THE HIGH COURT OF ORISSA : CUTTACK

W.P.(C). No.15685 of 2015 _______________________________________________

In the matter of an application under Articles 226 and 227 of the Constitution of India.

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Kalinga Institute of Medical Sciences (KIMS) under KIIT University & another …… Petitioners

-Versus-

Union of India & another …… Opp. Parties

For Petitioners : M/s. A.K.Parija (Sr. Advocate) Sarada P.Sarangi, P.P.Mohanty, D.K.Das, B.P.Das, P.K.Dash, D.Mohapatra, V.Mahapatra, & J.S.Mishra.

For Opp. Party No.1: Mr.Anup Kumar Bose (Asst. Solicitor General of India) For Opp. Party No.2: M/s. Rajani Chandra Mohanty, K.C.Swain, R.Das Pattanayak & Ms.S.Pattanaik

P R E S E N T :

THE HON’BLE MR. JUSTICE INDRAJIT MAHANTY &

THE HON’BLE DR. JUSTICE D.P.CHOUDHURY

Date of hearing: 17.02.2016 Date of Judgment: 04.03.2016

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I. Mahanty, J. The present writ application has come to be filed by the

petitioner-Kalinga Institute of Medical Sciences (KIMS) under KIIT

University seeking to challenge the alleged arbitrary action of the

Medical Council of India (MCI) for not recommending renewal of

permission for admission of 2nd batch of MBBS students against

the increased intake from 100 to 150 for the academic year 2015-

2016.

1.1. Further the writ application has also sought to challenge

the letter dated 1.4.2015 issued by the MCI refusing permission

for admission of 2nd batch of MBBS students against the

increased intake of 100 to 150 for the academic year 2015-16 as

well as a challenge to the letter dated 15.06.2015 issued by the

Government of India, Ministry of Health and Family Welfare

refusing permission for admission of 2nd batch of MBBS students

against the increased intake i.e. from 100 to 150 for the academic

year 2015-16.

2. In course of hearing the present writ application, this

Court has passed certain interim directions from time to time

amongst which, Order No.5 dated 25.09.2015 passed in Misc.

Case No.15069 of 2015 and in particular Para-9 thereof is quoted

hereinbelow:

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“9. After hearing learned counsel for the respective parties and in the light of the judgment referred hereinabove, we are of the considered view that the Union of India at the time of affording opportunity of hearing to the petitioner, ought not to have remanded the matter back to the M.C.I. for further inspection and such inspection/verification if at all required, could have carried out by it through any agency and/or any committee. We further take note of the fact that admissions to the M.B.B.S. course are to be completed by 30th September 2015 and there exists very limited time between now and the last date of admission. Keeping the interest of the students, interest of the State as well as the interest of the institution involved, we direct as follows:

i) That the Central Government shall grant provisional permission to the petitioner to conduct the course for the academic year 2015-16 which will be subject to further orders to be passed by us.

ii) That the State Government/ Institution shall start the process of allotment and the admission shall be made by the respective colleges subject to the result of the writ petition.

iii) The allotment and admission shall be made after giving information to the students regarding the pendency of the writ petition and that the admission will be subject to the result of the writ petition.

iv. Neither the petitioner-institution nor any students, who are admitted by it shall claim any equity on the basis of approval/permission for admission granted by virtue of this interim direction.”

3. Challenging the aforesaid order dated 25.09.2015 the

MCI challenged the same before the Hon’ble Supreme Court in

Special Leave to Appeal (C)No.28312 of 2015 and by Order dated

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13.10.2015, the Hon’ble Supreme Court of India was pleased to

direct that the implementation of the impugned judgment shall

remain stayed and status quo, as on date, shall be maintained.

Subsequently, by Order dated 04.11.2015, the said Civil Appeal

came to be disposed of with the following Order:

“I.A. Nos.2-5 are rejected. Learned senior counsel appearing for the

respondent-Hospital/applicants submits that a request shall be made before the High Court for finally deciding the matter on the next date of hearing.

Mr.Vikas Singh, learned Senior counsel appearing on behalf of appellant-MCI submits that the appellant would not object if such a prayer is made before the High Court. We are sure that the writ petition shall be decided by the High Court as soon as possible and if possible, on the next date of hearing.

In view of the above, nothing remains to be decided in the civil appeal. It is disposed of accordingly.

Be it noted that we have not expressed any opinion on the merits of the case.

Interim order passed by this Court shall continue till the High Court finally decides the writ petition.”

4. After disposal of the aforesaid matter by the Hon’ble

Supreme Court, the petitioner-institution filed an application for

amendment before this Court and the same came to be allowed

vide Order dated 13.11.2015. Thereafter, upon hearing the

learned counsel for the respective parties, a further interim Order

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No.9 dated 03.12.2015 was passed, inter alia, with the following

directions:

“Heard Mr.Parija learned Senior Advocate appearing for the petitioner-institution Mr.Bose learned Asst. Solicitor General for the Union of India and Mr.R.C.Mohanty learned counsel for the Medical Council of India (MCI).

By order No.5 dated 25.09.2015 Misc. Case No.15069 of 2015 has come to be disposed of by this Court with various directions indicated therein. Relevant portion of which is quoted hereunder:

“9. After hearing learned counsel for the

respective parties and in the light of the judgment referred hereinabove we are of the considered view that the Union of India at the time of affording opportunity of hearing to the petitioner ought not to have remanded the matter back to the M.C.I. for further inspection and such inspection/verification if at all required could have carried out by it through any agency and or any committee. We further take note of the fact that admissions to the M.B.B.S. course are to be completed by 30th September 2015 and there exists very limited time between now and the last date of admission. Keeping the interest of the students interest of the State as well as the interest of the institution involved we direct as follows:

i) That the Central Government shall grant provisional permission to the petitioner to conduct the course for the academic year 2015-16 which will be subject to further orders to be passed by us.

ii) That the State Government Institution shall start the process of allotment and the admission shall be made by the respective colleges subject to the result of the writ petition.

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iii) The allotment and admission shall be made after giving information to the students regarding the pendency of the writ petition and that the admission will be subject to the result of the writ petition.

iv. Neither the petitioner-institution nor any students who are admitted by it shall claim any equity on the basis of approval/permission for admission granted by virtue of this interim direction.

10. We further direct that the direction given herein above be complied with forthwith by the Union of India by issuing necessary L.O.P on the terms and conditions as noted hereinabove on or before 28th September 2015.

11. It is further directed that the petitioner-institution may be added to the list of counseling and students may be immediately informed. The institution and the JEE are at liberty to take such steps in accordance with law to comply with this direction and complete the admission process by 30th September 2015. However the petitioner-institution shall make it clear to all students who seek admission that their admission are subject to the result of the writ application.

12. Dr. Nilam Somalkar the Regional Director of the Ministry of Health and Family Welfare Department is present before this Court in person. A copy of this order be handed over to him for necessary communication and compliance.

The Misc. Case is disposed of.”

In compliance of the directions as noted hereinabove the Government of India vide order dated 28.09.2015 passed an order granting provisional permission to the institution to conduct MBBS course for the 2nd Batch against increased intake from 100 to 150 MBBS seats for the academic year 2015-16 subject to the conditions indicated therein.

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The Medical Council of India has approached the Hon’ble Supreme Court in SLP(Civil) No.28312 of 2015 against the order dated 25.09.2015 passed in Misc. Case No.15069 of 2015.

It is asserted that the petitioner-institution admitted 50 students from the merit list prepared by the petitioner-institution from out of 84000 students who are applied and appeared at the All India Entrance Test (KIITEE 2015) into MBBS course for the year 2015-16.

By an interim order dated 13.10.2015 in the aforesaid SLP at the behest of the MCI the following directions have been passed:

“Leave granted. The implementation of the impugned

judgment shall remain stayed and status quo as on the date on which the impugned judgment was passed shall be maintained.”

The said SLP has converted to Civil Appeal No.8739 of 2015 and came to be disposed of by order dated 04.11.2015 by the Hon’ble Supreme Court to the following effect:

“I.A. Nos.2-5 are rejected. Learned senior counsel appearing

for the respondent-Hospital/applicants submits that a request shall be made before the High Court for finally deciding the matter on the next date of hearing.

Mr. Vikas Singh learned senior counsel appearing on behalf of appellant-MCI submits that the appellant would not object if such a prayer is made before the High Court. We are sure that the writ petition shall be decided by the High Court as soon as possible and if possible on the next date of hearing.

In view of the above nothing remains to be decided in the civil appeal. It is disposed of accordingly.

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Be it noted that we have not expressed any opinion on the merits of the case.

Interim order passed by this Court shall continue till the High Court finally decides the writ petition.”

After the aforesaid directions were issued by the Hon’ble Supreme Court the petitioner filed an amendment application and the same came to be allowed and copies of the consolidated writ petition was served on Mr. R.C. Mohanty learned counsel for the MCI. MCI are still in the process of going through the documents appended by the petitioner in the consolidated writ petition.

Mr. R.C. Mohanty learned counsel for the MCI submits that in the fact situation of the present case it would appear that 50 students have already been admitted by the petitioner-institution pursuant to the direction issued by this Court dated 25.09.2015 and their admissions has also been duly approved by the Union of India vide its letter dated 28.09.2015 (Annexure-22) of course subject to the outcome of the writ application. He therefore prays for some further time to file the counter affidavit in response to the consolidated writ petition and states that the interest of the students are not in any manner being jeopardized if adjournment is given since they are already continuing with their educations.

The essence of the directions of this Court was that insofar as the deficiencies pointed out by the MCI in its inspection are concerned it is submitted that the petitioner-institution claims to have satisfied all such deficiencies before its hearing before the Government of India. The Union of India remitted the matter back to the MCI for re-verification. Admittedly no re-verification of such purported compliance were made due to paucity of time. It is in the circumstance that the earlier order of this Court was passed on 25.09.2015 keeping in view the fact that admissions had to be concluded on or before 30th September 2015.

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In the light of the circumstances as noted hereinabove and in view of the prayer of Mr. R.C. Mohanty learned counsel for the MCI seeking further time we are of the considered view that while granting time as sought for by the MCI we direct that the MCI may constitute a fresh inspecting team to come and inspect the petitioner-institution and check up the purported compliances claimed by the petitioner on or before 17th December 2015 and counter affidavit may be filed on or before 22nd December 2015. We are further of the considered view that along with the inspection team the DMET may also participate in such inspection and submit his report on or before 23rd December 2015.

List this matter on 23.12.2015. Free copy of this order be handed over to Mr.

A.K. Bose learned Assistant Solicitor General for the Union of India and Mr. R.C. Mohanty learned counsel for the MCI for necessary communication and compliance.

Urgent certified copy of this order be granted on proper application.”

5. The aforesaid direction dated 3.12.2015 was once again

challenged by the MCI before the Hon’ble Supreme Court of India

in Civil Appeal No.14686 of 2015 and the same came to be

disposed of by the Hon’ble Supreme Court of India by its Order

dated 16.12.2015 to the following effect:

“1. The respondents have instructions to appear on caveat.

2. Heard the learned counsel for the parties. 3. Leave granted. 4. At the time of hearing of this appeal, it has

been submitted by Shri Kapil Sibbal, learned senior counsel, that a batch of additional 50 students is not undergoing studies.

5. It is directed that there shall not be any participation of Directorate of Medical Education and

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Training (DMET), Odisha, in the process of inspection. Time for carrying out inspection is extended by four weeks from today.

6. The learned senior counsel appearing for the appellant has submitted that according to him, the inspection, which is to be carried out, shall be for the academic year 2016-2017.

7. The learned senior counsel appearing for the respondents opposes the recording of any such statement.

8. In view of the above, the appeal is disposed of as partly allowed with no order as to costs and the impugned order is modified to the above extent.”

6. The purported compliance affidavit on behalf of the MCI

to the directions of this Court dated 03.12.2015 came to be filed

on 15th February, 2016 and the relevant portion of which is

extracted hereinbelow:

“7. It is submitted that in pursuance of the order dated 03.12.2015 passed in present petition by this Hon’ble Court and order dated 16.12.2015 passed in SLP (C) No.34856/2015 by the Hon’ble Supreme Court, the MCI carried out physical assessment of the petitioner medical college on 7th and 8th January, 2016.

8. It is submitted that the assessment report dated 7th and 8th January, 2016 was placed before the Executive Committee of the MCI in meeting held on 30.01.2016, wherein, the Executive Committee observed various gross deficiencies pertaining to infrastructure, clinical material and other physical facilities, persisting in the petitioner medical college.

9. It is submitted that the deficiencies pointed out in the assessment report dated 7th and 8th January, 2016, are fundamental in nature, hence, could not be brushed aside in the larger public interest and also in the interest of the student community. It is submitted that in view of such gross and serious deficiencies in the petitioner medical

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college the Executive Committee of the answering respondent, after due deliberations and discussions decided to recommend to the Central Govt., not to grant renewal of permission to the petitioner medical college for admitting 3rd batch of students against the increased intake i.e. from 100 to 150 for academic year 2016-17.

10. Accordingly, the above-mentioned decision/recommendation of the Executive Committee has been communicated to the Govt. of India vide letter dated 30.01.2016. Copy of MCI letter dated 31.01.2016 is annexed herewith and marked as ANNEXURE-B/2.

11. It is submitted that by the letter dated 31.01.2016 the petitioner medical college in view of the serious deficiencies found during the assessment has been directed to submit a compliance report after the rectification of the deficiencies within a period of 1 month.”

7. Mr.R.C.Mohanty, learned counsel for the MCI apart from

placing reliance on the compliance affidavit as noted hereinabove,

in order to meet the query raised by this Court in its order dated

3.12.2015 (supra) placed reliance on Annexure-R-2/1 to its reply

affidavit to the consolidated writ petition which is quoted

hereinbelow:

“Kalinga Institute of Medical Sciences, Bhubaneswar-Renewal of permission for 3rd batch (2nd renewal) for 100 to 150 MBBS seats.

No. Subject Requirements of beds for 100 recognition

Requirements of beds for 150 recognition

Requirement of beds for 100 to 150 seats for 2nd renewal/3rd Batch

1. General Medicine

120 150 138

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2. Paediatrics 60 90 78 3. Tuberculosis

& Chest 10 20 16

4. Skin & VD 10 15 13 5. Psychiatry 10 15 *30 6. General

Surgery 120 150 138

7. Orthopaedics 60 90 78 8. Opthalmology 10 15 13 9. ENT 10 15 13 10. OBG 60 90 78 Total 470 650 595

As per practice of the Council, the requirement of beds for increased intake is calculated by adding the difference of beds between the requirements for 100 recognition and the requirement for 150 recognition on yearly basis from LOP level to the last renewal {eg. In General Medicine 150-120=30/5=6 for each year. At 2nd renewal (3rd batch) 120+6+6+6=138} and also the beds are calculated as per PG requirements, i.e. 1 Unit consists of 30 beds in those courses, where PG courses are already running in the college (*Like in Kalinga where PG course in Psychiatry is running).”

8. At this juncture, Mr.Parija, learned Senior Advocate

appearing for the petitioner-institution (KIMS) submitted that the

KIMS institute has been inspected on three separate occasions

for assessing the increased intake from 100 to 150 seats (2nd

renewal) for the year 2015-16 on 28.1.2015, 20.5.2015 and

8.1.2016.

8.1. He advanced his argument in three folds. The first being

that the inspection report dated 7/8.01.2016 and letter of

Executive Committee dated 31.01.2016 indicating the alleged

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deficiencies in the petitioner-institute are either factually

incorrect or not in accordance with the regulations framed by the

MCI and/or based on “certain practices” which have no backing/

foundation in law.

9. In the light of the aforesaid submissions, various alleged

deficiencies as pointed out in the inspection report dated

7/8.01.2016 and the contentions raised by the petitioner-KIMS is

noted hereunder in a tabular form:

Sl. No.

Alleged Deficiency as per Inspection Report dated 07/08.01.2016 and letter of Executive Committee dated 31.01.2016

KIMS’ Contentions

1.

Teaching beds are inadequate as under: Department Beds Required Available Shortage 1 General

Medicine 138 120 18

2 Pediatrics 78 65 13 3 Tb & Chest 16 10 06 4 General

Surgery 138 120 18

5 Orthopedics 78 65 13 6 O.G. 78 60 13 TOTAL 81

(i) As per the inspection report dated 07/08.01.2016, the total number of beds required is 595.

(ii) As per the inspection report dated 07/08.01.2016 the total number of beds available is 500.

(iii) As per applicable MCI Regulations for institutions which have been granted recognition for 100 students, the

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total number of beds required is 470.

(iv) As per applicable MCI Regulations for institutions which are seeking first renewal for admission of 150 students, the total number of beds required is 300.

(v) Therefore the requirement of 595 beds is not as per the regulations but based on “practice” with no sanction of law.

2. OPD: Injection room is common for

male/female. ECG room is not available. Room shown as ECG room is an examination room. Plaster room & Plaster cutting room are common. In Ophthalmology OPD, Dark Room & Dressing room are not available. Child welfare clinic room in Pediatrics OPD was locked. Child Rehabilitation clinic is not available.

In the inspection report date 27/28.01.2015 it is admitted all the facilities are available.

3. Number of Units available are less in subjects of General Medicine, Paediatrics, General Surgery, Orthopaedics, O.G.

(i) Number of units are dependent upon the bed strength. If 595 is taken as the required bed strength, the total number of units required becomes 24. (ii) If 470/490 is taken as the bed strength, the number of units required is

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19 as per the applicable MCI Regulations. (iii) Admittedly, the petitioner-institution has 19 units.

4. Bed occupancy was 66.70% on actual physical verification (i.e.397 out of 595 beds required)

(i) Since the requirement of beds as per MCI regulations explained herein above is 470/490, then the bed occupancy will be 397/490 x 100 which is equal to 81.02%. (ii) In its inspection report dt.8.1.2016, it is stated that the bed occupancy was 82% and not 66.70% as alleged.

5. While there were 5 Caesarean Sections, there was NIL Normal Delivery; this is an abnormally high ratio.

Reliance was placed on the judgment of Hon’ble Supreme Court dated 24th September, 2015 in Civil Appeal No.7953 of 2015 and in particular, Paragraphs-17 and 18 thereof.

6.

There is discrepancy in data of Major & Minor operations as under: Parameter Number Reported

by College As per O.T. Lists

1 General Medicine

24 22

2 Paediatrics

40 13

(i) Row 1 should be read as “major surgery” and Row 2 as minor surgery. (ii) The reported figures by the petitioner-institution are as per the

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procedure undertaken throughout the day. (iii) It appears that the figures as per O.T. Lists were taken sometime during the day. (iv) Some minor surgeries have been carried out in minor O.T. and OPD which do not require anesthesia and hence are not reported in the O.T. list.

7. Workload of special investigations like Ba, IVP is NIL on day of assessment.

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8. MRD: It is partly computerized In the inspection report dated 27/28.01.2015 submitted by assessors of Medical Council of India, the Medical Record Department (MRD) of the petitioner-institution was assessed and found to be fully computerized and currently is also fully computerized.

9. ICUs: There was NIL patient in SICU on day of assessment.

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10. Only 4 static X-ray machines are available against requirement of 5.

(i) As per the inspection report dated 20.05.2015

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submitted by assessors of Medical Council of India, the petitioner-institution was assessed and found to have 5 nos. of Static X-ray machines and currently also has 5 nos. of them. (ii) One machine of 300 mA was defective on the date of inspection. The same is being replaced shortly.

11. Examination Halls: Against requirement of 2 Examination Halls of 250 capacity, only 1 of 250 capacity is available. Another hall of 144 capacity is available; the capacity is less and also it is of gallery type and cannot be considered as Examination Hall.

(i) As per applicable MCI Regulations for Colleges which have been granted recognition for 100 students, the required number of examination hall is one with capacity of 250. (ii) As per applicable MCI Regulations for institutions which are seeking first renewal for 150 students, the required number of examination hall is also one with capacity of 250. (iii) As per MCI Regulations, two examination halls with capacity of 250 are required for 150 students at the time of second renewal

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thereof. (iv) Petitioner-institution will require two examination halls of 250 capacity for the academic year 2016-17 and not for the present year i.e. 2015-16.

12. Lecture Theaters: Capacity of 4 Lecture Theaters available is only 140 each against requirement of 180 each. College authorities insisted that 180 students can be accommodated in the theater but on verification it did not appear as if it can accommodate more than 140. It was verified during a lecture when 115 students were present there. Available vacant space was not enough to accommodate more than 25 students. Even these 115 students were sitting quite close to one another as it is.

(i) As per applicable MCI Regulations for Colleges which have been granted recognition for 100 students, the required number of lecture theaters is four with capacity of 120 each. (ii) As per applicable MCI regulations for institutions which are seeking first renewal for 150 students, the required number of lecture theatres is two with capacity of 180. (iii) In the inspection report dated 27/28.01.2015 submitted by assessors of Medical Council of India, the petitioner-institution was assessed and found to have two lecture halls with capacity of 180 and two lecture halls with capacity of 120 and

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also currently has so.

13. Central Library: Available area is 1,700 sq.m. against requirement of 1800 sq.m.

(i) As per applicable MCI Regulations for institutions which have been granted recognition for 100 students, the central library should be 1600 sq.m. (ii) As per applicable MCI Regulations for institutions which are seeking first renewal for 150 students, the central library should be 1200 sq.m. (iii) As per MCI Regulations, central library should be 1800 sq.m. at the time of second renewal for 150 students. (iv) Petitioner-institution will require central library of 1800 sq.m for the academic year 2016-17 and not for the present year i.e. 2015-16.

14. Students’ Hostels: Entrance lobby is the Visitors’ room which is not as per norms. Study room has no computer. Recreation room has no facility for any music or indoor games.

In the inspection report dated 27/28.01.2015 submitted by assessors of Medical Council of India, the petitioner-institution

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was assessed and found to have the requisite facilities of visitor room, recreation room with TV, music, indoor games, study room with computer in its students’ hostels and indeed currently has the said facilities.

15. Interns’ Hostel: Available accommodation is 82 against requirement of 100. Entrance lobby is the Visitors’ room which is not as per norms. Study room has no computer. Recreation room has no facility for any music or indoor games.

In the inspection report dated 27/28.01.2015 submitted by assessors of Medical Council of India, the petitioner-institution was assessed and found to have the requisite facilities of visitor room, recreation room with TV, music, indoor games, study room with computer in its interns’ hostels and indeed currently has the said facilities. Further, the available accommodation was found to be 120 against the requirement of 100.

16. Residents’ Hostel: Entrance lobby is the Visitors’ room which is not as per norms. Study room has no computer. Recreation room has no facility for any music or indoor games.

In the inspection report dated 27/28.01.2015 submitted by assessors of Medical Council of India, the Petitioner College was assessed and

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found to have the requisite facilities of visitor room, recreation room with TV, music, indoor games, study room with computer in its residents’ hostels and indeed currently has the said facilities.

17. Playground shown is used as construction area

In the inspection report dated 27/28.01.2015 submitted by assessors of Medical Council of India, the petitioner-institution was assessed and found to have playgrounds including facilities for outdoor games such as cricket, and football and indeed currently has so.

18. Anatomy department: CT & MRI films are not available.

In the inspection report dated 27/28.01.2015 submitted by assessors of Medical Council of India, the petitioner-institution was assessed and found to have 31 units of MRI CT films and also currently possesses them.

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10. The first most important aspect that needs to be noted

at the outset is that the petitioner-institution (KIMS) had made

an application for increasing of MBBS seats from 100-150 and

was seeking its first renewal for the 2nd batch for the year 2015-

16.

10.1. By virtue of the direction issued by this Court vide order

dated 14.9.2015, the petitioner-institution had completed its

admissions into the MBBS course (2nd batch) on or before 30th

September, 2015. In view of the fact that the learned counsel

appearing on behalf of the MCI-O.P.2 (appellant before the

Hon’ble Supreme Court) submits that the O.P.2-appellant would

not object if the prayer is made before the High Court for finally

deciding the matter on the next date of hearing, the Hon’ble

Supreme Court in Civil Appeal No.8739 of 2015 vide Order dated

4th November, 2015 noted that the High Court should decide the

matter as soon as possible and if possible, on the next date itself

and while disposing of the Civil Appeal, categorically directed as

follows:

“Be it noted that we have not expressed any opinion on the merits of the case.”

10.2. Insofar as Civil Appeal No.14686 of 2015 is concerned,

as noted above, the Hon’ble Supreme Court set aside the

direction of this Court to the extent of appointing the Director of

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Medical Education and Training as a member of the Inspection

Team and extended the period for inspection by period of four

weeks from 16.12.2015 (the date of the final order).

10.3. In the light of the aforesaid directions and observations

of the Hon’ble Supreme Court, we now proceed to note our views

in relation to the issues raised in the present writ application.

11. The main issue relates to the alleged deficiency of

teaching beds at the hospital. In this respect, it is important to

take note herein that the latest inspection that was carried out by

the MCI of the petitioner-institution was on 7/8.1.2016 and the

Executive Committee of the MCI affirmed the inspection report

and directed to recommend to the Central Govt. not to renew the

permission for admission of 3rd batch of MBBS students against

increased intake from 100-150 seats under Section 10-A of the

Indian Medical Council Act, 1956 in respect of the petitioner-

institution (KIMS, Bhubaneswar under KIIT University) for the

academic year 2016-17.

11.1. On perusal of the Inspection report as well as the

communication dated 31.01.2016 made to the petitioner-

institution by the MCI, it is clear therefrom that there appears to

be a complete misunderstanding on the part of the inspecting

team as well as the MCI regarding the direction issued by this

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Court with regards to inspection. This Court by its order dated

03.12.2015 had categorically directed the MCI to carry out

inspection for the purpose of students who have already been

admitted during the year 2015-16 itself, for which the petitioner-

institution had made an application before the MCI and had also

represented before the Ministry of Health and Family Welfare. In

other words, it is reiterated herein that there was never any

application by the petitioner-institution for consideration for the

academic year 2016-17 nor for the 3rd batch of MBBS students. It

is also reiterated that whereas the petitioner-institution had

applied for the 2nd batch of MBBS students for the increased

intake of seats during 2016-17, the entire assessment by the

assessors in their inspection carried out on 7/8.1.2016 as well as

the report of the executive committee communicated to the Govt.

of India on 31.03.2015, proceeds on the basis, as if they were

inspecting the institution for its 3rd batch for admission during

the academic year 2016-17. This, itself is a factual error which

has resulted in total miscalculation of the requirement of the

petitioner-institution.

11.2. We had by our Order dated 05.02.2016 noted the

contentions raised by the petitioner-institution and called upon

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the MCI to file a compliance affidavit on the issues raised which

has been quoted hereinabove.

12. The purported compliance affidavit filed by the MCI

dated 15.02.2016, provides no response/answer to the issues

raised in the said order as quoted hereinabove. On the other

hand, learned counsel for the MCI placed reliance on Page-91 of

its reply affidavit to the consolidated writ petition which is quoted

hereinabove (Para-7) and the note below therein is reiterated in

the following effect:

“As per practice of the Council, the requirement of beds for increased intake is calculated by adding the difference of beds between the requirements for 100 recognition and the requirement for 150 recognition on yearly basis from LOP level to the last renewal {eg. In General Medicine 150-120=30/5=6 for each year. At 2nd renewal (3rd batch) 120+6+6+6=138} and also the beds are calculated as per PG requirements, i.e. 1 Unit consists of 30 beds in those courses, where PG courses are already running in the college (*Like in Kalinga where PG course in Psychiatry is running).”

12.1. In this respect, learned counsel for the MCI was called

upon to explain such “practice” and the source/authority of such

practice and we regretfully record that no response whatsoever

justifying such practice as noted hereinabove was forthcoming

from the MCI.

13. At this juncture, it would be relevant for us to take note

of the contention advanced by Mr.Parija, learned Senior Advocate

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for the petitioner-institution to the effect that no such “practice”

as alleged ever existed with the MCI and as evidence to the

contrary, a memo was filed on 17th February, 2016 annexing

thereto extracts of the assessment made on 20/21.01.2016 of the

School of Medical Sciences and Research, Sharda University as

well as the extract of assessment report dated 04/05.01.2016 of

Pondicherry Institute of Medical Sciences. Whereas, Sharda

University was an applicant for first renewal for increase of

admission capacity from 100-150 seats, Pondicherry Institute of

Medical Sciences was assessed for its second renewal of

increased intake capacity from 100-150 seats. On perusal of the

assessment reports of the aforesaid two Universities, it would be

important to extract as follows:

Department Ward Nos.

Beds Required

Total Beds available

Total Admitted Patients on 20.01.2016

Facilities Available in Each Ward

Remarks

Nursing Station Y/N

Exam/Treat Room Y/N

Pantry Y/N

Store Room Y/N

Duty Room Y/N

Demo Room (25 Capacity) Y/N

Psychiatry 1 10 15 9 Y Y Y Y Y Y Dermatology 1 10 15 10 Y Y Y Y Y Y Gen. Surgery

4 120 120 83 Y Y Y Y Y Y

Orthopedics 2 60 60 33 Y Y Y Y Y Y Ophthalmology

1 10 15 10 Y Y Y Y Y Y

ENT 1 10 15 10 Y Y Y Y Y Y OB & GYN 2 60 60 43 Y Y Y Y Y Y Total 470 500 337 Y Y Y Y Y Y

27

13.1. It is submitted on behalf of the petitioner-institute that

the assessment reports of the aforesaid two institutions would

clearly indicate that the MCI inspectors have themselves recorded

the fact that the required number of beds for first renewal as well

as 2nd renewal for the increased admission capacity from 100-150

was 470 beds and not 595 beds as claimed by the MCI in the

present case.

13.2. Learned Senior Counsel for the petitioner-institute

asserts that the petitioner-institution has been found to possess

500 beds and in Column-2.6 of the latest Inspection Report dated

7/8.1.2016 clearly recorded the bed occupancy percentage at

10.00 A.M. on the first day as 82% and the same obviously has

been arrived at by treating the requirement of beds for the

purpose of approving the increased intake at 470.

14. In view of the above, we are of the clear considered view

that fixing a requirement at 595 beds in the present case, is not

in accordance with the MCI Regulations and appears to be clearly

discriminately applied to the petitioner-institution. If it is verified

from the medical college established by Sharda University and

the Pondicherry Institute of Medical Sciences, who were

applicants for first and 2nd renewal for the increased intake from

100-150 seats, there can be no justifiable reason to apply a

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separate standard, which has no basis to the present institution.

In other words, we are of the considered view that the requisite

number of beds required for considering the application for

increase intake capacity from 100 to 150 students for its 2nd

batch (first renewal) can only be 470 and no more. The apparent

attempt at misleading the Court, is clear from the report itself,

whereas at Column 2.6 of the Inspection Report dated

7/8.1.2016, the inspecting team has concluded that occupancy of

beds were 82% “on actual physical verification” of the same. They

have also given a finding at 2.5 that the total beds available are

500. Consequently, for the purpose of the application of the

petitioner-institute, there can be no doubt that such an

institution only required to have 470 beds and instead of that,

stipulating 595 beds as a condition precedent for the purpose of

approval, is not in accordance with the MCI Regulations and is

clearly discriminatory and no “practice” as alleged has been

established by the MCI.

15. We may consider the aforesaid contentions in a different

angle. Even if we go on the basis of the claim “practice” as noted

in Annexure-R-2/1 to the reply affidavit to the consolidated writ

petition above, the requirement of 595 beds would at best be

required for the purpose of the 3rd batch who would only be

29

admitted in the year 2016-17 and not the existing batch for the

year 2015-16. Even if the same logic as noted above is applied by

the MCI, then the actual requirement of increased beds would be

2/3rd of the increased beds. We are, therefore, of the considered

view that the petitioner-institution having 500 beds in existence,

has more than the statutory requirement of 470 beds and

therefore, the finding of the inspection team that teaching beds

are inadequate, is wholly factually incorrect.

15.1. The next deficiency pointed out relates to certain

limitations in the OPD Department. In this respect, reference

need only be made to the earlier inspection report dated

27/28.1.2015. The same is quoted as hereunder:

“Facilities available in OPD

Medicine Injection room -Male -Female

Yes Yes

E.C.G. Room Yes

Surgery Dressing room – -Male -Female

Minor OT Yes

Orthopaedics Plaster room

Yes

Plaster cutting room

Yes

15.2. We find that inspecting team inspected the institution

on 28.1.2015 found all the facilities of the OPD to be in order. In

fact, obviously, the latest Inspecting team report cannot be

30

accepted as factually correct and consequently, we are of the

considered view that the petitioner-institution has no deficiency

insofar as the OPD is concerned.

16. Insofar as the number of units available being allegedly

less in subject of General Medicine, Paediatrics etc. are

concerned. In this respect, the alleged deficiency has been

computed on the basis of the MCI’s insistence for the requirement

of 595 beds. For the reasons as noted hereinabove, since we have

concluded that only 470 beds are required for the present

purpose of the first renewal (second batch) for the year 2015-16,

the requirement as per the MCI regulation is only 19 units and

admittedly, the petitioner-institution does have 19 units for the

purpose of teaching in various departments are concerned.

16.1. Consequently, this finding of fact by the inspecting team

in their report dated 7/8.1.2016 is factually erroneous.

17. The alleged bed occupancy of 66.7% arrived at by the

inspecting team, again, is based upon their understanding that

the institution required 595 beds and not 470. Since we have

arrived at a conclusion that the institution required only 470

beds, the occupation rate of bed is 81.02% and not 66.70% as

determined.

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17.1. Insofar as the next allegation relating to the finding that

there were only five Caesarean Sections and there was nil Normal

Delivery which was found to be abnormally high ratio. In this

respect, the judgment cited and relied upon by the petitioner-

institution as noted hereinabove, is a clear and categoric

response to the said alleged deficiency and we can do no better

than to refer the aforesaid Civil Appeal No.7953 of 2015 where in

Para-17, Hon’ble Supreme Court has noted that such a deficiency

can hardly be treated as any deficiency. For reference the said

paragraph is quoted hereinbelow:

“17. 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 ad 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/IVP are not carried out and, it would be hardly of any significance.”

32

17.2. Insofar as the discrepancy in data of major and minor

operations are concerned, the same ought to be read as major or

minor surgery and in this respect, although there appears to be

difference in number reported by the College and as per the OT

list, it should have been well understood by the inspecting team

that whereas OT list was taken during the time of inspection, the

report by the college is prepared at the end of the day and

consequently, there is bound to be discrepancies in this regard

during the day and consequently, we are also of the considered

view that such alleged discrepancy is not a fact and ought not to

be considered for denial of approval.

17.3. A further observation by the inspecting team in January

2016 that the institution was partly computerized, is wholly

opposed to the finding arrived at by the MCI’s own inspection

report dated 27/28.1.2015 which is extracted hereinbelow:

“Medical Record Section: Manual/Computerized: Computerized ICD X classification of diseases followed for indexing:Yes Staff: Available

1. Medical Record Officer 1 2. Statistician 1”

17.4. Insofar as there being NIL patients in SICU on the day of

assessment is concerned, this issue has already been dealt with by

the Hon’ble Supreme Court in Civil Appeal No.7953 of 2015 and we

33

are of the considered view that the facilities no doubt exists and the

actual utility of such facility will be dependant upon the needs of the

patients and the institution cannot be faulted for the SICU having no

patients on the date of assessment. The records of the SICU could

have been looked into for determining its utilization but the mere

fact that there was no patient in the SICU on the day of assessment,

is by itself of no consequence.

17.5. The further deficiency that, only four static X-ray

machines are available against the requirement of 5. It is asserted

on behalf of the petitioner-institution that an earlier inspection had

been carried out on 20.5.2015 and in the said inspection, the team

had found that the petitioner-institute have five numbers of Static X-

ray machines. But, it is explained by the petitioner-institution that

on the day of latest inspection in January, 2016, one machine of 300

mA was defective and steps have already been taken for being

replaced.

17.6. Inasmuch as the alleged deficiency of Examination Halls

are concerned, it is stated by the inspecting team in January, 2016

that the institution required 2 Examination Halls (250 capacity each)

whereas the petitioner-institution has only 1 Examination Hall of

250 capacity and another hall of 144 capacity. In terms of the

applicable MCI Regulation for colleges seeking first renewal for 150

34

students, the required number of Examination Hall is only 1 with

capacity of 250. It appears that since the inspecting team assumed

that they were inspecting the institution for the 3rd batch of students

for the academic year 2016-17, this erroneous consideration appears

to have crept in to the inspection report. It is further stated on

behalf of the petitioner-institution that they undertake to ensure 2

Examination Halls of 250 capacity are in place for the academic year

2016-17 when they would seek approval for admission into 3rd batch

of increased capacity.

17.7. Insofar as the Lecture Theaters are concerned, capacity

of 4 Lecture Theatres available is only 140 each against the

requirement of 180 each, in this respect, it is an admitted fact that

originally, the petitioner-institution had been granted recognition for

100 students and number of Lecture Theaters is 4 and each has

capacity of 120. When the petitioner-institution sought for increase

of capacity from 100-150 students, in terms of the applicable Rules

and Regulations of the MCI, the required number of Lecture Theatre

is only 2 with capacity of 180. In this respect, reference to be placed

on the inspecting report on 27/28.1.2015, in which the petitioner-

institution was assessed and found to have two Lecture Theaters

with capacity of 180 and 2 Lecture Theatres with capacity of 120

35

and consequently, the said deficiency also does not exists as on

date.

17.8. Insofar as the space for Central Library is concerned, it

is alleged that while the requirement of MCI is 1800 sq.m., the

available area is 1700 sq.m. It is clear from the MCI Regulations that

the Central Library should be of 1800 sq.m. at the time of the 2nd

renewal for 150 students (3rd batch). The institution would be

admitting students of 3rd batch only during the year 2016-17 and

once again since the inspection report proceeded on the footing that

it was inspecting the institution for admission of its 3rd batch in

2016-17, this error of fact has crept in. It is once again reiterated

herein that the petitioner-institution and the present writ petition

itself relate to admission for the year 2015-16 (2nd batch) and

consequently, the requirement of 1800 sq.m. at the present stage

and time, does not form part of the requirements under MCI’s

Regulations. Learned counsel for the petitioner-institution of course

undertook that the institution would also increase the available area

of the Central library to meet the required norm before it seeks

approval for its next batch (3rd batch) during the year 2016-17.

17.9. Insofar the Students’ Hostel and the deficiency noted

therein are concerned, in January 2016 report, we need not deal

with the same since the MCI’s own inspection report dated

36

27/28.1.2015 have found to have determined that the petitioner

college has the necessary requisite facilities of Visitors’ Rooms,

Recreation Rooms, TV, music, indoor games, study room with

computer in its students’ hostel and indeed has all the necessary

facilities for such students.

17.10. Similarly, the issue regarding Interns’ Hostel and the

alleged deficiency therein as well as the Residents Hostel and the

deficiency therein if vetted against the earlier inspection report dated

27/28.1.2015, are in stark contrast to each other and no

explanation is provided by the MCI as to why the earlier report on

these aspects cannot be relied upon.

17.11. Similarly in the case of the alleged discrepancy of

deficiency of playground is concerned, the inspection report dated

27/28.1.2015 is an adequate response thereto where the inspecting

team found adequate facilities for playgrounds, outdoor games as

well as cricket and football.

17.12. Insofar the alleged deficiency regarding Anatomy

Department (CT and MRI films) not being available is concerned,

once again reliance can be placed on the earlier inspection report

dated 27/28.1.2015 in which the assessors of the MCI assessed and

had found 31 units of MRI CT films in course of their inspection.

37

18. On consideration of the circumstances and fact

situation as noted hereinabove, it would be appropriate to take note

of the Order of the Hon’ble Supreme Court in Civil Appeal No.7953 of

2015 and in particular, Para-18 thereof, which is quoted

hereinbelow:

“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.”

18.1. In view of the aforesaid direction of the Hon’ble Supreme

Court, we being satisfied in the present circumstances that, we find

no need to direct conducting re-inspection by the MCI for the

academic year 2015-16 and we hereby direct the MCI to grant the

necessary permission to the petitioner-institution to continue with

the education of its students admitted prior to September 2015

within the revised enhanced intake i.e. 100 to 150, since we are of

the considered view that no deficiency as alleged exists in the

present circumstances.

19. Accordingly, the letter dated 1.4.2015 issued by the MCI

as well as the letter dated 15.06.2015 issued by the Government of

India, Ministry of Health and Family Welfare are quashed and we

direct the MCI and the Union of India to issue necessary permission

38

forthwith, so that, the future educational prospects of students

already admitted by the petitioner-intuition are not put in jeopardy.

20. With the aforesaid direction, the writ application is

allowed.

…………………….

I.Mahanty, J. Dr.D.P.Choudhury, J. - I agree.

..……..……..…………... Dr.D.P.Choudhury, J.

ORISSA HIGH COURT: CUTTACK 4th March, 2016/RKS