January, 2015) and assessment report (11th and 12th February, 2015) along with the representation/memorandum dated 11.02.2015 received from the collge authorities and noted the following:
1. Deciencyt of teaching faculty in 50.43% as detailed in the report.
2. Shortage of Residents is 88.23% as detailed in the report.
3. Bed occupancy was 24.33% on day of assessment.
4. Casulaty attendance was only 1 patient in Casuality ward during the 24 hour patrol of day of assessment.
5. Data provided by the institution shows bed occupancy to be averege 200 on 9th and 10th February, 2015 (i.e. 1-2 days before assessment) are wrong and inflated as bed occupancy was only 24.33% on first day of assessment.
6. There was onl 1 Major and 1 Minor operation on day of assessment.
7. There was no delivery - Normal or Caesarean - on day of assessment.
8. ICUs: There was only 1 patient in NICU/TICU and 2 patients each in ICCU and SICU on day of assessment.
9. Nursing staff: Only Nurses are available against requirement of 175 as per Regulations.
10. Number of patients shown in OPD by the institute are grossly inflated. On physical verification of different OPDs, there were scanty patients and more than 50% faculty/Residents were not available in OPD.
11. Other deficiencies as pointed out in the assessment report.
In view of the above, the Executive Committee of the Council decided to the Central Government not to renew the permission for admission of 2nd batch (150) seats of P.K.Das Institute of Medial Sciences, Palakkad, Kerala under Kerala University of Health Sciences, Thrissur u/s10A of the IMC Act, 1956 for the academic year 2015-2016. It was further decided to apply caluse 8(3)12)(a) of Establishment of Medical College Regulation (Amendment) 2010, (Part II), datd 16th April 2010 which read as under:-
8(3)(1)....
(a) Colleges in the stage upto II renewal (i.e. Admission of third batch)
If it is observed during any regular inspection of one institute that the deficiency of coaching faculty and/or Residents is more than 20% and/or bed occupancy is 70% such an institute will not be considered for renewal of permission in that Academic Year.
(S) Colleges which are already recognized for award of M.B.B.S degree and/or running Postgraduate Courses:
If it is observed during any regular of the institute that the deficiency of teaching faculty and/or Residents is more than 10% and/or bed occupancy is 80% such an institute will not be considered for processing applicants for Postgraduate Courses in that Academic Year and will be issued show cause notices as to why the recommendation for withdrawal of recognition of the courses run by that institute should not be made for Undergraduate and Postgraduate courses which are recognized u/s 11(2) of the IMCA Act, 1956 along with direction of stoppage f admissions in permitted Postgraduate courses .
I am informed that the assessment of MCI is carried out by the assessors who are professors of eminence and high integrity belonging to various Government Medical Colleges of the Country and the assessment report is also acknowledged by the Dean/Principal of the concerned medical college. The truthfulness and veracity of the contents of the report which incorporates factual findings, therefore, cannot be doubted, since, it is done by independents person in the presence of the Dean/ Principal of the concerned medical college. The medical college is statutory required to maintain minimum academic standards for the benefits of the medical education and the students so as to ensure that the MBBS students f=get best of teaching and training. The above Regulations are required to be were notified with the prior approval of the Central Government to ensure that each medical college maintains at least a minimum teaching faculty, infrastructure, clinical material and other physical facilities in their medical colleges.
The Regulations framed by the querist are statutory in nature and hence the Council as well as the Central Govt. is bound to follow the same in letter and spirit.
I am of the considered opinion that in cases of the medical colleges wherein the Council has invoked Regulations 8(3) (1) (a) ,8(3)(b) and 8(1)(c) of the Establishments of Medical College Regulation, 1999, after an inspection by the MCI assessors, there is no statutory provision either under the Acts or under the Regulations authorizing the querist to process the same further. As far as the second question is concerned, I am of the opinion that the applicability of Regulation 8(3)(1)(b) of the Establishment of Medical College Regulation, 1999 while considering the case of a medical college for grant of recognition of MBBS degree will directly affect the MBBS students who have already completed their MBBS course/studies. The language in Regulation 8(3)(1)(b) of the Establishment of Medical College Regulations, 1999., clearly provides that in case the institute fails to provide minimum teaching faculty ad bed occupancy, the institute shall not be considered for renewal of permission. The statutory scheme does not however bar an institute to be considered for the purpose of recognition of MBBS degree of the students who have successfully completed the course. Any such action on part of the querist will be too harsh on such students who have already completed their students and had/have no control over either the college, the quersit or the Central Government ..
In view of above, legal opinion of Ld. Additional Solicitor General of India and upon application of section 8(3)(1)(a) of Establishment of Medical College Regulation (Amendment), 2010 (Part II), dated 16th April, 2010, the Executive Committee of the Council decided to reiteria earlier decision to recommended to the Central Government not to renew the permission for admission of 2nd batch (150 seats) of P.K Das Institute of Medical Science, Palakkad, Kerala under Kerala University if health Sciences, Thrissur u/s 10A of the IMC Act, 2956 for the academic year 2015-2016 .
Yours faithfully,
(S.Savitha)
Section Officer
17. From the above facts it is clear that despite the recommendation of the hearing committee and directions of the Central Government, the MCI refused to review its earlier recommendation and stuck to its earlier recommendation without taking any further steps. According to Section 10A(4) proviso, the Central Government is obliged to give opportunity to the appellants on the deficiencies pointed out by the MCI. In the first two appeals opportunity was granted to the appellants' College by the hearing committee. The Colleges have also submitted their detailed explanation along with relevant documents before the Government of India which was considered by the hearing committee. The hearing committee being satisfied that there is substance in the explanation submitted by the appellants had directed for review of the recommendation by the MCI. In the light of the explanations of the appellants it was not open for the MCI to stick to its earlier decision and refuse to review/reassess. In the event the recommendation of the hearing committee of the Central Government to review/reassess is not to be given any meaning the very purpose of providing opportunity to the Colleges in the statutory scheme shall become redundant and meaningless. Letter dated 17.04.2015 of the Government of India as extracted above reads The Committee has given personal hearing to the authorized representatives of the Medical Colleges/appicants on 9th and 10th April, 2015. Based on the compliance submitted by the colleges concerned in support of their claim, the Committee has recommended that the case may be referred back to MCI for review/assessment with their respective recommendations in respect of the following schemes. The compliance report submitted by the colleges concerned in original along with recommendation of the committee and its observation are also sent herewith as per detail given below .
18. The 1999 Regulations as noted above contain a statutory provision under hearing reconsideration which clearly provides that wherever the Council in its report has not recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. Thus the statutory provision also enjoined upon the MCI to reconsider its earlier recommendation in the light of the additional information forwarded by the Central Government. The Central Government in the present cases has forwarded compliance report submitted by the Colleges in original which according to the statutory scheme of the 1999 Regulation was required to be considered by the MCI.
19. The MCI stuck to its earlier decision and refused to reconsider its earlier recommendation which is nothing but clear violation of the statutory scheme envisaged by Section 10A(4) of the Act and the 1999 Regulations as extracted above, hence the recommendation dated 29.04.2015 by the MCI cannot be sustained. 20. Executive Committee of the MCI has decided to apply Regulation 8(3)(I)(a) of the 1999 Regulations and had also obtained a legal opinion from the Additional Solicitor General. From the proceedings dated 29.04.2015 the Executive Committee quoted above it is clear that the Council took the view that when the Regulation 8(3)(I)(a) is applied, there is no necessity to process the application any further. Whether the above view of the MCI is sustainable is the question to be answered. Regulation 8(3)(I)(a) was added by amendment dated 16.04.2010. Regulations has been added in Regulation 8 which contains a heading grant of permission . Regulation 8 stipulate grant of permission by the Central Government on the recommendation of the Council. Regulation 8(3) is the Regulation which has to be looked into by the Central Government while granting permission/refusing permission under Regulation 8(3)(I(a). The MCI cannot shirk its responsibility to look into the materials submitted by the Colleges in its explanation relying on Regulation 8(3)(I)(a). Moreover, the said Regulation cannot be any basis or foundation for the MCI in refusing to follow the directions of the Central Government to review/reassess its earlier recommendation on the basis of the material submitted by the Colleges during the course of hearing. The MCI has abdicated its obligation to review/reassess its earlier recommendation wrongly relying on Regulation 8(3(I)(a). Regulation 8(3)(I)(a) cannot be the basis for refusing or review/reassess its earlier recommendation. More so, when explanation was submitted by the respective Colleges, explaining the deficiencies pointed out by the MCI, we are of the considered opinion that the MCI has committed an error in refusing to review/reassess its earlier recommendation. Regulation 8(3)(I)(a) does not absolve the MCI from carrying out its obligation as per the directions of the Central Government on the recommendation of the hearing committee.
21. There is one more aspect of the matter. In the present case the hearing committee after giving hearing to the Colleges on the deficiencies pointed out by the MCI for not recommending its renewal found substance in the explanation of the Colleges and consequently the hearing committee directed the MCI to review/reassess its recommendation in the light of the material submitted by the Colleges. Hearing conducted under Section 10A(4) proviso yielded result and substance was found in the explanation of the Colleges and consequently direction was issued to the MCI to review/reassess. The MCI having refused to proceed with the review/reassessment relying on irrelevant factors, the net result is that there is no review/reassessment of the explanation submitted by the appellants. The Central Government after receiving proceedings dated 29.04.2015 of the MCI by letter dated 11.05.2015 mechanically accepted the recommendation and refused renewal which was communicated by letter dated 15.06.2015 to the appellants. Recommendation of the hearing committee of the Central Government by directing for review cannot be redundant or useless. Net result is that no compliance was made by the MCI of the aforesaid direction nor the Central Government itself reconsidered the explanation of the appellants especially in the light of the MCI refusing to review/reassess. The mechanical decision dated 15.06.2015 is unsustainable. When the hearing committee of the Central Government having found substance in the explanation of the appellants and direction was issued to the MCI to review/reassess, refusal of the MCI to review/reassess, at least the Central Government should have considered the same by revisiting the explanation submitted by the Colleges and without taking any further steps mechanical acceptance of the recommendations of the MCI violates the principles of natural justice and consequent decision on 15.06.2015 also falls to the ground. In this context the recent judgment of the Apex Court reported in Royal Medical Trust v. Union of India ([2015] 10 SCC 19) is relevant to be looked into. In the above case prayer for renewal/permission was refused by the Central Government. Writ Petitions and Special Leave Petitions were filed in the Apex Court by 3 sets of Colleges. Facts of the case as noticed in paragraphs 1 and 2 are to the following effect:
1. These petitions (except SLP(C) Nos.22785 of 2014 and 27034 of 2014) arise out of communications issued by the Central Government recommending disapproval of applications preferred in respect of Medical Colleges of the applicants for the academic year 2014-2015. In these petitions, after conducting inspection of the respective Medical Colleges the Medical Council of India (MCI for short) had found infirmities or inadequacies in the infrastructure, facilities and faculty. The respective applicants then claimed that they had rectified the shortcomings and asked for compliance verification. But the Central Government and/or the MCI refused to undertake any fresh inspection for verification, for want of adequate time. This being the common feature in all these petitions, they were heard together and are being disposed by this common judgment.
2. Broadly the categories of Medical Colleges presently before the Court are:- (I) Cases where new Medical Colleges are sought to be established for the first time and where such colleges are seeking appropriate permission to admit students to the first year of MBBS course namely:-
(1) WP(C) No.700/2014, (2) WP(C) No.705/2014 (3) WP(C) No.819/2014 (4) SLP(C) No.22757/2014 (5) SLP(C) No.22756/2014 (6) SLP(C) No. 24913/2014 (7) SLP (C) No. 23512/2014. The Respondent in this petition has also preferred Transfer Petition (C) No.1217 of 2014 to have his writ petition pending in the High Court of Bombay to be transferred to this Court.
(II) Cases where the existing approved Medical Colleges are seeking increase in intake of seats for admissions of students to the first year of MBBS Course namely:
1) WP(C) No.523/2014 (2) WP(C) No.707/2014 (3) WP(C) No.862/2014.
(III) Medical Colleges seeking renewal of permission, who have already received permission in the previous year(s) either for establishing new Medical College or for increasing intake capacity of the existing Medical College. In this category of cases, the renewal for subsequent batches and for permission to admit students to the first year course is sought namely:
(1) WP(C) No.784/2014 (2) WP(C) No.799/2014 (3) SLP(C) No.21517/2014 (4) SLP(C) No.21765/2014 (5) SLP(C) No.22755/2014 (6) SLP(C) No.26758-59/2014 (7) SLP(C) No.23476/2014 (8) SLP(C) No.23528-29/2014 (9) SLP(C) No.24154/2014 (10) SLP(C) Nos.24150-51/2014 (11) SLP(C) No.24665/2014 (12) SLP(C) No.24754-55/2014 (13) SLP(C) No.25763/2014 (14) SLP(C) No. 25468-69/2014 (15) SLP(C) No.22974/2014 (16) SLP(C) Nos.26296-97/2014 and (17) SLP(C) Nos.26768-69/2014.
In reference to the schedule which is part of the 1999 Regulations and in which context the Apex Court in Mridual Dhar (5) v. Union of India ([2005] 2 SCC 65) has directed that time schedule provided in the Regulations has to be strictly adhered to by all concerned. The Apex Court in paragraph 16 has noticed the amendment in the schedule with effect from 1.10.2012 where the Schedule was amended empowering the Central Government to modify it for reasons to be recorded in respect of any class or category. In paragraphs 16 and 18, the following was stated:
16. It may be mentioned here that the Schedule as it stood then, when this Court rendered its Judgment in Priya Gupta (AIR 2012 SC 2413) did not enable the Central Government to modify the schedule, as was permissible under the concerned Dental Council of India Regulations considered by this Court in Priyadarshini (2011 AIR SCW 2383). On and with effect from 01.10.2012 i.e. after the Judgment in Priya Gupta, the substituted Schedule now empowers the Central Government to that effect
18. In the instant cases, during inspections conducted by the MCI in respect of Medical Colleges falling in Categories I, II and III as stated above, certain deficiencies were found which were then communicated to the concerned applicants. According to the concerned applicants, either the deficiencies were wrongly noted or they had since then been rectified and compliance was reported. Though compliance was so reported and the Central Government/the MCI were asked to have inspection to verify such compliance, the Central Government communicated its disapproval without taking any steps to assess or verify the compliance report. By way of illustration we may set out relevant facts in Writ Petition (C) No.705 of 2014 which are as under:
In Paragraph 18.1 and 18.6 the Apex Court noticed the facts of the case which came up for consideration before the Apex Court. Paragraph 18.1 to 18.6 to the following effect:
18.1. The scheme under Section 10A of the Act for establishing a new medical college by the applicant was placed before the Scrutiny Committee of the MCI on 22.01.2014. The deficiencies in certain documents pertaining to land and finance having been pointed out, the concerned documents were furnished by the applicant on 07.02.2014. The matter was then placed before the Executive Committee of the MCI on 14.03.2014 which decided to accept the application subject to compliance of certain requirements. These were complied with by the applicant on 14.04.2014.
18.2. A surprise inspection was undertaken on 26.05.2014 and 27.05.2014 in which certain deficiencies in infrastructure, faculty and clinical material were found. Considering these deficiencies to be serious, the Executive Committee of the MCI decided to disapprove the application and the decision was so communicated to the Central Government on 14.06.2014.
18.3. On 26.06.2014 the applicant reported compliance and submitted that the deficiencies stood removed. A Committee appointed by the Central Government to grant personal hearing to all such colleges where negative recommendations were given by the MCI, granted personal hearing to the applicant and forwarded compliance report dated 26.06.2014 for verification and appropriate action.
18.4. The Executive Committee of the MCI however in its communication dated 10.07.2014 stated that no compliance/verification could be undertaken for the academic year 2014-15. Thereafter Central Government vide its letter dated 15.07.2015 disapproved the scheme submitted by the applicant in view of the inability of the MCI to assess/verify the compliance.
18.5. In the circumstances the applicant filed Writ Petition (C) No.705 of 2014 in this Court submitting, inter alia, that the inspection was conducted almost after eight months thereby pushing the matter to such levels where it became impossible for the MCI to assess the compliance report and that the MCI ought to have paced itself in accordance with mandatory time schedule so that all the stages could possibly and effectively be undertaken before the deadline mentioned in the Schedule.
18.6. In reply it was submitted by the MCI that every applicant submitting a scheme is obliged to fulfill minimum norms as on the date of application but generally such applicants request for postponement of inspection so that they get additional time to put their house in order. Resultantly the inspection teams appointed by it are under tremendous workload in and around April/May. It further submitted that it had obtained legal opinion to the effect that in view of the decision in Priya Gupta it was impermissible to undertake any inspection after 15th of June and as such no verification of compliance report could be undertaken.
The Apex Court in the above case has issued interim direction in reference to the Colleges in the category III alone. In paragraph 21 the Apex Court has laid down the following:
21. Since the deadline for effecting admission as per Medical Council of India Regulations on Graduate Medical Education, 1997 namely 30.09.2014 was approaching and large number of seats were involved because of recommendations for disapproval without having assessed or verified compliance as reported by the applicants, the matters were considered for grant of suitable relief. The Medical Colleges in Category III as mentioned above alone were considered fit to be granted such relief as they were all renewal cases. All these Medical Colleges had received permission to set up and/or to increase the intake in previous year (s). The cases in Category III being renewal cases were considered differently as against other cases in the light of the law laid down in Priyadarshini (2011 AIR SCW 2383). This Court therefore by orders dated 18.09.2014 and 25.09.2014 permitted all the medical colleges falling in category No.III to give fresh admissions in the first year of the M.B.B.S. Course subject to certain conditions mentioned in those orders. The Medical Colleges in that category were required to file an undertaking on same terms as Government Medical Colleges that there was no deficiency and that if the undertaking so submitted was found to be incorrect in the next inspection, their deposit with the MCI, which was around Rs.10 crores, would be forfeited by way of penalty. It was further directed that admissions could be given to only those students from the merit list prepared by the respective States and that the students would be charged fees prescribed by the Government Medical Colleges of the respective States. These orders were passed as the concerned medical colleges had already received permission to establish new medical college or to increase the intake capacity and the matters in issue were only concerning renewal permissions and as the concerned colleges had statedly removed deficiencies and submitted their compliance reports.
In paragraph 26 the Apex Court has laid down the following:
26. While considering the Scheme under Section 10A of the Act, the MCI and the Central Government are required to have due regard to the factors referred to in sub-section (7) thereof. If the initial Scheme itself is found to be defective or is to be disapproved, sub-section (3)(a) and proviso to sub-section (4) of Section 10A oblige the MCI and the Central Government respectively to grant to the applicant reasonable opportunity to rectify the defects and of being heard. The Statute thus recognizes that before any adverse decision is taken as regards the Scheme, the applicant must be afforded reasonable opportunity. This facet has been considered by this Court while dealing with issues under Section 10A of the Dentists Act in Swami Devi Dayal (AIR 2014 SC 284). It was laid down that the requirement of following the principles of natural justice is available at two stages, first where the Dental Council of India finds deficiencies during its inspection and secondly at the level of the Central Government before it passes any adverse orders after receipt of the recommendations by the Dental Council of India. The observations in Swami Devi Dayal while considering provisions of Section 10A of the Dentists Act which are pari material with Section 10A of the Act, must apply with equal force in relation to cases under the Act.
In the aforesaid case also it is clear that hearing committee of the Central Government has recommended the MCI to review/reassess its earlier recommendation which fact has been clearly noticed by the Apex Court in paragraph 1 of the judgment. The Apex Court in the said judgment ultimately granted relief in respect of category III alone. In Paragraph 34 the following is stated:
34. Since the deadline for making admissions was over and there was no formal permission to establish new Medical Colleges or to increase the intake capacity in respect of existing Colleges, applicants in Categories I and II were not considered fit for grant of any interim relief. For the same reasons no relief can be granted to them. Consequently, the writ petitions and appeals arising from the special leave petitions in Categories I and II except one arising out of SLP(C) No.23512 of 2014 are dismissed. Said appeal from SLP(C) No.23512 of 2014 at the instance of the MCI is allowed and the order passed by the High Court is set aside. No orders are required in Transfer Petition No. 1217 of 2014 and it stands dismissed. The relief granted in respect of those falling in Category III, vide orders dated 18.09.2014 and 25.09.2014 is made absolute in terms of those orders and the writ petitions and appeals arising from special leave petitions in Category III stand disposed of in such terms.
Facts and ratio laid down by the Apex Court in the above case is fully attracted in the present case and supports the submissions of the appellants.
22. In view of the foregoing discussion, we answer issue Nos.1 to 3 in favour of the appellants and against the respondents.
23. Shri Jayakumar, learned Senior Advocate appearing for the MCI submitted that surprise inspection made by the MCI were well within the power of the MCI. Learned Senior Counsel has relied on the judgment of the Apex Court in Manohar Lal Sharma v. Medical Council of India and Others ([2013] 10 SCC) 60 wherein the Apex Court in paragraph 23 has laid down that the MCI has got power to conduct surprise inspection to find out whether deficiencies pointed out by the MCI have been rectified or not. It is useful to quote paragraphs 23 and 24:
23. We have also gone through the report of the surprise Inspection Team dated 06.07.2013 submitted by Dr. Mukesh Kalra and Dr. Ajay Agarwal. 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.
24. 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.
There cannot be any dispute to the above submission made by the learned counsel. The MCI is well within its jurisdiction to conduct surprise inspection and no objection can be raised by the appellants with regard to conduct of the surprise inspection by the MCI from time to time. It is further submitted by the learned counsel that in fact surprise inspection made by the MCI yielded result which is apparent from the inspection report and deficiencies found therein. Learned counsel further submitted that in so far as the facts found by the inspection report are concerned, they cannot be disputed in proceedings under Article 226. He relied on the judgment of the Apex Court in MAA Vaishno Devi Mahila Mahavidyalaya v. State of U.P. ([2013] 2 SCC 617). In paragraph 89 of the judgment, the following has been laid down:
Coming to the cases where the plea has been taken by the respondents University / State that conditions of affiliation have not been satisfied. It is not for this Court to examine the compliance or breach of conditions and their extent in the special leave petitions or writ petitions as the case may be. In fact, the judgment of the High Court has been brought to our notice where it has been recorded that conditions in some cases have been complied with, but still the State has taken the stand that besides cut - off date, other conditions are also not satisfied. One of the examples relates to the matter where the State / affiliating body has found that even the building's boundary wall was not complete and the fire equipments have not been installed as prescribed. However, these were specifically disputed by the petitioners / appellants who contended that all conditions had been satisfied. Thus, these are disputes of very serious nature. They will squarely fall beyond the ambit of appellate or writ jurisdiction by this Court. This is for the specialized bodies to examine the matters upon physical verification and to proceed with the application of the institute in accordance with law.
There cannot be any dispute to the proposition laid down by the Apex Court in the said case. We in these appeals have not proceeded to scrutinise the facts found in the different inspections rather the appellants are giving their explanations in the context of the facts noted and found. It is submitted that judicial review under Article 226 of the Constitution of India is limited and it is distinct from exercise of appellate jurisdiction. He has for the above proposition relied on the judgment of the Apex Court in Union of India and Another v. Bilash Chand Jain and Another ([2009]16 SCC 601). There cannot be any dispute to the above proposition of law laid down by the Apex Court in the above case. This Court in exercise of the jurisdiction under Article 226 of the Constitution shall not act as an appellate authority to the decision taken by the MCI and the Central Government. However, the decision taken by the MCI and the Central Government can be examined in the light of the statutory scheme and in event decision taken is in breach of any statutory scheme delineated in the Act and the 1999 Regulations this Court does not lack jurisdiction to interfere with the said decision. We have already examined the decisions of the MCI and the Central Government in the above context. Judgment of the Apex Court in Manohar Lal Sharma's case (supra) relied on by the learned Senior Counsel has already been considered by us. Learned counsel has also referred to the judgment of the Apex Court in Royal Medical Trust s case (supra) which judgment has been noticed as above in detail. Judgment of the Apex Court in D.Y.Patil Medical College v. Medical Council of India ([2015} 10 SCC 51) has also been relied on for the proposition that the schedule fixed in the Regulations cannot be modified by any authority. We have already noticed while considering the judgment in Royal Medical College s case that in view of the amendment made in the schedule with effect from 01.10.2012, the schedule can be modified by the Government of India by giving reasons in writing.
ISSUE NO.IV
24. In W.A. No.1880 of 2015 the first inspection was held on 5th and 6th January, 2015. The MCI sent letter dated 11.2.2015 to the appellant asking the college to rectify the mistakes Appellant was asked to give compliance report on 11.03.2015. The appellant sent report on 07.03.2015. Another surprise inspection was held on 17.04.2015 which inspection report was never sent to the appellant nor it was given opportunity to rectify the deficiencies found out in the inspection on 10.02.2015 and 11.02.2015. On 11.03.2015 the Government of India wrote to the appellant calling for a hearing on 12.03.2015. On 11.3.2015, appellant sent compliance report. The Central Government after hearing the appellant directed the MCI to review/reassess its earlier recommendation. The MCI conducted another inspection on 17.04.2015. On 15.04.2015 one of the Associate Professors of the College died in a road accident whose funeral was fixed on 17.04.2015 which was published in. the newspaper on 17.4.2015. The College declared holiday on 17.04.2015 on which date inspection was carried out. The College submitted a detailed explanation to the MCI on 21.04.2015. The Executive Committee of the MCI met on 29.04.2015 and decided not to recommend renewal. The Government of India accepting the recommendation issued letter dated 15.06.2015 to the appellant informing the refusal to renewal of permission for 2015-16. Appellant s categorical case in the Writ Petition is that the Executive Committee on 29.04.2015 did not consider the explanation given on 21.04.2015 and further deficiencies pointed out in the second inspection on 17.04.2015 was not pointed to the appellant nor any explanation sought for. When an inspection was conducted by the MCI on 17.04.2015, to report compliance, and when the Colleges had sent explanation dated 21.04.2015 that is immediately after inspection, it was incumbent upon the MCI to consider the explanation given by the appellant. Letter dated 11.05.2015 which was sent by the MCI to the Government of India on the basis of its Executive Committee meeting held on 29.04.2015 does not indicate that explanation of the appellant was considered. Explanation given by the appellant was thus required to be considered by the MCI and non-consideration of such explanation has to be treated to have vitiated the decision.
25. Learned counsel appearing for the MCI has also brought on record the inspection report dated 4th and 5th November, 2015 with regard to appellants. A perusal of the report which is brought on record in all the appeals indicate that in the said report recommendation has been made not to recommend the renewal of admisison for the academic year 2016-17. It is useful to extract the operative portion of the recommendation (in W.A. No.1880 of 2015) which is to the following effect:
In view of the above, the Executive Committe of the Council decided to recommend to the Central Government not to renew the Permission for admission of 3rd batch (100 seats) of MBBS students at Mount Zion Medical College, Pathanamthitta, Kerala under Kerala University of Health and Allied Sciences u/s 10A of the IMC Act, 1956 for the academic year 2016-17'
A copy of the assessment report is enclosed erewith
Learned counsel for the appellant is right in his submission that the said inspection report cannot be relevant with regard to academic year 2015-16 and can be relevant only for the next year, 2016-17. Further copy has been forwarded to the College asking the College to submit a detailed point wise compliance which is relevant and extracted below:
Copy forwarded for information and necessary action to The Dean/Principal, Mount Zion Medical College Hospital, Chayalode P.O., Adoor-691 556 (Kerala) Email:[email protected] with the request to submit the detailed point-wise compliance (softcopy-in editable word format with C.D. Also) with the documentary evidence in respect of the rectification of deciciencies pointed out as above within one month to the Council office, along with the demand draft worth Rs.3.00 lakhs (Rupees three lakhs only) in favour of The Secretary, Medical Council of India payable at New Delhi.
Thus the inspection conducted for the purpose of renewal for 2016-17 is not relevant for the present case.
ISSUE NO. V
26. As noted above in the present appeals we had already passed an order on 21.8.2015 directing the MCI to conduct another inspection. The MCI did not conduct inspection as directed by the order dated 21.08.2015. Consequetly, interim order dated 15.09.2015 was issued directing the State Government to allocate students for admission in the aforesaid three Colleges. Consequent to which, allotments were made for admission and admission in all the three Colleges were completed before 30.09.2015. The students are pursuing their studies.
27. In view of the foregoing discussion and following the judgment of the Apex Court in Royal Medical College s case (supra), we are of the view that the interim directions issued by this Court in these appeals 15.09.2015 deserves to be made absolute.
Ordered accordingly.
In view of the foregoing discussion, we set aside the judgment of the learned Single Judge. All the Writ Appeals are allowed. Interim orders passed in the appeals are made absolute.
Parties shall bear their costs.