Rajah Muthiah Medical College v. Union of India & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 5-8-2011CORAMTHE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMARWRIT PETITION No.16298 of 2011M.P.Nos.1, 2, 3 of 2011Rajah Muthiah Medical College,rep.by its Principal and Dean,Annamalai University,Annamalai Nagar,Chidambaram – 608 002... PetitionerVs1.The Union of India,rep.by the Secretary to Government,Ministry of Health & Family Welfare,New Delhi – 110 011.2.The Board of Governors in Supersession ofMedical Council of India,rep.by its Secretary,Pocket-14, Sector-8,Dwarka Phase-I,New Delhi – 110 077.... RespondentsPrayer:Writ Petition filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of Certiorarifiedmandamus calling for the records of the second respondent comprisedin its letter bearing No.MCI-37(1)/2011-Med/20895 dated 30.6.2011 andquash the same as illegal, arbitrary and is violative of theprinciples of natural justice and consequently issue a mandamusdirecting the second respondent to forthwith and in any event withinthe time as may be fixed by this Court to consider petitioner'sapplication dated 9.8.2010 for grant of Letter of Permission forincrease of MBBS seats from 150 seats to 250 seats per annum from theacademic year 2011-2012.For Petitioner:Mr.Satish ParasaranFor 1st Respondent:Mrs.R.Maheswari, SCGSCFor 2nd Respondent:Mr.V.P.Raman https://hcservices.ecourts.gov.in/hcservices/ O R D E RBy consent of all parties, the writ petition is taken up forfinal disposal.2.The prayer in the writ petition is to quash the orderpassed by the second respondent dated 30.6.2011 declining the requestof the petitioner seeking permission to increase the MBBS seats from150 to 250 per annum from the academic year 2011-2012 and direct therespondents to consider the application dated 9.8.2010 for the grantof Letter of Permission for the increase of seats.3.The brief facts necessary for disposal of the writ petitionare as follows:(a)Petitioner Medical College was established in the year 1985by the Annamalai University in Annamalai Nagar, Chidambaram,Cuddalore District, under the name and style of "Rajah MuthiahMedical College" after getting necessary permission from the StateGovernment and approval from the Medical Council of India. It hadconstructed academic and administrative blocks, separate hostels forboys and girls, staff quarters, canteen and other infrastructures asper the norms and guidelines issued by the Medical Council of India. (b)According to the petitioner, the College is having allfacilities for training 250 MBBS students, qualified faculty membersand technical staff as well as supporting staff are appointed andthey are on the pay roll of the petitioner College. It also madehuge investments for the expansion of the outdoor patients, classrooms, Labs, Library, faculty room, hostel, canteen, staff quarters,equipments, library books, etc.(c)In the year 1985, when the college was established,permission was granted for an intake of 75 students from 1985-1986for the first year MBBS course. The said intake capacity wassubsequently increased and from the academic year 2003-2004permission is granted to admit 150 students for the first year MBBSCourse. (d)In the year 2010, the petitioner proposed to increase thestudent strength from 150 to 250 and application was submitted to thesecond respondent on 9.8.2010 seeking grant of Letter of Permissionfrom the academic year 2011-2012, enclosing all details and documentswhich are required for the above said permission. The petitioner wasrequired to obtain essentiality certificate from the Government ofTamil Nadu, which was also issued by the Health and Family WelfareDepartment, Government of Tamil Nadu by its letter dated 29.9.2010.The State Government issued essentiality certificate for the increaseof intake as there is dearth of Doctors in Tamil Nadu and alsocertified that increase of strength will serve public interest and https://hcservices.ecourts.gov.in/hcservices/ the proposal is feasible over which OPD strength per day is more than3000, bed occupancy is 80, affiliated teaching hospital is unitary incharacter, etc. (e)The Medical Council of India visited the petitioner Collegefor inspection on 4th and 5th April, 2011 and at that time there was astrike by the section of resident Doctors and therefore OPD strengthwas less. The Council of Assessors sent a report to that effect andthereafter a re-inspection was made on 3rd and 4th June, 2011 andsubmitted a further report to the Board of Governors of the MedicalCouncil of India without serving a copy to the petitioner.(f)The impugned letter dated 30.6.3011 was issued by theMedical Council of India, which was received on 4.7.2011, statingthat on assessment of physical and other teaching facilitiesavailable based on the Council of Assessor's visit dated 3rd and 4thJune, 2011, a report was submitted which was considered by the Boardof Governors and four deficiencies were pointed out viz., Libraryseating capacity is available for 320 students against therequirement of 500; deficiency of para-medical staff; Auditorium of2000 sq.mtrs not available; and shortage of supervisory NursingStaff. It was decided by the Board of Governors to return theapplication seeking increase of intake of admission of first yearMBBS seats from 2011-2011 under section 10A of the Medical Council ofIndia Act, 1956.(g)It is stated in the affidavit that even though the saidstatement is made in the order, the application was not returned andthe same was also not received by the petitioner. The said order ischallenged in this writ petition on the ground that the allegeddeficiencies were informed to the petitioner for the first time onlythrough the impugned order dated 30.6.2011 without enclosing the listof deficiencies and without giving an opportunity of being heard andtherefore the same is unreasonable and arbitrary.(h) It is further stated in the affidavit that a similar orderrejecting application for establishment of new Medical College ofShree Chhatrapati Shivaji Educational Society was considered by aDivision Bench of the Delhi High Court and passed an interim order on10.6.2011 in L.P.A.No.544 of 2011 in CM.No.11730 of 2011 and adirection was issued to the Medical Council of India to reconsiderthe case of the petitioner therein. The said order was challengedbefore the Honourable Supreme Court in S.L.P.No.16233 of 2011 and theHonourable Supreme Court declined to interfere. The said order waspassed by the Delhi High Court as there was violation of principlesof natural justice, viz., not furnishing copy of the report by theCouncil of Assessors and failure to give an opportunity of beingheard.(i)On 4.7.2011 immediately after the receipt of the impugnedorder, the Principal of the College gave a reply along with https://hcservices.ecourts.gov.in/hcservices/ supporting documents and handed over the same personally at theoffice of the first respondent and prayed for reconsidering theorder. The same having not been considered this writ petition isfiled with the above said prayer, mainly contending that Section 10Aof the Medical Council of India Act, 1956, particularly Section 10A(4) proviso stating that no scheme shall be disapproved by theCentral Government/second respondent except after giving the personor College concerned a reasonable opportunity of being heard.(j)It is also stated in the affidavit in support of the writpetition that all the deficiencies pointed out are rectified and thepetitioner Medical College is also prepare to remit a furtherinspection fee for fresh assessment and the respondents may conductfresh assessment and pass fresh orders.4.The second respondent has filed counter affidavit and inparagraph 18 it is contended that the Board of Governors consideredthe Assessor's report and decided not to issue Letter of Permissionfor the increase of MBBS seats from 150 to 250 for the academic year2011-2012, which was duly communicated to the petitioner College byletter dated 5.5.2011 and in order to afford a reasonable opportunityon 5.5.2011 a show cause notice was issued as to why the applicationfor the increase of intake cannot be rejected on account ofdeficiencies reported. Thereafter the petitioner, by letter dated23.5.2011 prayed for fresh inspection which was also conceded and theinspection was conducted on 3rd and 4th June, 2011 and the said reportwas again considered by the Board of Governors in its meeting held on14.6.2011 wherein several deficiencies were noticed includingseating capacity in the library, deficiency of para-medical staff,Auditorium, shortage of supervisory nursing staff and the saiddecision was communicated on 30.6.2011 along with the Assessor'sreport. It is also stated that the blood bank licence of thehospital has not been renewed. The expert body having assessed theavailability of faculty members and infrastructures, the saiddecision cannot be reviewed by this Court and therefore the writpetition is to be dismissed.5.A reply affidavit was filed by the petitioner stating thatthe show cause notice issued on 5.5.2011 was suitably replied and re-inspection was conducted by the Assessors and without furnishing theinspection report and giving reasonable opportunity of being heard,the impugned order was passed and therefore the same is in violationof the statutory provision as well as the principles of naturaljustice. In the format prescribed by the second respondent to theCouncil of Assessors, there is no specific column pertaining thepara-medical and non-teaching staff and in the petitioner college,332 para-medical staff and 204 other supporting staff and 312technical staff are available, apart from ministerial staff and non-teaching staff numbering 462. The staff nurses are also consideredas para-medical staff, which fact can be verified and the second https://hcservices.ecourts.gov.in/hcservices/ respondent arbitrarily stated that only lesser number of staff areavailable. In respect of the nursing staff, the Assessors recordedthat sufficient number is available. Regarding the non-renewal ofblood bank licence it is stated that renewal application was made andthe Director of Drugs Control, Tamil Nadu, by order dated 25.8.2009certified that the application for renewal of the licence for afurther period from 1.1.2008 to 31.8.2012 is under process and thelicencee shall continue to operate the blood bank till further orderis passed on their application made as per Rule 122 of the Drugs andCosmetics Rules. Pointing out the above, the petitioner has prayedfor allowing the writ petition.6.Mr.Satish Parasaran, learned counsel for the petitionersubmitted that the petitioner is not praying for assessment of theAssessor's report or the decision taken by the second respondent, bythis Court and the petitioner may be given an opportunity to placeits case before the respondents in compliance with the principles ofnatural justice, as an opportunity of being heard is statutorilyprovided. The learned counsel also submitted that if the respondentsare willing to send further inspection team for reassessment, thepetitioner is prepared to pay the fee of Rs.4 lakhs for that purposeas it was paid earlier and a fresh assessment may be made to find outas to whether the petitioner is complying with the conditions for thegrant of permission or not. The learned counsel also relied on thejudgment of the Delhi High Court confirmed by the Honourable SupremeCourt in support of his contentions.7.Mr.V.P.Raman, learned counsel for the 2nd respondent on theother hand submitted that during the first inspection/assessment madeby the Assessors, several deficiencies were pointed out and due tothe stand taken by the petitioner that the staff were on strike onthe inspection days, a further inspection was conducted as requestedby the petitioner and during the second inspection also severaldeficiencies were noted, which were considered by the experts andtherefore no indulgence be shown to the petitioner by this Court.The learned counsel also submitted that the petitioner was issuedshow cause notice on 5.5.2011 and opportunity was given, which can betreated as compliance of the principles of natural justice andtherefore the writ petition may be dismissed as the respondentsnoticed deficiencies for the grant of permission to increase thestudent strength from 150 to 250 for the academic year 2011-2012. 8.I have considered the rival submissions made by therespective counsels.9.The point arises for consideration in this writ petitionis, whether the order passed by the second respondent dated 30.6.2011is in compliance with the statutory requirement of Section 10A of theMedical Council of India Act, 1956, and whether the petitioner isentitled to get reconsideration of its application dated 9.8.2010 for https://hcservices.ecourts.gov.in/hcservices/ the grant of Letter of Permission for the increase of MBBS seats from150 to 250 per annum from the academic year 2011-2012.10.The factual aspect regarding the submission of applicationby the petitioner Medical College on 4.8.2010 and payment ofinspection fee by the petitioner College for the increase of intakein the first year MBBS course from 2011-2012 for the secondinspection, are not in dispute. The first inspection/assessment wasmade by the Council of Assessors on 4th and 5th April, 2011 and on thesaid dates staff were on strike and thereafter as per the requestmade by the petitioner and payment of inspection fee for the secondinspection, the Assessors conducted re-inspection on 3rd and 4th June,2011, and a report was submitted before the second respondent and thesame was considered by the Under Graduate Committee of the secondrespondent in its meeting held on 14.6.2011, is admitted by thesecond respondent in the counter affidavit in paragraph 20.According to the second respondent, the Under Graduate Committeeperused the report of the Assessors and found several deficiencies.The petitioner management in its representation dated 4.7.2011, acopy of which is filed in the additional typed set of papers statingthat the deficiencies pointed out in the inspection report are notcorrect and the College has fulfilled all the requirements for thegrant of Letter of Permission for the additional intake. In thereply affidavit filed by the petitioner in this writ petition dated3.8.2011 also it is factually disputed about the Assessors report andemphatically stated that the conditions for the grant of Letter ofPermission for the increase of intake has been fulfilled.11.The statutory provision dealing with the consideration ofthe proposal for the establishment of new Medical College or for theincrease of intake of the existing strength is covered under Section10A of the Medical Council of India Act, 1956. Section 10A(4) readsas follows:"10A. Permission for establishment of newmedical college, new course of study.-(4) The Central Government may, after consideringthe scheme and the recommendations of the Councilunder sub-section 93 and after obtaining, wherenecessary, such other particulars as may beconsidered necessary by it from the person orcollege concerned, and having regard to thefactors referred to in sub-section 97, eitherapprove (with such conditions, if any, as it mayconsider necessary) or disapprove the scheme andany such approval shall be a permission under sub-section (1):Provided that no scheme shall be disapproved bythe Central Government except after giving the https://hcservices.ecourts.gov.in/hcservices/ person or college concerned a reasonableopportunity of being heard. ......."The power vested with the Central Government as per the said Act isnow vested with the Board of Governors viz., the second respondent asper Medical Council of India (Amendment) Act, 2010, incorporatingSection 3B. The said Section reads as follows:"3B(b) The Board of Governors shall-(i) Exercise the powers and discharge thefunctions of the Council under this Act and forthis purpose, the provisions of this Act shallhave effect subject to the modification thatreferences therein to the Council shall beconstrued as references to the Board of Governors;(ii) grant independently permission forestablishment of new medical colleges or opening anew or higher course of study or training orincrease in admission capacity in any course ofstudy or training referred to in section 10A orgiving the person or college concerned areasonable opportunity of being heard as providedunder Section 10A without prior permission of theCentral Government under that section, includingexercise of the power to finally approve ordisapprove the same; and (iii) dispose of the matters pending with theCentral Government under section 10A upon receiptof the same from it."Under the said Section 10A(4) as amended under Section 3B(b),reasonable opportunity of being heard is provided not only for theestablishment of the new Medical College, but also for opening a newor higher course of study of training or for increase of intake inthe existing Medical Colleges.12.In the counter affidavit filed by the respondent it isstated that originally a show cause notice was issued on 5.5.2011based on the first Assessors report. The counter affidavit nowherestates that after the Assessor's report submitted pursuant to thesecond inspection made on 3rd and 4th June, 2011, opportunity wasgiven to the petitioner while considering the said report by theUnder Graduate Committee in its meeting held on 14.6.2011. It is alsonot stated in the counter affidavit that before communicating theimpugned order dated 30.6.2011, any opportunity to explain the caseof the petitioner was given. The statutory provision contemplatesreasonable opportunity of being heard, meaning thereby, not onlyissuance of notice and calling for objections, but also to give apersonal hearing before disapproving the application for the https://hcservices.ecourts.gov.in/hcservices/ increased intake. The said statutory provision having not beenfollowed, the decision arrived at by the second respondent, which wascommunicated through the impugned order dated 30.6.2011 is inviolation of the statutory provision as well as the principles ofnatural justice.13.The learned counsel for the petitioner relied on thejudgment of the Division Bench of the Delhi High Court made inL.P.A.No.544 of 2011 dated 21.7.2011 in support of his contention,wherein a similar issue was considered and the Delhi High Courtaccepted the plea made by the learned Senior Counsel for the Collegefor re-inspection and also recorded the undertaking of the learnedSenior Counsel that inspection fee will be paid and the InspectionTeam was therefore directed to proceed with inspection and afteraffording opportunity of hearing, the competent authority wasdirected to pass a reasoned order. Two weeks time was given tocarry out the inspection from the date of deposit of the inspectionfee. It was further directed that if Medical Council of India issatisfied, the institution shall be given permission for the academicyear 2011-2012. The said order of the Division Bench of the DelhiHigh court was challenged before the Honourable Supreme Court inS.L.P.No.16233 of 2011 and the Supreme Court by order dated 17.6.2011which confirming the order clarified and passed the following order:"(b) The Council shall be at liberty toconsider the application in accordance with theRules, Regulations and the parameters provided forgrant of approval of such colleges. If as per thewisdom of the Council, conditions are notsatisfied it will be at liberty to decline theapproval.(c) We extend the period by two weeks forconsidering and granting/refusing the approval tothe Medical College. The Council will be atliberty to inspect the College through Experts ascontemplated under the Rules."14.Admission for the first year MBBS course for the academicyear 2011-2012 shall have to be completed by 30.9.2011 and thereforethere is sufficient time to reconsider the request of the petitionerfor the increase of intake for this academic year 2011-2012 afteraffording personal hearing as well as to conduct re-inspection. Thepetitioner is also willing to remit inspection fee.15.How the words 'reasonable opportunity' provided under astatue are to be interpreted was considered by the Honourable SupremeCourt in the decision reported in (2011) 2 SCC 258 (Automotive TyreManufacturers Association v. Designated Authority), wherein inparagraphs 80 and 81 it is held thus, https://hcservices.ecourts.gov.in/hcservices/ "80. ........... unless a statutoryprovision, either specifically or by necessaryimplication excludes the application ofprinciples of natural justice, because in thatevent the court would not ignore the legislativemandate, the requirement of giving reasonableopportunity of being heard before an order ismade, is generally read into the provisions of astatute, particularly when the order has adversecivil consequences which obviously coverinfraction of property, personal rights andmaterial deprivations for the party affected. Theprinciple holds good irrespective of whether thepower conferred on a statutory body or Tribunalis administrative or quasi-judicial. It isequally trite that the concept of natural justicecan neither be put in a straitjacket nor is it ageneral rule of universal application.81. Undoubtedly, there can be exceptions tothe said doctrine. As stated above, the questionwhether the principle has to be applied or not isto be considered bearing in mind the expresslanguage and the basic scheme of the provisionconferring the power; the nature of the powerconferred and the purpose for which the power isconferred and the final effect of the exercise ofthat power. It is only upon a consideration ofthese matters that the question of application ofthe said principle can be properly determined."16.The contention of the petitioner is that if an opportunitywas given to the petitioner, the petitioner could have establishedthe availability of all requirements, which are allegedly said to belacking as per the counter affidavit. In such circumstances it isall the more necessary to give an opportunity of hearing to thepetitioner. The Supreme Court in the decision reported in (2010) 13SCC 216 : (2011) 1 MLJ 730 (SC) (Municipal Committee v. Punjab StateElectricity Board) considered the principles of natural justice andin paragraphs 31 to 36 (in SCC) held thus,"31. The principles of natural justicecannot be applied in a vacuum without referenceto the relevant facts and circumstances of thecase. Thus, they cannot be put in a straitjacketformula.“13. … Natural justice is [not an] unrulyhorse, no lurking landmine, nor a judicial https://hcservices.ecourts.gov.in/hcservices/ cure-all. If fairness is shown by thedecision-maker to the man proceeded against,the form, features and the fundamentals ofsuch essential processual propriety beingconditioned by the facts and circumstancesof each situation, no breach of naturaljustice can be complained of.”32. The two rules of natural justice,namely, nemo judex in causa sua, and audi alterampartem now have a definite meaning andconnotation in law and their contents andimplications are well understood and firmlyestablished; they are nonetheless non-statutory.The court has to determine whether the observanceof the principles of natural justice wasnecessary for a just decision in the facts of theparticular case. (Vide Board of MiningExamination and Chief Inspector of Mines v.Ramjee (AIR 1977 SC 965 : (1977) 2 SCC 256), SCCp.262, para 13; Union of India v. Tulsiram Patel(AIR 1985 SC 1416 : (1985) 3 SCC 398 : 1985 IILLJ 206); and ECIL v. B. Karunakar (AIR 1994 SC1074 : (1993) 4 SCC 727 : 1994 I LLJ 162).33. There may be cases where on admitted andundisputed facts, only one conclusion ispossible. In such an eventuality, the applicationof the principles of natural justice would be afutile exercise and an empty formality. (VideState of U.P. v. Om Prakash Gupta (AIR 1970 SC679 : (1969) 3 SCC 775), S.L. Kapoor v. Jagmohan(AIR 1981 SC 136 : (1980) 4 SCC 379) and U.P.Junior Doctors’ Action Committee v. Dr. B.Sheetal Nandwani (AIR 1991 SC 909 : (1990) 4 SCC633).34. However, there may be cases where thenon-observance of natural justice is itselfprejudice to a person and proof of prejudice isnot required at all. In A.R. Antulay v. R.S.Nayak (AIR 1988 SC 1531 : (1988) 2 SCC 602) thisCourt held as under: (SCC p.660, para 55)“55. … No prejudice need be proved forenforcing the fundamental rights. Violationof a fundamental right itself renders theimpugned action void. So also the violation https://hcservices.ecourts.gov.in/hcservices/ of the principles of natural justice rendersthe act a nullity.”35. Similarly, in S.L. Kapoor (supra) thisCourt held: (SCC p.395, para 24)“24. … The non-observance of natural justiceis itself prejudice to any man and proof ofprejudice independently of proof of denialof natural justice is unnecessary. It illcomes from a person who has denied justicethat the person who has been denied justiceis not prejudiced.”36. In view of the above, in case there is anon-compliance with a statutory requirement oflaw or the principles of natural justice havebeen violated under some circumstances, non-compliance with the aforesaid may itself beprejudicial to a party and in such an eventualityit is not required that a party has to satisfythe court that his cause has been prejudiced fornon-compliance with the statutory requirement orprinciples of natural justice."17.Thus, the petitioner should have been given a reasonableopportunity before passing the impugned order. The earlier showcause notice dated 5.5.2011 cannot be treated as a reasonableopportunity as subsequently re-assessment was made on 3rd and 4th June,2011, and a report was made. Admittedly the said report was notfurnished and no show cause notice was given to the petitioner beforepassing the impugned order dated 30.6.2011. 18.In the light of the above findings, I am of the view thatthe interest of justice would be met by quashing the impugned orderdated 30.6.2011 giving liberty to the petitioner to pay theinspection fee within one week to make a fresh inspection/assessmentand based on the same, the second respondent is directed to considerthe whole issue and pass fresh orders on merits and in accordancewith law, within a period of one week from the date of inspection.It is made clear that it is entirely up to the second respondent, whois an expert body, to decide either to grant or refuse the request ofthe petitioner considering all the requirements. The entire exerciseis directed to be completed before the end of August, 2011. https://hcservices.ecourts.gov.in/hcservices/ The writ petition is ordered with the above directions. Nocosts. Connected miscellaneous petitions are closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarvrTo1.The Secretary to Government, The Union of India,Ministry of Health & Family Welfare,New Delhi – 110 011.2.The Board of Governors in Supersession ofMedical Council of India,rep.by its Secretary,Pocket-14, Sector-8,Dwarka Phase-I,New Delhi – 110 077.1 cc to Mr. V.P.Raman, Advocate, Sr.No.48216W.P.No.16298 of 2011rs(co)pmk.5.8.2011