SARASWATI MEDICAL COLLEGE Vs. UNION OF INDIA & ANR.

Supreme Court of India (Division Bench (DB)- Two Judge)

Special Leave Petition (Civil), 26278 of 2015, Judgment Date: Sep 30, 2015

                                                                ‘REPORTABLE’
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


               SPECIAL LEAVE PETITION (CIVIL) NO.26278 OF 2015


SARASWATI MEDICAL COLLEGE                                 .....PETITIONER(S)

                                   VERSUS

UNION OF INDIA AND ANR.                                    ....RESPONDENT(S)


                                  O R D E R

M. Y. EQBAL, J.

      The petitioner-College  has  preferred  this  special  leave  petition
against the impugned judgment and  order  dated  02.09.2015  passed  by  the
Delhi High Court in Writ Petition (Civil) No. 8385 of 2015 whereby the  High
Court dismissed the said writ petition following  the  judgment  dated  20th
August, 2015 in Jamia Hamdard (Deemed University) vs.  Union  of  India  and
the judgment dated 1st September, 2015 in Kanchan  Islamic  Education  Trust
(R) vs. Union of India.

2.     In  the  aforesaid  writ  petition,  the  petitioner  challenged  the
communication dated 15.06.2015 of respondent no.1 – The Ministry  of  Health
and Family Welfare (for short 'UOI') disapproving  the  application  of  the
petitioner for establishment of a new medical college with effect  from  the
academic year 2015-16. A further direction was sought for by the  petitioner
in the writ petition directing  respondent  no.1-Union  of  India  to  grant
Letter of Permission (LOP) to the petitioner for starting of a  new  Medical
College with 150 admission capacity in MBBS course at Unnao,  Uttar  Pradesh
for the academic year 2015-16.

3.    It appears that in  August,  2014,  the  Chhatrapati  Shahuji  Maharaj
University, Kanpur, on the report  of  the  Local  Enquiry  Committee,  gave
affiliation for the proposed course of MBBS  with  a  total  intake  of  150
seats.  The  essentiality  certificate   for   starting   MBBS   course   at
petitioner's institution was also issued by the Government of Uttar  Pradesh
in August, 2014. The Medical Council of India conducted  the  inspection  of
the medical college in January, 2015 through an  Assessor  and  pointed  out
certain deficiencies  in  regard  to  the  Faculty,  Resident  Doctors,  Bed
occupancy,  Clinical  material,  Lecture   Theatre,   Hostels,   Residential
Quarters etc. and the respondent no.2-MCI decided to return the  application
for establishment of a new  medical  college  with  a  direction  to  submit
compliance of the deficiencies along  with  documentary  evidence  within  a
month.  The petitioner submitted  the  compliance  report  with  documentary
evidence  to  Medical  Council  of  India.  Thereafter  the   respondent-MCI
conducted   compliance  assessment  of  the  petitioner's  institution   and
submitted a report. It is alleged by  the  petitioner  that  though  it  had
removed all the shortcomings and deficiencies that were pointed out  in  the
earlier assessment but the Assessors of the MCI once again pointed  out  new
deficiencies in the college  i.e. shortage of Resident Doctors,  non-staying
of all  Resident  Doctors  in  campus,  non-functional  hostel  rooms.   The
Assessors found that the faculty deficiency has been rectified from  56%  to
meager 6.6% and for residential quarters, 16 quarters are available  against
requirement of 20 as per Regulation for Non-Teaching Staff.  The  Petitioner
also submitted representation to the MCI clarifying its stand regarding  the
alleged new deficiencies.

4.     The  Union  of  India  consequently  by  letter   dated   15.06.2015,
communicated to  the  petitioner  its  decision  to  disapprove  the  scheme
submitted by the petitioner for establishment of new medical college on  the
basis of the recommendations made by the MCI.  The  said  decisions  of  the
respondents were assailed by filing a writ petition before the  High  Court.
The High Court by impugned order dated 2.9.2015 dismissed the writ  petition
in continuation of the order dated 1.9.2015 passed by  it  in  another  Writ
Petition (Civil) No.7128 of 2015.

5.     Mr.  Nidhesh  Gupta,  learned  Senior  Counsel  appearing   for   the
petitioner, submitted that all deficiencies which were pointed  out  by  the
respondent-MCI after conducting  inspection  have  been  rectified  and  all
defects were removed which is evident from the compliance verification  done
by the respondent-MCI. The deficiencies  subsequently  pointed  out  by  the
respondent-MCI on surprise inspection,  were  never  shown  in  the  earlier
report. According  to  Mr.  Gupta,  learned  Senior  Counsel,  there  is  no
deficiency of faculty and all Resident Doctors are  residing  in  campus  in
their  pre-allotted  accommodations.   The  resident  hostels   have   fully
functional attached toilets in each room.  On  the  day  of  inspection,  24
Junior  Residents,  18  Senior  Residents  and  58  faculty   members   were
physically present in the campus and the biometric attendance for the  month
of March, 2015 including the day of inspection was  submitted  to  the  MCI.
It has been further contended on behalf of the petitioner that  on  the  day
of inspection there were four patients in the ICCU, 4 patients in the  SICU,
3 babies in the  NICH  and  two  children  in  the  PICU  and  there  is  no
deficiency in Histopathology and Cytopathology work and on  an  average  3-4
Histopathologies and 10-12 Cytopathologies are performed per day.

6.     Mr.  Gupta,  learned  Senior  Counsel,  contended  that  neither  the
inspection was conducted in accordance with the procedure prescribed in  the
Acts and Regulations nor the respondent-MCI team in the surprise  inspection
visited different departments and wards of the hospital.  Further  in  terms
of Section 10A(3)(a) &  (4)  after  compliance  verification  of  the  first
inspection  opportunity  of  hearing  ought  to  have  been  given  to   the
petitioner.

7.    On the other hand, Mr. Vikas Singh, learned Senior  Counsel  appearing
for the respondent-MCI, at the very outset, submits  that  in  the  surprise
inspection, many deficiencies were found in the  hospital  which  have  been
pointed out distinctly in the report. The report so prepared by the team  of
the respondent-MCI has been  countersigned  by  the  petitioner.  Mr.  Vikas
Singh, learned Senior Counsel appearing for the  respondent-MCI,  therefore,
contends that the petitioner's institution has been inspected twice but  the
deficiencies pointed out in the first inspection were still found there.

8.    We have gone  through  the  rival  contentions  made  by  the  learned
counsel appearing for the parties.  In our considered opinion,  neither  the
petitioner removed all the deficiencies nor the  respondent-Medical  Council
of India strictly followed the procedure and the requirements  contained  in
the Act and the Regulations.

9.    In the facts  and  circumstances,  we  direct  the  respondent-Medical
Council of  India  to  conduct  fresh  inspection  in  accordance  with  the
procedure provided in the Act and the Regulations within  a  period  of  two
months from today and submit the report.  If any deficiency is still  found,
then also to consider whether that is remediable or not.  On receipt of  the
final report, the Union of India  shall  take  a  decision  within  a  month
thereafter to enable the petitioner to start the process  for  the  academic
year 2016-2017.

10.   With the aforesaid  directions  this  Special  Leave  Petition  stands
disposed of.

                                                       ....................J
                                                               [M. Y. EQBAL]


                                                       ....................J
                                                               [C. NAGAPPAN]
NEW DELHI;
SEPTEMBER 30, 2015.