WORLD COLLEGE OF MEDICAL SCIENCES & RESEARCH AND HOSPITAL & ANR. v. UNION OF INDIA AND ANR.

E The Judgment of the Court was delivered by ·A.M. KHANWILKAR, J. 1. The petitioners have filed this writ petition for issuance of a writ of mandamus or any other appropriate writ, for quashing the order passed by respondent No. I dated 31" May, 2017, debarring the petitioner medical college from admitting students in F the MBBS course for the academic sessions 2017-18 and 2018-19 and authorising the respondent No.2 Medical Council of India (for short "MCI") to encash the bank guarantee of Rs.2 crore offered by th$! petitioners and further, to direct the respondents to grant renewal of permission to the petitioner medical college for the academic session G 2017-18 and permit the college to admit students for the current year.

2Copy pinpoint2. One Arnma Chandravati Educational and Charitable Trust, New Delhi had applied to respondent No.I, Ministry of Health & Family Welfare, Government of India (for short "MHFW") for permission to establish a medical college at Jhajjar, Haryana in the name and style of H 'World College of Medical Sciences & Research, Jhajjar' from the

. WORLD COLLEGE OF MEDICAL SCIENCES & RESEARCH 719 AND HOSPITAL v. U.O.I. [A.M. KHANWILKAR, J.]

academic session 2016-17 onwards. In light ofthe opinion of the Oversight A Committee (for short "OC") appointed by this Court, the MHFW vide letter/order dated 20th August, 2016, issued a Letter of Pennission to the petitioners to establish the medical college, for the academic session 2016-17, subject to certain conditions, including submission of a bank guarantee of Rs.2 crore and inspection to be carried out by the OC for verification of compliance.

3Copy pinpoint3. Thereafter, MCI conducted an assessment on 26'h-27'h October, 2016 with regard to verification of the conditions stipulated in the Letter of Permission issued on 201hAugust, 2016 and after considering this assessment report, the Executive Committee of the MCI, in its meeting held on 22"d December, 2016, noted certain deficiencies in the petitioner college. The MCI, vide letter dated 26'11 December, 2016, submitted 'its recommendation to the Central Government that the petitioner college should be debarred from admitting students for two academic sessions ·i.e. 2017-18 & 2018-19 and that the bank guarantee furnished by the petitioners ought to be encashed. After receipt of the said recommendation, the Director General of Health Services (for sho11 "DGHS") gaye a personal hearing to the petitioners on l 7tJi January, 2017 and then submitted its report to the Competent Authority. The relevant portion of the report reads thus: "12. Whereas the Ministry decided to grant a personal hearing to the College on 17.01.2017 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 remarked as under:

Sri. Deficiencies reported by MCI Remarks of hearing F No. c01rmittee i. Deficiency of faculty is 2923% as No sati .yfiictory reply detailed in the report .

ii. Shortage of Residents is 28.26% as No sati.yfactory reply detailed iii the report. G iii. Bed O:cupon::y is 34% 011 day <l No sati.yjactory reply assessment. iv. There wa\' ,'.'![, Normal Delivery & NIL No sati.~fiictmy reply Caesarean Section on day of assessment. There war NIL ooman in Labour Ro0111. H

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A v. !CUs:- There Wal' NIL JXJliert in !CCV & --- M!CU, aily 1 in MaJ/PlaJ air/ ooly 2 in SICU on dry ofcl!se;smerl. vi. Centrd librcry: It is pcrtici{v air- To be verifi«i in, wultioned. There is m sepcrt:tion of 11t"!dicd ccilege B Stuti!nts' Pl!adng Roan (Outsiti!) & fiucknts' Realing roan (lmick). vii. Amt~ deJXJf1ment: There ere aily 65 To be ve.riji«i in nvunted specimens. medicd college"

c 4. The Competent Authority forwarded the said report to the OC for guidance, which then conveyed its opinion to the MHFW vide letter dated 14lhMay,2017,asfollows: "(i)Facu/ty:- The College has explained the grounds on which the assessors had not accepted the 4 faculty members. Faculty D deficiency of 06.18% is within acceptable limits. (U on leave + 4 not considered being late) Which is acceptable; hence there is no deficiency. (ii)Residents:- The College has explained the grounds 011 E which the assessors had not accepted the 6 residents. Resident deficiency is 08. 69% (3 on leave+6 not considered being late) which is acceptable. Hence there is no deficiency. (iii)Bed Occupancy:- The College has explained the grounds which are acceptable and hence there is no deficiency. F (iv)Deliveries:- This deficiency is subjective. No MSR. (v)JCUs:- This -aeficiency is subjective. No MSR. (vi)Central Library:- Explanation of the College is acceptable. (vii)Anatomy department:- This deficiency is subjective. No G MSR. LOP Confirmed "

5Copy pinpoint5. Despite the aforesaid opinion of the OC, confirming that there was no deficiency, respondent No. l passed an order on 31" May, 2017, whereby it debarred the petitioner medical college from admitting students H

WORLD COLLEGE OF MEDICAL SCIENCES & RESEARCH 721 AND HOSPITAL v. U.0.1. [A.M. KHANWILKAR, J.]

for two academic sessions i.e. 2017-18 and 2018-19 and also authorised A the MCI to encash.the bank guarantee offered by the petitioners.

6Copy pinpoint6. Aggrieved, the petitioners filed this writ petition on 3rd July, 2017 and the same was heard along with connected matters involving similar issues, being Global Medical College and Super Speciality Hospital and Research Centre v Union of India & Anr. 1 This Court B vide judgment and order dated l" August, 2017 issued directions to the Competent Authority to reconsider the matter afresh and to record reasons. The relevant portion of the order reads as under: "24. Having regard to the fact that the Oversight Committee has been constituted by this Court and is also empowered to C oversee all statutory functions under the Act, and further all policy decisions of the MCI would require its approval, its recommendations, to state the least, on the is.s;ue of establishment of a medical college, as in this case, can by no means be disregarded or left out of consideration. Noticeably, D this Court did also empower the Oversight Committee to issue appropriate remedial directions. In our view, in the overall perspective, the materials on record bearing on the claim of the petitioner institutions/colleges for confirmation of the conditional letters of permission granted to them require a fresh consideration to obviate the possibility of any injustice E in the process.

25. In the above persuasive premise, the Central Government is hereby ordered to consider a.fresh the materials on record pertaining to the issue of confirmation or otherwise of the letter of permission granted to the petitioner colleges/ F 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 artd the Oversight Committee, as available on records. It would dso afford an opportunity of liearing to the petitioner G colleges/insti.'utions to the extent necessary. The process of hearing and final reasoned decision thereon, as ordered, would be completed peremptr:.rily wi({iin a period of 10 days

'2017 (8) SCALE 356 H

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A from today. The parties would unfailingly co-operate in compliance of this direction to meet the time frame fixed. " Iii light of the aforesaid order, the petitioners were granted a fresh hearing before respondent No. I on 3"' August, 2017 during which the petitioners submitted a fresh representation to respondent No~ I. Despite B the fresh hearing, respondent No. I issued an order dated Io•• August, 2017, confirming its earlier order and rejected the said representation. The relevant portion of the order is enumerated hereunder: "16. Now, in compliance with the above direction of Hon'ble ( Supreme Court dated 01.08.2017, the Ministry granted c hearing to the college on 03.08.2017. Ihe Hearing Committee after considering the record and oral & written submission of the college submitted its report to the Ministry. The findings of Hearing Committee are as under: The committee noted that the inspection was conducted on D 26'• - 27•• October. 2016. Diwali was on 29•• October. The awment ofthe college that the inspection was too close to <1 maior national festival cannot be disputed. As per regulations MCI should not conduct inspections two days before or after major festivals. Jn this case the head count on the first dqv ofinspection on 26.10.2016 was 3 dm•s before Diwali. Further. JO faculty have been verified by the assessors but were not considered in head count since they came later than the avoointed time of 11 :00 AM. The college has submitted declaration form for the 27 facultvlresidents who were not conside~ed by MCI. The salary slips in respect of these 27 staffe do -not bear details of bank account. PAN/PRAN etc. The college has submitted from MCI vendor that the Biometric Attendance Machine ha11e been installed. It suggests 140 G faculty are available of which 112 were enrolled. Since this happened subsequentlv to the inspection. it does not have bearing on the extent ofdeliciencv as on the dqv ofinspection. The bed occupancy fir:ure of 62% as' claimed by the college is supported by the MRD data. The assessors have noted as · only 34%. H . ' I•

WORLD COLLEGE OF MEDICAL SCIENCES & RESEARCH 723 . AND HOSPITAL v. tJ.O.l. [A.M. KHANWILKAR, J.]

Jn view of the magnitude of the deficiencies pointed out in A the inspection 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.

17. Accepting the recommendations of the Hearing Committee, B 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 Crores."

7Copy pinpoint7. The petitioners, aggrieved by the aforementioned decision, have c filed ari Interlocutory Application in the pending writ petition bearing I.A. No. 79050 of 2017, praying for quashing the orders passed by respondent No.l dated 31" May, 2017 and lO'h August, 2017, which debarred the petitioner college for two years and authorised respondent No.2 to encash the bank guarantee of Rs.2 crore offered by the petitioners. The petitioners have also prayed for further direction against the respondents to confirm the LOP of the petitioner medical college for the year 2016-17 and grant renewal of permission to the petitioner medical college for the academic session 2017-18 and allow the peti- tioner medical college to admit 150 students in the MBBS course for the academic session 2017-18 by participating in the current year counselling process on the basis of conditional LOP. This application has been heard along with the writ petition.

8Copy pinpoint8. The petitioners contend that the Competent Authority has once· again passed a mechanical order without considering the relevant record and completely disregarded the opinion of the OC, which was after due consideration of the explanation offered by the petitioner-s. It is submit- ted that the inspection conducted on 261h-27•h October, 2016 was too close to a major national festival. That fact is not in dispute as Diwali was on 29th October, 2016. It was not permissible to conduct inspection two days before or after any major festival. That stipulation is to obviate the possibility of ascertaining the correct position regarding the faculty, residents, bed occupancy and absence on account of the festival. It is submitted that the inspecting team adopted a hyper technical approach in ignoring the presence of staff/faculty who came in later than the appointed time of 11.00 a.m. The explanation offered by the petitioners had found favour with the OC. Further, the factum of salary slips, in H

724 SUPREME COURT REPORTS [2017] 9 S.C.R.

A rer.pect of27 staff members, which did not bear details of bank account PAN/PRAN etc., was in the nature of clerical lapse and not pertaining...... to infrastructure and academic requirement. If the inspecting team had~ any suspicion, it could have made further inquiries to reassure itself before reckoning that fact to deny grant of permission. Significantly, the college had submitted Biometric Attendance Machine records but that has been completely disregarded because it was furnished subsequent to the inspection. The Competent Authority mechanically adopted the same reasons given by the MCI, as on the earlier occasion, which rendered the statutory remedy under Section IOA (4) of the Indian Medical Council Act, 1956, meaningless. The statutory remedy provided by the enactment is to enable the college to produce material in rebuttal of a fact noticed by the MCI in its negative recommendation. Similarly, the explanation offered by the college regarding bed occupancy, supported by MRD data, has been disregarded and instead the noting made by the Assessing Officer has been preferred. It is submitted that the avowed object of relegating the petitioner college before the 0 Competent Authority, with direction to the Competent Authority to reconsider the entire matter afresh and to record reasons, has been defeated by the mechanical approach adopted by the Competent Authority. No analysis has been done in reference to the opinion recorded by the OC in its letter dated 14'h May, 2017, which had E accepted the explanation offered by the petitioners. The Competent Authority has not given any tangible reason as to why the opinion of the OC was incorrect or unacceptable. It is therefore submitted that the writ petition and the application be allowed and appropriate directions be issued to the respondents.

9Copy pinpoint9. The respondents, on the other hand, would contend that it is not open to this Court to sit over the subjective satisfaction of the inspecting body, which is an independent body consisting of respectable persons from the field of medicine. It is submitted that no fault can be found with the decision of the Competent Authority, which has decided the matter on the basis of the recommendation made by the MCI. The impugned decision is a well considered one and deals with all the relevant matters necessitating the action of debarring the petitioner college from admitting students for two academic sessions and authorising MCI to encash the bank guarantee of Rs.2 crore offered by the petitioners. The respondents have essentially relied on the assessment repo1t founded on the information gathered during the inspection conducted on 2611i-z7th

WORLD COLLEGE OF MEDICAL SCIENCES & RESEARCH 725 AND HOSPITAL v.U.0.1. [A.M. KHANWILKAR, J.]

October, 2016. It is submitted that the verification and head count was done on 26'h October, 2016, which was three days before Diwali, inasmuch as Diwali was on 29'h October, 2016. Accordingly, the head count conducted on 26'h October, 2016 was not in breach of the statutory provision. Hence, the finding of the assessors could neither be ·ignored nor disregarded on lhe basis of some specious plea taken.by the college. Moreso, because discrepancy was also noticed in the salary · slips in respect of almost 27 staff members, raising grave suspicion. It is submitted that even the finding regarding bed occupancy noted in the assessment report cannot be taken lightly, merely because the petitioners are relying on MRD data . The possibility of manipulating the MRD data cannot be ruled out. Further, the physical verification done by an independent agency on the spot must be given more credence, particularly when the statutory authority such as MCI and Competent Authority have accepted the same. The respondents contend that the writ petition is devoid of merits and ought to be dismissed.

10Copy pinpoint10. Having considered the rival submissions, we are in agreement . D with the petitioners that the Competent Authority has once again failed to consider the relevant matters in the spirit of the direction given by this Court on l" August, 2017. It has mechanically adverted to the recommendation of the Hearing Committee, which, in turn, has . reproduced the factual position narrated in the assessment report in respect of the inspection conducted on 26'h·27tl' October, 2016. The E Competent Authority has not examined the matter with respect to the specific plea taken by the petitioners which had found favour with the · OC. The OC in its recommendation dated l 4'h May, 2017 had noted that the faculty.deficiency was only 06.18% which was within the acceptable . norms. The OC had noted that the assessing team completely glossed over the fact that some staff was on leave due .to the ensuing Diwali festival and that 4 staff members had come late after the scheduled time. The explanation offered by the petitioners in that behalf found favour with the .OC. However, neither the Hearing Committee nor the Competent Authority has dealt with the {actual matrix and in particular, the explanation offered by the petitioners, including the fresh representation.

11Copy pinpoint11. Having said thus, we would have proceeded to isstie directions to the respondents to allow the petitioner medical college to admit students in the MBBS course for the . academic session 2017-2018. H

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A However, in the present case, we find that the MCI, which is an expert body, on the day of assessment has noticed deficiency of 29.23% of Faculty, 28.26% of Residents and 34% of Bed Occupancy, each of which was beyond the permissible limits. It has also taken into account the factum of'Nil Normal Delivery' and 'NIL Caesarean Section' on the B day of the assessment. . Further, there was only 1 patient in NICU/ PICU and 2 in SICU on the day of assessment and none in !CCU and MICU. It has also noticed that the Central Library was partially air-conditioned and there was no separation of Students' Reading Room (Outside) and Students' Reading Room (Inside). Further, there were only 65 mounted specimens in the Anatomy Department. Indeed, the C OC in its letter dated J4lh May, 2017 has noted that the explanation submitted by the college regarding deficiencies of Faculty, Residents and Bed Occupancy was acceptable and, therefore, within the permissible norms. As has been noticed earlier, the Competent Authority in the impugned decision did not accept the explanation offered by the petitioner college but, as aforesaid, no analysis is found in the impugned decision as to why the same was rejected and, moreso, no tangible reason is forthcoming as to why it chose to deviate from the opinion expressed by the OC. At the same time, we also find that the OC has not dealt with the factum noticed by the Competent Authority in the impugned decision that the salary slips in respect of 27 staff members of the college did not bear details of bank account, PAN, PRAN etc. That presupposes that there was no clear identity about the staff employed by the college to the extent of 27 persons which is quite significant and raises grave suspicion. The communication sent by the OC also does not explain as to why the Bed Occupancy figure of 62%, as claimed by the college, should be accepted as against the physical verification done by the assessor on the given day which found only 34% Bed Occupancy. The OC has also not recorded any reason as to why the abysmal level of occupancy and indoor patients in ICCU/ MlCU/ PICU and SICU was irrelevant. Absence of indoor patients was a reflection on the performance of the hospital as a whole, which inevitably would deprive the students of the said college of proper experience and exposure. The deficiencies noticed by the MCI were significant and beyond the permissible limits and the Competent Authority has not dealt with the relevant material including the fresh representation submitted by the petitioners. H

WORLD COLLEGE OF MEDICAL SCIENCES & RESEARCH 727 AND HOSPITAL v. U.O.I. [A.M. KHANWILKAR, J.]

12Copy pinpoint12. As we are not satisfied with the manner in which the A Competent Authority has handled the issue in spite of remitting the matter ·for reconsideration and for recording reasons, we may follow the course adopted in the case of Shri Venkateshwara University through its Registrar and Another Versus Union of India and A'notlrer2, and Krishna Mohan Medical College and Hospital & Anr. Versus Union B of India and Another. In the latter case, the Court observed thus:- "21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of C confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. D This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-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 ca.~e. have approached the issue, leads to the inevitable conclusion that the materials on records do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on G 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held. Consequently, on an overall view of the 'Writ Petition (C) No. 445 of2017, decided on 1" September, 2017. 'Writ Petition (C) No. 448 of2017, decided on I" September, 2017. H

728 SUPREME COURT REPORTS (2017] 9 S.C.R.

A materials available on record and balancing all relevant aspects, we are of the considered opinion that the conditional LOP granted to the petitioner college/institution on 12. 09.2016 ·for the academic year 2016-17 deserves to be confirmed. We order accordingly. However, as the Act and Regulations framed thereunder have been envisioned to attain the highest B standards of medical education, we direct the Central Government/MCI to cause a fresh impection of the petitioner college/institution to be made in accordance therewith.for the academic year 2018-19 and lay the report in respect thereof before this Court within a period of eight weeks ~ierefrom. A c copy of the report, needless to -state, would be jumished to the petitioner college/institution at the earliest so as to enable it to avail its remedies, if'so advised, under the act and the Regulations. The Central Government/MCI _would not encash the bank guaranteed furnished by the petitioner college/institution. For the present, the impugned order dated D .J0.8.2017 stands modified to this extent only. The direction for a writ, order or direction to the respondents to permit the petitioner college/institution to admit students for the academic year 2017-18, in the facts of the case, is declined. The Registry' would list the writ petition and I.A. No. 73716 of E 2017 immediately after the expily of period of eight weeks, as above mentioned. " In the case of Shri Venkateshwara University (supra), this Court observed thus:- "/ 7. Though we have so held, yet we think it appropriate that F 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 d£;/iciencies and give G 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 Q0/8-2019. 16 18. As we intend to appreciate the inJpection report and the deficiencies and the action taken up thereon by the H

WORLD COLLEGE OF MEDICAL SCIENCES&. RESEARCH 729 AND HOSPITAL v. U.0.I. [A.M. KHANWlLKAR, J.] . . . . ., ·... ' ' . ' . . .·.

institution, list the matter .on 15th No~ember. 20l 7. The . A renewal application that was submitted for: the academic session 2017-201 Smay be treated as the applicationfor the academic session 2018"2019. The bank guarantee which has been deposited shall not be encashed and be kept alive. " \ ' '

. 13. Be that as it may, we shall revert to the grievanceof the B petitioners that inspection could not have been .conducted on 261h-27°1 October, 2016, as the said dates were too close to a major national festival. This. argument deserves to be rejected, bearing in mind the interpretation of Clause 8(3)(l)(d) ofthe Establishment of Medical College Regulations, 1999 in the case of Shri Venkateshwara U11iversity C · (supra), which postulates that 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 dedared. by the Central/ .. State Govt. In the present case, the head count was carried out on the first day of inspection, on261hOctober, 2016; as noted in the assessment report. Diwali was on 29'h October, 2016, and thus, the inspection on D 26'h October, 2016 in no way offended Clause 8. Further,ifthe argument of the petitioners was to be accepted, it would result in 'a situation where · the inspection report dated 26<h-27'h October, 20l6 will have to be discarded as a whole. As the feasibility of grant of LOP for medical college is essentially founded on such assessment report, if that report is to be discarded then the petitioners cannot get any relief whatsoever, E . without fresh inspection. It is not necessary for us to dilate either on this ·aspect or any other contention raised by the petitioners as we are inclined to adopt the course predicated in the aforementioned t\vo recent decisions of this Court.

14Copy pinpoint14. Accordingly, we deem it appropriate to direct that the students F · alreadyadmitted inthe petitioner medical college for the academic session 2016-2017 be permitted to continue their studies. However, we decline to issue directions for grant of renewal of LOP for the academic session 2017-2018 . We direct MCI to send its Inspecting Team to the petitioner · college within a period of two months and inform the petitioner college G about the deficiencies if any, with option to remove the same within the time limit specified in that behalf. The petitioner medical college shall .report its compliance and .communicate the removal of deficiency to MCI, whereafter it will be open to the MCI to verify the position and then prepare its report to be submitted before this Court. Be it noted H

730 SUPREME COURT REPORTS [2017] 9 S.C.R.

A that the purpose of said inspection would be to consider the renewal of LOP in favour of petitioner college for the academic session 2018-2019. We further direct the respondents to treat the renewal application submitted by the petitioner college for the academic session 2017-18 for the academic session 2018-19. The bank guarantee furnished by the B petitioners shall not be encashed but the same be kept alive until further orders. The Registry shall place the matter for further consideration after ten weeks.

Divya Pandey Matter to be placed for further consideration.