TaxTMI 
TaxTMI 
2017 (9) TMI 1826
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....d petition being Writ Petition (C) No. 411 of 2017 (Glocal Medical College and Super Specialty Hospital and Research Centre v. Union of India and Anr) while annulling the above order, remitted the matter to the Central Government with the direction to extend fresh consideration of the materials on record and after affording an opportunity of hearing to the Petitioners' Colleges/Institutions to the extent necessary, deliver a reasoned decision on the issue of confirmation or otherwise of the conditional letter of permission (for short "LOP") granted to them. The second round of contest witnessed by the instant interim application under consideration, has been precipitated by the order dated 10.08.2017 passed by the Central Government in purported compliance of the directions contained in this Court's order dated 01.08.2017 referred to hereinabove. 2. We have heard Mr. P.S. Patwalia, learned senior Counsel for the Petitioners, Mr. Maninder Singh, learned Additional Solicitor General for the Union of India and Mr. Vikas Singh, learned senior Counsel for the Medical Council of India. 3. A brief preface of the factual backdrop has to be outlined being indispensable. The Petiti....
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....e compliance report submitted to MHFW by 22 June 2016. (ii) A bank guarantee in the amount of Rs. 2 crore in favour of MCI, which will be valid for 1 year or until the first renewal assessment, whichever is later. Such bank guarantee will be in addition to the prescribed fee submitted along with the application. 2. The OC has also stipulated as follows: (a) OC may direct inspection to verify the compliance submitted by the college and considered by OC, anytime after 30 September, 2016. (b) In default of the conditions (I) and (ii) in para 1 above and if the compliances are found incomplete in the inspection to be conducted after 30 September, 2016, such college will be debarred from fresh intake of students for 2 years commencing 2017-18. 6. The letter, amongst others mentioned as well that the next batch of students in the MBBS Course for the academic year 2017-18 would be admitted in the College only after obtaining permission of the Central Government and fulfilling the conditions as above, as stipulated by the Oversight Committee. 7. While pursuant to the above letter of permission, the Petitioners admitted students for the academic year 2016-17 and furnished the bank....
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....oners on 17.01.2017 through a Hearing Committee, in which the Director General of Health Services (for short, hereafter to be referred to as "DGHS") did participate and finally the proceedings thereof were forwarded to the Central Government and the Oversight Committee for the necessary decision. As had been noted inter alia in the order dated 01.08.2017 alluded to hereinabove, whereby the issue of confirmation or otherwise of the LOP of the Petitioner college/institution was remitted to the Central Government for a fresh consideration, only a truncated version of the said proceedings were forwarded to the Oversight Committee sans the observations of the DGHS on the various aspects pertaining to the issue involved. Be that as it may, as the records testify, the Oversight Committee on an independent consideration of the materials on record laid before it by the Central Government, though belatedly, offered its observations on the various deficiencies pointed out in the inspection held on 18th and 19th November, 2016 and recommended confirmation of the conditional LOP granted on 12.09.2016. The order dated 31.05.2017 of the Central Government followed debarring the Petitioners colleg....
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....ons recorded therein both of the Committee and the DGHS and more importantly those of the Oversight Committee conveyed by its communication dated 14.05.2017, all earlier in point of time to the decision taken. This assumes importance in view of the unequivocal mandate contained in the proviso to Section 10A(4) of the Act, dealing with the issue, amongst others of establishment of a medical college. The relevant excerpt of Sub-Section 4 of Section 10A of the Act for ready reference is set out hereinbelow: (4) The Central Government may, after considering the scheme and the recommendations of the Council Under Sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in Sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under Sub-section (1); Provided that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard: 22. Though as the records tes....
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....nism so much so that severance of any one or more of these, by any measure, would render the process undertaken to be mutilative of the letter and spirit of the mandate of Section 10A(4). 24. Having regard to the fact that the Oversight Committee has been constituted by this Court and is also empowered to oversee all statutory functions under the Act, and further all policy decisions of the MCI would require its approval, its recommendations, to state the least, on the issue of establishment of a medical college, as in this case, can by no means be disregarded or left out of consideration. Noticeably, this Court did also empower the Oversight Committee to issue appropriate remedial directions. In our view, in the overall perspective, the materials on record bearing on the claim of the Petitioner institutions/colleges for confirmation of the conditional letters of permission granted to them require a fresh consideration to obviate the possibility of any injustice in the process. 25. In the above persuasive premise, the Central Government is hereby ordered to consider afresh the materials on record pertaining to the issue of confirmation or otherwise of the letter of permission g....
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....12.2016. In the SAF form for November inspection, the deficiency relating to faculty and residents each is in excess of 30%. In the opinion of the Committee, MCI was not precluded from conducting Inspection subject to sufficient reason and justification. The Committee agrees with the decision of the Ministry conveyed by letter dated 31.05.2017 to debar the college for 2 years and also permit MCI to encash bank guarantee. 18. Accepting the recommendations of the Hearing Committee, the Ministry reiterates its earlier decision dated 31.05.2017 to debar the college for 2 years and also permit MCI to encash bank guarantee. 14. A plain reading of the above quoted text would yield the following reasons, as recorded by the Central Government, to justify the impugned decision: (a) The college did not allow inspection on 09.12.2016 on the ground that compliance inspection had already been carried out on 18th/19th November, 2016. (b) The letter dated 09.12.2016 of the Principal of the college/institution clearly mentions that the college was not ready for inspection. (c) The Assessors have noted that the college appeared to be closed on 09.12.2016. (d) In the SAF Form for Novem....
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....he existence of the deficiency relating to faculty and residents in particular, as recorded by the assessors of the MCI, the decision to debar the Petitioner college/institution from admitting students for the academic years 2017-18 and 2018-19 and to authorize the MCI to encash the bank guarantee of 2 crores is palpably illegal, unfair and unjust. Qua the aspect of the proposed inspection of the Petitioner college/institution on 09.12.2016, Mr. Patwalia has drawn our attention to the communication dated 14.05.2017 of the Oversight Committee addressed to the Central Government wherein it observed that only eight institutions including the Petitioner institution/college were attempted to be subjected to two inspections in quick succession for the same purpose, which according to it, was not authorized by it. Mr. Patwalia, thus sought to underline that the proposed inspection of 09.12.2016 of the Petitioner college/institution, in the attendant facts and circumstances, was an act of selective victimization, which cannot receive judicial imprimatur. 17. As against this, the learned senior Counsel for the Respondents in unison have urged that in absence of any legal bar, as noted in t....
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....s in excess of 30%, as noted in that inspection had been controverted and duly explained by the Petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum of non-cooperation of the Petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them. 19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the Petitioner college/institution. This order thus has to ....
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....shment of a college before disapproving the same. The manner in which the Respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the Respondents, the Petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the Petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held. Consequently, on an overall view of the materials available on record and balancing all relevant aspects, we are of the considered opinion that the conditional LOP granted to the Petitioner college/institution on 12.09.2016 for the academic year 2016-17 d....