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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
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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
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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
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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
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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.
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(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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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.
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.
