SREE ANJANEYA MEDICAL TRUST v STATE OF KERALA, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COUNCIL OF INDIA, UNION OF INDIA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** # **FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938** **WP(C).No. 21654 of 2015 (F) --------------------------------------------** **PETITIONER(S) :** **--------------------------** **SREE ANJANEYA MEDICAL TRUST, KANCHAS COMPLEX, OPP. INDOOR STADIUM, CALICUT 673 004, REPRESENTED BY ITS AUTHORISED SIGNATORY.** **BY ADVS. SRI.P.SANJAY** **SMT.A.PARVATHI MENON SRI.K.P.ABDUL RASSAK SRI.SUSEEL M.MENON SMT.BINI SARAMMA SRI.KURIAN GEORGE KANNANTHANAM (SR.)** ## **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., THRISSUR- 680 596, REPRESENTED BY ITS REGISTRAR.** - **ADDITIONAL R3 & R4 IMPLEADED** **3. MEDICAL COUNCIL OF INDIA, REPRESENTED BY THE SECRETARY, POCKET-14, SECTOR-8, D WARKA, PHASE 1, NEW DHELHI-110 077.** **4. UNION OF INDIA, REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA,MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI-110 001.** - **ADDITIONAL R3 & R4 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 03.08.2015.** **R1 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR R2 BY ADV. SRI.P.SREEKUMAR, S.C ADDL.R3 BY ADV. SRI.TITUS MANI VETTOM, S.C ADDL.R4 BY ADV.SRI.N.NAGARESH, A.S.G OF INDIA ADV. SRI.MANU.S, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2016, ALONG WITH W.P(C).NO.23292 OF 2015 AND W.P(C).NO.28615 OF 2015, THE COURT ON 08-04-2016 DELIVERED THE FOLLOWING:** **WP(C).No. 21654 of 2015 (F) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1: TRUE COPY OF THE NO OBJECTION CERTIFICATE NO. GAI/D4/6750/07 DATED 22-08-2008.** - **EXHIBIT P2: TRUE COPY OF THE CONSENT OF AFFILIATION NO.GAI/D4/6750/07 DATED 15-11-2008.** - **EXHIBIT P3: TRUE COPY OF THE CONSENT OF AFFILIATION NO.GAI/D4/6750/07 DATED 26-11-2008.** - **EXHIBIT P4: TRUE COPY OF THE CONSENT OF AFFILIATION NO.15ACADEMIC/2010/KUHAS DATED 20-02-2010.** - **EXHIBIT P5: TRUE COPY OF THE SANCTION DATED 28-07-2010 NO.121/15/AC/2010/KUHAS.** - **EXHIBIT P6: TRUE COPY OF THE LETTER NO. COLLEGE/AFFILIATION/MMC/2011 DATED 14-05-2011.** - **EXHIBIT P7: TRUE COPY OF THE ORDER NO. 141/1963/AC.1/1/2011 KUHS DATED 18-11-2011.** - **EXHIBIT P8: TRUE COPY OF THE APPLICATION NO.COLLEGE/AFFILIATION MMC & RC/2012 DATED 29-06-2012.** - **EXHIBIT P9: TRUE COPY OF THE ORDER NO. 308/1963/AC.1/1/2011/KUHS GRANTING AFFILIATION DATED 06-11-2012.** - **EXHIBIT P10: TRUE COPY OF THE APPLICATION NO. COLLEGE/AFFILIATION/MMC & RC/2012 DATED 15-04-2013.** - **EXHIBIT P11: TRUE COPY OF THE ORDER NO.3393/AC-A/CONTN 13-14/KUHS GRANTING AFFILIATION DATED 15-07-2013.** - **EXHIBIT P12: TRUE COPY OF THE APPLICATION NO. MMC & RC/AFFILIATION / 02/2014 DATED 17-02-2014.** - **EXHIBIT P13: TRUE COPY OF THE REPRESENTATION NO. MMC & RC/AFFILIATION /03/2015 DATED 05-03-2015.** - **EXHIBIT P14: TRUE COPY OF THE APPLICATION NO. MMC & RC/AFFILIATION (01) 2015 DATED 17-03-2015.** - **EXHIBIT P15: TRUE COPY OF THE REPRESENTATION NO. MMC & RC/MMBS/ AFFILIATION / 2014-15(05)/2015 DATED 02-05-2015.** - **EXHIBIT P16: TRUE COPY OF THE LETTER NO. 869/ACA/KUHS/2014 DATED 13-05-2015.** - **EXHIBIT P17: TRUE COPY OF THE REPRESENTATION NO.MMC&RC/MBBS/AFFILIATION/2014-15/05/2015 DATED 18-05-2015.** **WP(C).No. 21654 of 2015 (F)** ## **------------------------------------------** **EXHIBIT P17(A):TRUE COPY OF THE REPRESENTATION DATED 09-06-2015.** **EXHIBIT P18: TRUE COPY OF THE SCRUTINY REPORT DATED 21-06-2014.** **EXHIBIT P18(A): TRUE COPY OF THE INSPECTION SCRUTINY REPORT DATED 28-04-2015.** **EXHIBIT P18(B):TRUE COPY OF THE INSPECTION SCRUTINY REPORT DATED 04-06-2015** **EXHIBIT P19: TRUE COPY OF THE SCRUTINY REPORT OF KARUNA MEDICAL COLLEGE DATED 21-06-2014.** **EXHIBIT P19(A):TRUE COPY OF THE SCRUTINY REPORT OF KMCT MEDICAL COLLEGE DATED 21-06-2014.** **EXHIBIT P19(B):TRUE COPY OF THE SCRUTINY REPORT OF ACME PARIYARAM MEDICAL COLLEGE DATED 21-06-2014.** **EXHIBIT P19(C):TRUE COPY OF THE SCRUTINY REPORT OF SREENARAYAN COLLEGE OF MEDICAL SCIENCES, CHALAKKA DATED 24-07-2014.** **EXHIBIT P20: TRUE COPY OF REPRESENTATION DATED 06-07-2015.** - **EXHIBIT P21: TRUE COPY OF THE LIST OF REQUIREMENTS FOR FULFILLMENT FOR OBTAINING PERMISSION NOTIFIED BY THE MCI.** - **EXHIBIT P22: TRUE COPY OF THE LETTER DATED 13.05.2015 ISSUED TO MCI BY UNIVERSITY.** **EXHIBIT P23: TRUE COPY OF MCI MINUTES OF THE MEETING HELD ON 13.05.2015.** - **EXHIBIT P24: TRUE COPY OF LETTER OF PERMISSION DATED 03.06.2015 ISSUED BY UNION GOVT. TO PETITIONER.** **EXHIBIT P25: TRUE COPY OF THE REPRESENTATION DATED 02.07.2015 TO MCI.** - **EXHIBIT P26: TRUE COPIES OF MERIT LIST AND DOCUMENT DOWNLOADED FROM THE UNIVERSITY WEBSITE.** - **EXHIBIT P27: THE INSPECTION REPORT OF 27.02.2013 OF KMCTE COLLEGE OBTAINED UNDER THE RTI ACT.** - **EXHIBIT P28: THE INSPECTION REPORT OF 26.05.2014 OBTAINED UNDER THE RTI ACT.** **WP(C).No. 21654 of 2015 (F)** ## **------------------------------------------** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R2(A): A TRUE COPY OF THE ORDER DATED 18.09.2014 OF THE HON'BLE SUPREME COURT.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. **A. MUHAMED MUSTAQUE, J. --------------------------------------------W.P.(C).No. 21654, 23292 & 28615 of 2015 --------------------------------------------** Dated this the 08[th] day of April, 2016 ## **JUDGMENT** The petitioner in all these three writ petitions is a registered charitable educational trust. The trust established a medical college by name Malabar Medical College Hospital and Research Centre at Atholi, Calicut. The trust established the medical college in the year 2010. The Letter of Permission (LoP) granted to establish medical college by the Government of India was for one year and renewable every year till the college gets recognition under Section 11(2) of the Indian Medical Council Act, 1956. 2. The college got renewal every year since inception. The Medical Council of India on completion of 5[th] year made recommendations to the Government of India to W.P.(C).No. 21654 & Con. cases -2- recognise medical qualification in terms of Section 11(2). While the process was going on, the Kerala University of Health Sciences (hereinafter referred to as ‘KUHAS’) raised a complaint against the petitioner alleging deficiency of faculties available in the college. Accordingly, a surprise inspection was conducted at the premises of the petitioner's college. Based on the surprise inspection conducted in the college, the Medical Council of India recommended to withdraw the recommendation given to the Central Government to admit 6[th] batch students and also to recommend not grant recognition under Section 11(2). Thereafter, the Central Government took a decision not to grant recognition and withdraw sanction to admit 6[th] batch of students. This was challenged in W.P.(C) No.17917/2015. This Court interfered with the above order and directed the W.P.(C).No. 21654 & Con. cases -3- Government of India to reconsider the matter after hearing the petitioner. 3. In the meanwhile, the petitioner submitted a compliance report before the Medical Council of India. The petitioner approached this Court in W.P.(C) No.19343/2015 and this Court directed the Medical Council of India to conduct inspection to verify the compliance report submitted by the petitioner. 4. The petitioner apprehending the inspection during Onam holidays made a request to the Medical Council of India not to conduct any inspection in between 25.08.2015 and 31.08.2015. However, the inspection was conducted on 25.08.2015. The report would indicate that there is a bed occupancy of 89% on the day as against minimum requirement of 70%. However, on the same day, the W.P.(C).No. 21654 & Con. cases -4- inspection was conducted again; then it was found out that the bed occupancy was only 61.06%. Therefore, finding that the bed occupancy was less than that stipulated in the norms, the Executive Committee of the Medical Council of India decided to withdraw the recommendation to permit sixth batch students for the academic year 2015-16. 5. The common issue in all these writ petitions is centered around the decision of the Executive Committee of the Medical Council of India based on the inspection conducted on 25.08.2015. Though, the University had initially refused renewal of affiliation on account of deficiencies, now the learned Standing Counsel for the University would submit that the University have no objection in renewing the affiliation subject to the decision regarding the approval to be granted by the Medical W.P.(C).No. 21654 & Con. cases -5- Council of India. Therefore, the challenge as against the decision of the University for non grant of renewal of affiliation in W.P.(C) No.21654/2015 would depend upon the decision in other cases. W.P(C) No. 23292/2015 is filed challenging the decision of the Medical Council of India. W.P.(C) No.28615/2015 is filed challenging the decision of the Government of India withdrawing permission to admit sixth batch for the academic year 2015-16. 6. This Court on 22.09.2015 passed an order permitting the petitioner to admit the students for the academic year 2015-16. This was challenged before the Division Bench in an appeal filed by the Medical Council of India. The Division Bench, by judgment dated 21.12.2015 in W.A. No.2120/2015 ordered that the admission shall be treated as a provisional without giving any right or equity W.P.(C).No. 21654 & Con. cases -6- to the college or the students subject to the final orders to be passed in the writ petition. 7. The short point to be considered is whether a deficiency as noted on inspection conducted by a team constituted by the Medical Council of India on 25.01.2015 would be sufficient to warrant a decision by the Medical Council of India to withdraw the recommendation for recognition under Section 11(2) and also to revoke permission for admission in the academic year 2015-16. 8. The Medical Council of India, with a previous sanction of the Central Government framed Regulation called Establishment of Medical College Regulations, 1999. This is by virtue of the power conferred under Section 10(A) read with Section 33 of the Indian Medical Council Act, 1956. The Regulation 8(3) as provides as follows: W.P.(C).No. 21654 & Con. cases -7- “(3) The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiences. In Clause 8(3) the following shall be added in terms of Notification published on 16.04.2010 in the Gazette of India and the same is also annexed at ANNEXURE-V:- “8(3) (1) The permission to establish a W.P.(C).No. 21654 & Con. cases -8- medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiences. PROVIDED that in respect of (a) Colleges in the stage upto II renewal (i.e. Admission of third batch): If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed W.P.(C).No. 21654 & Con. cases -9- occupancy is < 60%, such an institute will not be considered for renewal of permission in that Academic Year. (b) Colleges in the stage from III renewal (i.e. Admission of fourth batch) till recognition of the institute for award of M.B.B.S. degree. If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is < 70%, such an institute will not be considered for renewal of permission in that Academic Year. (c) Colleges which are already recognized for award of M.B.B.S degree and/or running Post graduate Courses: If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 10% and/or bed occupancy is < 80%, such an institute will not be considered for processing applications for post graduate courses in that Academic Year and will be issued show cause notices as to why the recommendation for withdrawal of recognition of W.P.(C).No. 21654 & Con. cases -10- the courses run by that institute should not be made for Undergraduate and Post graduate courses which are recognized u/s 11(2) of IMC Act, 1956 along with direction of stoppage of admissions in permitted Post graduate courses. (d) Colleges which are found to have employed teachers with faked / forged documents: If it is observed that any institute is found to have employed a teacher with faked / forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission / recognition for award of M.B.B.S. degree / processing the applications for post graduate courses for two Academic Years - i.e. that Academic Year and the next Academic Year also. However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 days after important religious and festival holidays declared by the Central/State Govt. (2) The recognition so granted to an Undergraduate Course for award of MBBS degree shall be for a maximum period of 5 years, upon W.P.(C).No. 21654 & Con. cases -11- which it shall have to be renewed. - (3) The procedure for Renewal of recognition shall be same as applicable for the award of recognition. (4) Failure to seek timely renewal of recognition as required in sub-clause (a) supra shall invariably result in stoppage of admissions to the concerned Undergraduate Course of MBBS at the said institute.” ## 9. The deficiency noted by the inspection team on ## 22.08.2015 is as follows: - “i. Total bed occupancy was 61.06% (i.e., 419 out of 680 beds required) as verified after taking round of all the wards on day of assessment as under:- |S.No.|Department|Bed|| |---|---|---|---| |1|General Medicine|Required|Occupied| |2|General Surgery|150|77| |3|Obstetrics &<br>Gynecology|90|56| |4|Paediatrics|90|61| |5|Skin & VD|15|7| |6|Psychiatry|15|4| W.P.(C).No. 21654 & Con. cases -12- |Con. cases|-12-||| |---|---|---|---| |S.No.|Department|Bed|| |7|TD & Chest|20|18| |8|Orthopaedics|90|59| |9|Ophthalmology|30|18| |10|ENT|30|23| ||Total|680|419| ii) All the joining reports of the faculty & Residents have no attestation by the Head of the Department or by the Principal except for the department of Obstetrics & Gynaecology. iii) There was nil caesarean section on day of assessment. Total number of 2 deliveries on day of assessment is inadequate. iii) There were 4 patients in casuality in a ward of 20 beds at the time of taking round on day of assessment.” 10. The major deficiency in this context is regard to bed occupancy. It was found out that the bed occupancy is only 61.06%. The Regulation as above would show that the colleges in the stage from the third renewal till recognition is required to have minimum 70% bed occupancy. W.P.(C).No. 21654 & Con. cases -13- Thereafter, the recognition, it must have 80% above. The regulation clearly indicates that the institute will not be considered for renewal if the bed occupancy is less than as above. The deficiencies other than the bed occupancy are curable defects and can be treated as a minor deficiency. The Regulation indicates about the refusal of renewal if there is a deficiency in the bed occupancy and deficiency in teaching faculty or residents. 11. In this case, originally the inspection was conducted in the month of April 2015. This inspection would show that the petitioner's college had complied with all the formalities and norms. The Medical Council of India, therefore, decided to recommend the Central Government for recognition of the petitioner's college under Section 11(2) of the Medical Council of India Act and W.P.(C).No. 21654 & Con. cases -14- to renew the permission for the sixth batch for the Academic Year 2015-16. Thereafter, the inspection was conducted based on the letter received from the Controller of the Examination of KUHAS. This inspection was conducted on 01.06.2015. This inspection would show that there was no sufficient number of staffs and the institute lack sufficient clinical materials. Thereafter, the petitioner had reported the compliance. This Court, by the interim order in W.P.(C) No. 23292/2015 directed to verify the complaince. It was pursuant to that the inspection was so conducted on 25.08.2015. In the initial report on inspection, it was found that the bed occupancy was 89%. Thereafter, again surprise inspection conducted on the same day wherein it was found out that the bed occupancy was 61.06%. The petitioner had explained the reason for less W.P.(C).No. 21654 & Con. cases -15- occupation of bed. It is their case that while making a re- inspection on the same day, many patients had moved to the operation theatre as well as for various clinical investigations. The petitioner refers to the data of inspection report to substantiate this claim. The petitioner points out the following factors in the report: “(i) Out of 227 X-rays, 42 were of inpatients. - (ii) Out of 91 ultrasound scanning, 14 were performed on inpatients. (iii) Out of the 3 special X-ray, 2 were of inpatients. - (iv) Out of 17 CT-Scan conducted, 5 of were of inpatients.” 12. The petitioner had a case that the patients who were moved for surgical investigation as well as for radiological investigation ought to have been taken into account while determining the bed occupancy. 13. In backdrop of facts and circumstances as above, W.P.(C).No. 21654 & Con. cases -16- two points have to be considered in this matter are as follows: i) Whether the factual assessment of deficiency is flawed or not? ii) Whether the deficiency of the bed occupancy on a surprise inspection is sufficient to deny the renewal of permission in that academic year? 14. In regard to the first point, the learned Senior Counsel for the writ petitioners Shri. Kurian George Kannanthanam would argue that the factors ought not have been taken into account having omitted, while taking a decision, certainly this Court can interfere. On the other hand, the learned Senior Counsel for the Medical Council of India Shri. Jayakumar relying upon the judgment of the Hon’ble Supreme Court in Maa Vaishno Devi Mahila Mahavidyalaya v. State of Uttar Pradesh and others [2013 W.P.(C).No. 21654 & Con. cases -17- (2) SCC 617] submits that non compliance of norms for renewal is a purely factual assessment to be made by the Medical Council of India and the Central Government and the court cannot interfere in the matter. 15. It is to be noted on the day (25.08.2015) when initial inspection was conducted, the bed occupancy was found out more than sufficient. It is after the first inspection, in the second inspection it was found that the bed occupancy is around 61.06%. Certainly, in that context if there is any reduction, the petitioner has to explain. The petitioner had explained by stating that inpatients were moved to surgical investigation as well as to radiological investigation. This is also clear from the data sheets of the inspection team. In that view of the matter, that explanation is a relevant factor ought to have been taken W.P.(C).No. 21654 & Con. cases -18- into account by the Medical Council of India. Non consideration of that explanation in the factual context of this case is certainly decisive and can be sufficient to hold that the decision making process of the Medical Council of India was flawed. If those factors had taken into account, certainly, the bed occupancy of the petitioner would be more than required. 16. The norms in the Regulation is essentially to find whether the established institute is having sufficient infrastructural facilities to impart the courses. This is essentially an overall assessment of factors exist in the institute to influence the decision of the Medical Council of India. No doubt, the Medical Council of India is entitled to conduct any number of surprise inspection. These inspection reports are relevant factors but not necessarily W.P.(C).No. 21654 & Con. cases -19- sole factor to take a decision. Assuming, the institute is having the bed occupancy throughout 364 days in a particular year and on account of certain reasons beyond their control there is no bed occupancy on a single day, is it sufficient reason to refuse renewal of the permission? 17. The Regulation as prescribed under Section 8(3) (I)(b) only prescribes the consistency to be followed in the matter of the bed occupancy. This consistency can be found out by inspection on a different intervals including surprise inspection. The Medical Council of India appears to have been carried away by one inspection and finds that this would be sufficient to hold there is a deficiency in the bed occupancy. As it has been noted as above, the inspection report as against the bed occupancy on a particular day is only a relevant factor and not a sole decisive factor. The W.P.(C).No. 21654 & Con. cases -20- objective analysis of the inspection has to be on the stand point of view of overall assessment of institution's, capability to achieve targeted standards. The Medical Council of India has proceeded in this matter as though a single instance of a deficiency in the bed occupancy would be sufficient to hold that the institute is not entitled for renewal. This approach is legally unsustainable and incorrect. 18. No doubt, on surprise inspection if any non compliance of substantial norms have been found out and the institute is unable to explain the reasons for those deficiencies or institute's explanation is not satisfactory, the Medical Council of India is free to take action on such inspection. The paramount consideration is the capability of the Institution to impart course in the light of the report W.P.(C).No. 21654 & Con. cases -21- obtained by the inspection team based on assimilation of the entire facts collected in relation to the academic year. Thus the inspection conducted on a particular day also is relevant while formulating the decision about overall capability of the institute to impart the courses. 19. In the light of the facts and circumstances of the case as above, this Court is of the view that the impugned orders are unsustainable, as the Medical Council of India had proceeded mechanically in assessing compliance reports. The Medical Council of India should be reminded about their approach in analysing and assessing inspection report. It is required to have a judicious approach keeping in mind of the objectives of the power rather than acting mechanically disregarding the object. 20. In view of the discussion as above, the impugned W.P.(C).No. 21654 & Con. cases -22- orders in W.P.(C) No. 23292/2015 and 28615/2015 are set aside. However, it is made clear that it is open for the Medical Council of India to conduct any surprise inspection to assess the compliance of requirements in the institute. It is to be noted that an attempt was made by the Medical Council of India to conduct inspection in the month of November 2015. This was prevented by the petitioners citing the matter is “subjudice”. This Court is of the view that such conduct on the petitioner is deplorable. Exercise of statutory powers in the nature of continuous assessment cannot be thwarted by the petitioner citing it as subjudice. Accordingly, the following directions are issued: i) The admission granted to the year 2015-16 is made absolute. ii) The Medical Council of India and the W.P.(C).No. 21654 & Con. cases -23- Government of India shall proceed for grant of recognition in terms of Section 11(2) of the Medical Council of India in accordance with law without any delay. iii) The KUHAS is directed to renew the affiliation in accordance with norms without any delay. The writ petition is disposed of as above. Sd/- ## **A. MUHAMED MUSTAQUE JUDGE** bpr