1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 787 OF 2017

Varunarjun Trust and Anr. ….Petitioners

Versus

Union of India and Ors. ....Respondents

J U D G M E N T

A.M. KHANWILKAR, J.

1.The petitioners made an application for establishment of a

new medical college at Banthra, Shahjahanpur, U.P., in the

name and style of Varunarjun Medical College from

academic session 2016-17 onwards, to the Ministry of

Health and Family Welfare, Government of India. The

Ministry forwarded that application to the Medical Council

of India (for short “MCI”) for evaluation and making

recommendations under Section 10A of the Indian Medical

Council Act, 1956 (for short “the 1956 Act”). The MCI

conducted an assessment of the petitioner college on 12

th

2

and 13

th

January, 2016. On the basis of the assessment

report, the Executive Committee of MCI, in its meeting held

on 30

th

January, 2016, decided to make negative

recommendations, in view of a large number of deficiencies

noticed in the assessment report. A formal communication

in that behalf was sent to the Central Government by MCI

vide letter dated 31

st

January, 2016. The Ministry then

afforded an opportunity of hearing to the college before a

Hearing Committee on 25

th

February, 2016. The Hearing

Committee concurred with the recommendation of MCI and

submitted its observations to the Ministry to disapprove the

proposal. Later on, compliance verification assessment was

done by MCI on 30

th

March, 2016, which report was duly

considered by the Executive Committee of MCI in its

meeting held on 13

th

May, 2016. Once again, MCI in its

meeting held on 13

th

May, 2016 decided to give negative

recommendations in view of the deficiencies noticed in the

compliance verification assessment. That opinion was

formally communicated by the MCI to the Ministry vide

letter dated 14

th

May, 2016. The Ministry accepted the

recommendation of MCI and disapproved the application for

3

establishment of a new medical college for academic session

2016-17 vide letter dated 8

th

June, 2016.

2. The Oversight Committee (for short “OC”) constituted by

this Court, however, issued a directive to the Ministry to

obtain fresh compliance from the college and forward it to

MCI. Pursuant to the said directive, MCI submitted its

compliance to the Ministry citing various reasons. However,

the OC approved the scheme of establishment of a new

medical college with annual intake of 150 students for the

academic year 2016-17, on certain conditions. The Central

Government, therefore, issued a formal approval-cum-Letter

of Permission (for short “LOP”) on 12

th

September, 2016

incorporating the conditions imposed by the OC.

3. As per the conditions noted in the said LOP, an assessment

with regard to verification compliance submitted by the

college was conducted by the MCI on 18

th

& 19

th

November,

2016. During the said verification, certain deficiencies were

noticed which were mentioned in the assessment report.

The assessment report was duly considered by the

Executive Committee of MCI in its meeting held on 22

nd

December, 2016. In view of the deficiencies, MCI decided to

4

send a negative recommendation to the Ministry. The

deficiencies noticed were as follows:

“i. Deficiency of faculty is 16.79% as detailed in the report.

ii. Shortage of Residents was 21.73% as detailed in the

report.

iii. There was only 1 Minor Operation on day of assessment.

iv. There was 1 normal Delivery & NIL Caesarean Section on

day of assessment.

v. ICUs: There was only 1 patient each in MICU & SICU and

2 patients each in ICCU & PICU/NICU on day of

assessment.

vi. Details of Paramedical & Non-teaching staff available in

the Institute are not provided.

vii. MRD: ICD X classification of diseases is not followed for

indexing.

viii. Central Library: It is not air-conditioned.”

4.The decision of the MCI was formally communicated to the

Ministry vide letter dated 26

th

December, 2016. After receipt

of the recommendation from the MCI, the Ministry decided

to afford a personal hearing to the college on 17

th

January,

2017 before the Director General of Health Services (DGHS).

The Hearing Committee considered the oral and written

submissions of the college, but was not satisfied with the

explanation given by the petitioners for want of proper

evidence. The Hearing Committee submitted its report to

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the Ministry, which in turn forwarded the same to the OC

for guidance. The OC vide letter dated 14

th

May, 2017

conveyed its views to the Ministry as follows:

(i)Faculty: In the Standard Assessment Forms (SAF),

Principal has mentioned that 4 faculty members had gone

for exchange/withdrawal of money from the bank with

permission of the Principal and 3 were on sanctioned

leave. Considering this explanation, the deficiency would

be 6.15%, which is within the acceptable limits.

(ii)Residents:- In the SAF, Principal has mentioned that 5

Residents had gone for exchange/withdrawal of money

from the bank with permission of the Principal and 3 were

on sanctioned leave. Considering these residents, the

deficiency would be 4.34%, which is within the

acceptable limits.

(iii)Minor operation:- This deficiency is subjective. No MSR.

(iv)Deliveries:- This deficiency is subjective. No MSR.

(v)ICCU & PICU/NICU:- This deficiency is subjective. No

MSR.

(vi)Non-teaching staff:- There is no such mention in SAF

2.24.

(vii)Central Library:- There is no such mention in the previous

assessment report. However, the explanation of the

College is acceptable.

LOP Confirmed.”

5.The Ministry after considering the recommendation of the

MCI, the report of the DGHS and the views received from

the OC, finally chose to accept the recommendation of the

MCI. The decision of the Ministry was communicated to the

petitioner college vide letter dated 31

st

May, 2017, debarring

the college from admitting students for two years i.e.

6

2017-18 & 2018-19, and also authorising the MCI to

encash the bank guarantee.

6.Feeling aggrieved by the said decision, the petitioners filed a

writ petition before the Allahabad High Court, being WP (C)

No.15302 of 2017 which was disposed of on 8

th

August,

2017 following the decision of this Court in the case of

Glocal Medical College & Super Speciality Hospital

and Research Centre Vs. Union of India and Anr.

1

,

decided on 1

st

August, 2017.

7.Pursuant to the aforementioned decision of the High Court,

the Ministry granted a hearing to the petitioner college on

16

th

August, 2017. It appears that the Hearing Committee

considered the record, oral and written submissions of the

college also the fresh representation given by the college.

The Hearing Committee then submitted its report to the

Ministry. Relying on the said recommendation of the

Hearing Committee, the Ministry vide order dated 19

th

August, 2017 reiterated its earlier decision dated 31

st

May,

2017, debarring the college from admitting students for a

period of two years i.e. 2017-18 & 2018-19 and also,

authorising MCI to encash the bank guarantee of Rs.2

1 2017 (8) SCALE 356

7

Crore. This decision of the Ministry was communicated to

the petitioners. The crucial part of this decision is in

paragraphs 17 and 18 which read as follows:

“17.Now, therefore, in compliance with the above direction

of Court, the Ministry granted hearing to the college on

16.8.2017. The Hearing Committee after considering the

records and oral & written submission of the college

submitted its report to the Ministry. The findings of the

Hearing Committee are as under:

The college has tried to explain deficiency of 4

faculty and 5 residents in terms of visit to bank for

currency exchange in the wake of demonetization.

This could be a plausible explanation but the

Committee is not inclined to accept it as it cannot be

proved. Further, such absence during duty hours

cannot be overlooked. The Committee inquired from

the college why the 5 residents on night off could not

come, even late, for the head count. They would have

been accordingly reflected as such in the SAF.

The college claimed 6 minor operations on the

day of assessment but could not produce supportive

document or evidence, which they claimed to have

submitted in the earlier hearing.

The contention of college on MRD and library is

accepted and the deficiency may not exist. The

college should be having paramedical non teaching

staff but they did not produce the list/documents

before the Hearing Committee.

In view of the above 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.

18.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

authorize MCI to encash the Bank Guarantee of Rs.2 Crore.”

8

8.Aggrieved, the petitioners have prayed for quashing of the

said order and further, directing respondent No.1 (Union of

India through Secretary, Ministry of Health and Family

Welfare) to issue first renewal of Letter of Permission for

admission of the 2

nd

batch of 150 MBBS students in the

petitioner college for the academic session 2017-18 and also

refrain from encashing the bank guarantee dated 15

th

September, 2017 offered by the petitioners in favour of MCI

in the sum of Rs.2 Crore.

9.According to the petitioners, they had placed all the relevant

material before the Competent Authority of the Central

Government, clearly indicating that the deficiencies noticed

in the concerned assessment report were insignificant and

within permissible limit. Our attention was invited to the

communication sent by the MCI dated 26

th

December, 2016,

highlighting the deficiencies noticed by the Council

Assessors on 18

th

& 19

th

November, 2016. The petitioners

have also relied on the explanation offered by the petitioners

before the Hearing Committee as well as OC. It is

contended that the explanation found favour with the OC.

The Competent Authority of the Central Government has,

9

however, completely disregarded the opinion of the OC. It

was then contended that the recent report of the Hearing

Committee does not take the matter any further. The

relevant portion of the said report has been extracted in

paragraph 17 of the impugned decision of the Ministry. On

the one hand, the Hearing Committee observed that the

explanation offered by the petitioner college regarding

absence of faculty and residents was plausible, but it still

chose to disregard that explanation on the specious ground

that it was not proved. Further, no analysis as to why the

opinion of the OC should be deviated is found in the

observations of the Hearing Committee. It is contended

that the absence of faculty and residents on the day of

inspection ought to be excluded, in which case the

deficiency of faculty would stand reduced to only 6.15% and

of residents to only 4.34%. Further, the adverse

observations noted by the Hearing Committee with regard to

minor operations and paramedical non-teaching staff is not

consistent with the record produced by the petitioner

college during the hearing. It is submitted that in view of

the recent pronouncements of this Court in respect of other

10

institutions, similar relief be given to the petitioner

institution. A comparative chart of the deficiencies in

respect of the said institutions was produced before us to

contend that in so far as the petitioner college is concerned,

the deficiencies were marginal and relatively less. The main

grievance of the petitioners is that despite clear directions

given by the Court to consider the proposal of the petitioner

college after taking into account the material produced and

explanation offered by the petitioners, including the fresh

representation, neither the Hearing Committee nor the

Competent Authority of the Central Government has

adverted to the explanation and material relied upon by the

petitioners. Moreso, neither the Hearing Committee nor the

Competent Authority of the Central Government has

analysed the opinion of the OC which had accepted the

explanation or recorded any reason to deviate from the

same. The fresh decision of the Competent Authority of the

Central Government is, again, a mechanical order, if not

perverse. It is against the spirit of the directions issued by

the Court to reconsider the proposal afresh and record

reasons. It is, therefore, submitted that the impugned

11

decision deserves to be quashed and set aside and further

directions should be issued to the respondents to issue

confirmation of Letter of Permission in favour of the

petitioner college for the academic session 2016-17 and also

allow the petitioner college to admit 150 students in the

second batch of the MBBS course for the academic session

2017-18.

10. Per contra, the respondents submit that the final

decision of the Competent Authority of the Central

Government is just and proper, in the fact situation of the

present case. Inasmuch as the Hearing Committee did not

accept the explanation offered by the petitioner regarding

the deficiencies relating to faculty members and residents.

The Hearing Committee was also not convinced with the

explanation given by the petitioners about their claim of 6

(six) minor operations as the college had failed to produce

supporting documents and evidence in that regard.

Similarly, the college failed to produce material to

substantiate that the college had paramedical non-teaching

staff which was one of the essential requirements. Learned

counsel for the respondents submitted that the recent

12

decisions rendered by this Court on which reliance has

been placed, were on the facts of the concerned case. Our

attention was also invited to the relevant provisions of the

Act, Regulations and Statutory Scheme formulated for

consideration of application for permission to establish a

medical college. It is submitted that the assessment done by

the MCI in the present case was with regard to the

verification of the compliance submitted by the college for

considering the proposal for confirmation of conditional LOP

granted to the petitioner college for the academic session

2016-2017. For that reason, the minimum standards

regarding infrastructure and academic requirements as

postulated in the Statutory Scheme must govern the

consideration of the proposal. The benchmark regarding

infrastructure and academics to be fulfilled by the applicant

college for permission to establish medical college are

pre-conditions. However, without fulfilment of those

conditions, conditional LOP was granted to the petitioner

college on the basis of direction issued by the OC, which

was then acted upon by the Central Government by issuing

a formal LOP for the academic session 2016-2017 on

13

conditions specified by the OC. The college has failed to

fulfil those conditions as was noticed during the verification

of compliance. It is submitted that no indulgence be shown

to the petitioner college, much less, grant further relief

claimed to allow the petitioner college to admit students in

the second batch of the MBBS course for the academic

session 2017-18.

11. Heard Mr. Rajiv Dhavan, learned senior counsel along

with Mr. Abdhesh Chaudhary, learned counsel for the

petitioner, Mr. Maninder Singh, learned Additional Solicitor

General for Union of India and Mr. Vikas Singh, learned

senior counsel along with Mr. Gaurav Sharma, learned

counsel for the Medical Council of India.

12. We must first answer the submission of the petitioners

that the satisfaction recorded by the OC whilst accepting

the explanation offered by the petitioners was binding on

the Central Government. We do not agree with this

submission. It is one thing to say that the

satisfaction/opinion recorded by the OC constituted by this

Court is a relevant matter and which must receive due

attention of the Hearing Committee as well as the Central

14

Government. But it is not possible to accept the contention

that the opinion of OC must bind the Hearing Committee

and the Central Government whilst discharging their

statutory duties, moreso, when the legislative scheme of the

Act has bestowed the final authority upon the Central

Government to grant or refuse to grant permission in terms

of Section 10-A of the Act.

13. Having said this, we may now advert to the

deficiencies noticed in the assessment report regarding

verification of compliance submitted by the college. The

deficiencies noticed in the said report in respect of faculty

members and residents were sought to be explained by the

college - that 4 (four) faculty members and 5 (five) residents

had gone for exchange/withdrawal of money from the bank

with permission of the Principal and 3 (three) were on

sanctioned leave. This explanation commended to the OC as

plausible and on that basis, the OC was of the view that

deficiency in respect of faculty members would stand

reduced to the permissible limit. Hence, the OC

recommended confirmation of LOP. The Hearing Committee,

however, observed that the petitioner college did not

15

substantiate the stand so taken. Further, absence of such

large number of faculties and residents during

working-duty hours could not be countenanced.

Additionally, the Hearing Committee was of the view that

the college was not able to explain the absence of 5 (five)

residents who were on night off and yet could not come,

even late, for the head count. Besides, no entry to that effect

was recorded in the Standard Assessment Forms (for short,

“SAF”). The OC, however, has not commented on this aspect

of the matter at all. In our opinion, the view taken by the

Competent Authority of the Central Government is a

possible view. The pre-conditions to maintain high

academic standards for imparting MBBS course cannot be

undermined. In this case, the deficiency of faculty and

residents was significant, besides the other two deficiencies

taken note of by the Hearing Committee and the Central

Government in the impugned decision. For that, the college

did not produce supportive documents or evidence in

respect of its claim of 6 (six) minor operations and list of

paramedical non-teaching staff. These deficiencies cannot

16

be treated as trivial or unrelated to maintenance of high

standards of imparting medical education.

14. We are conscious of the fact that the proposal under

consideration was for establishment of a new medical

college from academic session 2016-17 and that has to be

examined keeping in mind the norms specified in the

statutory scheme formulated regarding permission to

establish a new medical college. That scheme postulates the

minimum standard of education, which has been

formulated by the MCI in terms of Section 19-A of the Act.

The scheme provides for minimum infrastructure facilities

and staff requirements for 100 admissions. It also provides

guidance as to how deficiency in respect of those matters

should be calculated. The Medical Council of India has

published those norms and the schemes for requirements to

be fulfilled by the applicant College(s) for obtaining Letter of

Intent and Letter of Permission for establishment of a new

medical college and for yearly renewal under Section 10-A of

the Act. Inter alia, it provides as follows:-

“Notes:

For purpose of working out the deficiency:

(1) The deficiency of teaching faculty and Resident Doctors shall be

17

counted separately.

(A) For Teaching Faculty:

(a) For calculating the deficiency of faculty, Prof. Assoc Prof., Asst. Prof & Tutor

in respective departments shall be counted together.

(b) Any excess teaching faculty in higher cadre can compensate the deficiency of

lower cadre of the same department only.

(c) Any excess teaching faculty of lower cadre/category in any department

cannot compensate the deficiency of any teaching faculty in the higher

cadre/category of the same department or any other department. e.g. excess of

Assistant Professor cannot compensate the deficiency of Associate Professor or

Professor.

(d) Excess/Extra teaching faculty of any department cannot compensate the

deficiency of any teaching faculty in any other department.

(B) For Resident Doctors:

(a) Excess of SR can be compensated to the deficiency of JR of the same

department only.

(b) Excess SR/JR of any department cannot compensate the deficiency of SR/JR

in any other department.

(c)Any excess of JR cannot compensate the deficiency of SR in same or any other

department.

(d) Any excess/extra teaching faculty of same or any other department cannot

compensate the deficiency of SR/JR.

e.g. excess of Assistant Professor cannot compensate the deficiency of SR or JR.

(2) A separate department of Dentistry/Dental faculty is not required where a

dental college is available in same campus/city and run by the same

management.

(3) College running PG programme require additional staff, beds & other

requirements as per the PG Regulations – 2000.

Designat

ion

LOP

(1

st

Batch)

Ist Renewal

(2

nd

Batch)

IInd

Renewal

(3

rd

Batch)

IIIrd

Renewal

(4

th

Batch)

IVth

Renewal

(5

th

Batch)

Recog-

nition

Faculty

total

59 85 89 97 106 106

Resident

Total

45 47 47 54 62 62

15. It may be useful to advert to the Scheme dealing with

grant of permission as substituted in terms of Gazette

Notification dated 08.02.2016. The same reads thus:-

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“8. GRANT OF PERMISSION:

(i) The Central Government, on the recommendation of the

Council for Letter of Permission, may issue a letter to set up a

new medical college with such conditions or modifications in the

original proposal as may be considered necessary. This letter

can also include a clear cut statement of preliminary

requirements to be met in respect of buildings, infrastructural

facilities, medical and allied equipments, faculty and staff

before admitting the first batch of students. The formal

permission may be granted after the above conditions and

modifications are accepted and performance bank guarantee for

the required sums are furnished by the person and after

consulting the Medical Council of India.

(1)The formal permission may include a time bound programme

for the establishment of the medical college and expansion of

the hospital facilities. The permission may also define annual

targets as may be fixed by the Council to be achieved by the

person to commensurate with the intake of students during the

following years.

The following shall be added:

“(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 application 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 deficiency of teaching faculty

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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

IMPC Act, 1956 along with direction of stoppage

of admissions in permitted Postgraduate courses.

(c)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

20

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.

(2)The procedure for ‘Renewal’ of recognition shall be same as

applicable for the award of recognition.

(3)Failure to seek timely renewal of recognition as required in

sub-clause (a) supra shall invariably result in stoppage of

admissions to the concerned Undergraduate Course of MBBS

at the said institute.”

As per the terms of Notification published on 16.04.2010 in the

Gazette of India.

In terms of Gazette Notification dated 18.03.2016 the following

additions/modifications/deletions/substitutions, shall be, as

indicated therein:

3.(1) In Clause 8(3)(1)(a) under the heading of “Colleges in the

stage upto II renewal (i.e. Admission of third batch)” shall be

substituted as:-

(a) Colleges in the stage of Letter of Permission upto II renewal

(i.e. Admission of third batch).

If it is observed during any inspection/assessment of the

institute that the deficiency of teaching faculty and/or

Residents is more than 30% and/or bed occupancy is <50%

(45% in North East, Hilly terrain, etc.), compliance of

rectification of deficiencies from such an institute will not be

considered for issue of Letter of Permission (LOP/renewal of

permission that Academic Year.

In Clause 8(3)(1)(b) under the heading of “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” shall be

substituted as:-

(b) Colleges in the stage of III & IV renewal (i.e. Admission of

fourth & fifth batch)

21

If it is observed during any inspection of the Institute that the

deficiency of teaching faculty and/or residents is more than

20% and/or bed occupancy is <65% compliance of rectification

of deficiencies from such an institute will not be considered for

renewal of permission in that Academic Year.

In Clause 8(3)(1)(c) under the heading of “Colleges which are

already recognized for award of M.B.B.S, degree and/or

running Postgraduate courses” shall be substituted as:-

( C) Colleges which are already recognised for award of

M.B.B.S. degree and /or running Postgraduate courses.

If it is observed during any inspection/assessment of the

institute that the deficiency of teaching faculty and/or

Residents is more than 10% and/or bed occupancy is <70%,

compliance of rectification of deficiency from such an institute

will not be considered for issue of renewal of permission in

that Academic Year and further such ain 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 recommendations for withdrawal of

recognition of the courses run by that institute should not be

made for undergraduate and postgraduate courses which are

recognised u/s 11(2) of the IMC Act, 1956 along with direction

of stoppage of admissions in permitted postgraduate courses.

In Clause 8(3)(1)(d) under the heading “Colleges which are

found to have employed teachers with fake/forged documents:

the second paragraph shall be substituted as:-

“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.”

4.The Council may obtain any other information from the

proposed medical college as it deems fit and necessary.

Whenever 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,

22

thereafter, submit its report in the same manner as prescribed

for the initial report.”

Considering the requirements of the scheme and as the petitioner

college failed to fulfil the conditions specified by the OC as

incorporated in the formal conditional Letter of Permission dated

12

th

September, 2016, the question of confirming the Letter of

Permission for the academic session 2016-17 without removal of

deficiencies in all respects does not arise. The petitioner college

must first remove all those deficiencies to become eligible for

confirmation of LOP, as per the undertaking given by the college

in that regard.

16. The petitioners have relied upon recent decisions of

this Court dealing with similar issues in the cases viz Dr.

Jagat Narain Subharti Charitable Trust & Anr. Vs.

Union of India and Ors.

2

; Gangajali Education Society

& Anr. Vs. Union of India & Ors.

3

; Saraswati

Educational Charitable Trust & Anr. Vs. Union of India

& Ors.

4

; Apollo Institute of Medical Sciences &

Research & Ors. Vs. Union of India & Anr.

5

, to contend

that in similar situations, this Court preferred to rely on the

2 Writ Petition (C) No. 513 of 2017, decided on 30.08.2017.

3 Writ Petition (C) No.709 of 2017, decided on 31.08.2017.

4 Writ Petition (C) No. 515 of 2017, decided on 01.09.2017.

5 Writ Petition (C) No. 496 of 2017, decided on 31.08.2017.

23

opinion given by the OC and overturned the conclusion

reached by the Competent Authority of the Central

Government for debarring the concerned institution from

admitting students for a period of two years and authorising

MCI to encash bank guarantee of Rs.2 Crore. This

submission does not commend us. For, the dictum in those

cases is contextual and on facts of those cases. In the

present case, the Hearing Committee has duly considered

the explanation offered by the college. It has, however,

rejected the same for the reasons recorded in the impugned

decision. The fact that specific reference to the opinion of

the OC is absent in the conclusion recorded by the Hearing

Committee, it does not follow that the issue has not been

considered by the Hearing Committee or by the Central

Government. The Competent Authority in the final decision

after adverting to the observations of the OC and also of the

Hearing Committee has noted that the absence of such

large number of faculties and residents during duty hours

was unacceptable and, moreso, failure of the college to

ensure presence of 5 (five) residents on night off and yet

could not come, even late, for the head count nor was it

24

reflected in the SAF. This aspect has not been dealt with by

the OC in its opinion dated 14

th

May, 2017. Therefore,

non-acceptance of the explanation offered by the college by

the Hearing Committee and the Competent Authority of the

Central Government, cannot be said to be irrelevant, unjust

or for extraneous consideration.

17. As stated earlier, the college had failed to produce

supportive documents or evidence about 6 (six) minor

operations on the day of assessment. No doubt, the OC

accepted the explanation of the college by holding that there

was no Minimum Standard Requirement (for short ‘MSR’) in

that behalf. The finding in the assessment report was that

there was only one minor operation on the day of

assessment whereas the college claimed to have conducted

6 (six) operations. Nothing prevented the college from

producing documents or evidence in support of that claim

before the Hearing Committee. It was open to the

petitioners to invite the attention of the Hearing Committee

to such documents, if already placed on record during the

earlier hearing. That was obviously not done. Else, the

Hearing Committee in its conclusion submitted to the

25

Ministry may have referred to it. The Hearing Committee

has noted that even the relevant list/documents in relation

to paramedical non-teaching staff was not produced before

it. There is no reason to doubt the correctness of this

factual position noted by the Hearing Committee. In any

case, since the deficiencies in respect of faculty (16.79%)

and residents (21.73%) remains unexplained and being

significant, the same cannot be overlooked. This appears to

be the view taken by the Hearing Committee and the

Competent Authority of the Central Government.

18. Be that as it may, the opinion of the Hearing

Committee, which is the basis for passing the impugned

decision, is founded on the performance of the college on

the day of inspection dated 18

th

– 19

th

November, 2016. The

question is: whether absence of faculty members and

residents on the given day, assuming it to be substantial in

number, per se, could be the basis for determining the

efficiency and performance of the college for the rest of the

academic session while considering the proposal for grant of

permission? There is nothing in the opinion of the Hearing

Committee or the decision of the Competent Authority that

26

requisite number of faculty members and residents was not

employed in the petitioner college or that the claim of the

petitioner college in that behalf was bogus. The noting is

about the absence of such large number of faculty and

residents on the day of inspection and during the duty

hours. Assuming that the college could not secure the

presence of those persons at the time of inspection, it does

not follow that those faculty members and residents were

not on the pay roll and in the employment of the petitioner

college. This aspect certainly requires proper verification

and consideration by the concerned authority.

19. A priori, we may adopt the course as in the case of

World College of Medical Sciences & Research Vs.

Union of India

6

, by directing the respondents to allow the

students already admitted in the petitioner college on the

basis of conditional LOP for the academic session 2016-17,

to continue their studies. The MCI shall send its Inspection

Team within a period of three months to submit an

assessment report regarding the overall performance and

efficiency of the petitioner college and deficiencies, if any,

and give time to the petitioner college to remove those

6 Writ Petition (C) No. 514 of 2017, decided on 05.09.2017.

27

deficiencies within the time specified in that regard. The

petitioner medical college shall then report its compliance

and communicate the removal of deficiencies to MCI,

whereafter it will be open to the MCI to verify the position

and then submit its recommendation to the Central

Government. The Ministry shall take a final decision within

one month of the receipt of the recommendation from the

MCI. Until such decision is taken and communicated to the

petitioners, the Bank Guarantee offered by the petitioners

in the sum of Rs. Two Crore shall not be encashed by the

MCI but the petitioners shall keep the same alive. In the

event the final decision of the Competent Authority of the

Central Government is adverse to the petitioners, it will be

open to them to take recourse to such remedies as may be

available in law.

20. Be it noted that the purpose of the stated inspection

would be to consider the confirmation of LOP in favour of

petitioner college for the academic session 2016-2017. We

further direct the respondents to treat the renewal

application submitted by the petitioner college for the

academic session 2017-18 as having been made for the

28

academic session 2018-19 and process the same in

accordance with law with promptitude.

21. Writ petition is disposed of in the aforementioned

terms. No order as to costs.

……………………………….CJI.

(Dipak Misra)

………………………………….J.

(Amitava Roy)

………………………………….J.

(A.M. Khanwilkar)

New Delhi,

Dated: September 12, 2017.