TMI Blog2017 (9) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... NT Dipak Misra, In this writ petition, the petitioner-Trust and the college have prayed for issue of a writ of certiorari for quashing the order dated 31.05.2017 passed by the respondent No.1 whereunder the petitioners have been debarred from admitting 150 students in the MBBS course in the academic years 2017-18 and 2018-19 and further to restrain the respondent No.2, Medical Council of India (MCI), to encash the bank guarantee of ₹ 2 crores furnished by the petitioner-institution. That apart, the prayer is to quash the order dated 14.08.2017 passed by the respondent No.1 for reiterating the said order. The relief has been sought for issue of writ of mandamus, commanding the respondent No.1 to grant renewal for the academic year 2017-18 keeping in view the recommendations dated 14th May, 2017, submitted by the Oversight Committee constituted in terms of the order of this Court and to direct the respondents to permit the institution to admit 150 students in MBBS Course for the academic year 2017-18. 2. At the very inception, it is necessary to state that though many a document has been filed and prolonged, anxious, forceful and sometimes vehemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disapproval of the scheme of the petitioner under Section 10-A of the Act for the academic year 2016-17. However, after Oversight Committee was constituted, the Central Government issued a public notice informing all the Medical Colleges to submit a compliance report concerning their respective colleges who had applied for LOP for 2016-17. As the facts would unfold, the 1st respondent sent the compliance report along with the reply of the MCI to the Oversight Committee for consideration which on 11.08.2016 approved the same for the year 2016-17 imposing certain conditions. 5. At this juncture, it is necessary to state in what circumstances the Oversight Committee was constituted by the Constitution Bench. It referred to the functioning of MCI and keeping in view certain other factors including a report of the Expert Committee directed the Central Government to consider and to take further appropriate action in the matter at the earliest. At the same time, however, in exercise of power under Article 142, the Court constituted the Oversight Committee to oversee the functioning of the MCI and all other matters. In this regard the Court said:- In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para 3.2 of the said order read as follows:- 3.2 The applicants for new private colleges for UG for 2016-17 whose applications, have been approved by OC, shall submit to MHFW, within 15 days of issue of notification of approval by MHFW u/s 10A(4) of IMC Act, 1956, the following: (i) An affidavit from the Dean/Principal and Chairman of the Trust concerned, affirming fulfillment of all deficiencies and statements made in the respective compliance report submitted to MHFW by 22 June 2016, (ii) A bank guarantee in the amount of ₹ 2 crore in favour of MCI, which will be valid for 1 year or until the first renewal assessment, whichever is later. Such bank guarantee will be in addition to the prescribed fee submitted alongwith the application. 3.2(a) OC may direct inspection to verify the compliance submitted by the college and considered by OC, anytime after 30 September 2016. (b) In default of the conditions (i) and (ii) para 3.2 above and if the compliances are found incomplete in the inspection to be conducted after 30 September 2016, such college will be debarred from fresh intake of students for 2 years commencing 2017-18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not available. 12. Audiometry (Soundproof Air-conditioned) is not available. There was no Audiometer. 13. Other deficiencies as pointed out in the assessment report. 10. The Executive Committee took into consideration the report of the assessors and letter dated 29th December, 2016 of the Principal, Kerala Medical College, Palakkad regarding promotion of Dr. Munir U.A. from Assistant Professor to Associate Professor in the department of Pediatrics and the clinical material and leave of the faculty and resident doctors during MCI assessment. Regard being had to the deficiencies, the MCI recommended to the Central Government not to grant Letter of Permission. 11. Thereafter, the Union of India passed an order on 31st May, 2017, debarring the petitioner-College to admit the students in the MBBS course in the academic years 2017- 2018 and 2018-2019 and also authorized the MCI to encash the bank guarantee of ₹ 2.00 crore. The said order reads thus:- In continuation to this Ministry s letter dated 20.08.2016 granting conditional permission for establishment of a medical college 150 seats for the academic year 2016-2017 on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid order, the Central Government on 14th August, 2017, passed an order declining Letter Of Permission to the petitioner-institution. The Central Government noted:- Whereas, the MCI vide letter dated 15.1.2017 has informed and recommended to the Ministry as under: 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 clause 3.2(i) of the directions passed by the Supreme Court mandated Oversight Committee vide communication dated 11/8/2016. The Executive Committee, after due deliberation and discussion, have 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 in para 3.2(b) vide communication dated 11/08/2016 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 Palakkad by Royal Medical TGrust under Kerala Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 31 7 Orthopaedics 30 25 8 Ophtalmology 10 02 9 ENT 10 02 10 O.G. 40 21 Total 300 150 v. Casualty : Separate Casualty for O.G. is not available. Crash Cart is not available vi. O.T. : Preoperative beds are not available vii. ICUs : There was only 1 patient in ICCU, SICU on day o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Ministry. Findings of Hearing Committee are as under: MCI has pointed out deficiency of 9 faculty and 4 residents against the requirement. The shortfall is attributed by the college to leave opted by staffs during the Christmas New Year week. Supporting documents such as bank statement Form-16 (for financial year 2015-16) were also submitted for the doctors on leave. It is observed that the appointment orders issued by the college are without any reference number. Nothing could be conclusively established about the faculty on leave. The submission of the college regarding static x-ray machine, pre-operative beds, ETO sterilizer, audiometry, etc. may be accepted. However, the college seems deficient in bed occupancy. In view of the Committee, the college is at LoP stage and the facilities have to be satisfactorily verified. 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. Accepting the recommendations of Hearing Committee, the Ministry reiterates it earlier decision dated 31.5.2017 to debar the college from admitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , per contra, would contend that the Oversight Committee had passed a conditional order and when the conditions were not fulfilled, the institution has to face the consequences and in such a situation it is extremely hollow on the part of the petitioner- institution to set forth unacceptable criticism pertaining to the order passed by the Central Government. He would further submit that the order dated 31st May, 2017, as this Court has already held, was not an order which reflected reason, but the order impugned is irrefragably a reasoned one because there is reference to the history of the institution, the chronology of events, the report of the Oversight Committee, the opinion of the Hearing Committee and eventual expression of an opinion. According to him, if such an order is not given the stamp of a reasoned order , it will be granting premium to recalcitrant institutions, which are bent upon imparting medical education in an unscrupulous manner. According to Mr. Sinha, concept of negative equality is not within the ambit of Article 14 of the Constitution of India and, in any case, this Court has issued notice to the other institutions and, therefore, the petitioners cannot cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to restrict the power of the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme; (e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications; (f) the requirement of manpower in the field of practice of medicine; and (g) any other factors as may be prescribed. 21. Section 3-B of Indian Medical Council (Amendment) Act, 2010, which confers the powers on the Board of Governors, reads as follows:- 3-B. Certain modifications of the Act.- During the period when the Council stands superseded- * * * (b) The Board of Governors shall- (i) exercise the powers and discharge the functions of the Council under this Act and for this purpose, the provisions of this Act shall have effect subject to the modification that references therein to the Council shall be construed as references ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formity with the Schedule to the Regulations. If there is inaction on their part or non- observance of the time schedule, it is bound to have adverse effect on all concerned. The affidavit filed on behalf of the Union of India shows that though the number of seats had risen, obviously because of permissions granted for establishment of new colleges, because of disapproval of renewal cases the resultant effect was net loss in terms of number of seats available for the academic year. It thus not only caused loss of opportunity to the students community but at the same time caused loss to the society in terms of less number of doctors being available. MCI and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various stages and time-limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. In our view the Schedule must ideally take care of: (A) Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulations, 1999. The said clause 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. 25. In the case at hand, the assessors had gone for inspection on 28th and 29th December, 2016. In Shri Venkateshwara University Through its Registrar Another vs. Union of India and Another [Writ Petition (Civil) No. 445 of 2017] this Court has referred to the decision in Kanachur Islamic Education Trust (R) vs. Union of India and Another (2017) 10 SCALE 321) and after reproducing few paragraphs has held:- 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 12th December, 2016 and the day previous thereto i.e. 11th December, 2016, was a Sunday and the said facts are not wholly irrelevant. The said analysis cannot be regarded as the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also clarified the position at the end of the verdict stating thus:- We make it clear that the decision rendered and the directions issued are in the singular facts and circumstances of the case. 28. It is well settled in law that the ratio of a decision has to be understood regard being had to its context and factual exposition. The ratiocination in an authority is basically founded on the interpretation of the statutory provision. If it is based on a particular fact or the decision of the Court is guided by specific nature of the case, it will not amount to the ratio of the judgment. Lord Halsbury in Quinn v. Leathem (1901 AC 495 : (1900-03) ALL ER Rep 1 (HL) has ruled:- every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. 29. A three-Judge Bench in Union of India and others v. Dhanwanti Devi and others (1996) 6 SCC 44), while adverting to the concept of precedent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents. 30. In Bussa Overseas and Properties Private Limited and Another vs. Union of India and Another (2016) 4 SCC 696), while dealing with the precedential value of the decision in Thungabhadra Industries Limited vs. State of A.P. (AIR 1964 SC1372) , the two-Judge Bench held:- The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm 16, salary statement from bank and attendance register copy is enclosed herewith. 2. Dr. R. Balamurugan Ramdas, Associate Professor of Bio Chemistry. He had gone to his native Pondichery during Christmas Holidays taking leave till 01-01-2017 because of personal reasons. Form 16, salary statement from bank and attendance register copy is enclosed herewith- leave submission form. 3. Dr. MS Ramaiyah, Associate Professor of Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 4. Dr. N. Natarajan, Associate Professor of Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 5. Dr. MS Dhananjaya, Professor of OBG. His cousin brother had expired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g specifying the type of acceptable leave during inspection of medical colleges. Read: the matter with regard to regarding specifying the type of acceptable leave during inspection of medical colleges. The Executive Committee of the Council considered the report of the Sub Committee dt. 17.04.2014 as constituted by the Executive Committee at its meeting held on 14th March, 2014 and decided to accept the report with the following amendments:- (1) The faculty who is on leave due to the following reasons would be accepted; (a) For attending International/National conferences organized by the respective International/National Associations or Societies; (b) For attending any work assigned by Medical Council of India, either at headquarters or for assessment of a medical college; (c) For conducting examination of the concerned subject in a medical college in Central/State University; (d) For attending Courts; Provided that appropriate documents certifying the same which are countersigned by the dean are furnished. (2) The faculty who is on sanctioned Maternity leave would be accepted provided the appropriate leave sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dr. Jagat Narain 2017 SCC Online SC 1032 Subharti Charitable Trust Anr v. Union of India Ors (2017) 10 SCALE 308). 40. In Krishna Mohan Medical College (supra), this Court has held:- as the Act and Regulations framed thereunder have been envisioned to attain the highest standards of medical education, we direct the Central Government/MCI to cause a fresh inspection 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 herefrom. A copy of the report, needless to state, would be furnished 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 guarantee furnished by the petitioner college/institution. For the present, the impugned order dated 10.8.2017 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court s ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. 44. After so stating, reference was made to the law enunciated in Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141) wherein, it has been ruled:- Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. * * * Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power. 45. In the said case, the Court also referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.) We may hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance. 49. Discussing at length, the principle of judicial review in many a decision, the two Judge Bench in Reliance Telecom Ltd. Another v. Union of India Another(2017) 4 SCC 269), has held:- As we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which subserves the consumers interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be mala fide or based on extraneous considerations. 50. Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, thus:- (a) The petitioners are not entitled to Letter Of Permission (LOP) for the academic session 2017-2018. We direct that the order passed in the present writ petition shall be applicable hereafter for the academic session 2017-2018 since the cut off date for admissions to MBBS course for academic session 2017-2018 is over and the academic session has commenced. No petition shall be entertained from any institution/college/society/trust or any party for grant of LOP for 2017-2018. We say so as the controversy for grant of LOP for the academic year 2017-2018 should come to an end and cannot become an event that defeats time. The students who are continuing their studies on the basis of LOP granted for the academic year 2016-2017 should be allowed to continue their studies in the college and they shall be permitted to continue till completion of the course. (b) The applications submitted for 2017-2018 shall be treated as applications for 2018-2019 and the petitioners shall keep the bank guarantee deposited with the Medical Council of India alive and the MCI shall not encash the same. (c) The Medical Council of India shall conduct a fresh inspection as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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