Case: MEDICAL COUNCIL OF INDIA Vs. LORD BUDDHA EDUCATION SOCIETY

that if the deficiencies of teaching faculty and/or residents are found to be more than 30% and/or bed occupancy less than 50%, College shall not be entitled to make them good and compliance of deficiencies will not be considered for issuance of letter of permission for same academic year. This Court held that compliance verification could not have been ordered in view of Regulation 8(3) (1)(a). The relevant observations in Vedantaa (supra) are extracted hereunder: 10. Though Regulation 8(3)(1)(a) was challenged in the writ petition filed by Respondents 1 and 2, they did not press the relief. They restricted their challenge to the manner in which the inspection was done and for a direction to the appellant-Council to carry out a fresh inspection. The interpretation of Regulation 8(3)(1)(a) by the High Court is patently erroneous inasmuch as the High Court did not take note of the proviso to Regulation 8(3)(1). Without a proper examination of the provision, the High Court fell in error in holding that Regulation 8(3)(1) (a) would be applicable only to the Colleges seeking second renewal i.e. admissions of the third batch. Admissions up to the second renewal i.e. admissions to the third batch would fall under Regulation 8(3)(1)(a). In other words, the proviso is not restricted only to second renewal cases. Even the first renewal is covered by proviso (a) to Regulation 8(3)(1) as the language used is up to second renewal. We do not see any conflict between Section 10-A (3) and (4) of the Act on one hand and Regulation 8(3)(1)(a) on the other. Regulation 8(3)(1) (a) is complementary to Section 10-A of the Act. Fixing minimum standards which have to be fulfilled for the purpose of enabling a medical College to seek fresh inspection would not be contrary to the scheme of Section 10-A. In fact, Regulation 8(3)(1) provides that an opportunity shall be given to the Medical College to rectify the defects. But, the proviso contemplates that certain minimum standards are to be satisfied i.e. there should not be a deficiency of teaching faculty and/or residents more than 30 percent and/or bed occupancy should not be less than 50%. This prescription of standards for availing an opportunity to seek reinspection is not ultra vires either the Regulation or Section 10-A of the Act. 11. On perusal of the material on record, we are of the opinion that the conclusion reached by the High Court regarding the manner in which inspection was conducted is also not correct. Bed occupancy at 45.30 percent on random verification was the claim of Respondents 1 and 2. However, the inspection report shows that out of the required minimum of 300 patients only 3 were available at 10.00 am on 25th September 2017. This Court in Medical Council of India v. Kalinga Institute of Medical Sciences, (2016) 11 SCC 530 has held that medical education must be taken very seriously and when an expert body certifies that the facilities in a medical College are inadequate, it is not for the Courts to interfere with the assessment, except for very cogent jurisdictional reasons such as malafide of the inspection team, ex facie perversity in the inspection, jurisdictional error on the part of the M.C.I., etc. The submission relating to the cyclone being a reason for the number of patients being less is not acceptable. We are in agreement with the submission made on behalf of the Appellant that the Resident Doctors are required to be in the hospital at all points of time. 25. It is apparent that the College had filed successive writ applications in the High Court of Delhi in 2018 but did not pray for fresh inspection in terms of the order passed by this Court knowing fully well that the MCI and the Oversight Committee had decided and again reiterated their decision that due to gross deficiencies found as per Regulation 8(3)(1)(a), compliance verification could not have been made. It was incumbent upon the College to timely press for the relief of considering compliance which it did not insist and thereafter it was too late in the day to order it by the High Court vide impugned order dated 1.8.2018 passed by the High Court even if it was permissible. 26. What this Court intended by passing the order on13.11.2017 was that the College be inspected afresh for the academic year 2018-19 but it was not even in contemplation of this Court at the time what would be the nature of deficiencies to be found on fresh inspection. The observation has to be considered only with respect to when deficiencies have been found to be such, more than 30% of faculty and of residents and/or the bed occupancy is less than 50%, no further compliance verification opportunity has to be given. The decision of this Court cannot be taken to be a decision with respect to it when deficiencies are found to be gross where the proviso to Regulation 8(3)(1) comes into play. The decision of this Court is based on the main provision that ordinarily an opportunity has to be given to removing the deficiencies which are removable not falling within the aforesaid percentage in Regulation 8(3)(1)(a). Thus, Court never intended to bye-pass the provision of Regulation 8(3)(1)(a). It was not ordered that notwithstanding the provision of Regulation 8(3)(1)(a), compliance opportunity is to be afforded. A decision is an authority for the question considered and decided. This Court had not decided the aforesaid aspect nor was it germane as fresh inspection had not been carried out by 13.11.2017. Thus, the observations made by this Court cannot be taken to mean that though deficiencies are found to be more than 30% of faculty and residents and bed occupancy is 50% and notwithstanding the provisions contained in Regulation 8(3)(1)(a), compliance opportunity should be given. Thus, the High Court has erred in law in considering purport of the order of this Court and the ratio of the decision in Vedantaa (supra) was clearly applicable in the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. What emerges from the factual scenario of the case is that the College had never been granted permission by the MCI. The Government of India was compelled to grant permission on the conditional basis that too in view of the direction issued by the Oversight Committee. As there were deficiencies and it was a case of conditional permission, thus deficiencies were required to be removed and thereafter in the inspection that was made in the year 2016 and again in 2017, it was found that the College had not removed the deficiencies and did not fulfill conditions. After the Oversight Committee of this Court decided to grant conditional permission for the academic session 2016-17, the Government of India had to accept it as is apparent from the communication dated 20.8.2016. It was clearly a conditional permission by the Government of Indias order that in case the College was found to be deficient in complying with conditions then it shall be debarred for two academic years. Such conditional permissions are not ordinarily to be granted while a new College is required to be established. Nonetheless, it was granted in the wake of aforesaid facts and circumstances.21. It is apparent from the aforesaid that the petitioner wase that in view of the gross deficiencies found, an opportunity could not have been granted in view of Regulation 8(3)(1)(a). The College filed W.P. [C] No.4897/2018 which was decided by the High Court on 8.5.2018. Following is the order passed by the High Court :Vide the present petition, the petitioners/Institutes have sought to quash of the decision dated 24 th March 2018 passed by respondent no.2, recommending disapproval of the petitioners application to respondent no.1 for renewal/permission of the third batch of MBBS course (150 seats) for the Academic Year. The petitioners have also sought issuance of direction to respondent no.2, to accept the Scheme of the petitioners as submitted for renewal of permission in respect of the aforesaid batch and if necessary grant an opportunity to furnish compliance verification and, therefore, issue a letter of permission.At this stage, learned counsel for the petitioners submits that vide order dated 6 th March 2018, this Court had recorded the undertaking of respondent no. 2/MCI to decide the petitionerspending application and forward the same to respondent no.1 within five weeks. He submits that till date, the respondent no.1 has not informed the petitioners about any decision of respondent no.2.Ms. Arora, who appears on advance notice for the respondent no.1 submits that within ten days of receipt of the recommendations from respondent no.2, the respondent no.1 will pass a final order deciding the petitioners pending application.On the one hand, Mr. T.Singhdev, learned counsel for respondent no.2, submits that its recommendations in respect of the petitioners application have already been sent to respondent no.1 on 13 th April 2018 itself.In view of the categoric statement made by learned counsel for the respondent no.2 that the recommendations have already been forwarded on 13 th April 2018, the respondent no.1 is directed to take a final decision on the petitionersapplication within ten days from today.It is made clear that in case the respondent no.1 is still not in possession of recommendations made by respondent no.2 vide its order dated 13 th April 2018, respondent no.1 would be at liberty to seek immediately a fresh copy of the same from respondent no.2.Needless to say that the said final decision taken by respondent no.1, will be communicated to the petitioner who will be free to take legal recourse as permissible under law.The petition and pending applications are disposed of in the aforesaid terms.It is apparent from the aforesaid order that the College again did not insist that fresh inspection should be carried out and it may be permitted to comply with the deficiencies.23. In view of the gross deficiencies found, no compliance verification could have been made in view of Regulation 8(3)(1)(a). It was already a case of conditional permission which was granted subject to removal of deficiencies and in successive inspections, it was found that the College was not compliant and had not removed the deficiencies. When this Court has passed an order on 13.11.2017, no doubt about it that this Court has observed that inspection should be carried out and College should be given an opportunity to make compliance of deficiencies. In concluding portion it was observed that the decision has to be in accordance with law. This Court never decided the question in case deficiencies were found to be gross as contained in Regulation 8(3)(1)(a) whether the said Regulation has to be ignored. The observations which were made by this Court were obviously based upon the main provision which requires an opportunity to be given unless the deficiencies are such which can be termed to be gross as contemplated in proviso (a) to Regulation 8(3)(1)(a) that has been amended.25. It is apparent thatthe College had filed successive writ applications in the High Court of Delhi in 2018 but did not pray for fresh inspection in terms of the order passed by this Court knowing fully well that the MCI and the Oversight Committee had decided and again reiterated their decision that due to gross deficiencies found as per Regulation 8(3)(1)(a), compliance verification could not have been made. It was incumbent upon the College to timely press for the relief of considering compliance which it did not insist and thereafter it was too late in the day to order it by the High Court vide impugned order dated 1.8.2018 passed by the High Court even if it was permissible.this Court intended by passingafresh for the academic year 2018-19 but it was not even in contemplation of this Court at the time what would be the nature of deficiencies to be found on fresh inspection. The observation has to be considered only with respect to when deficiencies have been found to be such, more than 30% of faculty and of residents and/or the bed occupancy is less than 50%, no further compliance verification opportunity has to be given. The decision of this Court cannot be taken to be a decision with respect to it when deficiencies are found to be gross where the proviso to Regulation 8(3)(1) comes into play. The decision of this Court is based on the main provision that ordinarily an opportunity has to be given to removing the deficiencies which are removable not falling within the aforesaid percentage in Regulation 8(3)(1)(a). Thus, Court never intended to bye-pass the provision of Regulation 8(3)(1)(a). It was not ordered that notwithstanding the provision of Regulation 8(3)(1)(a), compliance opportunity is to be afforded. A decision is an authority for the question considered and decided. This Court had not decided the aforesaid aspect nor was it germane as fresh inspection had not been carried out by 13.11.2017. Thus, the observations made by this Court cannot be taken to mean that though deficiencies are found to be more than 30% of faculty and residents and bed occupancy is 50% and notwithstanding the provisions contained in Regulation 8(3)(1)(a), compliance opportunity should be given. Thus, the High Court has erred in law in considering purport of the order of this Court and the ratio of the decision inVedantaa (supra) was clearly applicable in the case.