Mount Zion Medical College, Chayalodu v Union of India & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY ,THE 21ST DAY OF AUGUST 2018 / 30TH SRAVANA, 1940** ## **WP(C).No. 23828 of 2018** ## **PETITIONER/S:** **MOUNT ZION MEDICAL COLLEGE CHAYALODU P.O., EZHAMKULAM,PATHANAMTHITTA DISTRICT - 691 556,REPRESENTED BY CHAIRMAN, K.J. ABRAHAM.** **BY ADVS. SRI.ISSAC NINAN SRI.JIBU P THOMAS SRI.KURIAN GEORGE KANNANTHANAM SR.** ## **RESPONDENT/S:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE DEPARTMENT,NIRMAN BHAVAN, NEW DELHI - 110 001. 2 THE MEDICAL COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY,POCKET - 14, SECTION 8, DWARAKA PHASE I,NEW DELHI - 110 077. 3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 4 COMMISSIONER FOR ENTRANCE EXAMINATIONS GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. 5 KERALA UNIVERSITY OF HEALTH SCIENCE REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., TRICHUR - 680 596.** **BY ADVS. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA SRI.V.MANU, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGEMENT** ## _**Shaffique, J.**_ Petitioner is a Medical College having obtained letter of permission to start Medical College and effect admissions since 2014-2015. As per the procedure, the Central Government has to give letter of permission every year and for intake of students for the academic year 2018-19, MCI had conducted inspection on 8[th] November, 2017. Ext.P3 is the inspection report dated 9/11/2017. In Ext.P3 report, the bed occupancy at 10 am is recorded at 50% which is below the bench mark of 65%. Based on the aforesaid report, the MCI had recommended to the Central Government not to grant permission and accordingly by Ext.P9 order dated 1[st] May, 2018, Central Government decided not to renew the permission for admission of 5[th] batch of 100 MBBS students for the academic session 2018-19. It is contended that in Ext.P3 report of MCI, the bed occupancy was stated to be 235 out of 470 and that too based on the department-wise bed occupancy evidence sheet given by the College. Ext.P4 is the said evidence sheet which would clearly show the department-wise in-patients thereby indicating that the bed occupancy is 78% out of the total 388. It is based on the aforesaid fact that MCI had informed the Central Government not to renew the permission for admission invoking Regulation 8(3)(1)(b) of the Establishment of Medical College Regulation (Amendment), 2010 (Part II) dated 16/4/2010 and amended on 18[th] March, 2016. The contention therefore is that deliberately the bed occupancy had been reduced so that other issues need not be considered by MCI for renewal. The Central Government also did not apply its mind while issuing Ext.P9 order. 2. Yet another contention urged was that despite the direction of the Apex Court by judgment dated 18/7/2017 in WP(C) No. 408/2017 by which an Oversight Committee had been constituted, MCI did not sent its decisions/recommendations to the Oversight Committee before communicating to the Central Government. 3. Counter affidavit had been filed on behalf of MCI wherein it is stated that once the Medical College was found to be grossly deficient in the physical inspection due to which they fall within the ambit of Regulation 8(3)(1)(b) of the Regulations, MCI is not obliged to grant any opportunity to the Medical College to rectify the deficiencies. It is further contended that MCI had to keep the time schedule as fixed by the Apex Court in various judgments, the latest of which is reported in _**Ashish Ranjan v. Union of India**_ [(2016) 11 SCC 225]. Further, the assessor's report cannot be challenged in a writ proceedings as held by the Apex Court in a long line of judgments including _**MCI v. Kalinga Institute of**_ _**Medical Science**_ [(2016) 11 SCC 530]. Learned counsel for MCI also submitted that for making false claims, the Apex Court in _**Mahavir Institute of Medical Science and another v. Union of India and another**_ (order dated 6/8/2018 in WP(C) No.818/2018) had imposed exemplary cost of `2 crore on the applicant. Further referring to the judgment in _**MCI v. Vedanta Institute**_ (Civil Appeal No.5805/2018 dated 1/6/2018), it is submitted that the Regulations relied upon by the MCI had been upheld by the Apex Court. Learned counsel also pointed out the limited scope of judicial review in similar matters as held by the Apex Court in _**Chairman, J&K State Board of Education v.Feyaz Ahmed Malik**_ [(2003) 3 SCC 59]. 4. Learned counsel appearing for Union of India also supports the view taken by MCI and placed reliance on the judgment in _**Kalinga Institute of Medical Science**_ (supra). 5. There cannot be any quarrel regarding the legal propositions as argued by learned counsel for the MCI. There is no dispute about the fact that last date of admissions for MBBS courses have to be completed by 31/8/2018. This is an instance where petitioner was not given any opportunity to rectify the deficiencies in terms of Regulation 8(3)(1)(b) which reads as under:- _“8(3)(1)(b) Colleges in the stage from III & IV renewal (i.e. Admission of fourth & fifth batch)_ _If it is observed during any inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is <65% compliance of rectification of deficiencies from such an institute will not be considered for renewal of_ _permission in that Academic year.”_ 6. We are only concerned with the bed occupancy which according to the learned counsel for the petitioner is based on Ext.P3. First of all, we do not find any specific ground being taken in that regard. It is only stated that the department wise evidence sheet given to the Assessors by the Principal is Ext.P4. But what is stated in Ext.P3 in the remarks column of bed occupancy is as under “Department wise bed occupancy evidence sheet is given”. But even if the college has given Ext.P4, what is recorded as clinical material in the bed occupancy sheet is only 50% ie 235 out of 470. This is further clarified in Ext.P3 itself while giving summary of assessment in column 9 which reads as under:- _“d. Most of the patients were admitted from 3.11.2017 onwards. In a majority of patients no diagnosis was written in the case sheets. In many cases diagnosis was written by pencil and overwriting by pen. In Orthopaedic wards patients diagnosed as fractures did not have supportive evidence in form of Xrays and did not clinically appear to have fractures. Only 1 post operative patient in orthopaedics. No postoperative patients in Gynaecology ward. There were no post operative major surgery patients such as exploratory laparotomy/hermioraphy in surgical wards. Total 5 post operative patients were present in Surgery, no post operative patients in ENT and Ophthalmology. 80% of patients in all wards appeared to be normal. Photograph taken by assessors own photograph and evidence sheet regarding bed occupancy attached.”_ 7. Of course, the Principal who is one among the Assessor's had noted his dissent. But the fact remains that when during inspection the Assessor's had only found less than 50% bed occupancy, such factual matters cannot be unsettled by this Court by exercising writ jurisdiction as held in _**Kalinga Institute of Medical Science**_ (supra) and other judgments of the Apex Court. 8. Though it was contended by the learned counsel for petitioner that the recommendation was not forwarded by MCI to the Oversight Committee, Ext.R2(a) letter issued by MCI on 6/1/2018 to the Central Government clearly indicates that the decision of the Executive committee has been approved by the Oversight Committee on 3/1/2008. 9. Taking into account these factual aspects, we do not think that the petitioner is entitled for any relief as sought for. Writ petition is dismissed. **==> picture [95 x 177] intentionally omitted <==** **----- Start of picture text -----**<br> Sd/-<br>A.M.SHAFFIQUE<br>Judge<br>Sd/-<br>P.SOMARAJAN<br>Judge<br>**----- End of picture text -----**<br> ## **APPENDIX** PETITIONER'S EXHIBITS EXT.P1 EXT.P2 TRUE COPY OF THE ORDER DATED 9.10.2017 IN WPC NO.432/2017 OF THE HON'BLE SUPREME COURT OF INDIA TRUE COPY OF THE ORDER DATED 17.1.2018 IN WPC NO.432/2017 OF THE HON'BLE SUPREME COURT OF INDIA. EXT.P3 TRUE COPY OF THE INSPECTION REPORT DATED 9.11.2017 BY THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE DEPARTMENTWISE EVIDENCE SHEET GIVEN TO THE ASSESSORS BY THE PRINCIPAL, MOUNT ZION MEDICAL COLLEGE HOSPITAL, ADOOR. EXT.P5 TRUE COPY OF THE LETTER DATED 11.11.2017 SENT BY PRINCIPAL, MOUNT ZION MEDICAL COLLEGE, ADOOR TO THE 2ND RESPONDENT. EXT.P6 TRUE COPY OF THE LETTER DATED 16.1.2018 SENT BY UNDER SECRETARY TO THE GOVERNMENT OF INDIA TO PRINCIPAL, MOUNT ZION MEDICAL COLLEGE AND HOSPITAL, ADOOR. EXT.P7 TRUE COPY OF THE COVERING LETTER DATED 18.1.2018 GIVEN BY PRINCIPAL, MOUNT ZION MEDICAL COLLEGE, ADOOR TO THE CENTRAL GOVERNMENT. EXT.P8 TRUE COPY OF THE COMPLIANCE REPORT BY PRINCIPAL, MOUNT ZION MEDICAL COLLEGE, ADOOR. EXT.P9 TRUE COPY OF THE ORDER DATED 1.5.2018 ISSUED BY GOVERNMENT OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE. EXT.P10 TRUE COPY OF THE SUMMARY OF THE HEARING PROCEEDINGS WITH THE OBSERVATIONS OF THE HEARING COMMITTEE. EXT.P11 TRUE COPY OF THE REPRESENTATION DATED 4.5.2018 GIVEN BY PRINCIPAL, MOUNT ZION MEDICAL COLLEGE, ADOOR. EXT.P12 TRUE COPY OF THE REPRESENTATION DATED 16.5.2018 GIVEN BY PRINCIPAL, MOUNT ZION MEDICAL COLLEGE, ADOOR. EXT.P13 TRUE COPY OF THE LETTER DATED 28.5.2018 FROM THE OVERSIGHT COMMITTEE TO THE 2ND RESPONDENT. EXT.P14 TRUE COPY OF THE LETTER DATED 1.6.2018 SENT BY 2ND RESPONDENT TO THE DEAN, MOUNT ZION MEDICAL COLLEGE. EXT.P15 TRUE COPY OF ORDER DATED 18.7.2017 IN WPC NO.408/2017 OF THE HON'BLE SUPREME COURT OF INDIA. EXT.P16 TRUE COPY OF THE NOTIFICATION DATED 18.3.2016 AMENDING THE EXISTING MCI REGULATION. EXT.P17 TRUE COPY OF COMMUNICATION FROM THE OFFICE OF THE SUPREME COURT MANDATED OVERSIGHT COMMITTEE DATED 6.7.2018 ADDRESSED TO THE CENTRAL GOVERNMENT WITHOUT ENCLOSURES APPENDED TO THE SAME. RESPONDENT''S EXHIBITS EXT.R2(a) TRUE COPY OF MCI LETTER DATED 6.1.2018. EXT,R2(b) TRUE COPY OF CENTRAL GOVT.LETTER DATED 1.5.2018. EXT.R2(c) EXT.R2(d) COPY OF JUDGMENT DATED 1.6.2018 PASSED BY THE HON'BLE APEX COURT IN CIVIL APPEAL NO.5805/2018MEDICAL COUNCIL OF INDIA VS. VEDANTAA INSTITUTE OF ACADEMIC EXCELLENCE PVT. LTD. AND OTHERS. COPY OF ORDER DATED 23.4.2018 PASSED BY THE HON'BLE DELHI HIGH COURT IN WPC NO.2916/2018NIMRA EDUCATIONAL SOCIETY AND ANOTHER V. UOI AND ANR.