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TMI Blog2017 (9) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ. JUDGMENT Dipak Misra, In this writ petition, the petitioner-Trust and the college have prayed for issue of a writ of certiorari for quashing the order dated 31.05.2017 passed by the respondent No.1 whereunder the petitioners have been debarred from admitting 150 students in the MBBS course in the academic years 2017-18 and 2018-19 and further to restrain the respondent No.2, Medical Council of India (MCI), to encash the bank guarantee of ₹ 2 crores furnished by the petitioner-institution. That apart, the prayer is to quash the order dated 14.08.2017 passed by the respondent No.1 for reiterating the said order. The relief has been sought for issue of writ of mandamus, commanding the respondent No.1 to grant renewal for the academic year 2017-18 keeping in view the recommendations dated 14th May, 2017, submitted by the Oversight Committee constituted in terms of the order of this Court and to direct the respondents to permit the institution to admit 150 students in MBBS Course for the academic year 2017-18. 2. At the very inception, it is necessary to state that though many a document has been filed and prolonged, anxious, forceful and sometimes vehement arguments hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner under Section 10-A of the Act for the academic year 2016-17. However, after Oversight Committee was constituted, the Central Government issued a public notice informing all the Medical Colleges to submit a compliance report concerning their respective colleges who had applied for LOP for 2016-17. As the facts would unfold, the 1st respondent sent the compliance report along with the reply of the MCI to the Oversight Committee for consideration which on 11.08.2016 approved the same for the year 2016-17 imposing certain conditions. 5. At this juncture, it is necessary to state in what circumstances the Oversight Committee was constituted by the Constitution Bench. It referred to the functioning of MCI and keeping in view certain other factors including a report of the Expert Committee directed the Central Government to consider and to take further appropriate action in the matter at the earliest. At the same time, however, in exercise of power under Article 142, the Court constituted the Oversight Committee to oversee the functioning of the MCI and all other matters. In this regard the Court said:- "In view of the above, while we do not find any error in the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plications, have been approved by OC, shall submit to MHFW, within 15 days of issue of notification of approval by MHFW u/s 10A(4) of IMC Act, 1956, the following: (i) An affidavit from the Dean/Principal and Chairman of the Trust concerned, affirming fulfillment of all deficiencies and statements made in the respective compliance report submitted to MHFW by 22 June 2016, (ii) A bank guarantee in the amount of ₹ 2 crore in favour of MCI, which will be valid for 1 year or until the first renewal assessment, whichever is later. Such bank guarantee will be in addition to the prescribed fee submitted alongwith the application. 3.2(a) OC may direct inspection to verify the compliance submitted by the college and considered by OC, anytime after 30 September 2016. (b) In default of the conditions (i) and (ii) para 3.2 above and if the compliances are found incomplete in the inspection to be conducted after 30 September 2016, such college will be debarred from fresh intake of students for 2 years commencing 2017-18." 9. In compliance of the conditional approval granted by the Oversight Committee, the assessment was carried out on 28th and 29th December, 2016, by the team of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I-36(41)(e-86)/2016- Med./167376 dated 15.01.2017, I am directed to convey the decision of the Central Government to debar Kerala Medical College, Palakkad from admitting students in next two academic years i.e. 2017-2018 & 2018-2019 and also to authorize MCI to encash the Bank Guarantee of ₹ 2.00 crore. You are therefore, directed not to admit students in the MBBS course in the academic years 2017-2018 & 2018-2019 at your College. Thereafter, next batch of students shall be admitted in the College only after obtaining permission of the Central Government for renewal. Admissions made in violation of the above directives will be treated as irregular and action will be initiated under IMC Act & Regulations made thereunder." 12. The petitioner-Trust challenged the order of the Central Government before the High Court of Kerala at Ernakulam in Writ Petition (C) No.21195/2017 (Y) and the High Court placing reliance on the judgment passed by this Court in Glocal Medical College and Super Specialty Hospital & Research Centre v. Union of India (2017) 8 SCALE 356) on 1st August, 21017, passed the following order:- "In the light of the order passed by the Apex Court in Writ Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as GOI letter dated 20/08/2016 is liable to be enchashed. Ministry decided to grant a personal hearing to the College on 08.02.2017 by the DGHS. The Hearing Committee after considering the oral and written submission of the College, submitted its report to the Ministry. In its report, the Hearing Committee observed as under: Sl. No Deficiencies reported by MCI Observations of hearing committee i. Deficiency of faculty is 13.84% as detailed in the report. No satisfactory justification for deficiencies. ii. Shortage of Residents is 8.69% as detailed in the report iii. No Anti Sera are available in Microbiology laboratory. iv. Bed occupancy is 50% at 10 a.m. on day of assessment as under # Departure Beds Available Occupied 1 General Medicine 72 29 2 Paediatrics 24 20 3 TB & Chest 08 07 4 Psychiatry 08 06 5 Skin & VD 08 07 6 General Surgery 90 31 7 Orthopaedics 30 25 8 Ophtalmology 10 02 9 ENT 10 02 10 O.G. 40 21 Total 300 150 v. Casualty : Separate Casualty for O.G. is not available. Crash Cart is not available vi. O.T. : Preoperative beds are not available vii. ICUs : There was only 1 patient in ICCU, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted for the doctors on leave. It is observed that the appointment orders issued by the college are without any reference number. Nothing could be conclusively established about the faculty on leave. The submission of the college regarding static x-ray machine, pre-operative beds, ETO sterilizer, audiometry, etc. may be accepted. However, the college seems deficient in bed occupancy. In view of the Committee, the college is at LoP stage and the facilities have to be satisfactorily verified. The Committee agrees with the decision of the Ministry vide letter dated 31.05.2017 to debar the college for two years and also permit MCI to encash bank guarantee. Accepting the recommendations of Hearing Committee, the Ministry reiterates it earlier decision dated 31.5.2017 to debar the college from admitting students for a period of 2 years i.e., 2017-18 & 2018-19 and also authorize MCI to encash Bank Guarantee of ₹ 2 crores." The said order is the subject matter of assail in this Writ Petition. 15. We have heard Dr. Rajiv Dhawan and Mr. Mukul Rohatgi, learned senior counsel for the petitioners, Mr. Ajit Kumar Sinha, learned senior counsel for the Union of India and Mr. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2017, as this Court has already held, was not an order which reflected reason, but the order impugned is irrefragably a reasoned one because there is reference to the history of the institution, the chronology of events, the report of the Oversight Committee, the opinion of the Hearing Committee and eventual expression of an opinion. According to him, if such an order is not given the stamp of a 'reasoned order', it will be granting premium to recalcitrant institutions, which are bent upon imparting medical education in an unscrupulous manner. According to Mr. Sinha, concept of negative equality is not within the ambit of Article 14 of the Constitution of India and, in any case, this Court has issued notice to the other institutions and, therefore, the petitioners cannot claim parity. Additionally, he would put forth that in most of the matters, this Court has directed for consideration of the LOP for the year 2018-2019 and the present fact situation does not exposit a different scenario and hence, this Court should not make any distinction in the present case. 18. Mr. Vikas Singh, learned senior counsel appearing for the MCI refuting the arguments advanced by the learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrued as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand, we are disposed to think, is not attracted. Be it clearly stated, the said principle also does not flow from the authority in Royal Medical Trust (supra). In this context, the objectivity of the Hearing Committee and the role of the Central Government assume great significance. The real compliant institutions should not always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government. And the stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence of reasons makes the decision sensitively susceptible. Having said this, we are not inclined to close the matter. The petitioners have been running the College since 2013-14. We have been apprised that students who have been continuing their education shall continue for 2017-18. As we find the order of the Central Government is not a reasoned one. It is obligatory on its part to ascribe reasons. For the said purpose, we would like the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications; (f) the requirement of manpower in the field of practice of medicine; and (g) any other factors as may be prescribed." 21. Section 3-B of Indian Medical Council (Amendment) Act, 2010, which confers the powers on the Board of Governors, reads as follows:- "3-B. Certain modifications of the Act.- During the period when the Council stands superseded- * * * (b) The Board of Governors shall- (i) exercise the powers and discharge the functions of the Council under this Act and for this purpose, the provisions of this Act shall have effect subject to the modification that references therein to the Council shall be construed as references to the Board of Governors; (ii) grant independently permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in admission capacity in any course of study or training referred to in Section 10A or giving the person or college concerned a reasonable opportunity of being heard as provided under Section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and (iii) dispose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used loss to the society in terms of less number of doctors being available. MCI and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various stages and time-limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. In our view the Schedule must ideally take care of: (A) Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfil these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfil the basic requirements would be considered at the next stage. (B) Inspection should then be conducted by the Inspectors of MCI. By very nature such inspection must have an element of surprise. Therefore sufficient time of about three to four months ought to be given to MCI to cause inspection at any time and such inspection should normally be undertaken latest by January. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after reproducing few paragraphs has held:- "On a careful reading of the aforesaid judgment, we do not think that the clause has been interpreted as not to allow any inspection on a Sunday, but the Court have said in the factual matrix of the said case that the Institution was a minority institution and a major festival for the said community was scheduled on 12th December, 2016 and the day previous thereto i.e. 11th December, 2016, was a Sunday and the said facts are not wholly irrelevant. The said analysis cannot be regarded as the construction of the clause. Having said that, we shall proceed to analyze what the clause precisely conveys. On a careful reading of the same, it is quite clear and unambiguous that the obligation of the MCI is to ensure that inspections are not to be carried out at least 2 days before and 2 days after an important religious and festival holidays declared by the Central/State Government. In the clause, the words which gain significance are "important religious and festival holidays". On 12th December, 2016, it was Milad-un-Nabi and it is the day of festival. The inspection was done on 9th December, 2016, which was a Friday. The amended clause o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "… every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found." 29. A three-Judge Bench in Union of India and others v. Dhanwanti Devi and others (1996) 6 SCC 44), while adverting to the concept of precedent under Article 141 of the Constitution, has opined thus:- "Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Hari Krishan Khosla case(1993) Supp (2) 149) is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents." 30. In Bussa Overseas and Properties Private Limited and Another vs. Union of India and Another (2016) 4 SCC 696), while dealing with the precedential value of the decision in Thungabhadra Industries Limited vs. State of A.P. (AIR 1964 SC1372) , the two-Judge Bench held:- "The aforesaid decision in Thungabhadra Industries Ltd. case when properly appreciated clearly reveals that it pertains to the stage when objection is to be taken. It does not lay down that a special leave petition against a review petition is maintainable or not. The focus on the stage of taking objection is fact-centric but not principle- oriented. To elaborate, the said decision does not lay down as a principle that the Court is bereft of power to hear on maintainability. If we understand the view expressed therein, it can be said that the Court has been guided by the concept of propriety." [Emphasis supplied] 31. In Royal Medical Trust (supra), this Court has clearly held that there can be surprise inspection as that ensures that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 5. Dr. MS Dhananjaya, Professor of OBG. His cousin brother had expired and the 12th day ritual ceremony was on 28-12-2016 and he had been sanctioned leave. He is present on 29-12- 2016 and presented before the assessors. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 6. Dr. Ravi Chandra, Associate Professor of Surgery. He had gone to his native during Christmas holidays taking leave till 31-12.2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith. 7. Dr. Asha S Jagtap, Professor of PSM She had gone to her native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 8. Dr. Girist A, Senior Resident in Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same which are countersigned by the dean are furnished. (2) The faculty who is on sanctioned Maternity leave would be accepted provided the appropriate leave sanction order issued by the sanctioning authority and countersigned by the Dean is furnished with all necessary certificates." 37. The said resolution is strenuously contested by the learned senior counsel for the petitioners. It is urged with immense vehemence that the resolution smacks of gross arbitrariness and reveals a sense of hidden base for use of power of an absolute tyrant and a despot. Mr. Singh explaining the same would submit that a hospital to remain compliant has to have the requisite number of doctors and staff, and to run a medical college constant compliance is imperative. According to him, when a college is granted LOP for the first year, 5% margin with regard to absence is granted and that is why certain categories of leave have not been mentioned in the resolution, but that does not mean that the college can grant leave to the doctors at its whim and fancy. Be that as it may, the absence of faculty members which has been taken note of by the Medical Council of India and accepted by the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermit the petitioner college/institution to admit students for the academic year 2017-18, in the facts of the case, is declined." 41. In Dr. Jagat Narain Subharti Charitable Trust (supra), the Court, while granting the benefit for academic session 2017-2018, opined:- "Thus, there has been substantial compliance of the said requirement by the petitioners. Assuming that the notification dated 16.10.2015 applied even to the proposal of the petitioners, suffice it to observe that failure to furnish information in the prescribed Form-5 cannot be held against the petitioners. In any case, that is not a deficiency relating to infrastructure or academic matters as such, which may require a different approach." 42. The aforesaid decisions speak for themselves and, therefore, reliance on the same by the petitioners is of no avail. 43. Dr. Rajiv Dhawan would submit that this Court should not exercise appellate jurisdiction which is fundamentally called an error jurisdiction or rectification of errors. We are absolutely conscious of the appellate jurisdiction and the jurisdiction this Court is required to exercise while determining the controversy in exercise of power of judicial review u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Court also referred to R. v. Panel on Take-overs and Mergers, ex. P. Datafin plc (1987) 1 All ER 564) wherein Sir John Donaldson, M.R. commented:- "An application for judicial review is not an appeal." 46. The three Judge Bench further held:- "The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers." 47. The Court further opined that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the duty is to act fairly. It will vary from case to case. Explicating further, it ruled:- "Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonablenes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible. 51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens' right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See : Union of India and Anr. v S.B. Vohra(2004) 2 SCC 150) 52. What Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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