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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 502 OF 2017

IQ City Foundation & Anr. Petitioner(s)

Versus

Union of India & Ors. Respondent(s)

J U D G M E N T

Dipak Misra, CJI.

The present writ petition, as the circumstances would

have it, witnesses a second verdict. The first one was

disposed of by us on 1

st

August, 2017. At that time, we had

noted the facts to the effect that the petitioners had prayed

for issue of a writ of certiorari for quashment of the order

dated 31.05.2017 passed under Section 10-A of the Indian

Medical Council Act, 1956 (for brevity, ‘the Act”) by the

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Secretary, Ministry of Health and Family Welfare, the 1

st

respondent herein, and further issue a direction to the said

respondent to grant permission to the petitioner-College for

4

th

renewal for the academic year 2017-2018 to facilitate

admission of the 5

th

batch (150 students) MBBS Course.

2.The essential facts which have been noted in the

earlier judgment are that the Medical Council of India (MCI)

had conducted an inspection and granted the Letter of

Permission (LOP) on 15.07.2013 for the establishment of the

new medical college at Burdwan, West Bengal with an

annual intake of 150 students with effect from the academic

year 2013-14. Vide letters dated 04.07.2014, 10.06.2015

and 15.12.2015, renewals of permission for the 2

nd

(1

st

renewal), 3

rd

(2

nd

renewal) and 4

th

(3

rd

renewal) batches of

MBBS students at the petitioner-College for the academic

years 2014-15, 2015-16 and 2016-17 respectively were

granted by the respondent No. 1. On 06.07.2016, the

petitioner-College submitted its scheme along with the

requisite fees for the 4

th

renewal for the academic year

2017-18 which pertains to admission of the 5

th

batch of 150

students in MBBS course. On 09.07.2016, the 2

nd

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respondent informed the College that the assessment for

renewal of permission for the academic year 2017-18 would

be undertaken by the Assessors appointed by it at any time

after 15.07.2016 and the petitioners were asked to fill in the

Standard Inspection Form A, Form B and Declaration Form

for the academic year 2017-18 and keep them ready for

scrutiny at the time of assessment. There was also a

direction for submission of the soft copies of the said Forms.

As averred, the petitioners duly submitted a compact disc

containing soft copies of Form A, Form B and Declaration

Form and upon receipt of the necessary documents, the 2

nd

respondent constituted a team of Assessors and directed

them to carry out the assessment inspection of the College.

The inspection team, that is, the Assessors, conducted a

surprise inspection of the College on 03.11.2016 and

04.11.2016. The Assessors pointed out certain deficiencies

to the College and noted the same in the assessment report

dated 04.11.2016. It is put forth that in the Regular

Inspection Report, the shortfall in Teaching Faculty and

Resident Doctors were only 4.5% and 3.50% respectively

which were well within the prescribed limit. Two other

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deficiencies that were pointed out, as asserted, were

completely remediable and were duly remedied by the

College. On 22.12.2016, the Executive Committee of the

respondent No.2 considered the Assessment Report of the

Assessors and decided to recommend to the respondent

No.1 not to renew the permission to the College for the 4

th

renewal for the academic year 2017-18.It was also noted

that the 1

st

respondent, by its letter dated 03.02.2017,

communicated to the College the recommendation dated

28.01.2017 of the respondent No. 2 for disapproving the

permission to the College for the 4

th

renewal for the

academic year 2017-18 and called upon the College to

submit a detailed point-wise compliance with documentary

evidence. The College was further intimated about the

hearing that was to be held on 09.02.2017 before the

Hearing Committee. A team of representatives of the College

appeared before the Hearing Committee on the date fixed

and submitted the compliance report keeping in view the

remarks and observations made by the Assessors of the

respondent No. 2. In the second week of March, 2017, the

petitioners received a copy of the order dated 01.03.2017

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issued by the 1

st

respondent recording the

recommendations/order passed by the Hearing Committee

of the respondent No. 1 under Section 10-A(4) of the Act.

The recommendation of the Hearing Committee was to the

effect that the deficiencies pointed out by the 2

nd

respondent

were not such to warrant disapproval at that stage. Despite

the aforesaid findings of the Hearing Committee, the 1

st

respondent, instead of taking a final decision, referred the

matter back to the respondent No.2 to review the same in

the light of the recommendations/findings of the Hearing

Committee along with documents submitted by the

petitioners and to furnish its recommendation.

3.On the earlier occasion, it was asserted that the

2

nd

respondent, on 17.03.2017, constituted a team to carry

out a Compliance Verification Assessment of the College.

The team of Assessors, instead of carrying out a compliance

verification, conducted a regular inspection on 21.03.2017

in a random manner and proceeded to make a different kind

of assessment instead of limiting to their scope of reviewing

the compliance of the remarks/observations of the Hearing

Committee. At this juncture, it was contended that though

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the Compliance Inspection Report was submitted, yet the

Assessors required the College to submit a representation

and, accordingly, the College submitted the necessary

representation to the respondent No. 2. The Assessors, as

per the stand of the petitioners, noted certain deficiencies in

their Compliance Verification. The Executive Committee of

the respondent No. 2 held its meeting on 28.04.2017 but

the minutes of the meeting were not uploaded on the official

website of the respondent No. 2 until 29.05.2017 and were

not communicated to the petitioners.

4.On earlier occasion, it was submitted that the

petitioner had approached the 1

st

respondent on 20.5.2017

and submitted a detailed representation with regard to

compliance verification of the deficiencies found by the

assessors as pointed by the Respondent No. 2. Despite the

same, the 1

st

respondent, vide order dated 31.5.2017,

accepted the recommendation of the 2

nd

respondent and

rejected the scheme of permission for the 4

th

renewal

(Admission of the 5

th

batch of 150 students in MBBS course)

for the academic year 2017-2018. It was urged that the

order dated 31.5.2017 was communicated to the college on

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30.6.2017. That apart, it was highlighted that the entire

approach of the MCI was contradictory to the Act and the

Establishment of Medical College Regulations, 1999 (for

short, ‘the Regulations’) and further when the Central

Government had sent back the matter to the MCI to have a

relook at certain aspects, it could not have proceeded for a

fresh compliance inspection.

5.The contentions raised by the petitioners were opposed

by the MCI. This Court, referring to the decisions in

Manohar Lal Sharma v. Medical Council of India and

others

1

, Medical Council of India v. Kalinga Institute of

Medical Sciences (KIMS) and others

2

and Royal Medical

Trust (Registered) and another v. Union of India and

another

3

and thereafter referring to Section 10-A of the Act

and the Regulations, opined thus:-

“29.On a reading of Section 10-A of the

Act, Rules and the Regulations, as has

been referred to in Manohar Lal

Sharma (supra), and the view expressed

in Royal Medical Trust (supra), it would

be inapposite to restrict the power of the

1 (2013) 10 SCC 60

2 (2016) 11 SCC 530

3 (2015) 10 SCC 19

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MCI by laying down as an absolute

principle that once the Central

Government sends back the matter to

MCI for compliance verification and the

Assessors visit the College they shall only

verify the mentioned items and turn a

Nelson’s eye even if they perceive certain

other deficiencies. It would be playing

possum. The direction of the Central

Government for compliance verification

report should not be construed 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.”

6.After so holding, the Court took note of the fact that

the order passed by the Central Government is not a

reasoned one and in that backdrop, this Court directed:-

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“It is obligatory on its part to ascribe

reasons. For the said purpose, we would

like the Central Government to afford a

further opportunity of hearing to the

petitioners and also take the assistance

of the newly constituted Oversight

Committee as per the order dated July

18, 2017 passed by the Constitution

Bench in Writ Petition (Civil) No. 408 of

2017 titled Amma Chandravati

Educational and Charitable Trust and

others v. Union of India and another

and thereafter take a decision within two

weeks. Needless to say, the decision shall

contain reasons. We repeat at the cost of

repetition that the decision must be an

informed one.”

7.To appreciate the controversy, we may first record the

letter dated 21.3.2017 before the order of remand. The

said letter written by the petitioner to the MCI reads thus:-

“In connection with the above subject I

would like to submit the following

paragraph for your kind consideration.

1.That during the last MCI inspection

held on 3

rd

and 4

th

Nov 2016 our Faculty &

Resident deficiency was 2.18 and 3.38

respectively. However on 21.03.2017

surprise inspection and due to their

personal commitment they could not come

by 11 AM and could not appear before the

assessors.

2.Secondly, the State NEET Post

Graduate counseling and the Diplomat in

National Board (DNB) counseling in process,

many of the senior and Junior Residents

and few faculty members had gone to

KOLKATA for their counseling hence were

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not able to appear in the inspection

conducted on 21.03.2017.

3.Thirdly most of these faculties and

residents are working with us since long

time and kind of documentary proof for the

same can be submitted, but because of the

counseling they were unable to make it.

4.It will not be out of place to mention

here that our faculties and residents had

gone to attend medical camps in suburban

areas as such they could not reach by 11

AM to appear before the assessors.

Hence their absence may kindly be

considered to offset the faculty and resident

deficiency.”

8.Another letter was issued on 10.4.2017. The relevant

part of the said communication reads thus:-

“(3) That for our 4

th

renewal inspection we

were inspected on 3

rd

& 4

th

November 2016

& a subsequent compliance inspection was

conducted on 21

st

March, 2017.

(4) That on 21

st

March when the surprise

compliance inspection was conducted, few of

our facility & residents were on deputation

for attending our regular Medical camps on

the rural areas. In view of the inspection

these facilities & residents were called back

to the hospital & college but by the time

they arrived the time for signing the

attendance sheet was over i.e. 11 a.m. They

were denied signing in the attendance sheet

and were not considered during the head

count which lead to deficiency of faculty and

residents – 15.99% and 25.88% respectively,

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even though our deficiency was less than

5% for both categories in the inspection held

on 3

rd

and 4

th

November 2016.

(5) That on 22

nd

March 2017 we also sent

one representation letter along with

photograph of few of our medical camps

which were going on vide letter no

IQMC/2016-17/09 dated 21/03/2017. The

photographs are once again enclosed.

(6) That we are an established running

medical college and hospital with more than

thousand employees working having all the

requisite infrastructure, faculties and

residents and clinical materials as per the

council norms.”

And again:-

“Hence, it is requested that our faculty &

resident deficiency on the day of the

inspection may kindly be considered

sympathetically and permission may be

accorded to us to admit the 5

th

batch of 150

students and continue our services in

Medical Education & Health Care Services.”

9.As the facts would show, the petitioner-institution

was afforded an opportunity of hearing by the Hearing

Committee which, thereafter, recorded the following

findings:-

“1.On detailed examination of the

documents, the deficiency of the faulty still

persisting. Hence not acceptable.

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2.The shortage of Residents is 25.88%

(maximum acceptable is 5%).

3.It has been recorded in the Minutes of

the MCI meeting that the Assessor resorted to

only random checking of OPDs in just three

Departments, namely TB & Respiratory, ENT

and Psychiatry Department and has arrived

at a figure without counting the total number

of patients registered in all the Departments,

which seems unreasonable and inaccurate.

4.Student hostel: The college authorities

are producing the Chartered Architect

Certificate on completion and occupancy of

the hostel (to be verified).

5.The Anatomy Department had the

requisite number of mounted/unmounted

specimens on the date of inspection and is

being treated as complied with.

Conclusion: The deficiency of faculty found

by assessor was 15.9% and was accepted by

the College. The reasons provided by the

college for this deficiency are not compatible

with MCI guidelines of acceptable leave. Also

the deficiency of Residents was 25.88%.

Therefore, renewal is not recommended.”

10.The Central Government, considering the remarks of

the Hearing Committee, passed an order which is to the

following effect:-

“10. Now, therefore, in compliance with the

above direction of Hon’ble Supreme Court, the

Ministry granted hearing to the college on

22.08.2017. A Member of the newly constituted

Oversight Committee also attended the Hearing

Committee meeting. The Hearing Committee

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submitted its report to the Ministry with the

following conclusion:-

The deficiency of faculty by assessor was

15.9% and was accepted by the College. The

reasons provided by the College for this

deficiency are not compatible with MCI

guidelines of acceptable leave. Also the

deficiency was 25.88%. Therefore, renewal is

not recommended.

A copy of the Hearing Committee report

containing their observations is enclosed.

11. Accepting the recommendations of the

Hearing Committee, the Ministry reiterates its

earlier decision dated 31.05.2017 not to renew

the permission to admit MBBS students at IQ

City Medical College, Burdwan for the academic

year 2017-18.”

11.Thus, it is demonstrable that the competent authority

of the Central Government, considering various aspects,

had reiterated the order.

12.We have heard Mr. Mukul Rohatgi and Mr. P.S.

Patwalia, learned senior counsel for the petitioners, and

Mr. Ajit Kumar Sinha, learned senior counsel for the 1

st

respondent, and Mr. Vikas Singh, learned senior counsel

along with Mr. Gaurav Sharma, learned counsel for the 2

nd

respondent, MCI.

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13.We may note here with profit that after the remand,

the petitioner-institution filed certain documents before the

Hearing Committee on 22.8.2017.

14.The petitioner-institution also filed salary slips of the

teaching faculty and salary slips of Senior Resident Doctors

and Junior Resident Doctors before the Hearing

Committee. The said documents have also been brought

on record. Paragraph 14 of the letter dated 22.8.2017 by

the petitioner-institution to the Secretary, Ministry of

Health and Family Welfare, Government of India reads as

under:-

“It needs to be mentioned that our Teaching

Hospital has received accolades from a team

of 7 International Doctors headed by Dr.

Partha Sadhu and Dr. Klas Erik Kaspersson

of “SMILE” and “INGA-International

Foundation” who are carrying out a major

camp for corrective surgery of Cleft Lip/Cleft

Palate in our Medical College & Hospital

from 16

th

August, 2017 to 24

th

August, 2017

under the name and style called

“OPERATION SMILE”. A total of 87

corrective surgeries for Cleft Lip and Cleft

Palate have already been performed as of

date in our Hospital during the said period.

The Operation Smile and INGA International

Foundation have till date conducted more

than 100 such camps and performed more

than 29,000 surgeries, Pan India. The said

“SMILE” and “INGA- International

Foundation” have issued a letter of

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appreciation to our College and Hospital

stating that it is rare to find such

outstanding “State-of-the-Art” Medical and

infrastructure facilities.”

15.That apart, the details of OPD patients between

15.3.2017 to 29.3.2017 have also been filed before the

Hearing Committee as well as this Court. The grievance

that has been vehemently agitated is that, had the Hearing

Committee scrutinized the documents and appreciated the

stand of the institution in proper perspective, the opinion of

the Hearing Committee would have been quite different and

as a corollary, the view of the Central Government would

have been guided in an affirmative way in favour of the

institution. The aforesaid submission, on a first blush,

looks quite attractive but, on a keener scrutiny, pales into

total insignificance. We are disposed to think so inasmuch

as the Hearing Committee, on verification of every aspect,

found that the deficiency of faculty members was 15.9 and

the deficiency of Resident Doctors was 25.88 and,

accordingly, it did not recommend for renewal. The Central

Government, in its turn, observed that the deficiency found

by the MCI was not compatible with the MCI guidelines. In

such a situation, it is difficult to hold that there has been

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any perversity in the action of the authorities denying the

renewal to the institution. Though we have given the stamp

of approval to the decision of the Central Government, yet

we are inclined to direct that the prayer for renewal shall be

considered for the year 2018-19 and any bank guarantee

that has been furnished shall be treated as deposit for the

inspection and consideration for the next year, that is,

2018-19. Be it clearly stated, our opinion is restricted to

the non-granting of renewal for the year 2017-18 and not

an expression of opinion with regard to the consideration of

the prayer for 2018-19.

16.The writ petition is accordingly disposed of without

any order as to costs.

………………………CJI.

(Dipak Misra)

………………………….J.

(Amitava Roy)

………………………….J.

(A.M. Khanwilkar)

New Delhi,

February 06, 2018.