Termination of Appointments of Addl.GP/AGP/APP in Courts = the State Government cancelled the appointments of all the respondents w.e.f 28.08.2015 by taking recourse to the powers under Rule 30(5) of the Maharashtra Law Officers (Appointments, Conditions of Service and Remuneration) Rules 1984 (hereinafter referred to as "the Rules").- Rules 30 (5) and (6) of the Rules read as under: “30. Period of Appointment. (5) A Law Officer shall be liable to be removed from his office at any time, if he is guilty of any act or conduct which, in the opinion of Government, in the Law and Judiciary Department, is incompatible with his duties as such Law Officer. The decision of Government in the Law and Judiciary Department in such cases shall be final. (6) Notwithstanding anything contained in sub-rules(2) and (3), but save as otherwise provided in sub-rule(5), the 7 8 appointment of any Law Officer, which is at the pleasure of the Government may at any time, be terminated by Government in the Law and Judiciary Department by giving him one month’s notice or, where any retainer is payable to such Law Officer, be terminated forthwith by paying him one month’s retainer in lieu of such notice.” - the State would be free to consider the cases of any of the respondents for their appointment on any of the post in future, in case, if the State so desires and while so considering, the cancellation order dated 28.08.2015 originally passed by the State and now modified by this Court including any observations made by the High Court would not come in their way.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.11199 OF 2017
(Arising out of S.L.P.(C) No.2153 of 2016)
The State of Maharashtra
& Anr. ….Appellant(s)
VERSUS
Kishor M. Gadhave Patil & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 16.12.2015 passed by the High
Court of Judicature of Bombay Bench at
Aurangabad in Writ Petition No. 8951 of 2015
whereby the High Court allowed the writ petition
1
2
filed by the respondents herein and made the ‘Rule’
absolute.
3) The controversy involved in the appeal, which
due to subsequent events, remains confined to very
narrow issues surviving for consideration. However
to appreciate what is survived, few relevant facts
need mention below.
4) The appellants herein-State of Maharashtra
and Joint Secretary, Law & Judiciary Department
were the respondents whereas the respondent Nos.
1 to 15 herein were the writ petitioners before the
High Court in a writ petition out of which this
appeal arises.
5) The respondents (Total 15) are advocates by
profession and have been practicing in various
Courts including Bench of the High Court at
Aurangabad (MH). The respondents were appointed
by the State Government as Additional Government
Pleaders (Addl.GP)/Assistant Government
2
3
Pleaders(AGP))/Additional Public Prosecutors(APP)
for the Bench of the High Court at Aurangabad by
order dated 05.10.2013 (Annexure-P-1). Similar
orders of appointment were issued by the State on
different dates in relation to some respondents.
6) The respondents accepted their appointment
and started functioning by discharging their duties
as Addl.GP/AGP/APP in Courts in terms of their
appointment orders. However, by order dated
28.08.2015, the State Government cancelled the
appointments of all the respondents w.e.f
28.08.2015 by taking recourse to the powers under
Rule 30(5) of the Maharashtra Law Officers
(Appointments, Conditions of Service and
Remuneration) Rules 1984 (hereinafter referred to
as "the Rules").
7) The respondents, felt aggrieved of the order
dated 28.08.2015, challenged its legality and
3
4
correctness in the writ petition out of which this
appeal arises.
8) By impugned order, the High Court allowed
the respondents’ writ petition and quashed the
order of cancellation dated 28.08.2015 which has
given rise to filing of this appeal by way of special
leave by the State of Maharashtra.
9) By interim order dated 29.01.2016, this Court
stayed the operation of the impugned order of the
High Court. As a result, the cancellation order
dated 28.08.2015 continued to remain in operation
against the respondents.
10) It is pertinent to mention here, as stated by the
learned counsel appearing for the parties, that
during the pendency of the appeal, the term of the
respondents on their respective posts expired on
different dates such as, 05.06.2010, 09.06.2010,
16.08.2010, 05.10.2010, 09.10.2016 and
22.10.2016.
4
5
11) It is with this background, the question arises
for consideration is as to what orders need to be
passed while disposing of the appeal. One cannot
dispute that even if the impugned order is upheld,
the writ petitioners (respondents herein) would still
not be entitled to continue any more on the post
because their respective terms have come to an end
by efflux of time during the pendency of this appeal.
It is also not in dispute that the said terms were not
extended by the State and rather curtailed before its
expiry period by issuing the cancellation order
which was impugned in the writ petition. It is also
not in dispute that if the cancellation order is
upheld, the question of granting any relief to
respondents would not arise.
12) Heard Mr. Kunal A. Cheema, learned Addl.
Government Pleader for the appellants and Mr. J.P.
Cama, learned senior counsel and Mr. Rahul
Chitnis, learned counsel for the respondents.
5
6
13) Learned counsel for the appellants supported
the cancellation order dated 28.08.2015 and
contended that keeping in view the law laid down by
this Court on the issue in question in several cases
such as Kumari Shrilekha Vidyarthi & Ors. Vs.
State of U.P. & Ors., (1991) 1 SCC 212 State of
U.P. & Anr. Vs. Johri Mal, (2004) 4 SCC 714 and
State of U.P. & Ors. Vs. Ajay Kumar Sharma &
Anr., (2016) 15 SCC 289, the High Court should not
have quashed the cancellation order.
14) Learned counsel for the respondents, however,
urged that the cancellation order dated 28.08.2015
having been passed under Rule 30(5) by the State,
the same was rightly struck down by the High Court
as being stigmatic and punitive in nature.
15) Learned counsel in the alternative submitted
that due to stay operating against the respondents,
they could not work on their respective posts
though otherwise they were ready to discharge their
6
7
duties. It was, therefore, urged that the
respondents be paid their entire remuneration till
the expiry of their respective terms.
16) It was also his alternative submission that in
any event, the respondents be paid their
remuneration from the date of stay granted by this
Court (29.01.2016) till the date of expiry of their
respective terms.
17) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to dispose of the appeal as under.
18) Rules 30 (5) and (6) of the Rules read as under:
“30. Period of Appointment.
(5) A Law Officer shall be liable to be
removed from his office at any time, if
he is guilty of any act or conduct
which, in the opinion of Government, in
the Law and Judiciary Department, is
incompatible with his duties as such
Law Officer. The decision of
Government in the Law and Judiciary
Department in such cases shall be final.
(6) Notwithstanding anything contained in
sub-rules(2) and (3), but save as
otherwise provided in sub-rule(5), the
7
8
appointment of any Law Officer, which
is at the pleasure of the Government
may at any time, be terminated by
Government in the Law and Judiciary
Department by giving him one month’s
notice or, where any retainer is payable
to such Law Officer, be terminated
forthwith by paying him one month’s
retainer in lieu of such notice.”
19) Having regard to the background facts, nature
of controversy, the subsequent events and the
consequences which are likely to result due to
subsequent events occurring in the case, we
consider it just and proper and in the interest of
justice to modify the order of cancellation dated
28.08.2015 by treating the same to have been
passed under Rule 30(6) of the Rules. In other
words, the interest of justice would be fully met if
the cancellation order dated 28.08.2015 is held to
have been passed under to Rule 30(6).
20) Since we have modified the order dated
28.08.2015 by treating it to have been passed under
Rule 30(6), the State is directed to ensure
8
9
compliance of Rule 30(6) and accordingly pay one
month’s retainer in lieu of notice period to each
respondent as was fixed in their respective
appointment letters.
21) Let the amount be paid to each respondent
within 3 months from the date of receipt of this
order.
22) We also observe that the State would be free to
consider the cases of any of the respondents for
their appointment on any of the post in future, in
case, if the State so desires and while so
considering, the cancellation order dated
28.08.2015 originally passed by the State and now
modified by this Court including any observations
made by the High Court would not come in their
way.
23) With these observations and the directions,
this appeal stands finally disposed of leaving the
9
1
0
question of law raised by the parties in the appeal
open.
………...................................J.
[R.K. AGRAWAL]
…...
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 05, 2017
10

Non filing of written statement - decree passed - can be set aside on conditions = “A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”= It is true that the time was granted to the defendants to file written statement initially before closing their right to file written statement, yet in our view, the Trial Court instead of closing their right to file written statement should have granted some time to the defendants subject to payment of reasonable amount of cost to the plaintiff to compensate the inconvenience caused to the plaintiff. The High Court was, therefore, right in imposing a cost of Rs.11,250/- on the defendants to be paid to the plaintiff as a pre-condition to file the written statement within the extended time granted by the High Court. The approach of the High Court, which resulted in remand of the case to the Trial Court for deciding the suit on merits after affording full opportunity to the defendants to contest the case and, at the same time, making it obligatory to pay cost of Rs.11,250/- to the plaintiff was, in our view, in tune with the aforementioned observations and did substantial justice to both the parties. On their entering appearance pursuant to service of fresh notice, the Trial Court will grant them some time to deposit the cost amount fixed by the High Court and also to file their written statement. Failure to deposit the cost within the time fixed so also the written statement would result in revival of the decree passed by the Trial Court against the defendants.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.868 OF 2011
Siddalingayya ….Appellant(s)
VERSUS
Gurulingappa & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the plaintiff against the
final judgment and order dated 24.06.2005 passed
by the High Court of Karnataka at Bangalore in RSA
No.220 of 2003 whereby the High Court allowed the
second appeal filed by the respondents herein and
while setting aside the judgment/decree of the two
Courts below remanded the case to the Trial Court
for deciding the civil suit afresh on merits after
1
affording an opportunity to the
respondents(defendants) to file written statement.
2) The Controversy involved in the appeal lies in a
narrow compass. Few facts set out hereinbelow
would make the controversy clear.
3) The appellant is the plaintiff whereas the
respondents are the defendants in the suit out of
which this appeal arises.
4) The appellant filed a civil suit being O.S. 286
of 1993 against the respondents (defendants) in the
Court of Munsiff - Indi (Bijapur) for recovery of
Rs.45,000/- by way of damages. According to the
appellant, the respondents illegally demolished his
construction and thereby caused monetary loss and
injury to him and hence the suit to recover the
monetary loss suffered by him.
2
5) The respondents entered appearance but
failed to file their written statement despite time
granted by the Court.
6) The Trial Court, however, declined to grant
further time to file written statement to the
respondents though asked for and accordingly
proceeded to record evidence of the appellant
(plaintiff) and by judgment/decree dated
24.02.1997, decreed the suit of the
appellant(plaintiff) for Rs.45,000/- against the
respondents(defendants).
7) The defendants, felt aggrieved, filed first appeal
before the Principal Civil Judge at Bijapur being
R.A. No.103 of 1997. By judgment dated
04.12.2002, the Appellate Court dismissed the
appeal and affirmed the judgment/decree of the
Trial Court. Felt aggrieved, the defendants filed
3
second appeal being R.S.A. No.220 of 2003 before
the High Court.
8) By impugned judgment, the High Court
allowed the second appeal and while setting aside
the judgment/decree of the two Courts below
remanded the case to the Trial Court for deciding
the civil suit afresh on merits after affording an
opportunity to the respondents (defendants) to file
written statement.
9) It was held that the Trial Court did not grant
sufficient opportunity to the respondents to file
written statement, due to which they had to suffer
the decree without any contest causing prejudice in
defending the suit. The High Court, however,
imposed a cost of Rs.11,000/- on the defendants to
be paid to the plaintiff as a pre-condition for filing
the written statement within the extended time
granted.
4
10) It is against this order of the High Court, the
plaintiff has felt aggrieved and filed this appeal by
way of special leave before this Court.
11) Mr. Rajesh Mahale, learned counsel for the
appellant (plaintiff). None appeared for the
respondents though served.
12) Having heard the learned counsel for the
appellant and on perusal of the record of the case,
we are not inclined to interfere in the remand order
of the High Court impugned in this appeal.
13) This case reminds us of the apt observations of
a great Judge of this Court (Vivian Bose, J.). His
Lordship, speaking for the Bench, in his inimitable
style of writing said in Sangram Singh vs. Election
Tribunal Kotah & Anr. (AIR 1955 SC 425) as
under:
“A Code of procedure must be regarded as
such. It is procedure something designed to
facilitate justice and further its ends: not a
penal enactment for punishment and
5
penalties; not a thing designed to trip people
up. Too technical a construction of sections
that leaves no room for reasonable elasticity
of interpretation should therefore be guarded
against (provided always that justice is done
to both sides) lest the very means designed
for the furtherance of justice be used to
frustrate it. Our laws of procedure are
grounded on a principle of natural justice
which requires that men should not be
condemned unheard, that decisions should
not be reached behind their backs, that
proceedings that affect their lives and
property should not continue in their
absence and that they should not continue in
their absence and that they should not be
precluded from participating in them. Of
course, there must be exceptions and where
they are clearly defined they must be given
effect to. But taken by and large, and subject
to that proviso, our laws of procedure should
be construed, wherever that is reasonably
possible, in the light of that principle.”
14) Keeping the aforementioned observations in
mind and examining the facts of the case at hand,
we are of the considered opinion that the High
Court made no mistake in allowing the respondents’
appeal and remanding the suit to the Trial Court for
fresh trial on merits after affording an opportunity
to the respondents (defendants) to file their written
6
statement to enable them to contest the suit on
merits.
15) It is true that the time was granted to the
defendants to file written statement initially before
closing their right to file written statement, yet in
our view, the Trial Court instead of closing their
right to file written statement should have granted
some time to the defendants subject to payment of
reasonable amount of cost to the plaintiff to
compensate the inconvenience caused to the
plaintiff. The High Court was, therefore, right in
imposing a cost of Rs.11,250/- on the defendants to
be paid to the plaintiff as a pre-condition to file the
written statement within the extended time granted
by the High Court.
16) In our view, here comes the application of
observations of Vivian Bose J. when His Lordship
said "Too technical a construction of a section that
7
leaves no room for reasonable elasticity of
interpretation should therefore be guarded against
(provided always that justice is done to both sides)
lest the very means designed for the furtherance of
justice be used to frustrate it. Our laws of procedure
are grounded on a principle of natural justice, which
requires that men should not be condemned unheard,
that decision should not be reached behind their
back, that proceedings that affect their lives and
property should not continue in their absence and
that they should not be precluded from participating
in them."
17) Having observed this, His Lordship cautioned
"of course there must be exceptions too and where
they are clearly defined they must be given effect to”
and finally His Lordship concluded observing "But
taken by and large, and subject to that proviso, our
laws of procedure should be construed, wherever
8
that is reasonably possible, in the light of that
principle."
18) The approach of the High Court, which
resulted in remand of the case to the Trial Court for
deciding the suit on merits after affording full
opportunity to the defendants to contest the case
and, at the same time, making it obligatory to pay
cost of Rs.11,250/- to the plaintiff was, in our view,
in tune with the aforementioned observations and
did substantial justice to both the parties.
19) In view of foregoing discussion, we concur with
the reasoning and the conclusion arrived at by the
High Court and find no merit in the appeal. It is
accordingly dismissed.
20) We, however, find that none appeared for the
respondents (defendants) in this appeal though
served. The Trial Court will now take up the suit to
its file and will issue notice of suit proceedings to
9
the respondents/defendants for their appearance in
the suit.
21) On their entering appearance pursuant to
service of fresh notice, the Trial Court will grant
them some time to deposit the cost amount fixed by
the High Court and also to file their written
statement.
22) Failure to deposit the cost within the time fixed
so also the written statement would result in revival
of the decree passed by the Trial Court against the
defendants.
23) In the event of defendants depositing the cost
and filing written statement as directed, the Trial
Court will frame issues and allow the parties to
adduce their evidence and cross-examine the
witnesses, who were already examined and will also
allow them to adduce additional evidence both oral
and documentary.
10
24) Let the trial in the suit be over within six
months from the date of appearance of the parties.
The record of the case be sent back forthwith to the
Trial Court, if requisitioned here.
25) The appellant (plaintiff) to appear before the
Trial Court on 3.10.2017 with the copy of this order
to enable the Trial Court to proceed in the trial of
the suit, as directed above.
………...................................J.
[R.K. AGRAWAL]
…...
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 05, 2017
11

custody of children - Domestic Violence case - when the appellant left her matrimonial home in Pune and came to her parents house in Mumbai, children remained in the custody of the respondent.-filed a domestic violence case in the 38th Court of Additional ACMM - The appellant, at that juncture, moved an application for interim custody of the minor children as well as for maintenance. However, custody was not allowed on the ground that children were studying and it would not be proper to give custody during the midst of their academic year. At the same time, interim maintenance @ Rs.30,000/- per month was directed to be given to the appellant. In May 2015, when the summer vacations were approaching, the appellant filed an application praying for custody of children for half of the vacations. Though this application was still pending and no orders passed thereon, the respondent himself handed over the custody of the children to the appellant on June 17, 2015.= These minor children, for their proper upbringing, need the company of both the parents – mother as well as the father, for financial reasons, security reasons, psychological reasons, etc. They need the love of both their parents. Not only separation of their parents from each other deprives these children 24/7 company of both the parents, when it results in legal battle of custody in the courts, the situation becomes more traumatic for these children because of various obvious reasons. That is why such cases which seriously impact these children are the most unfortunate.- ‘welfare principle’, the High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely, giving custody to the appellant or to the respondent, is better and more feasible.- the Court, in these proceedings, is not concerned with the dispute between the husband and the wife inter se but about the custody of children and their welfare. A holistic approach in this behalf is to be undertaken. Scales tilt in favour of the appellant when the matter is examined from that point of view. - during Dussehra, Diwali, Christmas or summer vacations etc., the respondent shall be entitled to avail the custody for half of the durations of those vacations. However, while effecting this arrangement, it shall be ensured that studies of the children are not affected. In case of any difficulty in working out the aforesaid modalities, the parties shall be at liberty to approach the trial court. Since the custody of the children is allowed to be retained by the appellant-mother, domicile certificates of the children as well as their passports which are with the respondent, shall be handed over to the appellant.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1553 OF 2017
(ARISING OUT OF SLP (CRL.) NO. 1867 OF 2016)
PURVI MUKESH GADA .....APPELLANT(S)
VERSUS
MUKESH POPATLAL GADA & ANR. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
It is an unfortunate case where the parties, who are wife
and husband, are having a bitter and acrimonious fight over the
custody of their children. Such custody battles are always
regrettable, not only for the spouses who resort to this kind of
litigation, which is the offshoot of matrimonial discord and results
in their separation from each other, but also for their child/children
who become the subject matter of this kind of dispute. Failure of
marriage generally leads to disputes of varied nature, either in the
form of divorce or enforcement of conjugal rights or maintenance
etc. and even criminal cases in the form of proceedings under
Criminal Appeal No. of 2017 Page 1 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
Section 498A of the Code of Criminal Procedure, 1973 and so on.
However, in those cases where their togetherness as spouses
had resulted in procreation of children, the war is extended by
laying respective claims on the custody of those children as well.
These minor children, for their proper upbringing, need the
company of both the parents – mother as well as the father, for
financial reasons, security reasons, psychological reasons, etc.
They need the love of both their parents. Not only separation of
their parents from each other deprives these children 24/7
company of both the parents, when it results in legal battle of
custody in the courts, the situation becomes more traumatic for
these children because of various obvious reasons. That is why
such cases which seriously impact these children are the most
unfortunate.
2) In the instant case, marriage between the parties as per Hindu
rites and ceremonies was solemnised way back in November
1997. They lived together for number of years. Their first child, a
boy named Taney, was born in the year 2000 and second child, a
daughter named Varenya, was born in the year 2004. The
appellant herein left the matrimonial home on February 18, 2013.
Thus, they were together for more than fifteen years when the
Criminal Appeal No. of 2017 Page 2 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
desertion took place, though as per the allegations of the
appellant she had suffered mental and physical torture at the
hands of the respondent since the beginning of the marriage, but
for the sake and well being of the children and also because of
her financial dependency on the respondent she continued to live
with the respondent. These allegations of maltreatment of the
appellant are denied by the respondent. In any case, that is not
the crux of the matter.
3) It so happened that when the appellant left her matrimonial home
in Pune and came to her parents house in Mumbai, children
remained in the custody of the respondent. Tanay was not at
home as he was studying in a boarding school at Coimbatore at
that time. Insofar as Varenya is concerned, the allegation of the
appellant is that it is the respondent who did not allow the
appellant to take her along to Mumbai. Some attempts were
made thereafter for settlement of their disputes, which did not
bear any results. On September 18, 2014, the appellant filed a
domestic violence case in the 38th Court of Additional ACMM,
Ballard Estate, Mumbai on the ground of gross mental and
physical cruelty, including verbal and physical abuse and occult
practices. Three months after filing the said case, the appellant
Criminal Appeal No. of 2017 Page 3 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
moved an application therein praying for access to her minor
children during Christmas vacation, which was allowed to be
availed of in the respondent’s house in Pune.
4) In February 2015, Varenya was also admitted in a boarding
school by the respondent. The appellant, at that juncture, moved
an application for interim custody of the minor children as well as
for maintenance. However, custody was not allowed on the
ground that children were studying and it would not be proper to
give custody during the midst of their academic year. At the same
time, interim maintenance @ Rs.30,000/- per month was directed
to be given to the appellant. In May 2015, when the summer
vacations were approaching, the appellant filed an application
praying for custody of children for half of the vacations. Though
this application was still pending and no orders passed thereon,
the respondent himself handed over the custody of the children to
the appellant on June 17, 2015. There are divergent stands of
the parties behind such a move on the part of respondent in
voluntarily giving custody of the children to the appellant. As per
the respondent, even when there was no order of the Court, as a
goodwill gesture, he gave custody of the children to the mother
for a period of three days with clear understanding that custody of
Criminal Appeal No. of 2017 Page 4 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
the children would be handed back to the appellant after three
days. On the other hand, the appellant claims that the
respondent entrusted the children to her even when without any
order of the Court, compelled by the circumstance inasmuch as
Tanay had miserably failed in his Grade IX examinations while
studying in the boarding school at Coimbatore and the
respondent wanted the appellant to give coaching to him so that
he could reappear and pass the examination in order to get
promoted to Grade X without wasting an academic year.
5) The children were not given back to the respondent after the
expiry of three days. Here again both the parties have their own
version. According to the appellant, the children themselves
refused to go back to the respondent. On the other hand, the
respondent maintains that it is the appellant whose intentions
became bad and, thereby, she refused to handover the custody of
the children to him. Be that as it may, the respondent filed an
application before the Court of Additional ACMM for restoration of
custody of the children. The learned Additional ACMM called
both the children in his Chambers and interacted with them.
Thereafter, he passed the orders dated July 01, 2015 vide which
custody of the children was given to the appellant, rejecting the
Criminal Appeal No. of 2017 Page 5 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
request for restoration of their custody to the respondent. Appeal
was filed against this order in the Sessions Court, which was also
dismissed vide judgment dated August 06, 2016. Orders of the
learned ACMM dated July 01, 2015 and that of the Sessions
Court dated August 06, 2015, were challenged by the respondent
in the form of writ petition filed in the High Court of Bombay.
Disposing of this writ petition vide judgment dated February 17,
2016, the High Court has directed that custody of the children be
restored with the respondent. It is this order which is the subject
matter of challenge in the instant appeal.
6) Before stating the reasons which prevailed with the High Court in
directing the custody of the children to the respondent, it is
imperative to take note of certain proceedings before the High
Court during the pendency of the writ petition.
7) Vide order dated January 29, 2015, the High Court directed day
access on September 21 and 24, 2015. Again vide order dated
November 11, 2015, overnight access for the coming weekend
was accorded to the respondent. Identical overnight access was
given by the High Court vide order dated November 23, 2015.
However, the respondent could not avail the benefit of these
orders. According to the respondent, the appellant had violated
Criminal Appeal No. of 2017 Page 6 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
these orders, whereas the appellant has pleaded that on
September 24, 2015 the respondent himself did not come to have
the access of the children and insofar as order granting overnight
access during weekends is concerned, the explanation of the
appellant is that it is the children who refused to go to their father
as they were petrified and, therefore, themselves took such a
decision.
8) On December 11, 2015, the respondent was given seven days
access during Christmas vacation with Counsellor’s help. For
carrying out this order, the trial court called the children on
December 23, 2015 where the respondent was also called.
Again, as per the appellant’s version, the children, after remaining
with the respondent for forty five minutes alone, ultimately told
him that they did not wish to go with him. The respondent was to
come to pick the children on December 25, 2015 and as per the
appellant, he did not come to pick the children.
9) The respondent maintained that on all the aforesaid occasions it
is the appellant who had refused to handover the custody to him
and had, thus, violated the orders of the High Court. Accordingly,
he filed an affidavit in the High Court for initiating contempt
proceedings against the appellant. The appellant filed reply
Criminal Appeal No. of 2017 Page 7 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
affidavit thereto refuting the allegations. Matter was finally heard
and culminated in the judgment dated February 17, 2016.
10) With this, we come to the reasons which have weighed with
the High Court in directing the custody of the children to be given
to their father, namely, the respondent. After perusing the
impugned judgment, these are summarised as below:
(i) Orders dated December 28, 2014 and March 04, 2015 were
passed by the Additional ACMM, confirming the custody of
the children with the respondent-father inasmuch as by
these orders prayer for giving interim custody of children to
the appellant-wife was rejected. Instead, the appellant was
only given limited access during vacation to meet the
children in the school at Pune whenever she desired.
(ii) Even though the appellant had moved application dated
May 27, 2015 seeking access to the children during
vacation, which was from June 13, 2015 to August 09,
2015, and no orders were passed in the said application, as
per the respondent, as a humanitarian gesture and without
there being any legal obligation or court directions, he went
to the appellant’s residence at Mumbai on June 17, 2015
and left the children with the appellant with a clear
Criminal Appeal No. of 2017 Page 8 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
understanding that he would pick them up by June 19,
2015. The High Court has noted the stand of the appellant
as well, but has mentioned that as per the respondent’s
case when he went to take the custody of the children on
June 19, 2015, the appellant refused to restore the custody.
The High Court has given weightage to the fact that on
June 17, 2015, the respondent had placed the children in
the custody of the appellant even when there was no court
order or legal obligation.
(iii) The High Court wanted to interact with the children in order
to ascertain their wishes as well as to determine as to which
course of action is appropriate in the welfare of the children.
However, before doing so, the High Court deemed it
appropriate to grant weekend access to the respondent.
For this, directions were given (which have already been
taken note of). As per the High Court, prima facie it
appeared that the appellant was responsible for
non-compliance of those orders and even if it is to be
believed that the children did not show their unwillingness to
go to their father, it indicates the extent of influence exerted
by the mother upon her minor children.
(iv) As per the High Court, in the face of two detailed orders
Criminal Appeal No. of 2017 Page 9 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
dated December 28, 2014 and March 04, 2015 passed by
the Additional ACMM declining custody of minor children to
the appellant and allowing the respondent to retain their
custody, there was no reason not to restore the custody to
the respondent on June 19, 2015. It has observed that
subsequent orders of Additional ACMM declining to give the
custody, which is upheld by the Sessions Court, are without
application of mind.
(v) The High Court has discussed the law on custody of
children and explained the ‘welfare principle’, which is the
paramount consideration while deciding custody matters is
to see where the welfare of children lies. Applying this
principle, the direction is given to restore the custody of the
children to the respondent after the end of academic term in
April or May 2016.
11) We may say at the outset that though the ‘welfare principle’
is correctly enunciated and explained in the impugned judgment,
no reasons are given as to how this principle weighed, on the
facts and circumstances of this case, in favour of the respondent.
Instead two main reasons which have influenced the High Court
are: (i) earlier detailed orders are passed by the Additional ACMM
Criminal Appeal No. of 2017 Page 10 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
allowing the respondent to retain the custody; and (ii) the
appellant here had not given access of children to the respondent
even during weekend, in spite of orders passed by the High
Court.
12) After hearing the counsel for the parties at length, we are of
the opinion that the matter is not dealt with by the High Court in
right perspective. Before supporting these comments with our
reasons, it would be apposite to take note of certain
developments from June 17, 2015, the date on which the
respondent had himself handed over the children to the appellant,
till the passing of the orders by the High Court. It is also
necessary to state the events which took place during the
pendency of these proceedings.
13) Whether the respondent had handed over the custody of
the children to the appellant on a humanitarian gesture or not,
fact which is not in dispute is that Tanay had failed in his Grade IX
examinations and he was to reappear for the same. It is also a
fact that it is the guidance and tuition of the appellant that Tanay
passed the examinations on reappearance and could be
promoted to Grade X. Another fact which needs to be noted here
is that when the appellant left the matrimonial home, Tanay was
Criminal Appeal No. of 2017 Page 11 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
not residing with the parties. He was admitted in a boarding
school in Coimbatore, a far-away place from Pune. No doubt, the
respondent claims that intention in admitting Tanay in a boarding
school in Coimbatore was that he should get best education as
the school in which he was admitted is a prestigious educational
institution. At the same time, it is also a fact that Tanay was not in
the physical company of his father on day-to-day basis. It is also
a harsh reality that he was not doing well in studies during the
period his legal custody was entrusted to the respondent. His
overall performance in most of the subjects was dismal and he
had even failed in Grade IX. At that stage when, within few days,
there was a re-examination, handing over Tanay, along with
Varenya, to the appellant, without even any court order, lends
credence to the version of the appellant that the purpose was to
give appropriate tuition to Tanay by the appellant so that his
academic year is not wasted. Another fact which needs to be
emphasised at this stage is that though the custody of Varenya
was also with the respondent and request of the appellant to
hand over interim custody of the children did not prevail with the
Additional ACMM who rejected this request vide orders dated
December 28, 2014 and March 04, 2015, even Varenya was
admitted in a boarding school by the respondent thereafter. This
Criminal Appeal No. of 2017 Page 12 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
fact also gives some credence to the version of the appellant that
because of his pre-occupation in the business or otherwise, the
respondent was not in a position to take personal care of the
children and, therefore, he put both of the children in the boarding
schools.
14) After the children came to the appellant, they were admitted
in a school in Mumbai. It is pertinent to note that Tanay’s
academic performance has improved significantly. He is getting
very high grades in the examinations. In fact, academic
performance of Varenya has also gone up. This factor, though
noted by the High Court, has been lightly brushed aside with the
observations that if the children were not doing well earlier, blame
cannot be put on the respondent as it could be the result of
disputes between the parents. In the process what is ignored is
that in spite of the said dispute still subsisting, the academic
performance of the children, while in the custody of their mother,
has gone up tremendously.
15) When the special leave petition had come up for hearing, on
the first day itself the respondent had appeared through his
counsel as a caveator. Children were also brought to the Court
and this Court interacted with them. While issuing the notice,
Criminal Appeal No. of 2017 Page 13 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
based on the interaction with the children, who desired to remain
with their mother, directions contained in the impugned judgment
were stayed. At the same time, the respondent was given access
to these children as well as visitation rights. Notice was issued
on March 04, 2016. During the period of pendency of these
proceedings for more than a year, the respondent has met the
children regularly with the grant of visitation rights. This Court,
just before final hearing, again met the children. Tanay is
seventeen years of age and Varenya is thirteen years old. At this
age, they are capable of understanding where their welfare lies.
This Court has found that both the children are very comfortable
in the company of their mother. They have expressed their desire
to stay with their mother. This Court also feels that welfare of the
children lies by allowing the appellant to retain the custody of the
children. Circumstances explained above provide adequate
reasons for taking this course of action. Children at discernible
age of seventeen and thirteen years respectively, are better
equipped, mentally as well as psychologically, to take a decision
in this behalf. It would be worthwhile to mention that during our
interaction with these children, they never spoke ill of their father.
In fact, they want to be with the respondent as well and
expressed their desire to remain in touch with him and to meet
Criminal Appeal No. of 2017 Page 14 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
him regularly. They never showed any reluctance in this behalf.
At the same time, when it came to choosing a particular parent for
the purposes of custody, they preferred their mother. In fact,
these were the reasons because of which the Additional ACMM
had passed orders dated July 01, 2015 (after interviewing the
children and ascertaining their wishes as well as welfare)
rejecting the request of the respondent to restore custody to him.
Same course of action was adopted by the learned Sessions
Court while dismissing the appeal of the respondent on August
06, 2015 and affirming the order of Additional ACMM dated July
01, 2015. The High Court has discarded these orders without
giving any cogent reasons and on the spacious and tenuous
ground that such orders could not have been passed in view of
the earlier detailed orders of the Additional ACMM dated
December 28, 2015 and March 04, 2015, thereby refusing the
custody of the children to the appellant. In this process, what is
ignored by the High Court was that even those were interim
orders and the custody was refused at that juncture because of
the reason that children were in the mid-term of the academic
session. Be that as it may, it was incumbent upon the High Court
to find out the welfare of the children as on that time when it was
passing the order. As pointed out above, apart from discussing
Criminal Appeal No. of 2017 Page 15 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
the ‘welfare principle’, the High Court has not done any exercise
in weighing the pros and cons for determining as to which of the
two alternatives, namely, giving custody to the appellant or to the
respondent, is better and more feasible.
16) Learned counsel for the respondent had made a fervent
plea to the effect that if custody is retained by the appellant, it
would amount to giving her advantage of her own wrong as she
took undue advantage of the gracious act of the respondent in
voluntarily handing over the custody of the children, but only for
three days. He also highlighted the conduct of the appellant, as
discussed by the High Court, which has castigated the appellant
in this behalf in not obeying the interim directions of giving access
to the respondent.
17) In view of our aforesaid discussion, we do not find these
arguments to be meritorious. It also needs to be emphasised that
the Court, in these proceedings, is not concerned with the dispute
between the husband and the wife inter se but about the custody
of children and their welfare. A holistic approach in this behalf is
to be undertaken. Scales tilt in favour of the appellant when the
matter is examined from that point of view.
Criminal Appeal No. of 2017 Page 16 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
18) As a result, this appeal is allowed, resulting in setting aside
of the impugned order dated February 17, 2016 passed by the
High Court in the writ petition and restoring the order dated
August 06, 2015 passed by the Court of Sessions, Greater
Mumbai, which affirmed the order dated July 01, 2015 passed by
the Court of 38th Court of Additional ACMM, Ballard Estate,
Mumbai. At the same time, weekend access given to the
respondent by interim directions of this Court shall continue to
prevail. Moreover, during Dussehra, Diwali, Christmas or
summer vacations etc., the respondent shall be entitled to avail
the custody for half of the durations of those vacations. However,
while effecting this arrangement, it shall be ensured that studies
of the children are not affected. In case of any difficulty in
working out the aforesaid modalities, the parties shall be at liberty
to approach the trial court. Since the custody of the children is
allowed to be retained by the appellant-mother, domicile
certificates of the children as well as their passports which are
with the respondent, shall be handed over to the appellant.
No costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
Criminal Appeal No. of 2017 Page 17 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
NEW DELHI;
SEPTEMBER 4, 2017.
Criminal Appeal No. of 2017 Page 18 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
ITEM NO.1501 COURT NO.6 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).1553/2017
PURVI MUKESH GADA Appellant(s)
VERSUS
MUKESH POPATLAL GADA & ANR. Respondent(s)
([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.])
Date : 04-09-2017 This matter was called on for pronouncement
of JUDGMENT today.
For Appellant(s) Ms. Kamini Jaiswal, AOR
For Respondent(s) Mr. Baij Nath Patel, Adv.
Ms. Sweta, Adv.
Mr. Chanchal Kumar Ganguli, AOR
Hon'ble Mr. Justice A.K. Sikri pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice
Ashok Bhushan and His Lordship.
Appeal is allowed in terms of signed Reportable
Judgment.
Pending applications, if any, stand disposed of.
(B.PARVATHI) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)
Criminal Appeal No. of 2017 Page 19 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)

Remand of the case & sec.100 CP.C. second appeal - the reasons to remand the case to the High Court has occasioned because the High Court while allowing the second appeal filed by the plaintiff (respondent No.1 herein) did not frame any substantial question of law - The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court.= in order to admit the second appeal, what is required to be made out by the appellant being sine qua non for exercise of powers under Section 100 of the Code, is existence of “substantial question of law” arising in the case- In the absence of any substantial question of law arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellant As a result, the appeal succeeds and is allowed. Impugned order is set aside. The case is remanded to the High Court for deciding the second appeal afresh in accordance with law keeping in view the law laid down in the case of Santosh Hazari

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3672 OF 2009
Apparaju Malhar Rao ….Appellant(s)
VERSUS
Tula Venkataiah @ Venkat Rao
(Dead) & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by defendant No.1 against
the final judgment and order dated 30.12.2005
passed by the High Court of Judicature of Andhra
Pradesh at Hyderabad in Second Appeal No. 743 of
2004 whereby the High Court allowed the second
appeal filed by the plaintiff and set aside the
judgment and decree dated 24.03.2004 passed by
2
the Additional District Judge (FTC), Karimnagar in
A.S. No. 34 of 1999 and confirmed the judgment
and decree dated 26.03.1999 passed by the
Principal Junior Civil Judge, Karimnagar in O.S. No.
338 of 1994.
2) We herein set out the facts, in brief, to
appreciate the issue involved in this appeal.
3) The appellant herein is defendant No.1,
respondent No.1 is the plaintiff (since dead) and
respondent No. 2 is defendant No.3 (son of late
defendant No.2) and respondent No.3 is the wife of
defendant No.2. Defendant No.2 died during the
pendency of the case before the High Court and his
legal representative is respondent No.3 herein.
4) Respondent No.1-Plaintiff filed a suit for
perpetual injunction against the defendants
restraining them from interfering with the peaceful
possession and enjoyment of the plaintiff in respect
3
of land measuring 5 guntas and 7 sq. yds.
(hereinafter referred to as “suit land”) in Survey
No.1128/A situated at Mankanmathota in
Karimnagar.
5) On 20.01.1995, the defendants filed written
statement and denied the claim of the plaintiff. It
was, inter alia, contended that the plaintiff is not the
owner and possessor of suit land.
6) The Trial Court framed the issues and parties
adduced their evidence. By judgment/decree dated
26.03.1999, the Trial Court decreed the suit in
favour of the plaintiff.
7) Aggrieved by the said judgment/decree, the
defendants filed first appeal being Appeal Suit No.34
of 1999 before the Additional District Judge (FTC),
Karimnagar (A.P.). By judgment/decree dated
24.03.2004, the Additional District Judge allowed
4
the first appeal, set aside the judgment/decree of
the Trial Court and dismissed the suit.
8) Against the said judgment/decree, the plaintiff
filed second appeal being S.A. No.743 of 2004 before
the High Court.
9) The High Court, by the impugned judgment
dated 13.12.2005, allowed the appeal and set aside
the judgment/decree dated 24.03.2004 passed by
the First Appellate Court in A.S. No.34 of 1999 and
restored the judgment/decree dated 26.03.1999
passed by the Trial Court in O.S. No.338 of 1994
which had decreed the plaintiff’s suit.
10) Felt aggrieved, defendant No.3 has filed this
appeal by way of special leave before this Court.
11) Heard Mr. D. Mahesh Babu, learned counsel
for the appellant. Nobody appears for the
respondents.
5
12) Having heard the learned counsel for the
appellant and on perusal of the record of the case,
we are constrained to allow the appeal and while
setting aside the impugned order, remand the case
to the High Court for deciding the second appeal
afresh in accordance with law as indicated below.
13) The reasons to remand the case to the High
Court has occasioned because the High Court while
allowing the second appeal filed by the plaintiff
(respondent No.1 herein) did not frame any
substantial question of law as is required to be
framed at the time of admission of the second
appeal and proceeded to allow the appeal filed by
the plaintiff.
14) A three Judge Bench of this Court in Santosh
Hazari vs. Purushottam Tiwari (Deceased) by
L.Rs., (2001) 3 SCC 179 had examined the scope of
Section 100 of the Code of the Civil procedure, 1908
6
(hereinafter referred to as “the Code”). Justice R.C.
Lahoti (as His Lordship then was) speaking for the
Bench laid down the following proposition of law in
Para 9:
“9. The High Court cannot proceed to hear a
second appeal without formulating the
substantial question of law involved in the
appeal and if it does so it acts illegally and in
abnegation or abdication of the duty case on
Court. The existence of substantial question
of law is the sine qua non for the exercise of
the jurisdiction under the amended Section
100 of the Code. (See Kshitish Chandra
Purkait v. Santosh Kumar Purkait,(1997) 5
SCC 438 Panchugopal Barua v. Umesh
Chandra Goswami, (1997) 4 SCC 413 and
Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar, (1999) 3 SCC 722.)”
15) His Lordship then in Paras 10 to 14 succinctly
explained the meaning of the words “substantial
question of law” and “question of law” and held that
in order to admit the second appeal, what is
required to be made out by the appellant being sine
qua non for exercise of powers under Section 100 of
the Code, is existence of “substantial question of
law” arising in the case so as to empower the High
7
Court to admit the appeal for final hearing by
formulating such question. In the absence of any
substantial question of law arising in appeal, the
same merits dismissal in limine on the ground that
the appeal does not involve any substantial
question of law within the meaning of Section 100 of
the Code.
16) Perusal of the impugned order shows that no such
question was formulated except to note the
submissions of learned counsel for the appellant
that it so arises but not beyond that as to whether it
actually arises and, if so, what is that question.
17) In the light of foregoing discussion and keeping in
view the law laid down in the case of Santosh
Hazari (supra), we are of the considered view that
the impugned order is not legally sustainable and
thus liable to be set aside.
8
18) As a result, the appeal succeeds and is allowed.
Impugned order is set aside. The case is remanded
to the High Court for deciding the second appeal
afresh in accordance with law keeping in view the
law laid down in the case of Santosh Hazari
(supra).
………...................................J.
[R.K. AGRAWAL]
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 01, 2017

corporate laws - on educational institutions - the order dated 31.05.2017, whereby the respondent - Union of India had directed debarment of the petitioner college i.e. Krishna Mohan Medical College, Mathura from admitting students in the MBBS course for the academic years 2017-18 and 2018-19 and at the same time authorized the Medical Council of India (for short, hereinafter to be referred to as “MCI”) to encash the bank guarantee of Rs. 2 crores= 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 deserves to be confirmed. We order accordingly. However, as the Act and Regulations framed thereunder have been envisioned to attain the highest standards of medical education, we direct the Central Government/MCI to cause a fresh inspection of the petitioner college/institution to be made in accordance therewith for the academic year 2018-19 and lay the report in respect thereof before this Court within a period of eight weeks herefrom. A copy of the report, needless to state, would be furnished to the petitioner college/institution at the earliest so as to enable it to avail its remedies, if so advised, under the Act and the Regulations. The Central Government/MCI would not encash the bank guarantee furnished by the petitioner college/institution. For the present, the impugned order dated 10.8.2017 stands modified to this extent only

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 448 OF 2017
KRISHNA MOHAN MEDICAL COLLEGE
AND HOSPITAL & ANR. ….PETITIONERS
VERSUS
UNION OF INDIA AND ANOTHER ….RESPONDENTS
WITH
I.A. NO. 73716 OF 2017
JUDGMENT
AMITAVA ROY, J.
The challenge laid in this petition under Article 32 of
the Constitution of India at its institution was mounted on
the order dated 31.05.2017, whereby the respondent - Union
of India had directed debarment of the petitioner college i.e.
Krishna Mohan Medical College, Mathura from admitting
students in the MBBS course for the academic years 2017-18
and 2018-19 and at the same time authorized the Medical
Council of India (for short, hereinafter to be referred to as
“MCI”) to encash the bank guarantee of Rs. 2 crores
2
submitted by the petitioners. This Court, after hearing the
parties, by order dated 01.08.2017 rendered in a batch of
writ petitions including the one in hand, the lead petition
being Writ Petition (C) No. 411 of 2017 (Glocal Medical
College and Super Specialty Hospital and Research
Centre vs. Union of India and Another), 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
3
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 petitioners, as required
under the Indian Medical Council Act, 1956, (for short,
hereafter to be referred to as “The Act”) and the
Establishment of Medical College Regulations, 1999
(abbreviated hereinafter as the “Regulations”) framed
thereunder did submit a scheme/application for
establishment of a new medical college at Mathura, Uttar
Pradesh in the name and style of Krishna Mohan Medical
College & Hospital, Mathura (hereinafter referred to as
“College” as well) for the academic year 2016-17 before the
Ministry of Health and Family Welfare (Department of Health
and Family Welfare) Government of India. The Ministry
forwarded the application to the MCI for evaluation and
recommendations as per the Act, whereafter the latter caused
an inspection to be made of the college on 18th & 19th
December, 2015. According to the MCI, several deficiencies
4
having been detected, it recommended to the Central
Government not to issue LOP for establishment of a new
college for the academic year 2016-17.
4. According to the respondents, the Central Government
through its Hearing Committee, afforded an opportunity of
hearing to the petitioners thereafter and on an examination
amongst others, of the compliance verification and
assessment carried out thereafter, found several persisting
deficiencies.
5. Skipping over the inessential intermediate stages,
suffice it would be to state that though in view of the above
exercise undertaken, the Central Government disapproved
the application of the petitioners for establishment of the
new college for the academic year 2016-17 and accepted the
recommendations of the MCI, on the intervention of the
Oversight Committee, constituted by this Court, by its order
dated 02.05.2016 rendered in Modern Dental College and
Research Centre and others vs. State of Madhya
Pradesh and others1
, principally to oversee all statutory
1 (2016) 7 SCC 353
5
functions under the Act and to issue appropriate remedial
directions, the Central Government, in terms of the
recommendations of the Oversight Committee dated
29.08.2016, issued a LOP for establishment of the petitioner
college with an annual intake of 150 MBBS seats for the
academic year 2016-17 subject to the following conditions:
“(i) An affidavit from the
Dean/Principal and Chairman of the
Trust/Society/ University/Company
etc. concerned, affirming fulfillment
of all deficiencies and statements
made in the respective 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.
6
(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 guarantee of Rs. 2 crores as
required and as claimed by them also did submit the affidavit
affirming fulfillment of all deficiencies and statements made
in the relevant compliance report, the MCI caused another
inspection of the college to be made on 18th and 19th
November, 2016, in course whereof, according to it, several
deficiencies were noticed, amongst others in the faculty at
7
32.31% and in residents at 34.78%, which however at the
spot itself, were disputed/denied by the authorized
representatives of the petitioners. This, to be precise, would
be evident on the face of the inspection report annexed to the
interim application No. 73716 of 2017, the authenticity
whereof has not been questioned by the respondents. The
petitioners, on the very same date i.e. 19.11.2016, did also
submit a representation before the MCI providing the
detailed information supported by contemporaneous facts
and records contradicting the findings of deficiencies, as
recorded by the assessors, detailed by the MCI. To be
specific, the representation contained exhaustive materials
pertaining to the alleged deficiencies in faculty and residents,
as recorded during the inspection conducted on 19.11.2016.
8. While the matter rested at that and the representation
was pending before the MCI, it deputed a team of assessors
for carrying out surprise assessment of the college on
09.12.2016. The petitioners have pleaded that as this
inspection was close on the heels of the one, conducted on
19.11.2016 and their representation vis-a-vis the deficiencies
8
pointed out therein was pending consideration, they
intimated the MCI of their inability to partake in the exercise,
as proposed. The Executive Committee of the MCI
subsequent thereto in its meeting on 22.12.2016 though
noted the representation dated 19.11.2016, did not deal with
the explanation offered by the petitioners on merits and
instead took note of their purported non-cooperation in the
proposed inspection of the college on 09.12.2016 and
recommended to the Central Government that the petitioners
college be debarred from admitting students in the MBBS
Course for the two academic years 2017-18 and 2018-19 for
having failed to fulfill their undertaking of removing the
deficiencies and providing the infrastructure, as required
under the Regulations.
9. The Central Government, thereafter afforded an
opportunity of hearing to the petitioners 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
9
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 college from admitting students for two
academic years 2017-18 and 2018-19 and authorizing the
MCI to encash the bank guarantee of Rs. 2 crores. To
reiterate, this order was challenged in the writ petition in
10
hand, wherein the following reliefs have been prayed for:
“(a) Issue a Writ Order or direction
quashing the order of Respondent
No.1-Union of India contained in letter
No. U-12012/127/2016-ME-I [3084749]
dated 31.05.2017 debarring the
Petitioners from taking admission in
MBBS Course for academic sessions
2017-2018 and 2018-20189 and
authorizing Respondent No.2-MCI to
encash the bank guarantee of Rs.2 Cr.
furnished by the Petitioners to MCI; and
(b) Issue a Writ of Mandamus or any
Writ, Order or direction in the nature of
Mandamus directing the Respondents to
grant renewal of permission for academic
year 2017-18 and also permit the
petitioner to admit the students for
academic year 2017-2018; and/or
(c) Issue or pass any writ, direction or
order, which this Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case.”
10. After hearing the parties and on a prima facie
consideration of the materials available including the
documents furnished by the parties, this Court interfered
with the order dated 31.05.2017 and directed the Central
Government to consider afresh the same by reevaluating the
recommendations/views of MCI, Hearing Committee, DGHS
11
and the Oversight Committee, as available and also after
affording an opportunity of hearing to the petitioners
college/institution to the extent necessary and thereafter
pass a reasoned order. A time frame of 10 days was also
fixed for the purpose.
11. The overwhelming premise in which the above
direction was issued can be culled out from the following
excerpts of the aforementioned order dated 01.08.2017.
“21. A bare perusal of the letter dated
31.05.2017 would demonstrate in clear
terms that the same is de hors any reason
in support thereof. It mentions only
about the grant of conditional permission
on the basis of the approval of the
Oversight Committee, and an opportunity
of hearing vis-à-vis the recommendations
of the MCI in its letter dated 15.01.2017
highlighting the deficiencies detected in
course of the inspection undertaken on
21st and 22nd December, 2016, but is
conspicuously silent with regard to the
outcome of the proceedings of the Hearing
Committee, the recommendations
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
12
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 testify, a
hearing was provided to the petitioner
colleges/institutions through the Hearing
Committee constituted by the DGHS (as
mentioned in the proceedings dated
23.3.2017) qua the recommendations of
the MCI contained in its letter dated
15.01.2017, as noted hereinabove, the
proceedings of the Hearing Committee do
reflect varying views of the Hearing
Committee and the DGHS, the latter
recommending various aspects bearing on
13
deficiency to be laid before the OC for an
appropriate decision. The Central
Government did forward, albeit a pruned
version of the proceedings of the Hearing
Committee to the Oversight Committee
after a time lag of almost six weeks. The
reason therefor is however not
forthcoming. The Oversight Committee, to
reiterate, though on a consideration of all
the relevant facts as well as the views of
the MCI and the proceedings of the
Hearing Committee as laid before it, did
cast aside the deficiencies minuted by the
MCI and recommended confirmation of
the letters of permission of the petitioner
colleges/institutions, the impugned
decision has been taken by the Central
Government which on the face of it does
not contain any reference whatsoever of
all these developments.
23. As a reasonable opportunity of
hearing contained in the proviso to Section
10A(4) is an indispensable pre-condition
for disapproval by the Central Government
of any scheme for establishment of a
medical college, we are of the convinced
opinion that having regard to the
progression of events and the
divergent/irreconcilable
views/recommendations of the MCI, the
Hearing Committee, the DGHS and the
Oversight Committee, the impugned order,
if sustained in the singular facts and
circumstances, would be in disaccord with
the letter and spirit of the prescription of
reasonable opportunity of hearing to the
petitioner institutions/colleges, as
enjoined under Section 10A(4) of the Act.
14
This is more so in the face of the
detrimental consequences with which they
would be visited. It cannot be gainsaid
that the reasonable opportunity of
hearing, as obligated by Section 10A(4)
inheres fairness in action to meet the
legislative edict. With the existing
arrangement in place, the MCI, the
Central Government and for that matter,
the Hearing Committee, DGHS, as in the
present case, the Oversight Committee
and the concerned colleges/institutions
are integral constituents of the hearing
mechanism 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
15
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
granted to the petitioner
colleges/institutions. We make it clear that
in undertaking this exercise, the Central
Government would re-evaluate the
recommendations/views of the MCI,
Hearing Committee, DGHS and the
Oversight Committee, as available on
records. It would also afford an
opportunity of hearing to the petitioner
colleges/institutions to the extent
necessary. The process of hearing and
final reasoned decision thereon, as ordered,
would be completed peremptorily within a
period of 10 days from today. The parties
would unfailingly co-operate in compliance
of this direction to meet the time frame
fixed.”
12. It would thus be patently evident from the above
operative directions, that the Central Government in
accordance therewith was required to consider afresh the
materials on record pertaining to the issue of confirmation or
otherwise of the letter of permission granted to the petitioner
college and in undertaking the said exercise, it was
imperative for it to reevaluate the recommendations/views of
16
the MCI, Hearing Committee, DGHS and the Oversight
Committee, as available and also to afford an opportunity of
hearing to the petitioner college/institution to the extent
necessary. It is in this background that the order dated
10.08.2017 rendered thereafter and oppugned in the interim
application impelling the instant adjudicative pursuit, needs
to be analyzed.
13. Paragraph 17 of the order dated 10.08.2017 recites the
following in endorsement of the reiteration, by the Central
Government of its decision dated 31.05.2017 to debar the
petitioner college/institution from admitting students for a
period of two academic years i.e. 2017-18 and 2018-19 and
to authorize the MCI to encash bank guarantee of Rs.2
crores.
“17. Now, in compliance with the above
direction of Hon'ble Supreme Court
dated 1.8.2017, the Ministry granted
hearing to the college on 3.8.2017, The
Hearing Committee after considering
the records an oral & written
submission of the college submitted its
report to the Ministry. The findings of
the Hearing Committee are as under:
The college did not allow inspection on
17
09.12.2016 on the ground that
compliance inspection was already
carried out on 18-19 November, 2016.
The letter dated 09.12.2016 from the
Principal clearly mentions that the
college is not ready for inspection. The
assessors have noted that the college
appeared closed on 09.12.2016.
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
18
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 November inspection,
the deficiency relating to faculty and residents
each is in excess of 30%.
(e) In the opinion of the Hearing Committee,
MCI was not precluded from conducting
successive inspections subject to sufficient
reason and justification.
(f) The Hearing Committee agrees with the
decision of the Ministry conveyed by the letter
dated 31.05.2017 to debar the college for two
academic years and to permit MCI to encash
the bank guarantee.
19
15. Broadly therefore, two reasons have weighed with the
Hearing Committee to reiterate the earlier decision of the
Central Government for debarring the petitioner
college/institution from admitting students for the academic
years 2017-18 and 2018-19 and for authorizing the MCI to
encash the bank guarantee of Rs. two crores. Firstly, the
petitioner college/institution did not allow inspection on
09.12.2016 and secondly, in the inspection conducted on
18-19.11.2016, deficiencies relating to Faculty and Resident
Doctors was found each to be in excess of 30%.
16. Mr. Patwalia, learned senior counsel for the petitioners
has insistently argued that the endeavour to conduct a
second inspection merely within three weeks of the earlier
exercise conducted on 18-19.11.2016 was impermissible and
further in the facts of the case lacks bona fide more
particularly, when the alleged deficiencies noticed in the
earlier inspection had been controverted by the petitioner
college/institution in its detailed representation,
consideration whereof was pending. Further the Hearing
Committee did not make any attempt whatsoever to
20
independently re-examine/re-evaluate the materials on
record, as directed by this Court by its order dated
01.08.2017, thus rendering the impugned order dated
10.08.2017 ex facie illegal and non est in law. According to
the learned senior counsel, the so-called deficiencies referred
to in the order dated 10.08.2017 do not exist so as to
disqualify the petitioner college/institution, a fact recorded,
amongst others by the Oversight Committee in its
communication dated 14.05.2017 as well as by the DGHS as
minuted in the proceedings of 17.01.2017. Apart therefrom,
the representation of the petitioners dated 19.11.2016 qua
the deficiencies pointed out by the assessors has been
disregarded without recording any reason. The learned
senior counsel thus urged that in view of the preponderant
materials on record, negating the 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,
21
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 the impugned order dated 10.08.2017,
successive inspections can be conducted by the MCI, if
warranted. According to them, the petitioner
college/institution in not cooperating in the inspection on
09.12.2016 did attempt to withhold the correct state of
22
affairs, for which it is not entitled to any equitable
consideration. They argued further, that as would be crystal
clear from the materials on record that amongst others, the
deficiency relating to faculty and residents, was each in
excess of 30%, in terms of the Regulations, the petitioners
are not entitled to establish and/or continue its
college/institution thereunder and thus the impugned order
is unassailable in law and on facts.
18. The contrasting assertions have received our due
consideration. The impugned order dated 10.08.2017, it
cannot be gainsaid, has to be assuredly tested on the
touchstone of the operative directions contained in this
Court's order dated 01.08.2017 remanding the issue involved
to the Central Government for a fresh consideration on
merits after affording opportunity of hearing to the petitioner
college/institution. As would be patent from the order
presently under scrutiny, the Hearing Committee and for
that matter, the Central Government had focused only on
two aspects namely, non-cooperation of the petitioner
college/institution in the proposed inspection on 09.12.2016
23
and the subsisting deficiencies relating to faculty and
residents, which allegedly is each in excess of 30%. There is
no indication whatsoever as to whether the Hearing
Committee/the Central Government had, as directed by this
Court, re-appraised/reexamined the recommendations
views of the MCI, Hearing Committee, DGHS and the
Oversight Committee, as available on records. The materials
intended by this Court to be taken note of by the Hearing
Committee/Central Government did include, amongst others
the recommendations of the Oversight Committee contained
in its communication dated 14.05.2017, the observations of
the DGHS recorded in the proceedings of 17.01.2017 as well
as the representation dated 19.11.2016 submitted by the
petitioner college/institution qua the deficiencies allegedly
noticed by the assessors of the MCI during the inspection on
18-19.11.2016. This assumes importance in view of the fact
that the deficiencies relating to faculty and residents, which
according to the assessors of the MCI each is in excess of
30%, as noted in that inspection had been controverted and
duly explained by the petitioner college/institution with
24
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 be held, not to be in accord with the spirit and
25
purport of the order dated 01.08.2017 passed by this Court.
Suffice it to state, the order does not inspire the confidence of
this Court to be sustained in the attendant facts and
circumstances.
20. In the predominant factual setting, noted hereinabove,
the approach of the respondents is markedly incompatible
with the essence and import of the proviso to Section 10A(4)
mandating against disapproval by the Central Government of
any scheme for establishment of a college except after giving
the person or the college concerned a reasonable opportunity
of being heard. Reasonable opportunity of hearing which is
synonymous to 'fair hearing', it is not longer res integra, is
an important ingredient of audi alteram partem rule and
embraces almost every facet of fair procedure. The rule of
'fair hearing' requires that the affected party should be given
an opportunity to meet the case against him effectively and
the right to fair hearing takes within its fold a just decision
supplemented by reasons and rationale. Reasonable
opportunity of hearing or right to 'fair hearing' casts a
steadfast and sacrosanct obligation on the adjudicator to
26
ensure fairness in procedure and action, so much so that
any remiss or dereliction in connection therewith would be at
the pain of invalidation of the decision eventually taken.
Every executive authority empowered to take an
administrative action having the potential of visiting any
person with civil consequences must take care to ensure that
justice is not only done but also manifestly appears to have
been done.
21. No endeavour whatsoever, in our comprehension, has
been made by the respondents and that too in the face of an
unequivocal direction by this Court, to fairly and
consummately examine the materials on record in details
before recording a final decision on the issue of confirmation
or otherwise of the LOP granted to the petitioner
college/institution as on 12.09.2016. True it is that the
Regulations do provide for certain norms of infrastructure to
be complied with by the applicant college/institution for
being qualified for the LOP depending on the stages involved.
This however does not obviate the inalienable necessity of
affording a reasonable opportunity of hearing to the person
27
or the college/institution concerned vis-a-vis the scheme for
establishment 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
28
LOP granted to the petitioner college/institution on
12.09.2016 for the academic year 2016-17 deserves to be
confirmed. We order accordingly. However, as the Act and
Regulations framed thereunder have been envisioned to
attain the highest standards of medical education, we direct
the Central Government/MCI to cause a fresh inspection of
the petitioner college/institution to be made in accordance
therewith for the academic year 2018-19 and lay the report
in respect thereof before this Court within a period of eight
weeks herefrom. A copy of the report, needless to state,
would be furnished to the petitioner college/institution at the
earliest so as to enable it to avail its remedies, if so advised,
under the Act and the Regulations. The Central
Government/MCI would not encash the bank guarantee
furnished by the petitioner college/institution. For the
present, the impugned order dated 10.8.2017 stands
modified to this extent only. The direction for a writ, order
or direction to the respondents to permit the petitioner
college/institution to admit students for the academic year
2017-18, in the facts of the case, is declined. The Registry
29
would list the writ petition and I.A. No. 73716 of 2017
immediately after the expiry of period of eight weeks, as
above mentioned.
........................................CJI.
[Dipak Misra]
…........................................J.
[Amitava Roy]
…........................................J.
[A.M. Khanwilkar]
New Delhi;
September 1, 2017.