IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 29..07..2010 CORAM :: THE HON'BLE MR. JUSTICE V. DHANAPALAN WRIT PETITION NO: 15956 OF 2010 Indira Gandhi Medical College and Research Institute (Government of Puducherry Institute) Rep. by its Registrar (Run by Perunthalaivar Kamaraj Medical college society) Vazhudavur Road, Kathirkamam, Puducherry - 605 009 …. Petitioner -vs- 1. Medical Council of India Represented by its Chairperson to the Board of Governors. 2. Union of India represented by The Secretary to Government, Ministry of Health & Family Welfare, Government of India, Nirman Bhavan, New Delhi. … Respondents Writ petition under Article 226 of the Constitution of India praying for issuance of a certiorarified mandamus calling for the records of the first respondent in MCI-No.34(41)/2010-Med./924 dated 15.07.2010 and quash the same and consequently direct the first respondent to grant permission to the petitioner to start medical college as per the application dated 14.8.2007. For petitioner : Mr. Vijay Narayanan Senior Counsel for Mr. D. Sreenivasan Government Pleader (Puducherry) For 1strespondent : Mr. V.P. Raman https://hcservices.ecourts.gov.in/hcservices/ For 2nd respondent : Mrs. R. Maheswari Standing Counsel for the Central Government O R D E R Heard Mr. Vijay Narayanan, learned Senior counsel with Mr.D.Sreenivasan, learned Additional Government Pleader (Puducherry), appearing for the petitioner, Mr. V.P. Raman, learned counsel appearing for the 1st respondent and Mrs. R. Maheswari, Central Government standing counsel for the 2nd respondent. 2. In this writ petition a challenge has been made to an order passed by the 1st respondent in Proceedings No: MCI-No.34(41)/2010- Med./924 dated 15.07.2010 and quash the same and consequently direct the first respondent to grant permission to the petitioner to start medical college as per the application dated 14.8.2007. 3. Petitioner is Indira Gandhi Medical College & Research Institute, a Government of Puducherry Institute. The Government of the Union Territory of Puducherry with a humane object of establishing a Government Medical College announced in the Assembly on 7th July 2004 that it has decided to establish a Government Medical College. After that a notification in the Gazette was issued on 31st May, 2005, for establishing a society to run the Medical College. The Vision of the Society is to establish a center for excellence in teaching, research and patient care amongst the best in the country on par with All India Institute of Medical Science, New Delhi, or PGIMER, Chandigarh, with a goal of establishing a medical college in the Government Sector to admit 150 UG students per year by having adequate facilities to start postgraduate courses leading to DNBE, MD, MS or Diploma in the broad specialties as soon as permission from the Medical Council of India, hereinafter referred to as M.C.I., is obtained and to start super specialties courses leading to the DM or M.ch in phase two. Initially the application was made in the name of the Director Perunthalaivar Kamaraj Medical College and Research Institute, Puducherry, but later it was named as Indira Gandhi Medical College and Research Institute. 4. For this project a sum of Rs.132 crores have been spent towards the construction and other activities and 128 faculty members have been appointed apart from the non-teaching staff and a formal application for recognition has been made to the M.C.I. On 14.08.2007 and thereafter, the first respondent / M.C.I. deputed a team and conducted the first Inspection on 10.05.2010 and 11..05..2010. By that time, the M.C.I. was dissolved on 15.05.2010 by Government of India, vide Notification No.2 of 201 which has been https://hcservices.ecourts.gov.in/hcservices/ notified in the Gazette of India, New Delhi, on the same date. The M.C.I. Office Bearers were substituted by the Board of Governors and 6 new Board of Governors were appointed namely, Dr. Shiv Kumar Sarin, as Chairperson, Prof. Ranjit Roy Chaudhury, Dr. Sita Naik, Dr. (Prof.) R.N. Salhan, Dr. Devi Prasad Shetty and Prof. Gautam Sen as Members and they took over the administration of the M.C.I. and thereafter a second Inspection team was deputed and the inspection was held on 21st and 22nd June 2010. After the Inspection, there was no information from the first Respondent. Only on 13.07.2010, during evening hours, it was published in the Website of the first Respondent that the Petitioner’s approval for the establishment of a Medical College for the year 2010-11 was rejected. A communication dated 15.07.2010 was received on 19.07.2010 by the State stating that "return of application as disapproved". 5. According to the petitioner, the Board of of Governors considered the assessment reports dated 21st & 22nd June, 2010 and disapproved the scheme for the following reasons : " I. Infrastructural facilities are inadequate as noted below : a. The Central Library has a total area of 566 sq. mt. against the required area of 1600 sq. mt. b. Construction of separate library block with 2400 sq. mt. is under progress only. c. The hostels are not furnished and the construction is still ongoing for further accommodation. d. There is no provision for a mess. e. Residential quarters are yet to be constructed. f. No static x-ray unit is available as against the requirement of minimum of 2 static units. g. In certain areas of the main building of the college & hospital, the civil as well as electric work still needs to be completed. The area around the building is not properly landscaped and no roads have been laid down. II. Clinical material is grossly inadequate as noted below: a. The Bed occupancy is only 74 and 71% on the days of assessment (21st 22nd June, 2010) as against the requirement of minimum of 80%. b. There were no patient admitted in any of the ICU’s on the days of assessment. c. The number of major surgical operations were Nill on the days of assessment. d. There was only one delivery & no caesarian section on the days of assessment. https://hcservices.ecourts.gov.in/hcservices/ e. Only 129 Nursing staff are available as against the requirement of 175. III.Other deficiencies pointed out in the assessment report." The case of the petitioner is that the above discrepancies pointed out by the Board of Governors are incorrect and suffer from non application of mind for the reasons that, (1) As per the statement, indicating year-wise targets to be achieved by applicant of a new medical college admitting 150 students under Section 10A of the Indian Medical Council Act, hereinafter referred to as the Act, the year-wise targets are given except the central library of 2400 sq.mts. In fact the total number of books required is 11000 out of which 3000 are for first year and 5000 during second year, 7000 during third year, 9000 in the fourth year and 11000 during final and fifth year. Similarly the journal requirement is 100 (both Indian and Foreign) the first year requirement is 20, second year requirement is 40, and third year requirement is 60 fourth year requirement is 80 and in the final year 100. According to the petitioner, the central library requirement of 2400 sq.mt. is not necessary during the first year hence the present available area of 566 sq.mt. is proportionate to the first year. Even the inspection report has pointed out that separate library block with 2400 sq.mt. is under progress only and it is informed it would be completed in another six months. (2) Regarding the report that the hostels are not furnished and the construction is still ongoing for further accommodation, it is stated by the petitioner that the hostels were not furnished at the time of inspection, since the first batch of students are due to be admitted in the month of August and September 2010. Now the hostels are furnished fully. The two hostels which are required for the first year are fully furnished and construction work is over and the other two hostels are almost over and these two hostels are required for the second, third and fourth year only and which will be completed in another two months. Hence there is no shortage of hostel space for the initial first year admission. (3) The further deficiency pointed out is that there is no provision for a mess. In this regard the explanation submitted is that the first batch of students are due to be admitted in August and September 2010, provision has now been made for the mess. Regarding the other deficiency that residential quarters are yet to https://hcservices.ecourts.gov.in/hcservices/ be constructed are concerned, at page No. 6 of inspection report, it is stated that 32 bath attached rooms are to be constructed within the campus at a distance of 0.5 km to the college for the teaching faculty and non teaching staff and this work will be completed in another two months. (4) It is submitted that the institute is paying 20% house rent allowance and many of the staff are from Puducherry who are having their own houses and may not prefer residential accommodation in the campus. Even if it is necessary for the teaching and non teaching staff, the Government of Puducherry will allot quarters to them from the general pool of Government quarters available at Lawspet. (5) Regarding the inadequacy of Static x-ray unit as against the requirement of minimum of 2 static unit the petitioner had explained that as per the year-wise requirements two static x-ray machines (300 ma and 500 ma) should be available. As per page 11 of the inspection report, the inspectors have already stated that supply order has been placed for the two static units of 500 ma each which is more than the requirement and it is informed that even though one mobile x-ray machine of 30 ma is required two mobile x-ray 60 ma machines are available which is more than the requirement. As regards the deficiency that in certain areas of the main building of the college and hospital, the civil as well as electric work still needs to be completed and the area around the building is not property landscaped and no roads have been laid down is concerned, it is explained that the total construction plan for the college and hospital building is ground plus 4 stories but for the first year the requirement is Ground plus 1 storey and for this the civil and electrical work has been completed. Further work is only for the subsequent years. The landscaping and laying of roads is under fast progress. (6) In respect of the deficiency pointed out that Clinical material is grossly inadequate namely the Bed occupancy is only 74 and 71% on the days of assessment (21st and 22nd July 2010) as against the requirement of minimum 80%, the petitioner’s explanation is as per the minimum standard requirement for a medical college vide para B-1.8 the indoor beds occupancy shall be a minimum of 80% per annum and this has been amended as 70% for the first year vide amendment notification No. MCI.34(41)/2009-Med./20072 dated 08.07.2009 and as per the year-wise target also it is 70% for the first year vide Sl.No.41 and 80% for second year onwards. As regards the point raised that there were no patient admitted in any of the ICU’s on the days of assessment, it is stated that on the day of assessment or on the previous day there were no serious cases or acute cases which requires intensive care which came to the hospital and hence there is no ICU admission on the days of assessment. It was reported that the number of major surgical operations were Nil on the days of assessment for which the petitioner’s explanation is as per the https://hcservices.ecourts.gov.in/hcservices/ hospital inpatients case history, no cases required major surgical operations and on the days of inspection all the faculty were required for physical and certificate verification by the inspectors and hence no major surgical operations were fixed on the days of assessment. In respect of the report that there was only one delivery and no caesarian section on the days of assessment, it is submitted that since there were no necessity for caesarian it was not done on the days of assessment and for the complaint that only 129 Nursing staff are available as against the requirement of 175, the explanation is as of now 175 nursing staff are available as per the requirement. As per the inspection report of the inspectors there are no other deficiencies pointed out in the assessment report except the above. In fact as per pages 20 to 22 of the assessment report, there are 30 excess faculties which include Asst. Professor, Associate Professor and Professor when the country is facing acute shortage of faculties. In fact these faculties have been recruited to meet the need of next renewal inspection. According to the petitioner presently the following Medical Colleges are functioning at Puducherry : 1. Jawaharlal Institute of Postgraduate - Central Government Medical Education and Research, Institution Puducherry 2. Pondicherry Institute of Medical Sciences, Puducherry - Private 3. Arupadai Veedu Medical College, Puducherry - Private 4. Mahatma Gandhi Medical College and Research Institute, Puducherry - Private 5. Manakula Vinayagar Medical College and Research Institute, Puducherry- Private 6. Sri Lakshminarayana Institute of Medical Sciences, Puducherry - Private 7. Sri Venkateswara Medical College - Private 8. Vinayaga Mission Medical College Karaikal. - Private JIPMER being a Central Government Institution only allots 24 seats to Puducherry residents and other seats are filled on All India Basis. From the above, it is very clear that there is no Government Medical https://hcservices.ecourts.gov.in/hcservices/ College in Puducherry which will serve the need of the poor and down- trodden students who cannot afford to pay the higher fees as demanded by the private medical colleges. It is for this very purpose that the Government of Puducherry through the Petitioner had established the particular college spending huge amount and recruiting faculty from all over the country. 6. As far as the Puducherry Government is concerned it is spending about Rs.15 crores per year towards reimbursement of tuition fees for students studying in private colleges through Government quota. The state will stand to save a huge amount of money if it has its own medical college. It is also submitted that the petitioner had spent nearly Rs.132 crores towards construction, purchase of equipments and salary for the teaching staff and that he disapproval will cause great monetary loss to the Government Exchequer. Further, it is submitted that if the petitioner medical college is granted approval, this will be rated as one of the premier medical colleges in India with regard to the faculty, infrastructure, buildings etc. and that the State of Puducherry has institutions pertaining to various fields of education like Engineering, Dental, Veterinary and Agriculture except a full fledged Medical Institution. 7. As per the provisions of the Act, particularly Section 7 that is while making recommendations, the council has to take due regard to certain factors and one of the factors necessary to be taken into account is regarding infrastructural facilities which have been provided or would be provided within the time limit specified under the scheme. It is submitted that if the scheme proposed by the petitioner, read with admission scheme set out by the Hon’ble Supreme court will be taken into account it will be clear that infrastructural facilities should be in place before the last date for admission of students i.e. 30th September of the academic year 2010-11. Even these factors are taken into account it is submitted that the petitioner will be in a position to offer all these facilities before 30th September 2010. Even these factors had been taken into account it is submitted that the 1st respondent Medical Council of India ought to have given sufficient time to rectify the deficiencies pointed out in the inspection report. 8. At the first instance the inspection took place on 10th and 11th of May 2010 and after the new Board of Governors took over, the 2nd inspection took place on 21st and 22nd of June 2010. No order was communicated until 15th July 2010 when the impugned order was passed. Even this communication dated 15.7.2010 has given very minor and frivolous reasons. It is also pleaded that in a number of similar cases, more serious deficiencies have been overlooked. But in the case of Government College when it has its own obligation to provide quality medical education to poor and downtrodden residents of Pondicherry, the Medical Council has adopted discriminatory attitude. The reasons given in the impugned order are against its own https://hcservices.ecourts.gov.in/hcservices/ guidelines and total non application of mind in as much as all the alleged deficiencies are very minor in nature and the same can be rectified before the commencement of the course. There is no reason for Medical Council to adopt a discriminatory attitude and deny permission to the petitioner alone. The Medical council ought to take into account that very modern hospital and Medical college has been established at very higher cost of Rs.132 crores and with the latest equipments has been installed to make it a State of Art facilities. Therefore, petitioner prayed for quashing the impugned order. 9. In the additional affidavit filed by the petitioner, it has been stated that besides the investment of huge amount on the construction and other activities, so far 128 faculty members have been appointed apart from the non-teaching staff and after this a formal application for recognition was forwarded to the M.C.I. Further it is stated that M.C.I. was dissolved on 15.05.2010 by the Government of India vide Notification No: 2 of 2010 and M.C.I. Office Bearers were substituted by Board of Governors and 6 new Board of Governors were appointed. It has been specifically averred that the communication dated 15.07.2010 was received on 19.07.2010 by the petitioner from the 1st respondent stating "return of application as disapproved". The impugned order is in violation of Section 10 (A) (4) of the Act in as much as no opportunity was given before disapproving the scheme. Therefore, the petitioner challenged the rejection approval. 10. When the matter was taken up "For Admission" on 21.07.2008 this Court directed the petitioner to file an affidavit stating the compliance of the items mentioned in the impugned order of the 1st respondent dated 15.07.2010 and on 28.07.2010 this Court, after hearing the elaborate arguments of the respective counsel directed the petitioner to file an affidavit setting out the following : " (i) The date of completion of Central Library Building ; (ii) Exact number of rooms available in the hostel and (iii) Letter from Secretary, Housing, regarding willingness to allot residential quarters to the teaching and non- teaching staff as per first year M.C.I. requirement. It has been explained by the petitioner in the additional affidavit stating that as regards the Library even though the requirement of the first year M.B.B.S. Course is complied with as stated in the earlier affidavit, the requirement and furnishing for the entire course i.e. 2400 sq. Mts. Will be completed within two months since construction is under progress. Another aspect of the matter regarding the availability of the rooms in the hostel, there are 4 blocks out of which 2 blocks are fully complete – each block consists of 19 single rooms and 85 double rooms and the total capacity of the two block is 370 whereas the requirement for First year is only 112 https://hcservices.ecourts.gov.in/hcservices/ students. The other two blocks in which 90% work is over will be completed in two months. As regards the residential quarters petitioner has given a compliance report enclosing a letter from the Secretary (Housing), Government of Puducherry, expressing willingness to allot residential quarters to the 12 teaching and 20 non-teaching staff as per first year M.C.I. requirement and therefore, the deficiencies pointed out by the respondents had been complied with. Further, the petitioner pleaded that most of the reasons mentioned in the impugned order has been complied with by the petitioner and it is the only Government Medical College in the Union Territory of Puducherry and for the benefit of the backward region compared with the neighbouring States and, therefore, it is necessary that such Government Medical College is granted permission so that the social imbalance in that region can be set-right in the long run and the students from the poor and down-trodden section will get the privilege to become Doctors and serve the rural and poor people of the society. 11. According to the petitioner a major portion of the budget allocation made by the Government of Puducherry in the past years has been spent for the development of infrastructure in the health sector and therefore, they prayed for setting aside the impugned order for the above stated reasons. 12. The first respondent, who is the competent authority in this matter to look into the problem of the petitioner has filed an appropriate counter. All the averments of the petitioner are denied as incorrect except those that are specifically admitted in the counter. According to the 1st respondent, M.C.I. is a body constituted under the provisions of the Act, and it has been given the responsibility of discharging the duty of maintenance of highest standards of medical education in the country and, as such, the Hon'ble Supreme Court in the case of State of Kerala vs. T.P.Roshna ( 1979 S.C.C. 580 ) observed that The Indian medical Council Act, 1956 has constituted the Medical Council of India and is an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus, there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses. The counter also further states that under Section 33 of the Act the prior approval of the Central Government is mandatory. Under Section 10 A of the Act, which was incorporated by way of an amendment under Act 31 of 1993, every person desirous of establishing a medical college and/or to start a new or higher course of study in the existing medical college has to obtain prior permission from the Central Government. https://hcservices.ecourts.gov.in/hcservices/ 13. A collective reading of the provisions of Section 10 A of the Act and the qualification criteria prescribed under the new regulations namely the Establishment of Medical College Regulations, 1999 reveals that any person desirous of establishing a medical college is required to make an application in terms of the qualifying criteria to the Central Government. Every applicant is required to submit application / scheme as per the 1999 Regulations clearly indicating the compliance with the statutory conditions laid down under these regulations. 14. After the application / scheme submitted by the applicant is received from the Central Government by the Medical Council of India, it is evaluated and the verification takes place by conducting physical education by the inspector team of the M.C.I. The recommendations for grant of Letter of Permission (LOP) to the applicant for making admission in the first year M.B.B.S. Course in the medical college. The application for establishment of new medical college by the petitioner was received through the Central Government on 25.09.2007. The college authorities vide Council letter dated 07.11.2007 were requested to send their willingness for carrying out the inspection. The application along with letter dated 05.12.2007 received from the Director, Perunthalaivar Kamaraj Medical College & Research Institute, Puducherry, with regard to conduct of combined inspection LOI and LOP after 31.12.2007 was considered by the executive committee where the members of the Adhoc Committee appointed by the Hon'ble Supreme Court were also present at its meeting held on 29.12.2007. The operative part of the decision arrived at are as follows : "The members of the Adhoc Committee appointed by the Hon'ble Supreme Court and of the Executive Committee of the Council considered the letters dated 20.09.2007 and 25.09.2007 issued by the Central Government pertaining to the permission for increase of seats in MBBS Course from 75 to 100 at