REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4926 OF 2017
(@ S.L.P. (Civil) No. 26887 OF 2016)
Dental Council of India ... Appellant(s)
Versus
Dr. Hedgewar Smruti Rugna Seva
Mandal, Hingoli & Ors. ... Respondent(s)
J U D G M E N T
Dipak Misra, J.
Though this Court ordinarily is loath to interfere with interim
orders or directions issued by the High Court, yet the impugned order dated
27.05.2016 passed in Writ Petition No. 4529 of 2016 by the learned Vacation
Judge of the High Court of Judicature at Bombay, Bench at Aurangabad,
constrains, in a way, obliges us to pen a verdict with some concern, for
abandonment to write a decision in the obtaining circumstances would
tantamount to playing possum with the precedents, which need to be
recapitulated by the High Courts.
2. The facts are simple. The respondent, a dental college, vide letter
dated 26.05.2015, submitted its scheme on 29.07.2015 for grant of
permission to start post-graduate course of Orthodontics and Dentofacial
Orthopaedics along with four other specialties. A team of Dental Council
of India (for short, ‘the Council’), the appellant herein, conducted a pre-
PG assessment of the respondent-college on 17th and 18th November, 2015 and
submitted its report to the Council. The assessment report submitted by
the said team was placed before the Executive Committee of the Council in
its meeting held on 03.12.2015 whereupon the Committee found many a
deficiency relating to infrastructure, teaching faculty and other physical
facilities in the respondent-college. The Committee decided to call upon
the respondent-college to rectify the deficiencies and submit its
compliance within seven days. The said decision was communicated vide
letter dated 08.12.2015. The respondent-college vide its letter dated
17.12.2015 submitted its compliance report whereafter the assessors of the
Council carried out a compliance verification assessment of the respondent-
college on 21.12.2015. The case of the respondent-college was placed
before the Executive Committee for consideration, which found that the
respondent-college fulfilled the eligibility criteria at the undergraduate
level. On 29.01.2016, the Council decided to carry out the physical
assessment of the dental college in order to ascertain the infrastructure,
clinical material, teaching faculty and other physical facilities in
respect of four postgraduate specialties and in accordance with the
decision, inspection was conducted on 28th and 29th January, 2016. The
assessment report was considered by the Executive Committee in its meeting
held on 12.02.2016 and it observed that there were deficiencies and the
college was required to submit compliance.
3. As is evident from the materials brought on record the decision of
the Committee was communicated to the college on 18.02.2016 whereupon the
respondent-college communicated that the defects had been removed. The
Council proceeded to verify the compliance made by the college and keeping
in view the various facilities and regard being had to the decision of this
Court in Royal Medical Trust (Registered) and another v. Union of India and
another[1], decided to recommend to the Government of India not to grant
permission to the respondent-college for starting the post-graduate
courses. The Government of India, after affording an opportunity of
hearing to the respondent-college, vide letter dated 21.03.2016, required
the Council to verify/review the schemes and further desired to furnish its
revised recommendation.
4. The communication received from the Government of India was placed
before the Committee and the Committee keeping in view the cut-off date,
postulated in Royal Medical Trust (supra) and Ashish Ranjan and others v.
Union of India and others[2], decided to reiterate its earlier stand and
accordingly it was communicated to the Government of India on 28.03.2016.
The Government of India after considering the recommendation of the
Council, vide letter dated 31.03.2016, disapproved the scheme of the
respondent-college for starting MDS course in the specialty of Orthodontics
and Dentofacial Orthopaedics for the academic session 2016-2017.
5. Being dissatisfied with the decision of the Government of India which
is based on the recommendation of the Council, the respondent-college
knocked at the doors of the High Court by filing a writ petition and the
learned Vacation Judge upon hearing the learned counsel for the parties,
passed the following order:-
“The controversy or the issue involved in the matter requires consideration
and due to paucity of time, this Court is unable to decide this matter
finally. In such circumstances the impugned communication dated 31st
March, 2016 is hereby stayed until next date i.e. 06.06.2016. The admission
process undertaken by the petitioner is at the risk of the petitioner. The
petitioner shall intimate the order passed by this Court to the students
who are intending to take admission for M.D.S. course in Orthodontics and
Denotfacial Orthopaedics.”
After passing the said direction, the Court adjourned the matter to
06.06.2016.
6. Assailing the said order, it is submitted by Mr. Gaurav Sharma,
learned counsel for the appellant that the High Court could not have, in
the absence of approval of the scheme submitted by the college, passed an
order of the present nature by staying the order and observing that the
admission process undertaken by the institution would be at its own risk.
Learned counsel would submit that though the learned Single Judge has
opined that the college shall intimate the students who are intending to
take admission to MDS course in the Orthodontics and Dentofacial
Orthopaedics about the order passed by the Court, yet such an order is
impermissible as it brings in anarchy and chaos in the process of admission
to medical courses. He has referred to certain authorities, which we shall
refer to in the course of the judgment.
7. Mr. S.M. Jadhav, learned counsel for the respondent-
college would contend, in his turn, that decision of the Council was prima
facie erroneous and, therefore, the High Court was justified in staying the
said order. It is further canvassed by him that the High Court, while
staying the order, had imposed the conditions and hence, there is no
justification or warrant on the part of the Council to invoke the
jurisdiction of this Court under Article 136 of the Constitution and it
would have been advisable for it to wait for the final decision of the High
Court. Additionally, it is urged by him that the respondent-college has
been granted due approval for the academic session 2017-2018 and that would
make the non-denial of the approval for the earlier order illegal and, in
any case, the three students who have been admitted by virtue of the order
passed by the High Court should not put in a state of suffering and
predicament.
8. The narration of facts is absolutely telling that the scheme
submitted by the respondent-college for starting the MDS course in the two
specialties had been disapproved by the Government of India. The
justifiability of the said non-approval was the subject matter of the lis
before the High Court. The High Court was expected to adjudicate under
Article 226 of the Constitution within its parameters as regards the nature
of deficiencies pointed out by the Council, steps taken by the college with
regard to removal of such deficiencies and whether there had been any
perversity in the decision making process of the Council while not
recommending for approval to the Government of India and further declining
to review the decision after the Government of India required it to
verify/review the scheme and furnish the revised recommendation. As is
evident, the Council keeping in view the cut-off date prescribed by this
Court in Royal Medical Trust (supra) and Ashish Ranjan (supra) reiterated
its earlier recommendation. Thus, the ultimate result was disapproval of
the scheme by the Government of India. Hence, the writ court observed, as
is demonstrable from the order which we have reproduced hereinbefore, that
the controversy required consideration and as the matter could not be
finally adjudicated, the circumstances required interim direction and stay
of the impugned communication. True it is, the High Court has qualified
its order by stating that the admission process shall be at the risk of the
college and the students shall be intimated, but the heart of the matter
is, whether the High Court should have stayed the order with such
conditions. Basically, the order amounts to granting permission for the
admission of students in certain courses in a college which had not
received approval. There may be a case where the court may ultimately come
to the conclusion that the recommendation is unacceptable and eventually
the decision of disapproval by the Government of India is unsustainable.
But the issue is whether before arriving at such conclusions, should the
High Court, by way of interim measure, pass such an order.
9. Such a controversy has not arisen for the first time. A two-Judge Bench
in Union of India v. Era Educational Trust and another[3] stated that
normally this Court would hesitate to interfere with an interlocutory
order, but was compelled to do so where prima facie it appeared that the
said order could not be justified by any judicial standard, the ends of
justice and the need to maintain judicial discipline required the Court to
do so and to indicate the reasons for such interference. The Court,
adverting to the aspects of passing of orders relating to provisional
admission, quoted a passage from Krishna Priya Ganguly v. University of
Lucknow[4] which reads thus:-
“[T]hat whenever a writ petition is filed provisional admission should not
be given as a matter of course on the petition being admitted unless the
court is fully satisfied that the petitioner has a cast-iron case which is
bound to succeed or the error is so gross or apparent that no other
conclusion is possible.”
The Court also thought it appropriate to reproduce further
observations from Krishna Priya Ganguly (supra):-
“Unless the institutions can provide complete and full facilities for the
training of each candidate who is admitted in the various disciplines, the
medical education will be incomplete and the universities would be turning
out doctors not fully qualified which would adversely affect the health of
the people in general.”
10. Adverting to the facts in the case before it, the Court held:-
“9. In the present case, this type of situation has arisen because of the
interim order passed by the High Court without taking into consideration
various judgments rendered by this Court for exercise of jurisdiction under
Article 226. It is apparent that even at the final stage the High Court
normally could not have granted such a mandatory order. Unfortunately,
mystery has no place in judicial process. Hence, the impugned order cannot
be justified by any judicial standards and requires to be quashed and set
aside.”
The aforesaid passage is quite vivid and reflects the surprise
expressed by the learned Judges.
11. In Medical Council of India v. Rajiv Gandhi University of Health
Sciences and others[5] the three-Judge Bench referred to the authority in
Era Educational Trust (supra) and emphatically reiterated the law declared
therein. The reiteration is as follows:-
“4. We once again emphasise that the law declared by this Court in Union of
India v. Era Educational Trust (supra) that interim order should not be
granted as a matter of course, particularly in relation to matter where
standards of institutions are involved and the permission to be granted to
such institutions is subject to certain provisions of law and regulations
applicable to the same, unless the same are complied with. Even if the High
Court gives certain directions in relation to consideration of the
applications filed by educational institutions concerned for grant of
permission or manner in which the same should be processed should not form
a basis to direct the admission of students in these institutions which are
yet to get approval from the authorities concerned or permission has not
been granted by the Council.”
The aforesaid pronouncement, as is manifest, rules that issue of an
interim order in respect of an institution which has not received the
approval is not countenanced in law.
12. In Medical Council of India v. JSS Medical College and another[6] the
issue had arisen with regard to passing of interim orders by the High Court
relating to permission for increase of seats. The anguish expressed by the
Court is reflectible from the following passage:-
“12. Without adverting to the aforesaid issues and many other issues which
may arise for determination, the High Court, in our opinion, erred in
permitting increase in seats by an interim order. In normal circumstances
the High Court should not issue interim order granting permission for
increase of the seats. The High Court ought to realise that granting such
permission by an interim order has a cascading effect. By virtue of such
order students are admitted as in the present case and though many of them
had taken the risk knowingly but few may be ignorant. In most of such cases
when finally the issue is decided against the College the welfare and
plight of the students are ultimately projected to arouse sympathy of the
Court. It results in a very awkward and difficult situation. If on ultimate
analysis it is found that the College’s claim for increase of seats is
untenable, in such an event the admission of students with reference to the
increased seats shall be illegal. We cannot imagine anything more
destructive of the rule of law than a direction by the Court to allow
continuance of such students, whose admissions is found illegal in the
ultimate analysis.”
13. In Priya Gupta v. State of Chhattisgarh and others[7] dealing with
various aspects, the Court was in pain and thought it appropriate to
request the High Courts with humility. The lucid statement is extracted
below:-
“78.4. With all the humility at our command, we request the High Courts to
ensure strict adherence to the prescribed time schedule, process of
selection and to the rule of merit. We reiterate what has been stated by
this Court earlier, that except in very exceptional cases, the High Court
may consider it appropriate to decline interim orders and hear the main
petitions finally, subject to the convenience of the Court. …”
14. In Medical Council of India v. M.G.R. Educational & Research
Institute University & another[8] treating the admission as unauthorized as
there had been no approval by the MCI, the Court imposed costs of Rs. 5
crores on the respondent institution therein, for it had created a complete
mess insofar as the students were admitted to the second batch of MBBS
course in the college. There has been a further direction that the amount
of costs that was directed to be deposited before the Registry of this
Court was not to be recovered in any manner from any student or adjusted
against the fees or provision for facilities for students of subsequent
batches.
15. The three-Judge Bench in Royal Medical Trust (supra), while dealing
with time schedule, stated thus:-
“33. The cases in hand show that the Central Government did not choose to
extend the time-limits in the Schedule despite being empowered by Note
below the Schedule. Though the Central Government apparently felt
constrained by the directions in Priya Gupta (supra) it did exercise that
power in favour of government medical colleges. The decision of this Court
in Priya Gupta (supra) undoubtedly directed that the Schedule to the
Regulations must be strictly and scrupulously observed. However, subsequent
to that decision, the Regulations stood amended, incorporating a Note
empowering the Central Government to modify the stages and time-limits in
the Schedule to the Regulations. The effect of similar such empowerment and
consequential exercise of power as expected from the Central Government has
been considered by this Court in Priyadarshini[9]. The Central Government
is thus statutorily empowered to modify the Schedule in respect of class or
category of applicants, for reasons to be recorded in writing. Because of
subsequent amendment and incorporation of the Note as aforesaid, the matter
is now required to be seen in the light of and in accord with Priyadarshini
(supra) where similar Note in pari materia Regulations was considered by
this Court. We therefore hold that the directions in Priya Gupta (supra)
must now be understood in the light of such statutory empowerment and we
declare that it is open to the Central Government, in terms of the Note, to
extend or modify the time-limits in the Schedule to the Regulations.
However the deadline, namely, 30th of September for making admissions to
the first MBBS course as laid down by this Court in Madhu Singh[10] and
Mridul Dhar (5)[11] must always be observed.”
16. The question of tenability of an interim order passed by the High
Court in matters of admission came for consideration in a recent decision
in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS)
and others[12]. The Court found that after the MCI and the Central
Government having twice considered the inspection report, the matter ought
to have been given a quietus by the High Court for the academic year 2015-
2016. It has been further observed that the High Court ought to have been
more circumspect in directing the admission of students and there was no
need for the High Court to rush into an area that MCI feared to tread. It
was further observed that:-
“27. … Granting admission to students in an educational institution when
there is a serious doubt whether admission should at all be granted is not
a matter to be taken lightly. First of all the career of a student is
involved — what would a student do if his admission is found to be illegal
or is quashed? Is it not a huge waste of time for him or her? Is it enough
to say that the student will not claim any equity in his or her favour? Is
it enough for student to be told that his or her admission is subject to
the outcome of a pending litigation? These are all questions that arise and
for which there is no easy answer. Generally speaking, it is better to err
on the side of caution and deny admission to a student rather than have the
sword of Damocles hanging over him or her. There would at least be some
certainty.”
We respectfully concur with the said observations.
17. It is worthy to note that the Court thought it appropriate to observe
that for the fault of the institution, the students should not suffer nor
should the institution get away scot-free. It issued certain directions to
the institution that it should not have entered into adventurist litigation
and costs of Rs. 5 crores were imposed for playing with the future of the
students and the mess that the institution had created for them. Certain
other directions were issued in this case which we need not advert to.
18. In Ashish Ranjan (supra), the Court after hearing the Union of India,
MCI and all the States, had fixed a time schedule and directed as follows:-
“3. Regard being had to the prayer in the writ petition, nothing remains to
be adjudicated. The order passed today be sent to the Chief Secretaries of
all the States so that they shall see to it that all the stakeholders
follow the schedule in letter and spirit and not make any deviation
whatsoever. Needless to say AIIMS and PGI (for the examination held in
July) shall also follow the schedule in letter and spirit.”
19. From the aforesaid authorities, it is perspicuous that the court
should not pass such interim orders in the matters of admission, more so,
when the institution had not been accorded approval. Such kind of interim
orders are likely to cause chaos, anarchy and uncertainty. And, there is no
reason for creating such situations. There is no justification or
requirement. The High Court may feel that while exercising power under
Article 226 of the Constitution, it can pass such orders with certain
qualifiers as has been done by the impugned order, but it really does not
save the situation. It is because an institution which has not been given
approval for the course, gets a premium. That apart, by virtue of interim
order, the court grants approval in a way which is the subject matter of
final adjudication before it. The anxiety of the students to get admission
reigns supreme as they feel that the institution is granting admission on
the basis of an order passed by the High Court. The institution might be
directed to inform the students that the matter is sub judice, but the
career oriented students get into the college with the hope and aspiration
that in the ultimate eventuate everything shall be correct for them and
they will be saved. It can be thought of from another perspective, that
is, the students had deliberately got into such a situation. But it is
seemly to note that it is the institution that had approached the High
Court and sought a relief of the present nature. By saying that the
institution may give admission at its own risk invites further chaotic and
unfortunate situations.
20. The High Court has to realize the nature of the lis or the
controversy. It is quite different. It is not a construction which is built
at the risk of a plaintiff or the defendant which can be demolished or
redeemed by grant of compensation. It is a situation where the order has
the potentiality to play with the career and life of young. One may say, “…
life is a foreign language; all mis-pronounce it”, but it has to be borne
in mind that artificial or contrived accident is not the goal of life.
21. There is no reason to invite a disaster by way of an interim order. A
Judge has to constantly remind himself about the precedents in the field
and not to be swayed away by his own convictions. In this context, the oft-
quoted passage from Felix Frankfurter[13] would be apt to remember:-
“For the highest exercise of judicial duty is to subordinate one’s personal
pulls and one’s private views to the law of which we are all guardians ?
those impersonal convictions that make a society a civilized community, and
not the victims of personal rule.”
22. That leads us to say something about following the precedents. The
purpose is to have consistency. A three-Judge Bench in Government of Andhra
Pradesh and others v. A.P. Jaiswal and others[14] observed:-
“24. Consistency is the cornerstone of the administration of justice. It is
consistency which creates confidence in the system and this consistency can
never be achieved without respect to the rule of finality. It is with a
view to achieve consistency in judicial pronouncements, the courts have
evolved the rule of precedents, principle of stare decisis, etc. These
rules and principle are based on public policy….”
23. In Arasmeta Captive Power Company Private Limited and another v.
Lafarge India Private Limited[15], dealing with the matter that related to
the field of arbitration, the Court emphatically observed that it is an
“endeavour to clear the maze, so that certainty remains “A Definite” and
finality is “Final””. In this regard, we may travel a decade and a half
back. In Chandra Prakash and others v. State of U.P. and another[16], it
has been held:-
“22. … The doctrine of binding precedent is of utmost importance in the
administration of our judicial system. It promotes certainty and
consistency in judicial decisions. Judicial consistency promotes confidence
in the system, therefore, there is this need for consistency in the
enunciation of legal principles in the decisions of this Court.”
24. In the instant case, the precedents are clear and luculent. It does
not allow any space for any kind of equivocation. In Priya Gupta (supra),
the Court had requested the High Courts to ensure strict adherence to the
prescribed time schedule, process of selection and role of merit and except
in very exceptional cases, to decline interim orders. The Court had added
the words “humility at our command”. The “grammar of humility in law” in
the hierarchical system basically means to abide by the precedents unless
distinguishable but not to ignore them and pass orders because of an
individual notion or perception. Adjudication in accordance with
precedents is cultivation of humility. As long as a precedent is binding
under the constitutional scheme, it has to be respected by all. It has
been said by Simone Weil[17]:-
“In the intellectual order, the virtue of humility is nothing more nor less
than the power of attention”
25. We reiterate the concept of humility as stated in Priya Gupta
(supra). However, we intend to add that the meaning behind the words,
namely, “humility”, and “request” as used by this Court, has to be
appositely understood by the High Courts. It requires attention. And
attention in the context is disciplined and concerned awareness. Nothing
more need be said.
26. In view of the aforesaid analysis, we cannot but hold that the
impugned order passed by the learned Single Judge of the High Court is
absolutely unsustainable. But the controversy does not end there. It is
the admitted position that the respondent-college has been granted approval
for the academic session 2017-2018. By virtue of the interim order passed
by the High Court, three students had been admitted and they are
prosecuting their studies. We intend to strike a balance. The students who
have been admitted shall be allowed to continue their courses, but their
seats shall be adjusted from the academic session 2017-2018. The respondent-
college cannot be allowed to get a premium. The grant of bounty is likely
to allow such institutions to develop an attitude of serendipity. Such a
culture is inconceivable. Therefore, apart from the adjustment of seats for
the next academic session, we also direct the respondent-college to deposit
a sum of Rs. 30 Lakhs before the Registry of this Court within eight weeks
hence and to ensure such compliance, the matter shall be listed in the
third week of July, 2017 for further directions. After the amount is
deposited, it shall be determined how to deal with the sum. The costs that
has been directed to be deposited before the Registry of this Court shall
in no manner be recovered from the students who had been admitted nor shall
it be collected from the students who will be admitted to the course in the
next year. That apart, the respondent-college shall not think of any kind
of adjustment.
27. The appeal stands disposed of in above terms.
……………………………….…J.
(Dipak Misra)
………………………………..…J.
(Mohan M. Shantanagoudar)
NEW DELHI;
APRIL 11, 2017
-----------------------
[1]
[2] (2015) 10 SCC 19
[3]
[4] (2016) 11 SCC 225
[5]
[6] (2000) 5 SCC 57
[7]
[8] (1984) 1 SCC 307
[9]
[10] (2004) 6 SCC 76
[11]
[12] (2012) 5 SCC 628
[13] [14] (2012) 7 SCC 433
[15] [16] (2015) 4 SCC 580
[17] [18] (2011) 4 SCC 623
[19] [20] (2002 ) 7 SCC 258
[21] [22] (2005) 2 SCC 65
[23] [24] (2016) 11 SCC 530
[25] [26] FRANKFURTER, Felix, in Clark, Tom C., “Mr. Justice Frankfurter:
‘A Heritage for all Who Love the Law’,” 51 A.B.A.J. 330, 332 (1965)
[27] [28] (2001) 1 SCC 748
[29] [30] (2013) 15 SCC 414
[31] [32] (2002) 4 SCC 234
[33] [34] Simone Weil, 1909-1943 Gravity and Grace, 1947
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4926 OF 2017
(@ S.L.P. (Civil) No. 26887 OF 2016)
Dental Council of India ... Appellant(s)
Versus
Dr. Hedgewar Smruti Rugna Seva
Mandal, Hingoli & Ors. ... Respondent(s)
J U D G M E N T
Dipak Misra, J.
Though this Court ordinarily is loath to interfere with interim
orders or directions issued by the High Court, yet the impugned order dated
27.05.2016 passed in Writ Petition No. 4529 of 2016 by the learned Vacation
Judge of the High Court of Judicature at Bombay, Bench at Aurangabad,
constrains, in a way, obliges us to pen a verdict with some concern, for
abandonment to write a decision in the obtaining circumstances would
tantamount to playing possum with the precedents, which need to be
recapitulated by the High Courts.
2. The facts are simple. The respondent, a dental college, vide letter
dated 26.05.2015, submitted its scheme on 29.07.2015 for grant of
permission to start post-graduate course of Orthodontics and Dentofacial
Orthopaedics along with four other specialties. A team of Dental Council
of India (for short, ‘the Council’), the appellant herein, conducted a pre-
PG assessment of the respondent-college on 17th and 18th November, 2015 and
submitted its report to the Council. The assessment report submitted by
the said team was placed before the Executive Committee of the Council in
its meeting held on 03.12.2015 whereupon the Committee found many a
deficiency relating to infrastructure, teaching faculty and other physical
facilities in the respondent-college. The Committee decided to call upon
the respondent-college to rectify the deficiencies and submit its
compliance within seven days. The said decision was communicated vide
letter dated 08.12.2015. The respondent-college vide its letter dated
17.12.2015 submitted its compliance report whereafter the assessors of the
Council carried out a compliance verification assessment of the respondent-
college on 21.12.2015. The case of the respondent-college was placed
before the Executive Committee for consideration, which found that the
respondent-college fulfilled the eligibility criteria at the undergraduate
level. On 29.01.2016, the Council decided to carry out the physical
assessment of the dental college in order to ascertain the infrastructure,
clinical material, teaching faculty and other physical facilities in
respect of four postgraduate specialties and in accordance with the
decision, inspection was conducted on 28th and 29th January, 2016. The
assessment report was considered by the Executive Committee in its meeting
held on 12.02.2016 and it observed that there were deficiencies and the
college was required to submit compliance.
3. As is evident from the materials brought on record the decision of
the Committee was communicated to the college on 18.02.2016 whereupon the
respondent-college communicated that the defects had been removed. The
Council proceeded to verify the compliance made by the college and keeping
in view the various facilities and regard being had to the decision of this
Court in Royal Medical Trust (Registered) and another v. Union of India and
another[1], decided to recommend to the Government of India not to grant
permission to the respondent-college for starting the post-graduate
courses. The Government of India, after affording an opportunity of
hearing to the respondent-college, vide letter dated 21.03.2016, required
the Council to verify/review the schemes and further desired to furnish its
revised recommendation.
4. The communication received from the Government of India was placed
before the Committee and the Committee keeping in view the cut-off date,
postulated in Royal Medical Trust (supra) and Ashish Ranjan and others v.
Union of India and others[2], decided to reiterate its earlier stand and
accordingly it was communicated to the Government of India on 28.03.2016.
The Government of India after considering the recommendation of the
Council, vide letter dated 31.03.2016, disapproved the scheme of the
respondent-college for starting MDS course in the specialty of Orthodontics
and Dentofacial Orthopaedics for the academic session 2016-2017.
5. Being dissatisfied with the decision of the Government of India which
is based on the recommendation of the Council, the respondent-college
knocked at the doors of the High Court by filing a writ petition and the
learned Vacation Judge upon hearing the learned counsel for the parties,
passed the following order:-
“The controversy or the issue involved in the matter requires consideration
and due to paucity of time, this Court is unable to decide this matter
finally. In such circumstances the impugned communication dated 31st
March, 2016 is hereby stayed until next date i.e. 06.06.2016. The admission
process undertaken by the petitioner is at the risk of the petitioner. The
petitioner shall intimate the order passed by this Court to the students
who are intending to take admission for M.D.S. course in Orthodontics and
Denotfacial Orthopaedics.”
After passing the said direction, the Court adjourned the matter to
06.06.2016.
6. Assailing the said order, it is submitted by Mr. Gaurav Sharma,
learned counsel for the appellant that the High Court could not have, in
the absence of approval of the scheme submitted by the college, passed an
order of the present nature by staying the order and observing that the
admission process undertaken by the institution would be at its own risk.
Learned counsel would submit that though the learned Single Judge has
opined that the college shall intimate the students who are intending to
take admission to MDS course in the Orthodontics and Dentofacial
Orthopaedics about the order passed by the Court, yet such an order is
impermissible as it brings in anarchy and chaos in the process of admission
to medical courses. He has referred to certain authorities, which we shall
refer to in the course of the judgment.
7. Mr. S.M. Jadhav, learned counsel for the respondent-
college would contend, in his turn, that decision of the Council was prima
facie erroneous and, therefore, the High Court was justified in staying the
said order. It is further canvassed by him that the High Court, while
staying the order, had imposed the conditions and hence, there is no
justification or warrant on the part of the Council to invoke the
jurisdiction of this Court under Article 136 of the Constitution and it
would have been advisable for it to wait for the final decision of the High
Court. Additionally, it is urged by him that the respondent-college has
been granted due approval for the academic session 2017-2018 and that would
make the non-denial of the approval for the earlier order illegal and, in
any case, the three students who have been admitted by virtue of the order
passed by the High Court should not put in a state of suffering and
predicament.
8. The narration of facts is absolutely telling that the scheme
submitted by the respondent-college for starting the MDS course in the two
specialties had been disapproved by the Government of India. The
justifiability of the said non-approval was the subject matter of the lis
before the High Court. The High Court was expected to adjudicate under
Article 226 of the Constitution within its parameters as regards the nature
of deficiencies pointed out by the Council, steps taken by the college with
regard to removal of such deficiencies and whether there had been any
perversity in the decision making process of the Council while not
recommending for approval to the Government of India and further declining
to review the decision after the Government of India required it to
verify/review the scheme and furnish the revised recommendation. As is
evident, the Council keeping in view the cut-off date prescribed by this
Court in Royal Medical Trust (supra) and Ashish Ranjan (supra) reiterated
its earlier recommendation. Thus, the ultimate result was disapproval of
the scheme by the Government of India. Hence, the writ court observed, as
is demonstrable from the order which we have reproduced hereinbefore, that
the controversy required consideration and as the matter could not be
finally adjudicated, the circumstances required interim direction and stay
of the impugned communication. True it is, the High Court has qualified
its order by stating that the admission process shall be at the risk of the
college and the students shall be intimated, but the heart of the matter
is, whether the High Court should have stayed the order with such
conditions. Basically, the order amounts to granting permission for the
admission of students in certain courses in a college which had not
received approval. There may be a case where the court may ultimately come
to the conclusion that the recommendation is unacceptable and eventually
the decision of disapproval by the Government of India is unsustainable.
But the issue is whether before arriving at such conclusions, should the
High Court, by way of interim measure, pass such an order.
9. Such a controversy has not arisen for the first time. A two-Judge Bench
in Union of India v. Era Educational Trust and another[3] stated that
normally this Court would hesitate to interfere with an interlocutory
order, but was compelled to do so where prima facie it appeared that the
said order could not be justified by any judicial standard, the ends of
justice and the need to maintain judicial discipline required the Court to
do so and to indicate the reasons for such interference. The Court,
adverting to the aspects of passing of orders relating to provisional
admission, quoted a passage from Krishna Priya Ganguly v. University of
Lucknow[4] which reads thus:-
“[T]hat whenever a writ petition is filed provisional admission should not
be given as a matter of course on the petition being admitted unless the
court is fully satisfied that the petitioner has a cast-iron case which is
bound to succeed or the error is so gross or apparent that no other
conclusion is possible.”
The Court also thought it appropriate to reproduce further
observations from Krishna Priya Ganguly (supra):-
“Unless the institutions can provide complete and full facilities for the
training of each candidate who is admitted in the various disciplines, the
medical education will be incomplete and the universities would be turning
out doctors not fully qualified which would adversely affect the health of
the people in general.”
10. Adverting to the facts in the case before it, the Court held:-
“9. In the present case, this type of situation has arisen because of the
interim order passed by the High Court without taking into consideration
various judgments rendered by this Court for exercise of jurisdiction under
Article 226. It is apparent that even at the final stage the High Court
normally could not have granted such a mandatory order. Unfortunately,
mystery has no place in judicial process. Hence, the impugned order cannot
be justified by any judicial standards and requires to be quashed and set
aside.”
The aforesaid passage is quite vivid and reflects the surprise
expressed by the learned Judges.
11. In Medical Council of India v. Rajiv Gandhi University of Health
Sciences and others[5] the three-Judge Bench referred to the authority in
Era Educational Trust (supra) and emphatically reiterated the law declared
therein. The reiteration is as follows:-
“4. We once again emphasise that the law declared by this Court in Union of
India v. Era Educational Trust (supra) that interim order should not be
granted as a matter of course, particularly in relation to matter where
standards of institutions are involved and the permission to be granted to
such institutions is subject to certain provisions of law and regulations
applicable to the same, unless the same are complied with. Even if the High
Court gives certain directions in relation to consideration of the
applications filed by educational institutions concerned for grant of
permission or manner in which the same should be processed should not form
a basis to direct the admission of students in these institutions which are
yet to get approval from the authorities concerned or permission has not
been granted by the Council.”
The aforesaid pronouncement, as is manifest, rules that issue of an
interim order in respect of an institution which has not received the
approval is not countenanced in law.
12. In Medical Council of India v. JSS Medical College and another[6] the
issue had arisen with regard to passing of interim orders by the High Court
relating to permission for increase of seats. The anguish expressed by the
Court is reflectible from the following passage:-
“12. Without adverting to the aforesaid issues and many other issues which
may arise for determination, the High Court, in our opinion, erred in
permitting increase in seats by an interim order. In normal circumstances
the High Court should not issue interim order granting permission for
increase of the seats. The High Court ought to realise that granting such
permission by an interim order has a cascading effect. By virtue of such
order students are admitted as in the present case and though many of them
had taken the risk knowingly but few may be ignorant. In most of such cases
when finally the issue is decided against the College the welfare and
plight of the students are ultimately projected to arouse sympathy of the
Court. It results in a very awkward and difficult situation. If on ultimate
analysis it is found that the College’s claim for increase of seats is
untenable, in such an event the admission of students with reference to the
increased seats shall be illegal. We cannot imagine anything more
destructive of the rule of law than a direction by the Court to allow
continuance of such students, whose admissions is found illegal in the
ultimate analysis.”
13. In Priya Gupta v. State of Chhattisgarh and others[7] dealing with
various aspects, the Court was in pain and thought it appropriate to
request the High Courts with humility. The lucid statement is extracted
below:-
“78.4. With all the humility at our command, we request the High Courts to
ensure strict adherence to the prescribed time schedule, process of
selection and to the rule of merit. We reiterate what has been stated by
this Court earlier, that except in very exceptional cases, the High Court
may consider it appropriate to decline interim orders and hear the main
petitions finally, subject to the convenience of the Court. …”
14. In Medical Council of India v. M.G.R. Educational & Research
Institute University & another[8] treating the admission as unauthorized as
there had been no approval by the MCI, the Court imposed costs of Rs. 5
crores on the respondent institution therein, for it had created a complete
mess insofar as the students were admitted to the second batch of MBBS
course in the college. There has been a further direction that the amount
of costs that was directed to be deposited before the Registry of this
Court was not to be recovered in any manner from any student or adjusted
against the fees or provision for facilities for students of subsequent
batches.
15. The three-Judge Bench in Royal Medical Trust (supra), while dealing
with time schedule, stated thus:-
“33. The cases in hand show that the Central Government did not choose to
extend the time-limits in the Schedule despite being empowered by Note
below the Schedule. Though the Central Government apparently felt
constrained by the directions in Priya Gupta (supra) it did exercise that
power in favour of government medical colleges. The decision of this Court
in Priya Gupta (supra) undoubtedly directed that the Schedule to the
Regulations must be strictly and scrupulously observed. However, subsequent
to that decision, the Regulations stood amended, incorporating a Note
empowering the Central Government to modify the stages and time-limits in
the Schedule to the Regulations. The effect of similar such empowerment and
consequential exercise of power as expected from the Central Government has
been considered by this Court in Priyadarshini[9]. The Central Government
is thus statutorily empowered to modify the Schedule in respect of class or
category of applicants, for reasons to be recorded in writing. Because of
subsequent amendment and incorporation of the Note as aforesaid, the matter
is now required to be seen in the light of and in accord with Priyadarshini
(supra) where similar Note in pari materia Regulations was considered by
this Court. We therefore hold that the directions in Priya Gupta (supra)
must now be understood in the light of such statutory empowerment and we
declare that it is open to the Central Government, in terms of the Note, to
extend or modify the time-limits in the Schedule to the Regulations.
However the deadline, namely, 30th of September for making admissions to
the first MBBS course as laid down by this Court in Madhu Singh[10] and
Mridul Dhar (5)[11] must always be observed.”
16. The question of tenability of an interim order passed by the High
Court in matters of admission came for consideration in a recent decision
in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS)
and others[12]. The Court found that after the MCI and the Central
Government having twice considered the inspection report, the matter ought
to have been given a quietus by the High Court for the academic year 2015-
2016. It has been further observed that the High Court ought to have been
more circumspect in directing the admission of students and there was no
need for the High Court to rush into an area that MCI feared to tread. It
was further observed that:-
“27. … Granting admission to students in an educational institution when
there is a serious doubt whether admission should at all be granted is not
a matter to be taken lightly. First of all the career of a student is
involved — what would a student do if his admission is found to be illegal
or is quashed? Is it not a huge waste of time for him or her? Is it enough
to say that the student will not claim any equity in his or her favour? Is
it enough for student to be told that his or her admission is subject to
the outcome of a pending litigation? These are all questions that arise and
for which there is no easy answer. Generally speaking, it is better to err
on the side of caution and deny admission to a student rather than have the
sword of Damocles hanging over him or her. There would at least be some
certainty.”
We respectfully concur with the said observations.
17. It is worthy to note that the Court thought it appropriate to observe
that for the fault of the institution, the students should not suffer nor
should the institution get away scot-free. It issued certain directions to
the institution that it should not have entered into adventurist litigation
and costs of Rs. 5 crores were imposed for playing with the future of the
students and the mess that the institution had created for them. Certain
other directions were issued in this case which we need not advert to.
18. In Ashish Ranjan (supra), the Court after hearing the Union of India,
MCI and all the States, had fixed a time schedule and directed as follows:-
“3. Regard being had to the prayer in the writ petition, nothing remains to
be adjudicated. The order passed today be sent to the Chief Secretaries of
all the States so that they shall see to it that all the stakeholders
follow the schedule in letter and spirit and not make any deviation
whatsoever. Needless to say AIIMS and PGI (for the examination held in
July) shall also follow the schedule in letter and spirit.”
19. From the aforesaid authorities, it is perspicuous that the court
should not pass such interim orders in the matters of admission, more so,
when the institution had not been accorded approval. Such kind of interim
orders are likely to cause chaos, anarchy and uncertainty. And, there is no
reason for creating such situations. There is no justification or
requirement. The High Court may feel that while exercising power under
Article 226 of the Constitution, it can pass such orders with certain
qualifiers as has been done by the impugned order, but it really does not
save the situation. It is because an institution which has not been given
approval for the course, gets a premium. That apart, by virtue of interim
order, the court grants approval in a way which is the subject matter of
final adjudication before it. The anxiety of the students to get admission
reigns supreme as they feel that the institution is granting admission on
the basis of an order passed by the High Court. The institution might be
directed to inform the students that the matter is sub judice, but the
career oriented students get into the college with the hope and aspiration
that in the ultimate eventuate everything shall be correct for them and
they will be saved. It can be thought of from another perspective, that
is, the students had deliberately got into such a situation. But it is
seemly to note that it is the institution that had approached the High
Court and sought a relief of the present nature. By saying that the
institution may give admission at its own risk invites further chaotic and
unfortunate situations.
20. The High Court has to realize the nature of the lis or the
controversy. It is quite different. It is not a construction which is built
at the risk of a plaintiff or the defendant which can be demolished or
redeemed by grant of compensation. It is a situation where the order has
the potentiality to play with the career and life of young. One may say, “…
life is a foreign language; all mis-pronounce it”, but it has to be borne
in mind that artificial or contrived accident is not the goal of life.
21. There is no reason to invite a disaster by way of an interim order. A
Judge has to constantly remind himself about the precedents in the field
and not to be swayed away by his own convictions. In this context, the oft-
quoted passage from Felix Frankfurter[13] would be apt to remember:-
“For the highest exercise of judicial duty is to subordinate one’s personal
pulls and one’s private views to the law of which we are all guardians ?
those impersonal convictions that make a society a civilized community, and
not the victims of personal rule.”
22. That leads us to say something about following the precedents. The
purpose is to have consistency. A three-Judge Bench in Government of Andhra
Pradesh and others v. A.P. Jaiswal and others[14] observed:-
“24. Consistency is the cornerstone of the administration of justice. It is
consistency which creates confidence in the system and this consistency can
never be achieved without respect to the rule of finality. It is with a
view to achieve consistency in judicial pronouncements, the courts have
evolved the rule of precedents, principle of stare decisis, etc. These
rules and principle are based on public policy….”
23. In Arasmeta Captive Power Company Private Limited and another v.
Lafarge India Private Limited[15], dealing with the matter that related to
the field of arbitration, the Court emphatically observed that it is an
“endeavour to clear the maze, so that certainty remains “A Definite” and
finality is “Final””. In this regard, we may travel a decade and a half
back. In Chandra Prakash and others v. State of U.P. and another[16], it
has been held:-
“22. … The doctrine of binding precedent is of utmost importance in the
administration of our judicial system. It promotes certainty and
consistency in judicial decisions. Judicial consistency promotes confidence
in the system, therefore, there is this need for consistency in the
enunciation of legal principles in the decisions of this Court.”
24. In the instant case, the precedents are clear and luculent. It does
not allow any space for any kind of equivocation. In Priya Gupta (supra),
the Court had requested the High Courts to ensure strict adherence to the
prescribed time schedule, process of selection and role of merit and except
in very exceptional cases, to decline interim orders. The Court had added
the words “humility at our command”. The “grammar of humility in law” in
the hierarchical system basically means to abide by the precedents unless
distinguishable but not to ignore them and pass orders because of an
individual notion or perception. Adjudication in accordance with
precedents is cultivation of humility. As long as a precedent is binding
under the constitutional scheme, it has to be respected by all. It has
been said by Simone Weil[17]:-
“In the intellectual order, the virtue of humility is nothing more nor less
than the power of attention”
25. We reiterate the concept of humility as stated in Priya Gupta
(supra). However, we intend to add that the meaning behind the words,
namely, “humility”, and “request” as used by this Court, has to be
appositely understood by the High Courts. It requires attention. And
attention in the context is disciplined and concerned awareness. Nothing
more need be said.
26. In view of the aforesaid analysis, we cannot but hold that the
impugned order passed by the learned Single Judge of the High Court is
absolutely unsustainable. But the controversy does not end there. It is
the admitted position that the respondent-college has been granted approval
for the academic session 2017-2018. By virtue of the interim order passed
by the High Court, three students had been admitted and they are
prosecuting their studies. We intend to strike a balance. The students who
have been admitted shall be allowed to continue their courses, but their
seats shall be adjusted from the academic session 2017-2018. The respondent-
college cannot be allowed to get a premium. The grant of bounty is likely
to allow such institutions to develop an attitude of serendipity. Such a
culture is inconceivable. Therefore, apart from the adjustment of seats for
the next academic session, we also direct the respondent-college to deposit
a sum of Rs. 30 Lakhs before the Registry of this Court within eight weeks
hence and to ensure such compliance, the matter shall be listed in the
third week of July, 2017 for further directions. After the amount is
deposited, it shall be determined how to deal with the sum. The costs that
has been directed to be deposited before the Registry of this Court shall
in no manner be recovered from the students who had been admitted nor shall
it be collected from the students who will be admitted to the course in the
next year. That apart, the respondent-college shall not think of any kind
of adjustment.
27. The appeal stands disposed of in above terms.
……………………………….…J.
(Dipak Misra)
………………………………..…J.
(Mohan M. Shantanagoudar)
NEW DELHI;
APRIL 11, 2017
-----------------------
[1]
[2] (2015) 10 SCC 19
[3]
[4] (2016) 11 SCC 225
[5]
[6] (2000) 5 SCC 57
[7]
[8] (1984) 1 SCC 307
[9]
[10] (2004) 6 SCC 76
[11]
[12] (2012) 5 SCC 628
[13] [14] (2012) 7 SCC 433
[15] [16] (2015) 4 SCC 580
[17] [18] (2011) 4 SCC 623
[19] [20] (2002 ) 7 SCC 258
[21] [22] (2005) 2 SCC 65
[23] [24] (2016) 11 SCC 530
[25] [26] FRANKFURTER, Felix, in Clark, Tom C., “Mr. Justice Frankfurter:
‘A Heritage for all Who Love the Law’,” 51 A.B.A.J. 330, 332 (1965)
[27] [28] (2001) 1 SCC 748
[29] [30] (2013) 15 SCC 414
[31] [32] (2002) 4 SCC 234
[33] [34] Simone Weil, 1909-1943 Gravity and Grace, 1947
