Full Text
HIGH COURT OF DELHI
Date of Decision: 14.12.2022
SRI VENKATESHWARAA MEDICAL COLLEGE .... Petitioner
Through: Mr Akshay Makhija, Sr. Advocate, Mr B. Rajendra, Sr. Advocate with
Mr V. Balaji and Mr Nizamuddin, Advocates.
Through: Mr T. Singhdev, Ms Michelle Biakthansangi, Mr Bhanu Gulati and
Mr Abhijit Chakravarty, Advocates for R-1 and R-3.
Mr Aravindh S., Standing Counsel for R-2. Mr Vivekanand Mishra, Senior Panel Counsel with Mr Varun
Jamwal, Govt. Pleader for R-4.
JUDGMENT
1. Allowed, subject to all just exceptions. CM APPL.53860/2022
2. Issue notice. Mr T. Singhdev, learned counsel appearing for the respondent nos. 1 and 3, Mr Aravindh S., learned counsel appearing for respondent no. 2 and Mr Vivekanand Mishra, learned counsel appearing for the respondent no.4, accept notice. W.P.(C) 16995/2002[2]
3. The petitioner-college’s challenge in the present writ petition is to the following three orders:-
(i) Order dated 28.09.2022 passed by the Medical Assessment and Rating Board (MARB) of the National Medical Commission, whereby the petitioner’s application for increase of 100 MBBS seats from 150 to 250 for the academic year 2022-2023, has been disapproved;
(ii) Order dated 28.11.2022 passed by the National Medical
Commission in the appeal, whereby the Appeal Committee unanimously decided not to increase the number of seats of the petitioner-college for the academic year 2022-2023; and
(iii) Order dated 07.12.2022, whereby the second appeal for increase of MBBS seats from 150 to 250 seats preferred by the petitioner before the Central Government was dismissed.
4. The petitioner-medical college had submitted an application dated 23.09.2021 for increase intake of 150 to 250 MBBS seats for the academic year 2022-23. An inspection for assessing faculty, residents, clinical material, infrastructure and other physical facilities was carried out on 15.06.2022. Based on assessor’s report, the MARB found the following deficiencies in the petitioner-medical college:-
(i) Deficiency of faculty – 40% (78 were available against requirement of 195)
(ii) Deficiency of residents – 26. 78 % ( 45 were available against requirement of 168)
(iii) Outpatients are only 185 against the requirement of 2000 patients. (iv) 243 beds are occupied out of 754 beds hence, bed occupancy is of only 32.20% (against the requirement of 75%).
(v) The impatients and diagnostic tests are inadequate.
(vi) ICU patients are very less.
(vii) The beds in the hospital-754 beds are available against the requirements of 1120 are inadequate.
(viii) There are no deliveries reported on the day of assessment.”
5. The MARB vide letter dated 29.07.2022 had communicated the aforesaid deficiencies to the petitioner and had sought its response/compliance in respect of the same within seven days. The petitioner submitted its response/compliance. The MARB after granting a hearing to the petitioner concluded as under:- “(i) OPD 185 at 2:00 PM
(ii) Bed Occupancy 243/1120
(iii) Summary note faculty deficiency 40% (available 78/195).
(iv) Compliance report too verified – jurisdictions not satisfactory.
(v) Huge discrepancies –1200 + patients in OPD against assessor
6. In view of the above deficiencies, the MARB disapproved the application of the petitioner for increase of 100 seats from 150 to 250 for the academic year 2022-2023, which was conveyed vide letter dated 28.09.2022(Annexure P/1).
7. The petitioner preferred an appeal under Section 28(5) of the NMC Act, 2019 against the aforesaid letter of disapproval dated 28.09.2022. NMC gave a virtual hearing on 15.11.2022. The Appeal Committee of the NMC, having regard to the data of Aadhar Enabled Biometric Attendance System (AEBAS) which was at variance with the figures conveyed by the Dean of the petitioner-college during interaction with the Appeal Committee, unanimously decided not to increase the number of MBBS seats at petitioner college for the academic year 2022-2023. The relevant paras of the First Appeal Order dated 28.11.2022 reads as under:-
6. Accordingly, the Appeal Committee unanimously decided not to increase the number of MBBS seats at SVMCH&RC, Puducherry for the AY 2022-23. The Dean, SVMCH&RC, Puducherry accepted the decision of the Committee. Accordingly, the Appeal stands disposed of.”
8. Thereafter, a Second Appeal was preferred by the petitioner-college before the Central Government under Section 28(6) of NMC Act, 2019.
9. The matter was deliberated in detail in the Combined Meeting of Officers (COO) and Technical Expert Committee (TEG). After examination of the documents and affording an opportunity of hearing to the petitioner-college, it was observed in the Combined Meeting as under:-
10. The other observation of the Committee during in-person hearing reads as under:-
11. In view of the above observations and considering the submissions made by the college, the TEG and COO observed that there is deficiency in Clinical Material, Infrastructure and Human Resources of the institute. Accordingly, the appeal of the petitioner was found devoid of merit and the same was rejected, in the wider interest of the students joining the course and for maintaining high standards of medical education in the country.
12. Mr. Akshay Makhija, the learned senior counsel for the petitioner submits that the assessors came to inspect the college without authority at 9:30 AM whereas the official authorization for inspection was received by email only at 11:32 AM. He further submits that the assessors demanded the faculties to assemble before 11:00 AM at Dean’s room, which was not feasible within the short span of time in view of the huge campus and the faculty being pre-occupied in lecture halls, OT, emergency etc.
13. Further, the learned senior counsel has contended that the compliance report dated 08.08.2022, whereby the petitioner had given explanation with regard to deficiencies pointed out by the report dated 15.06.2022, was not considered. To fortify his submission, the learned senior counsel invited the attention of the Court to the inspection report of 06.12.2022 for the academic session 2023-24 wherein no deficiency has been pointed out. According to the learned senior counsel for the petitioner, the subsequent report clearly establishes that there was no deficiency on 15.06.2022 and all the faculties, infrastructure and clinical material were available.
14. It has been contended by the learned senior counsel that the number of patients calculated on the basis of footage from the installed cameras at the college connected to NMC is illegal and nonest, inasmuch as, no connection was available to the NMC at that point of time and this was immediately pointed out by the petitioner by sending a letter to that effect.
15. Mr. Makhija further submits that as per the stand taken by the Government of Pondicherry, the mop-up counselling is to take place on 15.12.2022 and, thereafter, there is one more counselling for stray vacancy.
16. Again placing heavy reliance on the report dated 06.12.2022, which is for the year 2023-2024, he urged that when MARB by way of subsequent inspection report of 06.12.2022 for the year 2023-24 has found that there is no deficiency, the benefit of the said report can be extended to the petitioner even for the year 2022-2023.
17. On the other hand, Mr. T. Singhdev, learned counsel for the respondent nos. 1 and 3, refutes the aforesaid contentions. He says that the processing of applications for increase of seats in MBBS course for academic year 2022-23, had commenced in 2021 and has finally culminated after approximately one year in 2022. While, the admission process started with NEET-UG being conducted on 17.07.2022 and the counseling process commenced on 10.10.2022 and concluded on 13.12.2022 for the State Counsellings. He further submits that there is no provision of any stray vacancy round for the State Counsellings and the MBBS course for the academic session 2022-2023 has already commenced on 15.11.2022, in accordance with the time schedule issued by the Medical Counselling Committee of the Directorate General of Health Services. Therefore, the relief for increase of seats in MBBS course cannot be granted for the academic year 2022-2023 and that too at this stage.
18. The learned counsel further contends that pursuant to disapproval of petitioner’s application for increase of 100 MBBS seats for the academic year 2022-2023 based on gross deficiencies found during the inspection conducted on 15.06.2022, the petitioner has already submitted its fresh application dated 31.08.2022 for increase in intake from 150 to 250 MBBS seats for the academic year 2023-24. With reference to the petitioner’s contention that the benefit of assessor’s report dated 06.12.2022 for the year 2023-2024 in which no deficiency has been found, should be extended to the petitioner even for the year 2022-2023, the learned counsel for the respondent submits that albeit there is always overlap in the time consumed towards processing of applications of applicant medical colleges and the start of counseling for admission but the applicant medical colleges cannot seek benefit of inspection reports for the next academic session, which may seem favourable, on the premise that counseling for the current academic session is yet to conclude. He further argued that if such a course is permitted, the same shall lead to an unending cycle of processing of applications for any given academic session without any point of culmination.
19. Elaborating further on the above contention, the learned counsel submits that in case the inspection report dated 06.12.2022, which is for the academic session 2023-2024, is accepted for the previous academic session 2022-2023, the same shall set at naught the entire application processing procedure for the academic session 2022-2023. This according to the learned counsel cannot be permitted as the same will have the affect of granting permission to increase admissions from 150 to 250 MBBS seats for the academic session 2022-2023 and on the same basis granting another permission to admit a fresh batch of 250 students for the year 2023-2024, which according to the learned counsel will have the effect of rendering the entire application processing procedure otiose and redundant in relation with the counselling scheme which is implemented uniformly across the country for maintaining high standards of medical education in reference with merit obtained in NEET-UG Examination.
20. The learned counsel further urged that the benefit of the inspection report of 06.12.2022 cannot be extended to the petitioner at this stage as the same is yet to be considered by the MARB with reference to Section 28 read with Section 29 of the NMC Act, 2019.
21. Insofar as the petitioner’s submission that stray vacancy round for Puducherry is going on, the learned counsel for the respondent submits that still no benefit can be granted to the petitioner in view of the unanimous decision of the MARB, NMC and the Central Government that the petitioner cannot be permitted to increase seats from 150 to 250 in MBBS course for the academic session 2022-2023.
22. In response to the petitioner’s contention that the registration data of Aadhar Enabled Biometric Attendance System (AEBAS) ought not to have been relied upon by the Appeal Committee and the Central Government while rejecting the First and Second Appeal, respectively, as the systems of college were not connected to NMC data centre, he invites the attention of the court to NMC decision dated 28.11.2022 (Annexure P/2) where at page 52 of the paper book, under the heading of ‘enclosures’, there is reference to list of faculty, including Sr. Residents and Tutors registered in college as on 14.11.2022 along with their attendance from 14.10.2022 to 14.1.2022 as also evidence of footfall in OPD of hospital of the petitioner college captured from camera installed by college authorities. He, therefore, submits that the argument of the petitioner that the aforesaid systems were not operational in medical college is entirely without basis. He further draws the attention of the court to observations recorded by the Appeal Committee in the order dated 28.11.2022 where it is recorded that Dean in the hearing on 15.11.2022 had confirmed that the college has registered in the AEBAS and that the college has installed 25 cameras which are connected to NMC. The learned counsel has also drawn the attention of the court to the photographs of the petitioner college dated 14.11.2022, which shows empty OPD Halls as captured through the cameras installed in the medical college. The said photographs have also been filed by the respondent nos.[1] and 3 with their written submissions.
23. Arguing further, the learned counsel submits that the High Court while exercising its jurisdiction under Article 226 of the Constitution of India should not minutely examine the contents of the inspection report. He refers to the dicta of the Supreme Court of India in Medical Council of India v. Kalinga Institute of Medical Sciences (2016) 11 SCC 530 where the Supreme Court has held that once an expert body certifies that the facilities in a medical college are inadequate, the Courts are not equipped to take a different view in the matter except for very cogent jurisdictional reasons. The relevant extract from the said decision reads as under:-
24. The learned counsel also refers to the decision of the Supreme Court in Medical Council of India vs. Vedantaa Institute of Academic Excellence Private Limited And Anr.: (2018) 7 SCC 225 (2018) 7 SC 225 to contend that the standards fixed by the regulators as regard the time for attendance of faculty, bed occupancy and OPD attendance needs to be strictly adhered to. Referring to the said decision, he further contends that any leniency by the courts in providing liberty to rectify defects shall have cascading effects, resulting in colleges continuing to function with defects and producing half-baked/poor quality doctors. Paragraphs 7, 8 and 11 relied upon by the learned counsel read as under:-
25. Reference is also made to the decision in Royal Medical Trust (Registered) and Anr. Vs. Union of India: (2015) 10 SCC 19 more particularly, to para 31(E) to contend that if after the compliance is reported by the medical college in response to the deficiencies or shortcomings pointed out in the inspection report, the deficiencies still persist or had not been removed, the applicant medical college shall stand disentitled for approval for the said academic year. Paragraph 31(E) reads thus:-
26. He also relied upon the decision of the Supreme Court in the case of Dental Council of India Vs. Dr. Hedgewear Smruti Rugna Seva Mandal & Anr. (2017) 13 SCC 115, to urge that an interim order passed in a matter of admission, especially when the said institution has not been accorded approval by the Regulator, is likely to cause chaos, anarchy and uncertainty. The relevant paragraphs from the said decision read as under:-
We respectfully concur with the said observations.
22. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the Court grants approval in a way which is the subject-matter of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations.
23. The High Court has to realise the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young peoples. One may say, “… life is a foreign language; all mispronounce it”, but it has to be borne in mind that artificial or contrived accident is not the goal of life.
24. There is no reason to invite a disaster by way of an interim order. A Judge has to constantly remind himself about the precedents in the field and not to be swayed away by his own convictions. In this context, the oft-quoted passage from Felix Frankfurter [ Frankfurter Felix, in Clark, Tom C., “Mr Justice Frankfurter:‘A Heritage for all Who Love the Law’” (1965) 51 ABAJ 330 at p. 332.] would be apt to remember: “For the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which we are all guardians—those impersonal convictions that make a society a civilised community, and not the victims of personal rule.”
28. In the instant case, the precedents are clear and luculent. It does not allow any space for any kind of equivocation. In Priya Gupta [Priya Gupta v. State of Chhattisgarh, (2012) 7 SCC 433: (2012) 2 SCC (L&S) 367: 4 SCEC 555], the Court had requested the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and role of merit and except in very exceptional cases, to decline interim orders. The Court had added the words “humility at our command”. The “grammar of humility in law” in the hierarchical system basically means to abide by the precedents unless distinguishable but not to ignore them and pass orders because of an individual notion or perception. Adjudication in accordance with precedents is cultivation of humility. As long as a precedent is binding under the constitutional scheme, it has to be respected by all. It has been said by Simone Weil [ Simone Weil (1909-1943), Gravity and Grace, 1947.]: “In the intellectual order, the virtue of humility is nothing more nor less than the power of attention.”
29. We reiterate the concept of humility as stated in Priya Gupta [Priya Gupta v. State of Chhattisgarh, (2012) 7 SCC 433: (2012) 2 SCC (L&S) 367: 4 SCEC 555]. However, we intend to add that the meaning behind the words, namely, “humility”, and “request” as used by this Court, has to be appositely understood by the High Courts. It requires attention. And attention in the context is disciplined and concerned awareness. Nothing more need be said.
30. In view of the aforesaid analysis, we cannot but hold that the impugned order [Dr Hedgewar Smruti Rugna Seva Mandal v. Union of India, 2016 SCC OnLine Bom 13166] passed by the learned Single Judge of the High Court is absolutely unsustainable. But the controversy does not end there. It is the admitted position that the respondent College has been granted approval for the academic session 2017-2018. By virtue of the interim order passed by the High Court, three students had been admitted and they are prosecuting their studies. We intend to strike a balance. The students who have been admitted shall be allowed to continue their courses, but their seats shall be adjusted from the academic session 2017-
2018. The respondent College cannot be allowed to get a premium. The grant of bounty is likely to allow such institutions to develop an attitude of serendipity. Such a culture is inconceivable. Therefore, apart from the adjustment of seats for the next academic session, we also direct the respondent College to deposit a sum of Rs 30 lakhs before the Registry of this Court within eight weeks hence and to ensure such compliance, the matter shall be listed in the third week of July 2017 for further directions. After the amount is deposited, it shall be determined how to deal with the sum. The costs that have been directed to be deposited before the Registry of this Court shall in no manner be recovered from the students who had been admitted nor shall it be collected from the students who will be admitted to the course in the next year. That apart, the respondent College shall not think of any kind of adjustment.”
27. Having heard the learned counsels for the parties, I am prima facie of the view that the petitioner has not been able to show that the deficiencies pointed out in the Assessor’s Report with respect to the inspection carried out on 15.06.2022 did not exist at the relevant time. Even the response/compliance submitted by the petitioner has not been accepted by the MARB, NMC and the Central Government. The three expert bodies viz. MARB, NMC and the Central Government, taking into account the deficiencies found in the faculty, residents, clinical material, infrastructure, and other physical facilities, have unanimously decided not to permit the petitioner to increase seats from 150 to 250 in MBBS course for academic session 2022-2023.
28. Prima facie, it also appears that the material in the form of data retrieved from the Aadhar Enabled Biometric Attendance System (AEBAS) justifies the objection with regard to deficiency of faculty, OPD and bed occupancy.
29. There is considerable force in the submission of Mr. T.Singhdev that the benefit of inspection report of 06.12.2022 for the academic Session 2023-24 will not enure to the petitioner for the academic session 2022-23, as the same will have the effect of rendering the entire application processing procedure nugatory and redundant. There is also merit in the submission of Mr. Singhdev that every year there is an overlap in the time taken to process the applications of the applicant-medical colleges and the start of counseling for the admissions and in case the applicant-medical college is given the benefit of inspection report for the next academic session, it shall lead to an unending cycle of processing of applications.
30. Admittedly, it is the qualified inspectors/doctors and other expert committees/bodies who have taken a view that the facilities of the petitioner-college are inadequate so as to permit the petitioner to increase its intake of students from 150 to 250 MBBS seats for the academic year 2023-24. Further, no ex facie perversity has been pointed out in the inspection report nor it is the case of the petitioner, that the inspection report is tainted with mala fides.
31. In view of the above discussion and the law laid down by the Supreme Court in the decisions noted above, no prima facie case is made out by the petitioner for granting any interim relief.
32. List on 06.02.2023.
VIKAS MAHAJAN, J DECEMBER 14, 2022 MK/ak