REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.445 OF 2017

Shri Venkateshwara University ... Petitioner(s)

Through its Registrar and Another

Versus

Union of India and Another … Respondent(s)

J U D G M E N T

Dipak Misra, CJI.

In this writ petition preferred under Article 32 of the

Constitution of India, the petitioner-University and its functionary

have prayed for issue of a direction for quashment of the order

dated 31

st

May, 2017, contained in letter No.U-12012/

27/2016-ME-I [3084749] debarring the petitioners from admitting

the students in MBBS course for academic sessions 2017-2018

2

and 2018-2019 and authorizing the respondent No.2, the Medical

Council of India (MCI) not to encash the bank guarantee

furnished by the petitioners to the MCI and further to issue writ of

mandamus or any other direction in the nature of mandamus

directing the respondents to grant renewal of permission for

academic year 2017-2018 and further to admit the students in

the said academic session.

2. The assertions made in the writ petition and the

documents annexed thereto exposit the history of litigation which,

we are inclined to think, has a different colour. Suffice it to note

that for the academic session 2016-2017, the MCI had inspected

the Institution and found certain deficiencies. The summary of

assessment, which was submitted by a team of four doctors on

12

th

November, 2016, has been brought on record. Paragraphs 9,

10, 11 and 12 of the said summary of assessment read as

follows:-

“9.Any other remarks: Most of the faculty as

well as resident doctors has joined this institute in

last one & half month prior to the inspection. It is

not known or could not be verified whether those

faculties where considered by MCI in the same

academic year where they were previously working

or whether these faculty is appointed on

3

permanent basis or temporarily. Most of them did

not have permanent address proof. Patients in the

ward were admitted with very vague complains

which did not require admission, like pain

abdomen, itching, cough mild fever, joint pains,

irritation in the eyes, low back pains. In some

wards both Male and female patients were

admitted in the same ward (Like Psychiatry). In

pediatrics patients above age of 14 were admitted

with vague/no complain.

10.No patients were in labor. No Lscs, No

Normal Delivery on the date of inspection.

11.Only one major surgery on the day of

inspection (Open cholecystectomy) & One minor (D

& C).

12.College website does not show names of all

the faculty members (Like only one name appears

on website out of five present in Pharmacology.)”

3. We are not referring to other aspects of the summary of

assessment, as the deficiencies pointed out are within the

permissible limit. Be it noted, the deficiencies which are noted

earlier were by the inspecting team, and the Oversight Committee

constituted by this Court accepted the explanation offered by the

University and imposed certain conditions and recommended for

grant of Letter of Permission and eventually the same was granted

by the Central Government for the year 2016-17.

4

4. After the inspection that was conducted on 11

th

and 12

th

of November, 2016, another inspection took place on 9

th

December, 2016. The team of the assessors vide letter dated 9

th

December, 2016, has communicated to the MCI, which reads as

follows:-

“We reached the Dean's office. The Dean was

present in his office. However, he left his chamber

immediately and was not to be seen for next 15

minutes. Whereafter he returned to inform us his

refusal to allow us to conduct the MCI assessment

today even after presenting MCI order to conduct

the assessment. He stated that it was a holiday

declared by their own university for Eid, which falls

5 days later. It was not national or State or local

holiday. He also mentioned that there were no

doctors in wards or OPD or Emergency as it was a

holiday. When questioned again, regarding the

patients' services can also stop on a holiday, he

had no answer.

He had no answer as to why the Dean and two or

three possible officers were working on a holiday, if

all the doctors were on a holiday.

We then asked him to give his refusal in writing. It

took two hours for the Dean to hand over the letter.

In the meantime the assessors went on rounds of

campus. There were no patients. There were no

doctors in campus. Hostel rooms and wards, OPD

had no patients or nurses to be seen. In all ICUs,

there were no patients admitted. Casualty area

and reception area there were no patients, in

laboratory, no patients for giving the samples.

Only 10 to 12 cars were patient in the campus. No

sign of a running hospital was seen in the entire

5

hospital. Infrastructure looked highly inadequate.

All beds were seen to be fresh. We, the assessors'

team, wondered how an entire hospital service can

take holiday as mentioned in the Dean's reply since

a hospital should run on a 24x7 basis for an entire

year.

The way, the Dean refused for the assessment

quoting invalid excuses shows and confirms the

non-functioning of the Hospital as well as Medical

College/classes which are self declared holidays

from 08.12.2016 to 12.12.2016. The dates looked

like tailored dates confirming with the assessment

dates as and when the assessment occurred also

the leter submitted to the MCI by the College on

08.12.2016 mentions holidays of 10

th

& 11

th

December of Saturday and Sunday respectively

and Monday 12 for Eid. No mention is found of 9

th

December as claimed by the Dean in his letter.

At the fag end of the process, another letter was

submitted to us with some of the key words

changed and we were pressurized to include this

and replace the first letter. So we are submitting

both the letter for your perusal.”

5. On the basis of the assessors report, the MCI vide letter

dated 26

th

December, 2016, recommended to the Ministry as

follows:-

“In view of the above, the college has failed to abide

by the undertaking it had given to the Central

Govt. that there are no deficiencies as per the

directions passed by the Supreme Court mandated

Oversight Committee and communicated vide

Ministry of Health & F.W. letter dated 12/09/2016

[para 1(i)]. The Executive Committee, after due

6

deliberation and discussion, has decided that the

college has failed to comply with the stipulation

laid down by the Oversight Committee.

Accordingly, the Executive Committee recommends

that as per the directions passed by Oversight

Committee and communicated vide Ministry of

Health & F.W. letter dated 12/09/2016 [in para

2(b)], the college should be debarred from admitting

students in the above course for a period of two

academic years i.e. 2017-18 & 2018-19 as even

after giving an undertaking that they have fulfilled

the entire infrastructure for establishment of new

medical college at Gajaroula, Dist Amroha, Uttar

Pradesh by Shri Venkateshwara University, Meerut

(Trust name – Shri Bankey Bihari Educational &

Welfare Trust) under Shri Venkateshwara

University, Gajroula, Amroha, the college was

found to be grossly deficient. It has also been

decided by the Executive Committee that the Bank

Guarantee furnished by the college in pursuance of

the directives passed by the Oversight Committee

as well as GOI letter dated 12/09/2016 is liable to

be encashed.”

6. The Ministry granted a personal hearing to the

Institution on 17

th

January, 2017, by the Directorate General of

Health Services. The Hearing Committee, after permitting the

Institution to file written submissions, eventually, submitted its

report to the Ministry. The Ministry forwarded the report of the

Hearing Committee to the Oversight Committee for guidance. The

Oversight Committee vide letter dated 14

th

May, 2017, conveyed

the following views to the Ministry:-

7

“EC has not considered the assessment report of

assessment carried out on 11

th

-12

th

Nov. 2016.

As per the assessment report dated 11

th

– 12

th

Nov.

2016, there is no deficiency in infrastructure,

faculty/residents strength, clinical material and

investigation workload that would warrant

disapproval of the scheme. There are certain

remarks such as : (i) Most of the faculty and

resident doctors have joined in last one and a half

months prior to inspection. It is not known or

could not be verified whether those faculties were

considered by MCI in the same year, where they

were previously working or where these faculty

were appointed with permanent address proof.

There are no remarks given by the College.

However, it was the responsibility of the

assessment team to verify the above about the

faculty.

ii)Patients in the ward were admitted with very

vague complaints which did not require admission

like pain in abdomen, itching, cough, mild fever,

joint pains, irritation in the eyes, low back pains.

In some wards, both male and female patients were

admitted in the same ward (like Psychiatry). In

Paediatrics, patients above the age of 14 were

admitted with vague/no complaint.

The remarks about patients are not specific and

are general in nature.

iii)No patients were in labor. No LSCS. No

Normal delivery on date of assessment. This is a

subjective remark without MSR.

iv)Only 1 major & 1 minor surgery on date of

assessment. This is a subjective remark without

MSR.

8

v) It is reported in SAF that the College website

does not show name of all the faculty members

(only 1 name appears on website out of 5 present

in Pharmacology). Names of all faculty (including

Pharmacology) are shown on website

(http://vimshospital.edu.in/wp-content/uploads/

2016/12/Faculty-10-Nov-2016.pdf).”

7. Thereafter, the Union of India passed an order on

31

st

May, 2017. As the order was an unreasoned one, this Court

in Glocal Medical College and Super Specialty Hospital &

Research Centre vs. Union of India & Others [Writ Petition

(Civil) No.41 of 2017] had given certain directions and the present

matter was included. The direction given on 1

st

August, 2017, by

this Court reads as follows:-

“In the above persuasive premise, the Central

Government is hereby ordered to consider afresh

the materials on record pertaining to the issue of

confirmation or otherwise of the letter of

permission granted to the petitioner

colleges/institutions. We make it clear that in

undertaking this exercise, the Central Government

would re-evaluate the recommendations/views of

the MCI, Hearing Committee, DGHS and the

Oversight Committee, as available on records. It

would also afford an opportunity of hearing to the

petitioner colleges/institutions to the extent

necessary. The process of hearing and final

reasoned decision thereon, as ordered, would be

completed peremptorily within a period of 10 days

9

from today. The parties would unfailingly

co-operate in compliance of this direction to meet

the time frame fixed.”

8. In compliance of the aforesaid order, the Ministry

granted hearing to the Institution on 3

rd

August, 2017 and on 10

th

August, 2017, passed the following order:-

“The college informed that compliance verification

was carried out by MCI on 11-12 November, 2016.

As per SAF form the deficiency was 1.5% in faculty

and 8.6% in residents.

The college had declared extended holiday

due to Eid and informed MCI on 08.12.2016. But

MCI conducted surprise inspection on 09.12.2016.

The college did not allow inspection as only one

compliance inspection was warranted as per OC

orders.

It is seen from assessors note that on their

visit to the college on 09.12.2016, the campus wore

a completely deserted look. There was no sign of a

functional hospital.

In the opinion of the Committee, MCI was

not precluded from conducting inspection subject

to sufficient reason and justification. The

Committee agrees with the decision of the Ministry

conveyed by letter dated 31.05.2017 to debar the

college for 2 years and also permit MCI to encash

bank guarantee.

Accepting the recommendations of the

Hearing Committee, the Ministry reiterates its

earlier decision dated 31.05.2017 to debar the

college from admitting students for a period of two

years i.e. 2017-18 and 2018-19 and also to

10

authorize MCI to encash the Bank Guarantee of

Rs.2 Crore.”

9. Criticizing the aforesaid order, it is submitted by

Mr. Mukul Rohatgi and Mr. Harin P. Raval, learned senior counsel

for the petitioners that the order passed by the Union of India is

absolutely unjustified, inasmuch as the inspecting team of the

MCI could not have conducted a surprise inspection on 9

th

December, 2016. However, there is a subsequent amendment to

the Medical Council of India Regulations, which clearly states that

the MCI shall ensure that such inspections are not carried out at

least 2 days before and 2 days after important religious and

festivals holidays declared by the Central/State Government.

Learned senior counsel would further submit that the controversy

is squarely covered by the decision rendered by this Court on 30

th

August, 2017, in Kanachur Islamic Education Trust (R) vs.

Union of India and Another [Writ Petition (Civil) No.468 of

2017].

10. Mr. Maninder Singh, learned Additional Solicitor General

supporting the order passed by the Union of India contended that

the inspection report clearly spells out the deficiencies in the

11

Institution and if the Letter of Permission is granted, it would be

travesty of justice. It is his further submission that the

controversy in the instant case is remotely not covered by the

decision rendered in Kanachur Islamic Education Trust (R)

(supra). Additionally, learned Additional Solicitor General would

harp upon the fact that the entire exercise has been carried out

for the academic session 2016-2017 and not for 2017-2018.

11. To appreciate the controversy in issue, it is necessary to

mention that on the basis of the recommendation of the Oversight

Committee, the Central Government had granted the Letter of

Permission. The Oversight Committee had imposed certain

conditions. One such condition was to furnish the bank guarantee

amounting to Rs.2 crores and to remove certain deficiencies and

file an affidavit of affirmation of removal of deficiencies that was

meant for 2016-2017. Though, Mr. Singh, has laid immense

press that the inspection was carried out for 2016-2017, we are

not inclined to accept the same. We are disposed to think that

the inspection was done for academic session 2017-2018 because

we have been apprised in the course of hearing that the

Institution had applied for grant of renewal of permission for the

12

academic session 2017-2018.

12. The thrust of the matter is whether the inspecting team

could have inspected on 9

th

December, 2016. It is worthy to note

that the Medical Council of India with the previous sanction of the

Central Government had amended the “Establishment of Medical

College Regulations 1999”. The amended clause 8(3)(1)(d) reads as

follows:-

”However, the office of the Council shall ensure

that such inspections are not carried out at least 2

days before and 2 days after important religious

and festival holidays declared by the Central/State

Govt.”

13. In Kanachur Islamic Education Trust (R) (supra),

while dwelling upon the same, this Court has held:-

“The fact that the petitioner's college/institution is

a minority institution and that a major festival for

the said community was scheduled on 12.12.2016

and that the day previous thereto i.e. 11.12.2016

was a Sunday, are facts which may not be wholly

irrelevant.”

14. Thereafter, the Court has proceeded to state thus:-

“The observation of the Hearing Committee that

petitioner’s college/institution has not explained

the deficiency of faculty is belied by its

representations and also the observations amongst

13

others of the Oversight Committee. The conclusion

that a few residents might have been on leave on

account of NEET (PG) examination but not all, also

seems to be inferential in the face of exhaustive

explanation provided by the petitioner's

college/institution. In this context, the observation

of the Oversight Committee in its communication

dated 14.5.2017 that eight colleges including the

petitioner’s college/institution had been assessed

twice in quick succession for the same purpose

though not authorized by it in its guidelines,

deserves attention. The Hearing Committee seems

to have ignored the explanation provided by the

Professor and Head of Department of Surgery,

explaining the treatment given to the three patients

named in clause xii (a) to (c) of the Inspection

Report in concluding that, the petitioner's

college/institution had not responded thereto. Its

deduction that there might have been more

instances of multiple entries in the OPD patient

statistics based on 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.”

14

15. 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 12

th

December, 2016 and the day previous thereto

i.e. 11

th

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.

16. 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 12

th

December, 2016, it was

Milad-un-Nabi and it is the day of festival. The inspection was

done on 9

th

December, 2016, which was a Friday. The amended

clause of the notification state only covers 2 days before the

15

festival declared as a holiday by the Central/State Government

and 2 days thereafter. In the case at hand, the inspection team

had gone for inspection on 9

th

December, 2016, and they were

deprived to carry out the inspection. It was not covered by the

concept of two days of moratorium. In such a situation when the

Institution does not allow the team of the MCI or the assessors of

the MCI, it will be adding premium to deviancy. Conferment of

this kind of privilege is absolutely unwarranted. Therefore, the

directions sought for grant of renewal of Letter of Permission for

the academic session 2017-2018 is not acceptable.

17. Though we have so held, yet we think it appropriate that

the students who have been admitted in the Institution for the

academic session 2016-2017, shall continue their studies. The

MCI shall send the inspecting team to the Institution within a

period of two months. After the report is filed, the MCI shall

apprise the Institution with regard to the deficiencies and give a

date for removal of the same so that the Institution would be in a

position to do the needful. We may hasten to add that the

inspection that will be carried out and the further follow up action

shall be done for the academic session 2018-2019.

16

18. As we intend to appreciate the inspection report and the

deficiencies and the action taken up thereon by the Institution,

list the matter on 15

th

November, 2017. The renewal application

that was submitted for the academic session 2017-2018 may be

treated as the application for the academic session 2018-2019.

The bank guarantee which has been deposited shall not be

encashed and be kept alive.

…....................................CJI.

[Dipak Misra]

….......................................J.

[Amitava Roy]

….......................................J.

[A.M. Khanwilkar]

New Delhi,

September 01, 2017.