1. Leave granted. We have heard the matter finally at this stage itself with the consent of the learned Counsel for the parties.
2. The Appellant in Civil Appeal No. 7953 of 2015 arising out of SLP(C) No. 25946/2015 (hereinafter referred to as "the Society") got itself registered in the year 2012 with the purpose of establishing a medical college and established a college viz. K.D. Medical College, Hospital and Research Center at Mathura, Uttar Pradesh. Thereafter, the Society, on 29.08.2014, applied to the Medical Council of India for grant of Letter of Permission for the Academic Year 2015-16. Along with this application the Society submitted various documents including declaration forms pertaining to faculty/residents to the Medical Council of India on 18.11.2014. On the basis of this application of the Society, Medical Council of India issued the letter dated 05.01.2015 for carrying out the physical inspection of the Society. This inspection was conducted by the Assessors of the Medical Council of India from 06.01.2015 to 07.01.2015. Some deficiencies were found which were notified to the Society. According to the Society, it rectified those deficiencies and sent another letter to the Medical Council of India. On that basis, another inspection was carried out. Again some deficiencies were found and as per the Society after removing those deficiencies as notified, third inspection was carried out on 08.05.2015. The report of the third inspection was submitted. The summary of the said assessment reads as under:
Summary of Assessment:
1. K.D. Medical College, Hospital & Research Center, is run by Society.
2. The college has compliance of LOP from MCI with intake of 150 seats for last academic year 2015-16.
3. Type of assessment: Surprise : No. of seats: 150
4. PG courses: No
5. Deficiency of the infrastructure of college and hospital if any: P1. mention category wise; Nil.
6. Deficiency of clinical material if any: P1. mention category wise; Nil.
7. Deficiency of teaching staff if any: Shortage of teaching faculty is 1.66%.
8. Deficiency of resident doctors; if any: Shortage of resident doctors is 2.22%.
9. Any other Remarks.
3. It is clear from the above that the only deficiency that remained as per the aforesaid inspection was that there was shortage of teaching faculty to the extent of 1.66% and shortage of 2.22% resident doctors. The Medical Council of India sent its recommendations to the Central Government for rejection of the case of the Society on 14.05.2015. In this communication, it was inter alia stated out that on verification, the Medical Council of India had observed that fake/forged experience certificates were produced by the following faculties/residents:
(i) Dr. Neety Singh, Sr. Deptt. of Radio-Diagnosis.
(ii) Dr. Vikas Chand Dubey, Dr. Deptt. of General Medicine.
(iii) Dr. Vivek Asthana, Sr. Deptt. of Anesthesia.
(iv) Dr. Pankaj Kumar, Sr. Deptt. of ENT.
(v) Dr. Mukesh Bharti, Sr. Deptt. of Orthopedics.
4. After receiving the report/recommendations of the Medical Council of India, the Government of India passed order dated 15.06.2015 disapproving the scheme of the Society. At the same time, as far as the application of proviso (d) to Regulation 8(3)(1) of Establishment of Medical College Regulations, 1999 is concerned, it was mentioned in the said communication that the Ministry has not taken decision thereon and same would be communicated subsequently. We may point out at this stage itself, the decision on that aspect was taken and the Society was informed that since the college which newly established, the proviso (d) to Regulation 8(3)(1) of the Regulations would not apply to the case of the Society.
5. Insofar as the decision of the Government of India disapproving the scheme of the college established by the Society is concerned, feeling aggrieved by the said decision, the Society filed the writ petition in the High Court of Delhi with the following prayers:
(a) issue writ/writs including a writ in the nature of certiorari setting aside and quashing Clause 8(3)(1) of the Establishment of Medical Colleges Regulations, 1999 by means of Notification No. MCI-34(41)/2010-Med./3491 dated 16.04.2010 being ultra vires the Indian Medical Council Act, 1956 and violative of the principles of natural justice, or in the alternative declare that Clause 8(3)(1)(d) is not applicable in establishment of new medical college cases;
(b) issue writ/writs including a writ in the nature of certiorari setting aside and quashing the letter/communication dated 14.05.2015 issued by the Respondent No. 2 returning the Application of the Petitioner college for establishment of new Medical College for the academic year 2015-16 to the Respondent No. 1;
(c) issue writ/writs including a writ in the nature of certiorari setting aside and quashing the letter/communication dated 15.06.2015 issued by the Respondent No. 1 to an extent of disapproving the application of the Petitioner college for establishment of new medical college for the academic year 2015-16;
(d) issue writ/writs, order or direction, writ being in the nature of mandamus, directing the Respondent No. 1 to grant Letter of Permission to the Petitioner college for establishment of new Medical College at Mathura in the name of K.D. Medical College, Hospital and Research Center for the academic year 2015-16 with an annual intake of 150 students in the MBBS course; and
(e) pass any other or further order which this Honble Court deems fit and proper in facts and circumstances of the present case.
6. The Medical Council of India contested this petition inter alia referring to the proceedings dated 14.05.2015 where deficiencies were pointed out and, in particular, it emphasized that the Society had submitted fake/forged experience certificates in respect of certain faculties/residents and, therefore, the decision of the Respondents in rejecting the application of the Society was justified.
7. After hearing the learned Counsel for the parties, the High Court disposed of the writ petition vide judgment dated 26.08.2015. In the said judgment, the High Court has noticed that since the proviso (d) to Regulation 8(3)(1) is not applicable to the proposed college of the Society, the permission could not be rejected on account of alleged fake/forged experience certificates which were produced by the said faculties/residents. After scanning through the records, the High Court found that the controversy was now limited only regarding the following deficiencies:
(i) on previous day, there was Nil Normal delivery & Nil Caesarean section; (ii) in the month of January, there were only 45 total deliveries and in the month of April there were only 38 deliveries which were inadequate; and (iii) special investigation like Ba, IVP are not carried out.
8. In the opinion of the High Court since this was the only controversy which was left between the parties, the writ petition was disposed of with the following directions:
Accordingly, the rejection order of the Union of India dated 15.06.2015 and the recommendation of MCI dated 14.05.2015 are hereby set aside and the writ petition is disposed of with the direction to MCI to conduct re-inspection of the Petitioner college and submit its recommendation to the Union of India within two weeks from today. The first Respondent thereupon shall pass an appropriate order afresh in accordance with law.
9. The Society is aggrieved by the directions given for another inspection. As per the Society, the aforesaid three deficiencies which are pointed out by the Medical Council of India and taken note of by the High Court are, in fact, non-existent and, therefore, there is no need to conduct any further inspection. It is also the case of the Society that in respect of those alleged deficiencies, the matter can be explained by the Society, if at all needed, by giving due explanations to the Medical Council of India and, in any case, it does not call for any re-inspection. On that basis, the case set up by the Society is that the High Court should have gone into the merits of the deficiencies pointed out instead of directing the Medical Council of India to conduct re-inspection and should have passed the orders directing the Medical Council of India/Government of India to grant permission. Raising these grievances, the Society has preferred the present appeal, aggrieved by that part of the order.
10. The Medical Council of India has also challenged the impugned order insofar as it has set aside the orders of the Central Government. The submission of the Medical Council of India is that when it was found on verification that fake/forged experience certificates in respect of some faculties/residents were produced by the Medical Council of India, the writ petition of the Society should have been dismissed by the High Court. For this reason, this part of the order is challenged by the Medical Council of India and it is pleaded that the appropriate course of action for the High Court in these circumstances was to dismiss the writ petition.
11. From the aforesaid, it is clear that insofar as the Medical Council of India is concerned, sheet anchor of their submission is predicated on the alleged fake/forged experience certificates produced by the faculties/residents. Therefore, it is apposite to deal with this aspect in the first instance.
12. Mr. Vikas Singh, learned Senior Counsel appearing for the Medical Council of India pointed out that in respect of these five persons letters dated 12.05.2015 were addressed by the Medical Council of India to the Principal/Dean, Peoples College of Medical Sciences, Bhopal and L.N. Medical College, Bhopal from where those persons had studied. The replies which were received from those institutions clearly established that experience certificates which were given by these persons were false as they did not have the requisite experience which was claimed by these persons. Mr. Vikas Singh submitted that though the false experience certificates were produced by the said persons but the society was equally responsible for not taking due care. For this, he referred to the declaration which was submitted by those faculties/residents giving the particulars of their qualifications as well as experience. Below the said declaration is the endorsement which is countersigned by the Director/Dean/Principal as well as Head of the Department. It was pointed out by Mr. Vikas Singh that the person countersigning has to satisfy himself/herself about the correctness and veracity of each content of the declaration given by the employee/declarant and in case it turns out that such information given by the employee/declarant is false even the person countersigning the endorsement is equally responsible besides the declarant himself/herself for any such mis-declaration. On this basis, it was argued that it was the responsibility of the officials of the college also to verify the correctness of the experience as mentioned in the certificates which were produced by the said five persons. Therefore, the college is equally liable and has to suffer the consequences. Mr. Vikas Singh has taken support of the judgment of this Court in Rohilkhand Medical College & Hospital, Bareilly v. Medical Council of India and Anr. 2013 (15) SCC 516 [LQ/SC/2013/996] , wherein this Court held that even if it is subsequently found that the college had submitted some fake documents, the recommendation/permission granted earlier can be withdrawn. Specific reliance was placed on the following discussion in the said judgment:
29. We have now to examine the legality of decision of the MCI taken on 13.07.2013 in the light of the above factual and legal scenario. We have already indicated that when sanction was accorded on 20.06.2013 it was categorically stated by the MCI that the same was accorded subject to certain conditions. It was stated therein that in case false/wrong declaration or fabricated documents have been used for procuring permission of the Board of Governors of the increased intake and if said misconduct was brought to the notice or comes to the knowledge of the MCI, at any stage during the current academic year (2013-14) the Institution/College would not be liable to be considered for renewal of the permission against increased intake for the next academic year and that renewal of permission against the increased intake for the academic year 2013-14 and for the next academic year and the same would be liable to be revoked. Having received the letter of the CBI as well as the charge-sheet the impugned order dated 13.07.2013 was issued by the MCI revoking the letter of permission granted for the academic year 2013-14.
30. We are of the view that the above decision taken by the MCI is in accordance with the Establishment of Medical Colleges Regulation (Amendment), 2010 (Part II). The above-mentioned Regulations were issued by the MCI in exercise of its powers Under Section 33 of the IMC Act, 1956 with the previous sanction of the Central Government. Regulation 8(3) of the 1999 Regulations deals with the Grant of Permission, Regulation 8(3)(1)(d) deals with the colleges which are found to have employed teachers with faked/forged documents. Those provisions are extracted herein below:
8(3)(1)(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 postgraduate 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 Government.
13. The aforesaid argument appears to be attractive in the first blush. However, a little deeper scrutiny in the matter would show that it is not as serious as it is projected by the Medical Council of India. In the first instance, we would like to state certain more facts/developments which took place thereafter which dents the sharpness of the aforesaid argument of the Medical Council of India.
14. First of all, it has to be borne in mind that the aforesaid five persons were not the part of the faculty. They were the residents/sr. residents employed in the hospital. Secondly, it is these five persons, when they joined as residents/sr. residents, who had submitted their experience certificates. On the college authorities, the allegation is of negligence in not carrying out proper verification. In this behalf, explanation of the college authorities is that since these persons were taken only as residents/sr. residents inquiries were made on telephone from the respective colleges where they had studied. There may be some laxity on part of the college in not carrying out proper verification. However, at the same time, it is an aspect which is not very material which can be said to be going to the root of the matter. The position would have been different had these persons were taken as the faculty members. As residents/sr. residents these persons were not undertaking any teaching assignments but were concerned only with taking care of the patients, which too is normally done under the guidance of the doctors who are employed at the hospital. It is further pointed out by Mr. Kapil Sibal, learned Senior Counsel appearing for the Society, that except two, all other persons had even left on their own volition much before the final inspection. Documents are filed showing their resignation on the ground that they had got some other job or they were leaving because of their family circumstances etc. The pertinent aspect which needs to be highlighted at this stage is that when the third inspection was conducted, in the list of faculties/residents given by the college, names of these persons were not there. It is the result of the third inspection which is material and that inspection does not include the names of these persons. That is a significant aspect which is to be kept in mind. The result of the third inspection has already been re-produced above. Out of 45 teaching faculty members, 44 faculty members were in place. Likewise out of 60 residents, 59 members were in place. Therefore, the matter is to be examined in the light of the result of the third inspection and the Medical Council of India was, in fact, supposed to take its final decision on the basis of third inspection.
15. Having regard to the aforesaid facts, we are of the opinion that so called fake/forged experience certificates produced by the aforesaid five residents would not come in the way of the college in seeking permission as otherwise it was meeting all the other requirements. At this stage itself, we may record the statement of Mr. Sibal that insofar as deficiency of one faculty and one resident is concerned, that would be made up within a period of one week.
16. With this we come to the deficiencies which are pointed by the High Court in para 14 of the impugned judgment and taken note of above. As far as first deficiency is concerned, it is stated that on the previous day (that is day prior to the date of inspection) there was nil normal delivery and nil caesarean section. Likewise, second deficiency which is pointed out is to the effect that in the month of January, there were only 45 total deliveries and in the month of April there were only 38 deliveries which were inadequate and further special investigation like Ba, IVP were not carried out. The Hospital cannot be faulted with, in case there was no normal delivery or no caesarean section on a particular day. That can hardly be treated as any deficiency. Same would be the position in respect of number of deliveries in the month of January and April. Insofar as third deficiency is concerned, it is clarified by the learned Senior Counsel for the Society that the Hospital is having sonography and ultrasound facilities etc. and, therefore, Ba/TVP are not carried out and, it would be hardly of any significance.
17. We are satisfied that in the aforesaid circumstances there was no need to direct conducting of re-inspection by the Medical Council of India and for the Academic Year 2015-2016 direction could have been given by the High Court for grant of permission once the order of the Central Government was found to be contrary to law. The offshoot of the aforesaid discussion would be to allow the appeal filed by the Appellant/Society and dismiss the appeal of the Medical Council of India. The Government of India is directed to pass appropriate orders granting permission to the Appellant/Society in respect of the college in question for the Academic Year 2015-2016 within a period of two days, having regard to the fact that the last date for conducting the admissions is 30th September, 2015. The College is also permitted to admit the students in accordance with law.
