TMI Blog2017 (8) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee seems to have ignored the explanation provided by the Professor and Head of Department of Surgery, explaining the treatment given to the three patients named in Clause xii (a) to (c) of the Inspection Report in concluding that, the Petitioner's college/institution had not responded thereto. Its deduction that there might have been more instances of multiple entries in the OPD patient statistics based on five such instances is also visibly presumptive. The striking feature of the observations of the Hearing Committee, on the basis of which the impugned decision has been rendered, is the patent omission on its part to consider the relevant materials on record, as mandated by this Court by its order dated 1.8.2017. The findings of the Hearing Committee, thus stands vitiated by the non-consideration of the representations/explanations of the Petitioner's college/institution, the documents supporting the same, the recommendations/views of the MCI, the observation of the earlier Hearing Committee, DGHS and Oversight Committee, as available on records. The approach of the Respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d authorizing as well the Medical Council of India, (for short hereinafter referred to as MCI ) to encash the bank guarantee of Rs. 2 crores furnished by it. Further, an appropriate writ in the nature of mandamus has also been sought for to direct the Respondents to grant renewal of permission for the academic year 2017-18 in terms of the recommendations of the Oversight Committee, constituted by this Court by order dated 2.5.2016, rendered in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. (2016) 7 SCC 353 to oversee the functioning under the Indian Medical Council Act, 1956, (for short, hereafter to be referred to as The Act ) and also to permit the Petitioner's college/institution to admit students for the said academic year. 2. The facts unfolded hereinafter would attest that in the previous round of contest, the aforementioned order dated 31.5.2017 was annulled by this Court's verdict dated 1.8.2017 delivered in a batch of writ petitions including the one in hand, the lead petition being Writ Petition (C) No. 411 of 2017 (Global Medical College and Super Specialty Hospital and Research Centre v. Union of India and Anr. and the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted the same and communicated its decision to the Petitioner vide its letter dated 8.6.2016. The Oversight Committee, as above, intervened and after obtaining the compliance affidavit from the Petitioner and further scrutiny thereafter, by its communication dated 11.8.2016 approved the scheme for establishment of new medical college of the Petitioner with an annual intake of 150 for the academic year 2016-17, subject to certain conditions as mentioned therein. Subsequent thereto, the Central Government in deference of such recommendation of the Oversight Committee, by its letter 29.8.2016/20.9.2016, issued the LOP for establishment of new college in the name and style of Kanachur Institute of Medical Sciences with an annual intake of 150 MBBS seats for the academic year 2016-17 subject to the following conditions: (i) An affidavit from the Dean/Principal and Chairman of the Trust/Society/University/Company etc. 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 Rs. 2 crore in favour of MCI, which will be valid for 1 year or until the first renewal as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vals/holidays declared by the Central/State Governments and secondly, as the findings in the previous inspection conducted on 17-18.11.2016 testified that the Petitioner's college/institution was largely compliant with the various norms and standards of physical infrastructure, teaching faculty and clinical materials, the second inspection was even otherwise unmerited having been undertaken within three weeks of the previous exercise was highlighted. It was pleaded as well that the Petitioner's college being a recognized minority educational institution, the inspection on 9-10.12.2016, just one working day before the festival of Milad-un-Nabi notified on 12.12.2016, 11.12.2016 being a Sunday, was clearly impermissible in law and displayed bias and a predetermined mind. According to the Petitioner, the inspection team of the MCI adamantly refused to acknowledge the physical infrastructure, teaching faculty and the clinical materials in place in course of the inspection held on 9-10.12.2016 and submitted its report contrary to the facts. The Petitioner also submitted a detailed representation on 16.1.2017 before the Central Government furnishing the facts and figures controve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate in clear terms that the same is de hors any reason in support thereof. It mentions only about the grant of conditional permission on the basis of the approval of the Oversight Committee, and an opportunity of hearing vis- -vis the recommendations of the MCI in its letter dated 15.01.2017 highlighting the deficiencies detected in course of the inspection undertaken on 21st and 22nd December, 2016, but is conspicuously silent with regard to the outcome of the proceedings of the Hearing Committee, the recommendations recorded therein both of the Committee and the DGHS and more importantly those of the Oversight Committee conveyed by its communication dated 14.05.2017, all earlier in point of time to the decision taken. This assumes importance in view of the unequivocal mandate contained in the proviso to Section 10A(4) of the Act, dealing with the issue, amongst others of establishment of a medical college. The relevant excerpt of Sub-Section 4 of Section 10A of the Act for ready reference is set out hereinbelow: (4) The Central Government may, after considering the scheme and the recommendations of the Council under Sub-section (3) and after obtaining, where necessary, such oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. This is more so in the face of the detrimental consequences with which they would be visited. It cannot be gainsaid that the reasonable opportunity of hearing, as obligated by Section 10A(4) inheres fairness in action to meet the legislative edict. With the existing arrangement in place, the MCI, the Central Government and for that matter, the Hearing Committee, DGHS, as in the present case, the Oversight Committee and the concerned colleges/institutions are integral constituents of the hearing mechanism so much so that severance of any one or more of these, by any measure, would render the process undertaken to be mutilative of the letter and spirit of the mandate of Section 10A(4). 24. Having regard to the fact that the Oversight Committee has been constituted by this Court and is also empowered to 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 issue of establishment of a medical college, as in this case, can by no means be disregarded or left out of consideration. Noticeably, this Court did also empower the Oversight Committee to issue appropriate rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he institution being a minority institution. It may be noted that 11.12.2016 was Sunday. Eid fell on 12.12.2016. The college was inspected on 09-10 December, 2016. The college requested that the inspection report of November should be considered. The Committee has noted the submissions made by the college. The college has not explained the deficiency of faculty. The ground of leave on account of NEET (PG) exam could be accepted in case of few residents and not for all 10 as submitted by the college. NEET (PG) exam was held online over a period of one week in early December but a candidate is required to appear in only one session. The college has tried to dismiss many observations made by the assessors as non-specific and vague and has chosen not to respond. However, in case of 3 particular cases cited by the assessors at Sr. No. 11(a) to (c) also the college has not responded. The college also did not respond to the charge of 3 residents signing in the register in advance. The Committee on random perusal of OPD data furnished by the college at p/277 p/282 observed that at least 5 instances of multiple entries of same patient in the same department apparently to inflate the OPD fig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On a perusal of the OPD data, furnished by the Petitioner's college, at least five instances of multiple entries of the same patient in the same department were detected to inflate the OPD figures and that there could be more of such instances. i) The compliance submitted by the Petitioner's college thus does not seem to be reliable. j) The reply of the Petitioner's college had been evasive on many observations made by the assessors, who are clinical experts. k) MCI was not precluded from conducting successive inspections subject to sufficient reasons and justifications. l) The Petitioner's college has failed to respond to the objections raised in the subsequent inspection. 15. Dr Dhawan, learned senior Counsel for the Petitioner has insistently urged that in the face of the findings in the inspection conducted on 17-18.11.2016, which did not divulge any deficiency in the infrastructure as a whole, the second inspection on 9-10.12.2016 was wholly uncalled for and lacks bona fide. Further, the Petitioner's college being a minority institution, such inspection was also in violation of the amended Regulation 8(3)(1) (d) of the Regulations, as amended, the festival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation therefor, they are not entitled to any relief in the face of otherwise binding statutory ordainments. 17. In the above eventful backdrop, we have cautiously considered the rival assertions, which assuredly would have to be evaluated on the measure of the operative directions contained in the order dated 1.8.2017, whereby the issue involved was referred to the Central Government for an appropriate reasoned decision on a reevaluation of the recommendations/views of the MCI, Hearing Committee, DGHS and Oversight Committee and after affording an opportunity of hearing to the Petitioner's college/institution to the extent necessary. That against the inspections conducted by the MCI, the Petitioner's college/institution had submitted representations on 15.12.2016 and 16.1.2017 before the Central Government is a matter of record. That the report qua the inspection conducted on 17-18.11.2016 did not disclose any substantial deficiency warranting disapproval as observed by the Hearing Committee is also not in dispute. It is unambiguously clear that the inspection of the Petitioner's college undertaken on 17-18.11.2016 did not divulge any substantial deficiency justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well readily concurred with the observations of the Hearing Committee in passing the impugned order, which per se, in our estimate, is unsustainable in the singular facts and circumstances of the case. 18. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the Petitioner's college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances. 19. In the predominant factual setting, noted hereinabove, the approach of the Respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the persistent defaults and shortcomings in the decision making process of the Respondents, the Petitioner's college/institution ought not to be penalised. Consequently, on an overall view of the materials available on record and balancing all relevant aspects, we are of the considered opinion that the conditional LOP granted to the Petitioner's college/institution on 12.09.2016 for the academic year 2016-17 deserves to be confirmed. Having regard to the progression of events, the assertions made by the Petitioner 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 17.01.2017, which considerably dilute/negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections conducted, we hold that the Petitioner's college/institution, as prayed for, is also entitled to LOP for the academic year 2017-18. We order accordingly. However, as the Act and Regulations framed thereunder have been envisioned to attain the highest standards of medical education, we consider it expedient to per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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