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TMI Blog2017 (8) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... , Amandeep Kaur, Prateek Bhatia, Dhawal Mohan, Deepika Kalia and Himanshu, Advs. JUDGMENT Amitava Roy, J. 1. The instant application Under Article 32 of the Constitution of India is for laciniating the order dated 31.5.2017 issued by the Respondent No. 1- Union of India, thereby debarring the medical college of the Petitioner in the name and style of "Kanachur Institute of Medical Sciences and Research Centre" (for short, hereinafter to be referred to as "college/institution") at Deralakatte, Mangalore, Karnataka from making admission in MBBS Course for the academic years 2017-18 and 2018-19 and authorizing as well the Medical Council of India, (for short hereinafter referred to as "MCI") to encash the bank guarantee of Rs. 2 crores furnished by it. Further, an appropriate writ in the nature of mandamus has also been sought for to direct the Respondents to grant renewal of permission for the academic year 2017-18 in terms of the recommendations of the Oversight Committee, constituted by this Court by order dated 2.5.2016, rendered in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. (2016) 7 SCC 353 to oversee the functioning under the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, whereafter an inspection was made of the college on 7th and 8th January, 2016, in course whereof, certain deficiencies were noticed. The Executive Committee of the MCI eventually recommended to the Central Government not to issue the LOP for the establishment of the college for the academic year 2016-17. 5. An opportunity of hearing was afforded to the college by the Hearing Committee of the Central Government whereafter the matter was referred back to the MCI for review. The MCI, however, reiterated its recommendation disapproving the scheme of the Petitioner, whereupon the Central Government accepted the same and communicated its decision to the Petitioner vide its letter dated 8.6.2016. The Oversight Committee, as above, intervened and after obtaining the compliance affidavit from the Petitioner and further scrutiny thereafter, by its communication dated 11.8.2016 approved the scheme for establishment of new medical college of the Petitioner with an annual intake of 150 for the academic year 2016-17, subject to certain conditions as mentioned therein. Subsequent thereto, the Central Government in deference of such recommendation of the Oversight Committee, by its letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government and furnished as well, the bank guarantee. 8. Subsequent thereto, the MCI caused inspection of the Petitioner's college/institution to be made in two successive sessions, the first during 17-18.11.2016 and second during 9-10.12.2016. 9. The Petitioner promptly thereafter submitted a representation on 15.12.2016 inter alia questioning the permissibility and bona fide of the second inspection on 9-10.12.2016 firstly, being in violation of Clause 8(3)(1)(d) of the Regulations, as amended on 18.3.2016 prohibiting such inspections at least two days before and two days after important religious festivals/holidays declared by the Central/State Governments and secondly, as the findings in the previous inspection conducted on 17-18.11.2016 testified that the Petitioner's college/institution was largely compliant with the various norms and standards of physical infrastructure, teaching faculty and clinical materials, the second inspection was even otherwise unmerited having been undertaken within three weeks of the previous exercise was highlighted. It was pleaded as well that the Petitioner's college being a recognized minority educational institution, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitting students in the above course for the two academic years 2017-18 and 2018-19 and also authorized the MCI to encash the bank guarantee, the same was assailed before this Court in this writ petition and to reiterate, was interfered with by this Court's order dated 1.8.2017 with a direction to the Central Government to re-examine the materials on record on merits and enter a reasoned decision. 11. The overwhelming premise in which the above direction was issued can be culled out from the following excerpts of the aforementioned order dated 01.08.2017. 21. A bare perusal of the letter dated 31.05.2017 would demonstrate in clear terms that the same is de hors any reason in support thereof. It mentions only about the grant of conditional permission on the basis of the approval of the Oversight Committee, and an opportunity of hearing vis-à-vis the recommendations of the MCI in its letter dated 15.01.2017 highlighting the deficiencies detected in course of the inspection undertaken on 21st and 22nd December, 2016, but is conspicuously silent with regard to the outcome of the proceedings of the Hearing Committee, the recommendations recorded therein both of the Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing contained in the proviso to Section 10A(4) is an indispensable pre-condition for disapproval by the Central Government of any scheme for establishment of a medical college, we are of the convinced opinion that having regard to the progression of events and the divergent/irreconcilable views recommendations of the MCI, the Hearing Committee, the DGHS and the Oversight Committee, the impugned order, if sustained in the singular facts and circumstances, would be in dis-accord with the letter and spirit of the prescription of reasonable opportunity of hearing to the Petitioner institutions/colleges, as enjoined Under Section 10A(4) of the Act. This is more so in the face of the detrimental consequences with which they would be visited. It cannot be gainsaid that the reasonable opportunity of hearing, as obligated by Section 10A(4) inheres fairness in action to meet the legislative edict. With the existing arrangement in place, the MCI, the Central Government and for that matter, the Hearing Committee, DGHS, as in the present case, the Oversight Committee and the concerned colleges/institutions are integral constituents of the hearing mechanism so much so that severance of any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taken, are extracted hereinbelow: The college submitted that MCI conducted compliance verification on 17-18 November, 2016 where the deficiency of faculty was pointed out as nil and residents as 2% only. However, without assigning any reason, MCI visited the college again on 9-10 December, 2016 to re-inspect. Still, the college complied and MCI conducted another inspection. This time the deficiency of faculty and residents was 12.31% and 32.61% respectively. The college further alleged that not only did the MCI conducted 2nd surprise inspection in quick succession, but the 2nd inspection was just 3 days before Eid which is a major festival, the institution being a minority institution. It may be noted that 11.12.2016 was Sunday. Eid fell on 12.12.2016. The college was inspected on 09-10 December, 2016. The college requested that the inspection report of November should be considered. The Committee has noted the submissions made by the college. The college has not explained the deficiency of faculty. The ground of leave on account of NEET (PG) exam could be accepted in case of few residents and not for all 10 as submitted by the college. NEET (PG) exam was held online over a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. This is more so as the NEET (P.G.) examination was held online over a period of one week in early December and a candidate was required to appear in only one session. e) The college has tried to dismiss many observations, made by the assessors as non-specific and vague but has chosen not to respond. f) In three cases, in particular, as noticed in Clause (xii)(a) to (c) (wrongly noted as serial No. 11(a) to (c), vis-à-vis patients, Ms. Laxmamma, Ms. Sahfeena and Ms. Mamatha in the inspection report, the Petitioner's college has not responded. g) The Petitioner's college has also not responded to the charge of three residents signing in register in advance. h) On a perusal of the OPD data, furnished by the Petitioner's college, at least five instances of multiple entries of the same patient in the same department were detected to inflate the OPD figures and that there could be more of such instances. i) The compliance submitted by the Petitioner's college thus does not seem to be reliable. j) The reply of the Petitioner's college had been evasive on many observations made by the assessors, who are clinical experts. k) MCI was not precluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Regulations to that effect, the impugned decision is unassailable, more particularly in view of the persistent failure of the Petitioner to make up such deficiencies inspite of its undertakings and the affidavit of compliance as per the conditions, subject to which it had been granted the conditional LOP. While contending that in the facts of the case, the second inspection on 9-10.12.2016 was both permissible and merited in the attendant facts and circumstances and further was not in violation of the amended Clause 8(3)(1)(d) of the Regulations, it was asserted that the Petitioner's college/institution having failed to rectify the deficiencies detected or to furnish any convincing explanation therefor, they are not entitled to any relief in the face of otherwise binding statutory ordainments. 17. In the above eventful backdrop, we have cautiously considered the rival assertions, which assuredly would have to be evaluated on the measure of the operative directions contained in the order dated 1.8.2017, whereby the issue involved was referred to the Central Government for an appropriate reasoned decision on a reevaluation of the recommendations/views of the MCI, Hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n five such instances is also visibly presumptive. The striking feature of the observations of the Hearing Committee, on the basis of which the impugned decision has been rendered, is the patent omission on its part to consider the relevant materials on record, as mandated by this Court by its order dated 1.8.2017. The findings of the Hearing Committee, in our comprehension, thus stands vitiated by the non-consideration of the representations/explanations of the Petitioner's college/institution, the documents supporting the same, the recommendations/views of the MCI, the observation of the earlier Hearing Committee, DGHS and Oversight Committee, as available on records. The Central Government as well readily concurred with the observations of the Hearing Committee in passing the impugned order, which per se, in our estimate, is unsustainable in the singular facts and circumstances of the case. 18. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the person or the college/institution concerned vis-à-vis the scheme for establishment of a college before disapproving the same. The manner in which the Respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency, as alleged. The Respondents having failed to persuasively establish the said deficiencies, as noted in the impugned order dated 10.08.2017, inspite of opportunities available including the one granted by this Court, such a determination cannot be sustained in the facts and circumstances of the case. We are of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the Respondents, the Petitioner's college/institution ought not to be penalised. Consequently, on an overall view of the materials available on record and balancing all relevant aspects, we are of the considered opinion that the conditional LOP granted to the Petitioner's college/institution on 12.09.2016 for the academic year 2016-17 deserves to be confirmed. Having regard to the progre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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