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

2. On 7/8.11.2016, the assessment was carried out by a team of the MCI to ascertain whether the College had complied with theconditions imposed by the Oversight Committee and the Government of India vide letter dated 20.8.2016 by removing the deficiencies. On consideration of the report of the assessors the Executive Committee of the MCI in its meeting held on 22.12.2016 found gross deficiencies in the College and it was observed that the College had failed to remove the deficiencies and to fulfill the conditions imposed and also failed to comply withthe undertaking and as such on 26.12.2016 a recommendation was made to debar the College for two years i.e. 2017-18 and 2018-19 and to encash the bank guarantee of Rs.2 crores furnished by the College.3. The Government of India on due consideration of the recommendation of the Council madeto it, accepted the recommendation and debarred the College for two academic years, and also permitted the Council to encash the bank guarantee vide order dated 31.5.2017.4. The College filed W.P. [C] No.1825/2017 in the High Court of Chhattisgarh and it was disposed of vide order dated 3.8.2017. The Court directed the Government of India to reconsider the case of the College and decide the representation of the College by a reasoned order. Pursuant thereto, the Government of India again granted an opportunity of hearing to the College and passed a reasoned order on 14.8.2017 and the earlier decision to debar the college from admitting students and to encash the bank guarantee was reiterated.5. Aggrieved by the order dated 14.8.2017 passed by the Government of India, the College filed W.P. [C] No.776/2017 in this Court. This Court vide order dated 13.11.2017 directed the MCI to consider the application for renewal of permission for the academic year 2017-18 to be valid for the academic year 2018-19 and to process the same in accordance with law.6. Thereafter, pursuant to the order passed by this Court on 13.11.2017 in the aforesaid writ petition, the Assessors of the MCI again carried out the inspection on 5/6.12.2017. The report of the Assessors was placed before the Executive Committee in its meeting held on 14.12.2017. Gross deficiencies were found in the College with respect to infrastructure, clinical material, teaching faculty, and other attendant physical facilities etc. Hence, the Executive Committee of the Council recommended to the Central Government not to grant renewal of permission for admitting third batch of 150 MBBS students for the academic year 2018-19 and also to invoke Regulation 8(3)(1)(a) of the Establishment of NewMedical College Regulations, 1999 as the deficiency of teaching faculty, residents and bed occupancy was found much below the percentage prescribed in the said Regulations so as to renew them in the same academic year. The decision of the Executive Committee was considered by the Oversight Committee and thereafter the Council considered the matter and sent its recommendations to the Government of India on 6.1.2018. The Government of India granted an opportunity of hearing as is apparent from communication dated 12.2.2018. The Government of India requested the Council in view of the documents of compliance filed by the appellant, to consider the same and to review the decision.7. On 23.2.2018 the case of the College was placed before the Sub-Committeeof the Council in its meeting on 21.2.2018. Regulation 18(3)(1)(a)of the Regulations of 1999 had been invoked against the College. The matter was then referred to the Oversight Committee vide letter dated 23.2.2018. Before the final decision was reached, the College approached the High Court of Delhi by filing W.P. [C] No.2022/2018. The High Court vide order dated 6.3.2018 disposed of the petition and directed the MCI to take a decision within a period of 5 weeks.8. The Oversight Committee considered the matter and vide letter dated 8.3.2018 approved the decision of the MCI and it was observed that once Regulation 8(3)(1)(a) had been invoked, as such it was impermissible for the Council/Government of India to consider the compliance reported by the College.9. The case of the College was placed before the Executive Committee of the Council on 24.3.2018. The Executive Committee in view of the decisions of this Court and considering the said Regulation decided to reiterate the earlier decision to recommend to the Central Government not to grant renewal of permission for the third batch of 150 MBBS students for the academic year 2018-19. The decision of the Council was communicated to the Oversight Committee on 28.3.2018. Ultimately it was communicated to the Government of India vide letter dated 13.4.2018.10. Before the Government of India could take the final call, the College filed W.P. [C] No.4897/2018 which was decided by the High Court vide order dated 8.5.2018 and directed the Central Government to take a decision in the case of the College within a period of 10 days. The Central Government after considering the recommendation passed an order on 31.5.2018 and in view of the gross and serious deficiencies found in the assessment report, decided not to grant renewal of permission for admission for the academic year 2018-19.11. The College as against order dated 31.5.2018, filed W.P. [C] No.6656/2018. The High Court has allowed the same vide order dated1.8.2018 and has ordered the College to submit compliance and directed the MCI to conduct an inspection of the College in order to reconsider the case for grant of renewal of permission for the academic year in question i.e. 2018-19.12. The High Court has opined that in view of the direction in the order passed by this Court on 13.11.2017 to grant opportunity to make compliance and remove deficiencies, ought to have been granted. Though this Court while passing the order did not consider the applicability of Regulation 8(3)(1)(a), the direction was binding as no clarification was sought from this Court.

Reasoning:
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.