O.P. Dwivedi, J:
1. The petitioner namely All India Lawyers Forum for Civil Liberties (AILFCL) through its President Mr. O.P. Saxena, Advocate, has filed this writ petition under Article 226 of the Constitution of India seeking a through CBI probe into the affairs of Medical Council of India, respondent No. 2 and Santosh Medical & Dental College, Ghaziabad respondent No. 4 which is being run by a Trust known as Maharaja Educational Trust, respondent No. 3 herein. The said Medical College got due affiliation from the Meerut University. The Trust had initially applied to the Government of India seeking permission to establish a medical college with 150 admissions annually. But vide letter dated 15.1.96, Government of India, Ministry of Health & Family Welfare, granted permission under section 10A of the Indian Medical Council Act, 1956 to admit only 50 students annually and this permission was granted for a period of one year to be renewed on yearly basis subject to the verification of annual target and revalidation of the performance and Bank Guarantee. This process of year wise renewal of the permission was to continue till such time the establishment of the Medical College and the expansion of medical facilities are completed. Permission for subsequent years was renewed by the Government of India, Ministry of Health and Family Welfare vide letters dated 4.12.97, 23.8.98, 2.12.98, 29.7.99. These permissions were renewed from year to year by the Government of India after due consideration of the inspection reports submitted by Medical Council of India (MCI) respondent No. 2 from time to time. It may be pointed out here that in some of these inspection reports of MCI various deficiencies namely inadequacy of teaching staff, clinical material etc. were pointed out and the college authorities were asked by the Government of India to make up the deficiencies. Even some excess admissions numbering about 40 made by the college authorities during different years were regularised by the Government of India vide letter dated 19.7.2000 on the condition that the college will surrender it NRI/Foreign quota for the next 5 years to accommodate these 40 excess admissions. Some of the students who were admitted in excess were de-barred from appearing in the examination. So they had filed a writ petition bearing No. 1288/2000 which was allowed by the learned single Judge of this Court vide order dated 24.07.2000. Thus the issue regarding excess admissions stands settled by Government action as well as by judicial verdict.
2. When the first batch of MBBS students were under going final examination to get the MBBS degree, this writ petition was filed on 13.9.2000 with the allegation that the MCI/respondent No. 2 herein did not perform its statutory duty scrupulously while granting permission/affiliation to Santosh Medical and Dental College, Ghaziabad during last four years. It was alleged that the college and hospital are ill equipped and under staffed. The OPD attendance as well as bed occupancy in the IPD do not meet the standard prescribed by the MCI. According to the petitioner the first 5 years medical course is coming to an end and if college is granted recognition this year also it will turn out fifty Doctors who do not have even the basic knowledge/skill which is required of a MBBS Doctor. The petitioner contends that it will be great injustice to the public health system if these Doctors who are deficient in education and training are allowed to practice medical profession. It is alleged that college authorities have somehow managed to get recognition in the past from the MCI by dubious means. So a thorough probe is required. The petitioner thereforee filed this writ petition with the following prayers:-
1. Direct the respondents 1 and 2 the Respondent No. 5 to discharge their statutory obligations to properly monitor the functioning of respondents 3 and 4 and to ensure that the respondents 3 and 4 fulfill all the minimum requirements needed for the purpose of running of a Medical College and Hospital;
2. Direct the CBI, respondents No. 6 to investigate into the circumstances under which the MCI granted affiliation/recognition to Santosh Medical & Dental College and Hospitals in the last four years even though minimum standards required for the Medical College were not complied with;
3. Direct the respondent No. 1 to take over the management of Santosh Medical & Dental College & Hospitals or in the alternative to appoint a high-powered autonomous body to take over the management of this Medical Hospital and college and the respondent be directed to appoint such person from academic side, MCI and other government nominees who have experience of monitoring the functioning of a Medical College/Hospital.
4. Restraining the respondent 3 and 4 from admitting any new student in the MBBS course.
3. In its counter affidavit respondent No. 2 MCI has taken the stand the statutory function of the MCI is to conduct periodic inspections of the newly established college and to submit its report to Government of India and it is for the Government to decide whether or not to grant permission for the establishment of the college or for admission of new batches in subsequent years. It is pleaded that MCI neither grants affiliation nor permission/recognition under section 10-A of Indian Medical Council Act. thereforee the petition itself is misconceived. It is submitted on their behalf that the MCI has been performing its statutory duty of carrying out inspections from time to time and has been submitting reports to the Union of India (UOI) pointing out various deficiencies. In the last inspection which was conducted on 12th, 13th and 14th of October, 2000, several deficiencies/irregularities were noticed so the Council vide its letter dated 31.10.2000 recommended to the Central Government not to grant recognition/approval to the said college for hte award of MBBS degrees by Chaudhary Charan Singh University, Meerut. The Council further recommended to the Government not to renew the permission for admission of the 6th batch of students for the academic session 2000-2001. In its earlier inspection report the MCI had brought it to the notice of the Government of India that excess students have been admitted and had recommended that such students should not be permitted to participate in the examination. It is thus pleaded on behalf of hte MCI/respondent No. 2 that the Council has been performing its statutory duty/obligation in good faith and in accordance with law.
4. In its separate affidavit UOI through Mr. S.K. Rao, Director, Department of M/o Health & Family Welfare has pleaded that whenever a deficiency was pointed out in the MCI inspection report, the matter was promptly brought to the notice of the college authorities who were asked to rectify the defects and submit compliance report. On receipt of MCI's latest inspection report of October 2000 the authorities were asked to rectify the deficiencies pointed out in the said report and the Trust was advised not to admit fresh batch of students during the current session 2000-2001. UOI has now received a compliance report dated 24.11.2000 from the college authorities and the same has been forwarded to MCI for verification but the verification report form the MCI is still awaited. The Central Government will take final decision in the matter only after receipt of the said verification report from the MCI.
5. In the reply affidavit on behalf of respondent Nos. 3 and 4 sworn by Mr. P. Mahalingam who is the Chairman of the Trust which runs the medical college, it is averred that the State of UP through an advertisement in the year 1995 invited applications from private sector for establishment of medical college/hospital. In response to the advertisement, the Trust submitted it application which was accepted by the Government of UP and Essentiality Certificate (Annexure-A to the counter affidavit dated 25.5.95) was issued by the Government of UP in favor of the Trust for opening of a medical college in Ghaziabad. The college was granted provisional affiliation by Chaudhary Charan Singh University, Meerut, vide letter dated 8.8.95 (annexure-B). The Trust then submitted a detailed scheme for the establishment of medical college to the Govt. of India under section 10A of the Indian Medical Council Act and Government of India issued a letter of intent dated 1.1.96 (Annexure-C) in favor of the Trust for establishment of a medical college in Ghaziabad. This letter of intent was issued subject to several conditions enumerated therein. The Government of India also granted permission vide letter dated 15.1.96, under section 10A of IMC Act in favor of the Trust to set up a private medical college at Ghaziabad for conducting MBBS degree course with only 50 admissions annually. This permission was granted for a period of one year to be renewed on yearly basis subject to the verification of annual target and revalidation of the performance and Bank Guarantee. This process of year wise renewal of the permission was to continue till such time the establishment of the Medical College and the expansion of medical facilities are completed. Permission for subsequent year was renewed annually for 2nd, 3rd, 4th and 5th batches of 50 students each who were admitted in the year 1996-97, 1997-98, 1998-99 and 1999-2000. Subsequently Chaudhary Charan Singh University, meerut granted permanent affiliation to the college after being fully satisfied that the college met all the requirements prescribed under the Act and rules on the basis of inspections carried out by the Inspection Committee of the University. This permanent affiliation was granted by the University vide letter dated 11.9.2000 (Annexure-D). In the said affidavit Dr. P. Mahalingam has further deposed that the college has been trying to maintain the requisite standard in terms of the strength of the staff, clinical material etc. and whenever any defect and deficiency was pointed out by the MCI in its inspection report, the same were rectified. Excess admissions made by the college under some compelling circumstances were also regularised by the Government of India and also by Court verdict in CW. No. 1288/2000. As regards the last inspection carried out by the MCI in October, 2000, Dr. Mahalingam in his subsequent affidavit dated 28.11.2000 has deposed that on receipt of letter dated 8.11.2000 from the Central Government forwarding therewith MCI inspection report dated 31.10.2000 pointing out several deficiencies, the Trust immediately took steps to remove the deficiencies and after rectifying the same sent a letter dated 24.11.2000 to Government of India, M/o Health 7 Family Welfare Along with compliance report. It is pleaded that the Trust has invested Rs. 144 crores in the establishment of college & hospital complex on land measuring about 100 acres. A ten storey building for the hospital and a five storey building for the college has been constructed. Now because of the filing of the present writ petition, the fate of first batch of MBBS students on whom MBBS degrees are to be conferred, hangs in balance. It is contended that this petition has cast a shadow of uncertainly, anxiety over the students who successfully completed five years degree course of MBBS. It is further submitted that the petition has been filed on behalf of the certain vested interest whom college authorities could not oblige by granting admissions to their wards. Now they are trying to drag the college, which is the only private medical college in U.P., into disrepute on flimsy grounds endangering the future of the students who have already been admitted, particularly the first batch who are ready to receive MBBS degrees.
6. We have carefully perused the record and bestowed our thoughtful consideration to the respective submissions of learned counsel for the parties. For a proper appreciation of issues raised by learned counsel for the parties, we think it necessary to refer to various inspection reports of MCI. From a perusal of the records it appears that first inspection was done in October 1995 in which some defects were pointed out and after receipt of defects rectification report from the proposed college second inspection was carried out on 24.11.95. The inspecting team comprised of Dr. P.K. Dave, Prof. of Orthopedic Surgery, AIIMS and Dr. Bishnu Kumar, Whole time inspector of MCI. In concluding portion of the report the Committee has observed that the proposed institution fulfills the qualifying criteria for issue of 'letter of intent' provided the college posts its teaching staff for active participation in the patient care and teaching at the Government hospital also which is attached with the college till the Trust develops its own hospital. In the inspection report of Nov. 95 inspecting Committee further observed that the pre clinical department facilities are not fully developed in terms of space for 150 annual admissions. However, it is sufficient for 50 annual admission. Accordingly, the Government of India granted permission to the medical college for 50 annual admission only.
7. Third inspection was conducted on December 4, 1996 by a team of two doctors namely Dr. N. Desai, Dean, P.S. medical college Karamsad and Dr. K.N. Sharma of Ghaziabad. This Committee also reiterated the conclusion arrived at by the earlier inspecting Committee viz. proposed institution fulfills the qualifying criteria for 50 annual admission.
8. The next inspection was carried out in August 1997 by Dr. B.P. Dubey of Bhopal and Dr. Mukesh Kumar Sharma of Jaipur. The Committee has observed as under:-
'GENERAL REMARKS: The permanent structure of main college building is under construction and RCC roof is laid down of the proposed under ground building. According to Quality Engineer Services of Chennai the ground floor and 1st Floor of hte building will be ready to accommodate para clinical departments by 31.10.1997. The staff for para clinical departments of Pharmacology, Pathology are yet to join. Only Lecturer and one Tutor have joined in Micro-biology. Only two professors of Forensic Medicine are present. Lecturer in Bio-physics is not available. The departments of Anatomy, Physiology and Bio-chemistry have sufficient staff for 50 admission. The Santosh Hospital is about 9 kms. from the main college building and is likely to start in the last week of August, 1997. The clinical staff, the para-medical and ancillary services staff is yet to be appointed. The District Hospital has 300 beds and is managed by the District Health Authorities but permission has been accorded to utilise it as Teaching Hospital from 23.12.1995 for a period of 5 years. In the Medical and Surgical OPDs and IPDs the space for clinical and wards side teaching is not present. The District Hospital has full fledged departments of Radiology with X-ray and Ultra Sound, Autoanalyser, Blood Bank, separate Eye ward and Emergency ward. The half of the bed strength of main District Hospital on first floor is being renovated and the work is likely to be completed. As such the college has no infra structure and man power to teach the Medical graduates the curriculum of II M.B.B.S. and onwards. According to the Director it will be ready by 31.10.1997.
9. Thereafter the college submitted compliance report and a further inspection was conducted on 29th November, 1997 by Dr. Mukesh Kumar Sharma, Jaipur and Dr. J.K. Tandon, Whole-time Inspector, MCI. In the inspection report of November 10997 they concluded that pre-clinical departments have adequate infrastructural facilities and staff for 50 students and para clinical departments have been established by providing a common laboratory for Pathology and Microbiology. Separate demonstration rooms which are adequate for 50 admissions have been set up but the museum is yet to be established. Again the college submitted a compliance report whereupon the MCI conducted 3rd inspection in December 1997. This time inspecting team comprised of Dr. L.S. Chawla form Ludhiana and Mukesh Kumar Sharma form Jaipur. Their report is as under:-
'The new staff members reported to have joined this institution were individually met. All the staff members had joined. Dr. Dhakshina bhist, Lecturer in Microbiology had gone on leave for her marriage. A few more members had also joined recently. The proforma about latest number of staff members is enclosed. Now, there is no shortage of Professors but there is shortage of 8 readers, 2 Lecturers and 4 Tutors/Demonstrators/Registrars.
Regarding the hospital, the bed occupancy etc. the situation is exactly the same as was mentioned in the report of the inspection done on 29th Nov., 97.'
10. In January, 1998 a further inspection was carried out to verify the compliance report. This inspection was carried out by Dr. R.D. Bansal, Whole-time inspector of MCI. The concluding portion of the report is as under:-
REMARKS & CONCLUSION:
1. The pre-clinical departments have adequate infrastructural facilities and staff for 50 students.
2. The para-clinical departments namely Pharmacology, Pathology, Microbiology, Forensic Medicine and community Medicine has been established by construction of a new para-clinical block along with space for staff rooms and some other facilities in the adjoining flats. Adequate teaching area are available in these Para-clinical departments. The Museum of the department of Pathology, Pharmacology and Forensic Medicine has been established but the department of Pathology museum needs further augmentation of specimens etc.,
3. Lecture theatre and library facilities are adequate.
4. HOSPITAL BEDS AND CLINICAL MATERIAL:
a. Santosh Hospital: The college is utilising 2 Hospitals i.e. Santosh Hospital 9 kms. and District Hospital which is 5 km. away form the Instt. Santosh Hospital started functioning from 12.11.97. This hospital has got 317 indoor beds. On the day of inspection out of 317 beds 94 beds were occupied. The facilities in the out patient Deptt. in all the clinical departments are adequate for patient care as well as teaching. The OPD attendance of all the departments is about 82 patients per day. The Hospital has got casualty services round the clock with 18 emergency beds with adequate equipments and resuscitation facilities. The clinical labs in the Hospital cater to various investigations.
b. District Hospital: The hospital has got 325 beds out of which Santosh Medical college is utilising 275 beds. The Out Patient is about 500 to 600 patients per day out of 325 district beds the college authorities have 50 beds under their exclusive control of the teaching staff of their Institution. The bed occupancy in the Civil Hospital is up to 90%. This hospital has adequate clinical material both outdoor and indoor. Total beds available with the Instt. are as under:
Santhosh Hospital - 317 beds
District Hospital - 275 beds
5. Staff shortage:
There is no staff shortage.
11. Next inspection was conducted on June 16, 1998 by a team of two doctors namely Dr. L.S. chawla of Ludhiana and Dr. R.D. Bansal, Whole-time inspector of MCI for renewal of the permission of the 4th batch of students. It gave a detailed report wherein inspectors took note of various facilities in terms of building, equipment, staff etc available in the college and deficiencies also in the various departments of the college. The view of the doctors was that the infrastructural facilities like lecture theatres, examination halls, animal house, central library, artist & photography section, health centres, workshop, hostels and residential quarters are adequate for 50 students. The teaching and training facilities for pre and para clinical laboratories are adequate for intake of 50 students annually but the clinical material available in the Santosh Medical College at present is not adequate. Besides shortage of staff is also pointed out.
12. Next inspection was conducted by Dr. S.K. Mittal, Prof. & Head, Deptt. of Paediatrics, Maulana Azad Medical College and Dr. R.D. Bansal, Whole-time inspector of MCI on 31st October 1998. This inspection was carried out to verify the claim of Santosh Medical College, Ghaziabad that it is till utilising the Government hospital facility at Ghaziabad as per certificate issued by the Chief Medical Superintendent, District MMG Hospital Ghaziabad and the Committee observed as under:-
1. There is Memorandum of Understanding dated 28.12.1995 between Maharaja Educational Trust and Medical Superintendent, Distt. MMG Hospital, Ghaziabad;
2. Santosh Medical College, Ghaziabad is posting its students for teaching and training in Distt. Hospital, Ghaziabad from December, 1997 (1995-96 batch).
3. There is no involvement of the medical college teaching staff in patient care int eh OPD or indoor and Operation theatres.
4. The students take a clinical case either from the OPD or form indoor and present and discuss it with the teachers of the Santosh Medical College.
5. The Santosh Medical College has developed 3 demonstration/seminar rooms Along with one ward in the first floor of the building which is known as Santosh Medical college teaching ward/area.
6. The clinical material in the OPDs and indoor in the District Hospital, Ghaziabad is adequate.
13. Next inspection was carried out on 31.5.99 by a team of two doctors viz. Dr. Dubey and Dr. Bansal. After taking into account the clinical material available at the Government hospital, Ghaziabad and Santosh Medical College/Hospital, the Committee observed at page 3 of this report dated 31.5.99 as under:-
There is adequate clinical material in the OPD as well as bed occupancy is more than 80%. The number of surgeries performed are also adequate.
14. The Committee in this report also pointed out some deficiencies namely shortage of staff as also the fact that there is no involvement of the Santosh Medical College teachers in the OPD in the management of the patients indoor and that the Santosh Medical College has no administrative control over the district hospital Ghaziabad. The Committee particularly took note of the fact that out of 40 staff member who joined during last three months, 30 staff members joined in the month of May 1999 only. The Committee concluded its report by saying that rest of the facilities are adequate for the 50 admissions.
15. The last inspection was carried out on 12th, 13th and 14th October, 2000 by a team of three doctors namely. Dr. B.K. Ram, Director (Prof. & HOD) of medical college Guru Teg Bahadur Hospital, Dr. J.C. Dhal (Prof. & HOD, Deptt. of Surgery, Pt. Bhagwat Dayal Sharma Post-graduate Institute of medical Sciences, Rohtak and Dr. R.D. Bansal, Whole-time inspector of MCI for recognition of the college for the award of MBBS degree granted by Chaudhary Charan Singh University. In this report several deficiencies in terms of teaching staff, clinical material, equipment etc. were pointed out. It is also pointed out that the institute collected patients from Jahangir Puri in college buses and most of the patients thus admitted on the general beds did not have any written history of the patients, and they did not have the signatures of the person who has made these records even if some files were signed it was not readable and neither anybody owned the responsibility of those signatures. Most of the patients thus admitted did not require indoor admission nor these patients were seen by any of the faculty members. On the basis of this report, the MCI recommended to the Central Government not to renew the permission for any fresh admissions and not to grant recognition to the college for conferring MBBS degree on its first batch of students.
16. The Committee also inspected the conduct of final MBBS, part II examination and observed that invigilation arrangements were satisfactory. All examiners internal as well as external have adequate teaching experience to act as examiners. All the internal examiners were from outside i.e. they were form LLRM Medical college, Meerut as per the University requirements. The questions in theory papers covered the whole prescribed curriculum. The overall performance of the students was satisfactory but few were not up to the mark. The Committee also pointed out several other deficiencies. The Committee observed in the last 'rest of the facilities are adequate for the admission of 50 admissions per year'.
17. It must be kept in mind that this last inspection dated 12th, 13th and 14th October, 2000 was carried out after the filing of the present writ petition in which there were allegations of mis-management and corruption against the MCI as well as the college authorities. Obviously the inspection team would have carried out a meticulous and detailed inspection of the Institute/Trust and its hospital and the college authorities must have been rushing against time/resources to show that the college is quite in shape. Fear of censure must have been haunting them, probably forcing them to take an unprecedented step of procuring patients from Jahangir Puri to fill up the hospital wards before inspection.
18. Learned counsel for the petitioners strenuously urged that the deficiencies pointed out by the MCI during the last inspection conducted in October 2000 were the result of deliberate omissions on the part of the Trust/College authorities who are merely interested in minting money under the garb of running a medical college. Allegations of rampant corruption in MCI were also made.
19. On the other hand, these allegations have been vehemently denied by the learned senior counsel appearing for the Institute/Trust.
20.We have given our anxious though to the respective stands of hte learned counsel for the parties. We have also considered the various reports of the inspection committees.
21. We are the view that the Central Government has ample powers to punish an erring college by withholding permission/recognition under section 10A of the IMCA Act 1956 in appropriate cases. Besides, the Central Government can exercises effective control over MCI if the later is found to be wanting in discharge of its statutory duty faithfully by instituting a Commission of Inquiry under section 30 of IMCA Act, 1956, which reads as under:-
'30. Commissions of Inquiry- (1) Whenever it is made to appear to the Central Government that the Council is not complying with any of the provisions of this Act, the Central Government may refer the particulars of the complaint to a Commission of Inquiry consisting of three persons, two of whom shall be appointed by the Central Government, one being a Judge of a High Court, and one by the Council, and such commission shall proceed to inquire in a summary manner and to report to the Central Government as to the truth of the matters charged in the complain, and in case of any charge of default or of improper action being found by the Commission to have been established, the Commission shall recommend the remedies, if any, which are in its opinion necessary.
(2) The Central Government may require the Council to adopt the remedies so recommended within such time as, having regard to the report of the Commission, it may think fit, and if the Council fails to comply with any such requirement, the Central Government may amend the regulations of the Council, or make such provision or order or take such other steps as may seem necessary to give effect to the recommendations of the Commission.
22. Thus a complete machinery to resolve the issue raised by the petitioners is available under section 10A and 30 of the IMCA Act, 1956 itself. At this stage it seems to us that the petitioners are not justified in seeking a direction to the Union of India to take over the management of the college and order CBI probe into the functioning of the MCI. The petitioners have rushed to the Court without first approaching the Central Government with their grievances in this regard. We think that resort to Article 226 and 227 of the Constitution of India should be discouraged when an alternative machinery is provided in the Act itself to deal with such matters. In the present case such a remedy is provided int the IMC Act, 1956, in the form of section 10A and section 30 of the IMC Act, 1956 under which Central Government can exercise dual check on the functioning of medical colleges as well as MCI. So in our view this writ petition should not be entertained, being premature.
23. The question as to whether permission/recognition for admitting new batch of students and for conferment of MBBS degree should be granted or not is already under consideration with the Central Government. If the Central Government is of the view that the medical students educated/trained by Santosh Medical college are not up to the mark and the figures have been manipulated by the Trust only to get recognition by hook or crook, it can very well withhold the permission/recognition. On the other hand, if the Central Government comes to the conclusion that the Trust has removed the deficiencies and the students have the requisite standard of education and training, it would be unfair and unjust to withhold permission/recognition because the future of so many students who have been admitted during the last five years and who have invested lot of time and money in pursuit of the course is at stake. We would only like to emphasise that permission/recognition under section 10A of IMC Act, 1956, should not be granted as a matter of routine. We hope and trust that the Central Government will give due consideration to various factors for and against grant of such permission/recognition viz. Medical Council of India's inspection reports, compliance report form the college, complaints, if any, and any other relevant material which may be brought to its notice and then take a well reasoned, conscientious decision in the matter.
24. With these observations this writ petition is disposed of. There will be no order as to costs.