Medical Council of India v. Sree Anjenaya Medical Trust and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE THE ACTING CHIEF JUSTICE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE MOHAN M.SHANTANAGOUDAR** **MONDAY, THE 1ST DAY OF AUGUST 2016/10TH SRAVANA, 1938** **WA.No. 1078 of 2016 () IN WP(C).21654/2015 --------------------------------------------** **AGAINST THE JUDGMENT IN WP(C) 21654/2015 DATED 8.4.2016** **APPELLANT(S)/ ADDL RESPONDENTS NO. 3 IN WP(C): --------------------------------------------** **THE MEDICAL COUNCIL OF INDIA, REPRESENTED BY THE SECRETARY, POCKET 14, SECTOR 8, DWARKA, PHASE I, NEW DELHI PIN 110 077** **BY ADV. SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL** **RESPONDENT(S)/PETITIONER/ RESPONDENT NO 1, 2 & 4 IN WP(C):** **----------------------------------------------------------** **1. SREE ANJENAYA MEDICAL TRUST, KANCHAS COMPLEX, OPP INDORE STADIUM, CALICUT 673 004, RERPESENTED BY ITS AUTHORISED SIGNATORY.** **2. STATE OF KERALA** - **REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM.** **3. THE KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O. THRISSUR- 680 596 REPRESENTED BY ITS REGISTRAR.** **4. UNION OF INDIA, REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAWAN, NEW DELHI 110 001.** **R4 BY ADV. SRI.MANU.S, CGC R3 BY ADV. SRI.P.SREEKUMAR,SC,KERALA UTY. OF HEALTH SCIENCES R2 BY GOVERNMENT PLEADER SRI. M.A. ASIF R1 BY SRI.P.SANJAY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-08-2016, ALONG WITH WA. 1109/2016, WA. 1130/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WA.No. 1078 of 2016** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE A1 - TRUE COPY OF THE JUDGMENT DATED 21.12.2015 IN W.A. No.2120/15** **ANNEXURE A2 - TRUE COPY OF THE LETTER MCI-34(41)(RG-6)/2014-Med/109020 DATED 15.5.2016 ALONG WITH THE TRUE COPY OF THE ASSESSMENT REPORT DT.6.5.2016** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** /TRUE COPY/ P.A. TO JUDGE sou. ## **Thottathil B. Radhakrishnan , Ag. CJ and Mohan M. Shantanagoudar, J** -------------------------------------------------------------- W.A. No. 1078 of 2016, W.A. No.1109 of 2016 and W.A. No. 1130 of 2016 --------------------------------------------------------------Dated this the 1[st] day of August, 2016 ## J U D G M E N T ## Thottathil B. Radhakrishnan, Ag. CJ 1. These three writ appeals are by the Medical Council of India, hereinafter referred to as the 'MCI'. They are filed challenging a common judgment rendered by the learned Single Judge on three writ petitions. 2. The first respondent in these writ appeals, which is the writ petitioner, is a Trust, which runs the Malabar Medical College and Research Centre, Calicut which was provisionally permitted to commence course leading to the ward of MBBS Degree for 150 seats. Affiliation was granted by the Kerala University of Health Sciences, 'KUHS', for short. It appears that there were earlier proceedings during the previous years on issues as to whether recognition and affiliation is to be continued. There were directions issued by the Hon'ble Supreme Court touching 2 _**W.A.1078/16 & Conn. cases**_ those years. It is submitted by the learned counsel appearing for KUHS that those directions included certain measures which were dependant on security furnished by the institution. 3. The writ petitions from which these writ appeals arise related to a situation where the MCI conducted an inspection on 28[th] and 29[th] of April, 2015. Later, KUHS conducted an inspection and wrote to MCI pointing out deficiencies in the facilities of the establishment and that terms of MCI regulations have not been properly followed. It is stated that MCI again conducted a surprise inspection on 1.6.2015, going by which, MCI took the stand that there were deficiencies and hence, affiliation and recognition cannot be granted. 4. While W.P.(C).No.23292 of 2015, which is one of the writ petitions from which these writ appeals arise, was pending before the learned single Judge, an interlocutory order was issued on 31.7.2015 after considering the rival contentions and submissions and noticing the relevant facts; thereby requiring the MCI to constitute an inspection team and conduct an inspection to find out whether deficiencies pointed out earlier _**W.A.1078/16 & Conn. cases**_ 3 have been rectified. We may now notice that there was abundant sense in issuing such an order at that point of time because through its first inspection in April 2015, the MCI had actually concluded that the institution satisfies the norms, however that, in the so called surprise inspection following KUHS's letter, the MCI conducted a surprise inspection leading to what it concluded as deficiency in the facilities. 5. Here and now, we may state that either before the learned single Judge or before us, the MCI does not criticize those who conduct the first inspection. It also does not deny the fact that the first inspection was conducted. That inspection resulted in a decision in favour of the institution. With all these, when the inspection under the aforenoted order of Court was carried, MCI, instead of confining itself to finding out whether deficiencies have been rectified, came out with a report through which it showed certain deficiencies relatable to bed occupancy and other factors. Learned single Judge held that having regard to the contents of the inspection reports and the depletion of occupancy ratio only in the surprise inspection, it would not be appropriate to let the institution be closed down. 4 _**W.A.1078/16 & Conn. cases**_ Accordingly, the admission granted to the year 2015-16 is made absolute and the MCI and the Government of India were directed to proceed to grant recognition in terms of Section 11 (2) of the MCI Act and KUHS was directed to renew the affiliation in accordance with the norms. 6. Supporting these appeals, the learned counsel for MCI argued, among other things, that it is trite law that in writ jurisdiction, it would be wholly improper to interfere with the conclusions arrived at by inspection team of MCI, which consists of persons of repute and efficiency and also knowledge and acumen in the relevant field. Reference was made to the decision of the Apex Court in **Medical Council of India v. Kalinga Institute of Medical Science (KIMS) and Others** [2016(4) Scale 649] (Civil Appeal No.4914 of 2016 decided on 6.5.5016) to buttress his argument making particular reference to paragraph 23 of that judgment. 7. _Per contra_ , the learned counsel appearing for the institution pointed out that all that the learned single Judge has done is to consider the entire materials on record and what has been _**W.A.1078/16 & Conn. cases**_ 5 rendered are purely questions of fact which, unless capricious and unavailable on records; the writ appellate court may not interfere. The learned counsel for KUHS stood to point out that the communication given to MCI was on the basis of inspection that it conducted and that it had also the support of the earlier order of the Apex Court, which provided for encashing security deposit. 8. One thing is certain; the learned single Judge has not sat in appeal on the findings of the inspecting committees. All that has to be done is to make a comparative evaluation of the contents of the reports of the inspection committee and come to a reasonable conclusion as to whether it would be advisable to let MCI turn away from its initial inspection report which it does not criticize even before the learned single Judge. Repeated inspection being carried out should have a purpose. If a particular inspection is carried out in a manner which by itself takes away its credibility, the institution which authorizes inspection should have the ability and credence to challenge and show that the said report was obtained through extraneous means and the committee or person or persons who conducted _**W.A.1078/16 & Conn. cases**_ 6 inspection ought to be criticized in that manner. One cannot have a slippery foot while dealing with such issues. We are not unaware of the fact that Indian domain relating to the field of education which has got commercialized with passage of time may require stricter consideration to ensure higher benchmark of competence and quality. This does not, however, mean that institution is a governance which can easily throw out inspection reports unless they have the force in themselves to speak on real reason for why they don't stand by the reports. It is in this context, we may appreciate that the learned single Judge had made comparative evaluation without going deeper into the technicalities as between the first report of the MCI and the surprise report later on made. We have also seen the report obtained after the interlocutory order was issued by this Court. Non-availability of beds is not a ground established. What has been shown is non-occupancy of beds, which are available. That is reflected as on the date of the second inspection for one day. If we were to take the time frame within which two inspections were carried, we have necessarily to affirm the views of the learned single Judge that the comparative expressions in the report tend to show that it is _**W.A.1078/16 & Conn. cases**_ 7 not a case where there was deficiency of such a nature as would violate the regulations. 9. The first inspection of the MCI on 28.1.2015 showed 89% occupancy. The surprise inspection of MCI on 1.6.2016 showed 61% occupancy. After the interlocutory order passed by this Court as noted above, further inspection on 25.8.2015 showed 89% in the morning, which thereafter tapered to 61.6%. 10. We say this because, the first inspection report shows that there was bed occupancy of 89% on 25.8.2015 as against the required minimum of 70%. However, on the same day, it was found to taper down to 61.6%. We may caution ourselves that we are not dealing with occupancy of hotels. We are dealing with occupancy of hospital beds. The sooner the patients leave the hospitals is better for them. Therefore, variation in occupancy percentage had to be reasonably understood for the purpose of ensuring that clinical and other facilities are available to the students. 8 _**W.A.1078/16 & Conn. cases**_ Taking into consideration the contents of the reports as a whole, we do not think that the learned single Judge had erred in appreciating the material facts. Irrelevant facts have not been considered by the learned single Judge. There is no exercise as if the learned single Judge was not sitting in statutory appeal. On the whole, we do not find any ground to interfere with the decision of the learned single Judge. The writ appeals fail. They are accordingly dismissed. Sd/- Thottathil B. Radhakrishnan, Acting Chief Justice Sd/Mohan M. Shantanagoudar, Judge sou.1/8. /TRUE COPY/