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TMI Blog2017 (9) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituted 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 vehement arguments have been canvassed, yet the controversy, as we perceive, lies in a narrow compass. And to appreciate the same, we are required to set out the chronology of litigation. Its life is not long. 3. The petitioner No.1, a Trust, established under the Indian Trust Act, 1882 decided to establish a new Medical College by the name of Kerala Medical College at Palakkad, Kerala. It submitted an application under Section 10-A of the Indian Medical Council Act, 1956 (for brevity, "the Act") to the respondent No.1 to establish the Medical College in the name and style of Kerala Medical College and Hospital seeking admission of 150 students in the MBBS Course for the academic year 2014-15. As certain deficiencies were pointed out by the MCI, it was not granted Letter of Permission (LOP) for the year 2014-15. Thereafter, in 2015, an application was filed for grant of LOP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, while we do not find any error in the view taken by the High Court and dismiss these appeals, we direct the constitution of an Oversight Committee consisting of the following members: 1. Justice R.M. Lodha (former Chief Justice of India) 2. Prof. (Dr) Shiv Sareen (Director, Institute of Liver and Biliary Sciences) 3. Shri Vinod Rai (former Comptroller and Auditor General of India) A notification with respect to constitution of the said Committee be issued within two weeks from today. The Committee be given all facilities to function. The remuneration of the Members of the Committee may be fixed in consultation with them. The said Committee will have the authority to oversee all statutory functions under the MCI Act. All policy decisions of MCI will require approval of the Oversight Committee. The Committee will be free to issue appropriate remedial directions. The Committee will functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 9. In compliance of the conditional approval granted by the Oversight Committee, the assessment was carried out on 28th and 29th December, 2016, by the team of assessors and the following defects were pointed out:- "1. Deficiency of faculty is 13.84% as detailed in the report. 2. Shortage of Residents is 8.69% as detailed in the report. 3. No Anti Sera are available in Microbiology laboratory. 4. Bed Occupancy is 50% at 10 a.m. on day of assessment as under: # Department Beds Available Occupied 1 General Medicine 72 29 2 Paediatrics 24 20 3 TB & Chest 08 07 4 Psychiatry 08 06 5 Skin & VD 08 07 6 General Surgery 90 31 7 Orthopaedics 30 25 8 Opthamology 10 02 9 ENT 10 02 10 O.G. 40 21 TOTAL 300 150 5. Casualty: Separate casualty for O.G. is not available. Crash Cart is not available. 6. O.T.: Preoperative beds are not available. 7. ICUs: There was only 1 patient in ICCU, SICU on day of assessment. 8. Only 1 out of 2 Static X-ray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kulam in Writ Petition (C) No.21195/2017 (Y) and the High Court placing reliance on the judgment passed by this Court in Glocal Medical College and Super Specialty Hospital & Research Centre v. Union of India (2017) 8 SCALE 356) on 1st August, 21017, passed the following order:- "In the light of the order passed by the Apex Court in Writ Petition (Civil) No.411 of 2017 and connected matters on 01.08.2017, as the medical colleges involved in these cases are similarly placed, I deem it appropriate to pass an interim order directing the Central Government to consider afresh the materials on record pertaining to the issue of renewal or otherwise of the letter of permission granted to the petitioner colleges/institutions. Ordered accordingly. It is made clear that while undertaking this exercise, the Central Government shall re-evaluate the recommendations/views of the MCI, Hearing Committee, Director General of Health Services and the Oversight Committee, as available on records. The Central Government shall also afford an opportunity of hearing to the petitioner colleges/institutions to the extent necessary. The process of hearing and the final reasoned decision thereon, as ordered, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chest 08 07 4 Psychiatry 08 06 5 Skin & VD 08 07 6 General Surgery 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 of assessment. viii. Only 1 out of 2 Static X-ray machines has AERB approval. ix. Blood Bank: Only 2 units were dispensed on day of assessment. x. ETO Sterilizer is not available. xi. OPD : Separate Registration counters for OPD/IPD are not available. xii. Audiometry (Soundproof & Air-conditioned) is not available. There was no Audiometer. Whereas, the Ministry forwarded the Hearing Committee report to the OC for guidance. The OC vide its letter dated 14.05.2017 conveyed their following views to the Ministry:- (i) Faculty:- Considering the 7 members of faculty (out of 8) as explained by the College, the deficiency is 3.03% which is within the acceptable limits. (ii) Residents:- Considering the 4 residents as explained by the College, there is no deficiency. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from admitting students for a period of 2 years i.e., 2017-18 & 2018-19 and also authorize MCI to encash Bank Guarantee of Rs. 2 crores." The said order is the subject matter of assail in this Writ Petition. 15. We have heard Dr. Rajiv Dhawan and Mr. Mukul Rohatgi, learned senior counsel for the petitioners, Mr. Ajit Kumar Sinha, learned senior counsel for the Union of India and Mr. Vikas Singh, learned senior counsel along with Mr. Gaurav Sharma, learned counsel for the MCI. 16. Learned counsel for the petitioners submit that the inspection that has been carried out by the MCI is a composite inspection for 2016-2017 and 2017-2018 and when the deficiencies are marginal and, in fact, it can be said there is really no deficiency, there is no justification to deny the LOP for 2017-2018. It is urged by them that the explanation offered by the petitioner-institution has really not been taken into consideration and had it been appositely appreciated, such an assessment could not have been made by the assessors. They have also highlighted that certain other institutions having more deficiencies have been extended the benefit of LOP for 2017-2018, but for no fathomable or acceptable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, he would put forth that in most of the matters, this Court has directed for consideration of the LOP for the year 2018-2019 and the present fact situation does not exposit a different scenario and hence, this Court should not make any distinction in the present case. 18. Mr. Vikas Singh, learned senior counsel appearing for the MCI refuting the arguments advanced by the learned senior counsel for the petitioners, contends that ascribing of reasons by an administrative authority should not be equated to a judgment of the Court, for what is required is to see whether the reasons are discernible and whether there has been application of mind. Mr. Singh would further contend that the allegation made by the petitioner- institution that the Executive Committee has not considered the explanation offered by the competent authority of the college shows an attitude of obstinacy and deviancy. Learned senior counsel would contend that the in IQ City Foundation (supra) when this Court remanded the matter and in Glocal Medical College (supra) when this Court granted the benefit on proper appreciation, it would be quite lucent, the role conferred on the MCI of India and the reason for extend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said this, we are not inclined to close the matter. The petitioners have been running the College since 2013-14. We have been apprised that students who have been continuing their education shall continue for 2017-18. As we find the order of the Central Government is not a reasoned one. It is obligatory on its part to ascribe reasons. For the said purpose, we would like the Central Government to afford a further opportunity of hearing to the petitioners and also take the assistance of the newly constituted Oversight Committee as per the order dated July 18, 2017 passed by the Constitution Bench in Writ Petition (Civil) No. 408 of 2017 titled Amma Chandravati Educational and Charitable Trust and others v. Union of India and another and thereafter take a decision within two weeks. Needless to say, the decision shall contain reasons. We repeat at the cost of repetition that the decision must be an informed one." 20. Section 10-A of the Act deals with permission for establishment of new medical college, new course of study, etc. Sub-section (7) of Section 10-A reads as follows:- "(7) The Council, while making its recommendations under clause (b) of sub-section (3) and the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of study or training or increase in admission capacity in any course of study or training referred to in Section 10A or giving the person or college concerned a reasonable opportunity of being heard as provided under Section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and (iii) dispose of the matters pending with the Central Government under Section 10A upon receipt of the same from it." 22. In Manohar Lal Sharma (supra), Section 3-B was interpreted thus:- "MCI, with the previous sanction by the Central Government, in exercise of its powers conferred by Sections 10-A and 33 of the Indian Medical Council Act, 1956, made the Regulations known as the Establishment of Medical College Regulations, 1999. Regulation 8 of the 1999 Regulations deals with grant of permission for establishment of new college. Application/ Scheme submitted by the applicants is evaluated and the verification takes place by conducting physical inspection by the team of inspectors of MCI. The Board of Governors may grant LoP to the applicant for making admissions in the first year of MBBS course in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Those who fulfil the basic requirements would be considered at the next stage. (B) Inspection should then be conducted by the Inspectors of MCI. By very nature such inspection must have an element of surprise. Therefore sufficient time of about three to four months ought to be given to MCI to cause inspection at any time and such inspection should normally be undertaken latest by January. Surprise inspection would ensure that the required facilities and infrastructure are always in place and not borrowed or put in temporarily. (C) Intimation of the result or outcome of the inspection would then be communicated. If the infrastructure and facilities are in order, the medical college concerned should be given requisite permission/renewal. However, if there are any deficiencies or shortcomings, MCI must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance. (D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 12th December, 2016, it was Milad-un-Nabi and it is the day of festival. The inspection was done on 9th December, 2016, which was a Friday. The amended clause of the notification state only covers 2 days before the 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 9th December, 2016, and they were deprived to carry out the inspection. It was not covered by the concept of two days of moratorium." 26. At this juncture, it is pertinent to understand and appreciate the ratio of Kanachur Islamic Education Trust (R) (supra) because it is being highlighted in certain cases that there is no acceptability or permissibility to have a second inspection in quite succession. The paragraph that has been highlighted from Kanachur Islamic Education Trust (R) (supra) reads thus:- "That against the inspections conducted by the MCI, the petitioner's college/inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates-(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. 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 is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. To elaborate, the said decision does not lay down as a principle that the Court is bereft of power to hear on maintainability. If we understand the view expressed therein, it can be said that the Court has been guided by the concept of propriety." [Emphasis supplied] 31. In Royal Medical Trust (supra), this Court has clearly held that there can be surprise inspection as that ensures that the required facilities and infrastructure are always in place and not borrowed or put in temporarily. 32. In IQ City Foundation and Another (supra), after referring to Royal Medical Trust (supra), the Court has held:- "Therefore, the emphasis is on the complaint institutions that can really educate doctors by imparting quality education so that they will have the inherent as well as cultivated attributes of excellence." 33. Thus, in our considered opinion what has been stated in Royal Medical Trust (supra) and IQ City Foundation (supra) has the precedential value under Article 141 of the Constitution. We have no hesitation in saying that the pronouncement in Kanachur Islamic Education Trust (R) (supra) has to rest on its own facts. 34. Having said that, it is necessary to scrutinise the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy is enclosed herewith. 7. Dr. Asha S Jagtap, Professor of PSM She had gone to her native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Form 16, salary statement from the bank and attendance register copy is enclosed herewith. 8. Dr. Girist A, Senior Resident in 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. Salary statement from the bank and attendance register copy is enclosed herewith. 9. Dr. Basavaraj SK, Senior resident of Medicine. He had gone to his native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith. 10. Dr. B. Ravindra Shivaji, Senior Resident of Radio Diagnosis. He had gone to his native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith. 11. Dr. Harithakumari Landa, Senior Resident of pulmonary medicine. She had gone to his native during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted LOP for the first year, 5% margin with regard to absence is granted and that is why certain categories of leave have not been mentioned in the resolution, but that does not mean that the college can grant leave to the doctors at its whim and fancy. Be that as it may, the absence of faculty members which has been taken note of by the Medical Council of India and accepted by the Central Government cannot be allowed to pale into total insignificance. In this regard, a submission advanced by the learned senior counsel for the petitioners requires to be noted. It is urged by them that the engagement of the faculty members are to be believed as they are paid their salaries by the petitioners and it is shown in the necessary Income Tax form. 38. It needs no special emphasis to state that the said submission cannot be the guiding factor for our analysis. The issue is the deficiency of the doctors and the absence of the doctors during the period of inspection. We have already held that the period in which the assessors inspected cannot be said to be a period covered under the Regulations. That apart, as is noticeable, the Hearing Committee which has been constituted on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners is of no avail. 43. Dr. Rajiv Dhawan would submit that this Court should not exercise appellate jurisdiction which is fundamentally called an error jurisdiction or rectification of errors. We are absolutely conscious of the appellate jurisdiction and the jurisdiction this Court is required to exercise while determining the controversy in exercise of power of judicial review under Article 32 of the Constitution. The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of this Court. In Tata Cellular v. Union of India(1994) 6 SCC 651), dealing with the concept of Judicial Review, the Court held:- "Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed: 'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power." Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say: "If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the duty is to act fairly. It will vary from case to case. Explicating further, it ruled:- "Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention". 48. Thereafter, the Court referred to the authorities in R. v. Askew (1768) 4 Burr 2186 : 98 ER 139) and Council o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See : Union of India and Anr. v S.B. Vohra(2004) 2 SCC 150) 52. What Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety. We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same our attention has been drawn to the penultimate paragraph of the order. 53. We are of the consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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