IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13802 of 2011 Deo Mangal Memorial Trust, P.O.- Jamuhar, Distt.- Rohtas-821 305 (Bihar) through its Trustee Trivikram Narayan Singh. ________ Petitioner Versus 1. Union of India through its Secretary, Ministry of Health and F.W., Department of Health, Nirman Bhawan, New Delhi. 2. The State of Bihar, through the Principal Secretary, Department of Health and Family Welfare. 3. Medical Council of India, through its Board of Governors, Pocket-14, Sector-8, Dwarka, New Delhi-110077. 4. The Bihar Combined Entrance Competitive Examination Board through the Examination Controller, I.A.S., Bhawan, P.O.- Veterinary College, Patna-14. ________ Respondents ----------- For the petitioner: M/S. Manindar Singh, Sr. Advocate, Sandeep Kumar, P. K. Choudhary, Ajit Kumar and Gaurav Sharma. For the Union of India: Mr. Sarvdeo Singh. For the Medical Council of India: M/S. Y V Giri, Sr. Advocate and Kumar Brijnandan. For the BCECE Board: Mr. Vikas Kumar. For the State: M/S. Manoj Kumar Ambastha-GP 14 and Santosh Kumar Mishra, AC to GP-14. 04. 28 /09/2011 Petitioner Deo Mangal Memorial Trust is running a Medical College and Hospital in the name of Narayan Medical College and Hospital, in the district of Rohtas. 2. The trust has filed the present writ application seeking quashing of order dated 30.6.2011 contained in Annexure-9 as well 5.8.2011 contained in Annexure-12. These are the orders passed by the Medical Council of India (in short, MCI) refusing to grant permission for admission to the 4th batch of MBBS students, for the academic year 2011-12. The trust wants direction upon the Medical Council of India to permit it to admit 100 students in the MBBS 2 course for the academic year 2011-12 on the ground that the reasons for rejection are not germane to the issue or based on actual state of affairs. 3. The trust therefore has moved the present writ application seeking such a relief in favour of the College in question. 4. It is the case of the petitioner that it has been running a hospital or health care centre in the backward regions of the district of Rohtas and are driven by charitable considerations. A need for having a Medical College which could serve the backward areas and other backward adjoining districts was also felt. It obtained letter of affiliation from the Veer Kumar Singh University, Ara. Essentiality certificate too was obtained from the State of Bihar on 23.8.2006 and 5.9.2006 respectively. It moved the Medical Council of India by filing an application under section 10A of the Medical Council of India Act, 1956 for grant of permission for establishment of the Medical College in question for the academic year 2008-09. An inspection was carried out by Medical Council of India and as per their recommendations Government of India issued a letter of permission on 30th September,2008.The College was entitled to take admission of 100 students for the academic year 2008-09. There was a gap year so far as the academic year 2009-10 was concerned but permission was granted for the 3 academic year 2010-11. The present dispute has now arisen with regard to refusal by the MCI to permit admission to the 4th batch of 100 students for the academic year 2011-12. The primary reason for refusal which emerges from Annexure-9 and Annexure-12 is that there are a set of deficiencies which have been found by the Inspecting Team and those deficiencies are supposed to be mandatory in nature which have to be removed and failure thereof has compelled the respondent MCI to refuse permission for admission for the academic year 2011-12. 5. The first inspection for the purpose of grant of permission was held on 31.1.2011 and 1.2.2011. The deficiencies so found were communicated to the College by way of Annexure-6, which is dated 11.4.2011. 6. The stand of the petitioner is that there were no deficiencies and if there were deficiencies, they were minor in nature.The petitioner filed a detailed response to the deficiencies pointed out before the Board of Governors of MCI. A second inspection was held on 25th May,2011. Based on the assessor‟s report Annexure-9 dated 30th June, 2011 came to be issued pointing out 9 deficiencies as well as communicating the decision of the Board of Governors refusing permission for admission to the 4th batch of MBBS students. 7. The petitioner decided to challenge the said 4 order contained in Anneure-9 by filing a writ application before the Delhi High Court. The primary contention before the Delhi High Court on behalf of the petitioner was that since the petitioner was not given an opportunity of hearing by the Board of Governors of MCI, it was prevented from placing its case in right perspective and this has caused serious prejudice because non-grant of permission for admission to the 4th batch is going to be detrimental to the interest and morale of the College. Annexure-10 is the order of the learned Single Judge where a direction was issued upon the MCI and the Board of Governors to grant due opportunity of hearing to the petitioner within a week of the order and pass a fresh order in this regard. 8. The order contained in Anneuxre-12 dated 5.8.2011 is the new decision communicated to the petitioner after giving an opportunity of hearing, in terms of the direction of the Delhi High Court. 9. Even in the order contained in Annexure-12, certain deficiencies, in the opinion of the Board of Governors, remained and therefore, they chose not to grant permission to the petitioner to take admission of the 4th batch for the session 2011-12. The question which now arises for consideration therefore, is whether the MCI has exercised his power of refusal in accordance with law and whether the reasons given for such refusal are cogent, valid and 5 based on evidence? 10. In the communication contained in Annexure-9, which is also impugned in the present writ application, 9 deficiencies were pointed out. They are listed herein below: 1. Shortage of Nursing staff. 2. CT scan not available. 3. Low OPD attendance. 4. Blood bank not available. 5.Deficiency of 01 primary health centre. 6. Inadequate Capacity of library. 7. No hostel accommodation for Interns, Residents & Nurses. 8. Inadequate number & distribution of teaching beds. 9.Less number of beds in RICU, PICU & NICU. 11. The petitioner was heard on those deficiencies and after taking into consideration the submissions and materials, a detailed order dated 5.8.2011 contained in Annexure-12,came to be passed. In the decision communicated to the petitioner vide Annexure-12, the stand of the MCI based on the assessor‟s report and the submission of the petitioner has been dealt with. After reading the order as a whole, some things of significance emerge which are – there is shortage of nursing staff, there is no CT scan in place, blood bank has also not been set up and there was some inadequacy or short-fall in the 6 distribution of beds for RIKU, PICU & NICU. The MCI has given the benefit of doubt on the question of low OPD, deficiency of one primary health centre, existence of library & hostel. Though there is also a question mark with regard to the distribution of teaching beds for which certain explanation has been offered during the course of submissions in the present writ. 12. In other words, some of the inadequacies or deficiencies pointed out earlier continued to exist even on 5.8.2011. Though explanations have been offered for non- compliance or willingness has been shown to comply in due course. 13. In the two inspections which have been carried out, the total number of nurses initially shown were only 49 but in the written representation after 30.6.2011 it was held out by the College that there were 209 nursing staff in place. Effort was made to show that the short-fall in the nursing staff had been made up and in support thereof salary statement produced. Payment of salary was shown through cheque and some by cash. Even the quality of the nursing staff was an issue. 14. The matter with regard to the shortage of nursing staff has been dealt with by the MCI under the heading “Shortage of nursing staff” and on this account after perusing the reasons coupled with so-called evidence 7 annexed with the writ application, the Court has certain reservation as to the authenticity of the existence of the nursing staff or the sudden augmentation because what has been produced or shown as evidence of payment through cash is a suspect as they read like a muster roll entry which has been created with the object of providing the magical number. Even otherwise, despite creating those figures with regard to the nursing staff there is a shortfall pointed out in the impugned order i.e. Annexure-12. If the hospital is committed towards providing quality medical education then the existence of nursing staff and that too trained nursing staff has a significant role. It cannot be said that the inadequacy pointed out on this count is misplaced or minor, meant to be ignored. 15. The next deficiency deals with non- availability of a CT scan. Petitioner has tried to show that the efforts are on to procure a CT scan. Initially order was placed by them with M/S. Wipro G. Healthcare. When they failed to supply within the time frame, yet another order has been placed with M/S. Seimens Ltd. and they have assured that the CT scan would be in place between 10-12 weeks of the order. Some payment by way of advance has also been shown. In other words, when inspection was held, there was no CT scan in place for the third renewal which relates to grant of permission to the 4th batch of students to get 8 admission in the College. The requirement for a CT scan is a must as per the MCI Regulation and this deficiency too cannot be ignored. 16. Even during the course of arguments the Court tried to test the bonafide of the stand taken by the petitioner about the assurance of a CT scan being in place in time but except for some half hearted submissions there was no clinching evidence that the CT scan would be installed by the College in question before permission for admission could be granted. Obviously, the effort on the part of the petitioner is somehow to gloss over this requirement with only a kind of assurance with no commitment. 17. The next deficiency in question is non- existence of blood bank. There is no blood bank available, which is an accepted position even by the petitioner. Their stand is that they have done what is required to be done by seeking permission and approval of one and all including the Central Government but since it is tied up in bureaucratic red tape, they cannot be blamed for not setting up the blood bank so far. 18. There cannot be a debate that you cannot run a Medical College and Hospital of such a magnitude without there being a certified blood bank in existence. Showing a tie-up with some blood bank which is said to be 9 in existence in the town in question, in the opinion of this Court, does not fulfil the requirements laid down in terms of the MCI Regulations which are in place and are said to be binding in nature. The requirements as per the regulation for each and every year of admission have been provided for in the regulation. If the blood bank is not in place even for the 4th batch of admission which amounts to 3rd inspection then there is a deficiency of serious kind because the blood bank ought to have been in place for the second renewal itself. 19. From the discussions and findings given by the MCI with regard to inadequate number and distribution of teaching beds, there is a categorical finding that in view of the statutory requirement which is in place due to amendment brought about on 17th September, 2010, the requirement for admission of 100 MBBS students for third renewal year was 450 beds. After the amendment it stands modified to 500 beds and if that yardstick is applied there is a shortfall of 50 beds, which falls foul of the regulation, which has already come into play as far back as on 17th September, 2010. The petitioner has tried to only assure the authorities that this shall be taken care of but the fact which is required to be looked into by the MCI is whether on the date of the inspection for grant of permission the requirements in terms of the regulation are in place or not. 10 20. The distribution of beds or availability of beds for what is known as RIKU, PICU AND NIKU, have also been pointed out. On this issue there is an assurance by the petitioner to put things in place and has been labeled as minor. Even though the inadequacy may look to be minor in nature but since it relates to Intensive Care Unit of the kind, it is not a case of providing yet another bed but gamut of infrastructures which goes with an ICU bed. There is no denial with regard to the inadequacy of this kind as well. 21. It is under these circumstances that based on the deficiencies, specially deficiencies in terms of nursing staff, non-availability of blood bank, a CT Scan and with lesser number of beds than prescribed, both in terms of availability of teaching beds as well as beds for RICU, PICU & NICU, the MCI was of the opinion that the College in question did not meet the requirements of law as well as the minimum standards laid down under the regulation and rejection order contained in Annexure-12 was passed. 22. Vehement submission is made on behalf of the petitioner that efforts should have been made by the MCI to lean in favour of the petitioner because the deficiencies or inadequacies are not of the kind which are very serious in nature. A holistic view ought to have been taken and the college should not be killed by non-grant of permission for admission of students because infusion of 11 fresh blood by way of admission every year is vital to the survival of the institution in question. Such non-grant may be detrimental to the very existence of the college. It is also his contention that the authorities ought to have applied the yardstick laid down in the decision rendered by the Hon`ble Supreme Court in the case of Al-Karim Educational Trust and another vs. State of Bihar and others (1996) 8 Supreme Court Cases 330. Emphasis has been placed on para 11, sub paragraph-h of the said decision where the Hon`ble Supreme Court had occasion to observe that “it is impractical to insist, for a foolproof or absolute adherence to all requirements without regard to their importance or relevance, for the purpose of imparting education.” 23. The Hon`ble Apex Court has surely expressed its opinion that in matters of such kind, there should not be a „wooden rule‟ and a holistic view ought to be taken where institution is in its infancy and requires time to grow. 24. The Court has taken note of the observation of the Apex Court but when it comes down to applying the principle and ratio, there is some difficulty because of the factual position existing in this case. There is no wooden rule which has been applied by the MCI in rejecting the claim of the petitioner in view of the facts that at least three 12 of the deficiencies with regard to nursing staff, absence of CT Scan and absence of blood bank, in the opinion of this Court, are serious deficiencies. They have to be in place as part and parcel of statutory requirements. If these requirements have been provided for in the MCI Regulation, which has been held by the Apex Court to be binding, then there is difficulty for this Court to treat these deficiencies as minor in nature or to ignore them for providing permission to the institution to admit students. The Court is not required to go into all the plethora of decisions which have been cited at the bar for the simple reason that none of those decisions cited can be applied as a thumb rule in the present case because some of those decisions have been passed in the set of facts and with regard to deficiency of those institution. 25. The High Court has to exercise its authority in such cases that too in a writ jurisdiction from the point of view of culling out elements of arbitrariness in exercise of power and whether they are in consonance with law or the rules. If those elements are visible from the records there would be an occasion for the court to interfere but not to substitute its subjective opinion over and above the opinion of a statutory body. In matters of administrative decision, the Court has to test the decision to find out whether it is based on extraneous consideration, tainted by malafide 13 either in fact or law or whether such a conclusion can be reached by a prudent man based on the evidence so discussed. 26. The inadequacy or shortfall pointed out by the repeated inspections carried out by the MCI has been in place right from the time when first inspection was held till the time the aforesaid arguments have been made in the present case. It cannot be a case of the petitioner that the position or the shortfall which had formed the foundation of rejection of the claim of the petitioner for admission of a new batch of 100 students is not based on facts and actual state of affairs. Mere explanations or desire to meet the shortfall in future cannot be the yardstick or parameters for interfering with the decision of the MCI. The requirements which are to be in place as per the statutory regulations must be in place before a new batch of students are permitted to join the institution. It cannot be the case that admissions would be granted first and the shortfalls will be attended to according to the convenience of the institute. If what is required to be in place before inspection every year to enable the MCI to grant permission, the required infrastructure must be in place and no leeway is permissible as that would amount to giving a go by to the Regulation, which is mandatory and has binding force. All the requirements must be in place before the date of inspection 14 and not thereafter keeping in view the academic calendar fixed in this regard by the apex Court. 27. With due respect to the learned counsel for the petitioner this Court comes to a considered opinion that it is not a case that the MCI has rejected the claim of the petitioner on any whims and caprice but it is based on foundational facts and the inadequacies which are very much available and are evident right from the date of first inspection carried out in January, then in May as well as August, 2011 when opportunity of hearing to the petitioner was given by the MCI, in terms of the direction of Delhi High Court. If the petitioner has failed to cover up the omission and inadequacy or shortfalls in the last 8-9 months preceding the date for admission, the fault lies at petitioner‟s door step and not of the Medical Council of India. 28. Learned senior counsel representing the Medical Coucil of India has filed a detailed counter affidavit by which they have brought on record all the materials which have been filed by the petitioner in support of the objections as well as the decisions communicated to them from time to time. It is their stand that no part of decision taken by the MCI can be termed to be arbitrary, motivated or actuated by any consideration. Effort has been made to ensure that the College in question including the 15 students who are permitted to take admission have all the requisite statutory facility in place because the Hon`ble Apex Court in many a decisions have categorically held that there cannot be an institution churning out half baked doctors to treat patients in this country. Medical education is a serious issue and providing quality education with adequate infrastructure is sine qua non to grant of permission for admission in favour of any institution including likes of the present petitioner. 29. Reliance has been placed by the MCI on the decisions of the Hon`ble Supreme Court rendered in many a cases of such kind. The Court has held that is matters of such approval or grant, the technical body i.e. MCI is the best judge and it is none of the business of the Court to substitute its wisdom. In this regard, reliance has been placed in the case of Medical Council of India v. R. G. University of Health Sciences, AIR 2004 SC 2603, with special emphasis on paragraph 13 and 14. Yet another decision relied upon is the case of Medical Council of India v. State of Karnataka and others, (1998) 6 Supreme Court Cases 131. A case duly approved in the decision of Preeti Srivastava v. State of Madhya Pradesh,AIR 1999 Supreme Court 2894. Yet another decision of the Supreme Court is the case of Mridul Dhar and another v. Union of India and others, (2005) 2 Supreme Court Cases 65. 16 30. In a recent decision of this High Court in Dental Council of India and others v. Dr. B. R. Ambedkar Institute of Dental Science & Hospital and others i.e. L.P.A. No. 1042 of 2011, the issue was refusal of permission by Dental Council of India for admission in P.G. Courses. The Court held as under:- “We are of the opinion that in the matter of higher education Court shall not interfere with the opinion of the Council, a statutory body created for that purpose. Once certain deficiencies were pointed out, the College was obliged to remove all those deficiencies before commencing the course. In the present case before the learned single Judge, the College agreed to remove the deficiencies within ten days, meaning thereby that the College tacitly agreed that there were certain deficiencies yet to be removed. So long as the College does not remove the deficiencies it cannot be allowed to commence the proposed educational course, more so when it proposes to commence the post graduate courses. ............................................................... ............................................................... We are not impressed by vague allegations of malafides made by the college. In view of the fact that the College did not remove the deficiencies before the commencement of the Academic session, it can not be allowed to commence the courses for the academic year 2011-12 as proposed.” 17 31. An assurance was given to the Court that if permission was granted, petitioner will do their level best to ensure that what ever is required to be done, will be done in the shortest possible time. In this regard, this Court has only to remind itself of the observation of the Division Bench quoted above. Even otherwise the Court is testing the validity of the impugned orders contained in Annexure-9 and Anneuxre-12 with regard to the actual state of affairs which was in place, on the dates when these orders had been passed. Prima facie, the Court is convinced that the decisions or the findings based on which the decision for refusal has come to be passed are based on cogent materials. There may not be an occasion now for this Court to substitute its wisdom for that of the Medical Council of India by ignoring or brushing aside those materials on mere assurances which have come at the bar on behalf of the petitioner. 32. Another significant aspect which emerges is that since last order of rejection dated 5.8.2011 as well as the time by