published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40701
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETTIION (Civil) No. 25698 OF 2013
Swamy Devi Dayal Hospital & Dental College …Petitioner
Vs.
The Union of India & Ors. …
.Respondents
J U D G M E N T
A.K.SIKRI,J.
1. The petitioner is a Dental College set up in the year 2004 for
imparting education in the B.D.S. course (Bachelor of Dental Science).
The petitioner is recognized and affiliated to Respondent No.4
University, viz. Pt. B.D. Sharma University, Rohtak, Haryana.
2. The petitioner – college was desirous to start the MDS Course
(Master of Dental Surgery). For starting the said course the
petitioner was required to complete the formalities i.e. (i)
Essentiality and No Objection Certificate from the State Government;
(ii) Affiliation from Pt. B.D.Sharma University for Health Sciences,
Rohtak and (iii) Recognition from the Dental Council of India/Union of
India.
3. Respondent No.3 – State of Haryana, vide letter dated 12.1.2010,
granted ‘No Objection Certificate’ to the petitioner for starting MDS
Course. The said ‘No Objection Certificate’ was granted by the State
Government for starting MDS Course in 9 specialties i.e. Oral Surgery,
Orthodontics, Conservative Dentistry, Prosthodontics, Periodontics,
Oral Diagnosis, Oral Pathology, Pedodontics, Periodontics, Oral
Diagnosis, Oral Pathology, Pedodontics & Community Dentistry with 3
seats in each specialty from the session 2010-11.
4. Thereafter, Respondent No.4 – University granted provisional
affiliation to the petitioner-college for 6 out of 9 specialties for
academic session 2011-12. Respondent No.1, i.e. the Central
Government also, on the recommendations of Respondent No.2/ Dental
Council of India (hereinafter referred to ‘DCI’), issued Letter of
Intent to the petitioner for the aforesaid 6 specialties and later on
granted permission to the petitioner-college to start MDS Courses in 6
specialties i.e. (i) Periodontology wih 3 seats (ii) Conservative
Dentistry and Endodontics with 3 seats (iii) Oral Pathology &
Microbiology with 3 seats (iv) Public Health Dentistry with 3 sets (v)
Prosthodontics and Preventive Dentistry with 3 seats (vi) Paedodontics
and Preventive Dentistry with 3 seats for the session 2011-12. The
said permission was extended for the academic session 2012-13 and now
the same has been extended for the academic session 2013-14.
5. In the present case, however, we are not concerned with the
aforesaid six specialties. As pointed out above, though for the
session 2011-12, the petitioner was permitted to start courses and six
specialties out of 9 courses mooted by it, for the academic session
2012-13, Respondent No.4 University granted provisionally affiliation
to the petitioner for two more specialties namely (1) Oral Medicines &
Radiology and (ii) Oral and Maxillofacial Surgery with an intake of 3
seats each. This was followed by affiliation for the 9th specialty
also, viz the Orthodontics and Dentofacial Orthopedics for the
academic session 2012-13. In the instant petition, we are concerned
with the two disciplines namely Oral and Maxillofacial Surgery as well
as Orthodontics and Dentofacial Orthopaedics.
6. As pointed out above, in respect of these two specialties,
Respondent No.4 University had given the affiliation and students were
admitted by the petitioner-College in these disciplines as well for
the academic session 2012-13. However, for the academic session 2013-
14, permission has not been extended for these two specialties
although for Oral Medicine and Radiology the requisite approval has
been accorded. The events that followed for non-grant of permission
in respect of these specialties for the academic session 2013-14 are
recapitulated below, briefly:
7. For granting renewal of permission for the aforesaid 2
specialties i.e. Oral and Maxillofacial Surgery and Orthodontics and
Dentofacial Orthopedics with three seats each for the academic session
2013-14, the DCI conducted the inspection of the petitioner-college on
8.12.2012 and 9.12.2012. The petitioner was not supplied with the
report of the Inspectors but vide letter dated 26.12.2012 and
27.12.2012, the petitioner was informed by the DCI about the
deficiencies in these two specialties. The petitioner, vide letter
dated 19.1.2013 and 25.1.2013 submitted compliance report regarding
the deficiencies in these two specialties.
8. Thereafter DCI conducted the verification inspection on
14.2.2013 and 18.2.2013. On the basis of this inspection, report
dated 18.2.2013 was prepared by the DCI enlisting the deficiencies
which according to DCI remained uncured.
9. The DCI, accordingly, vide its letter dated 28.2.2013,
recommended to the Central Government not to extend the permission in
these two specialties and not to allow the petitioner-college to admit
the students in these two specialties for the academic session 2013-
14. According to the petitioner, though it was not supplied the copy
of the report dated 18.2.2013 but could procure the same and on coming
to know of the aforesaid negative recommendation dated 28.2.2013 of
the DCI impressing upon Respondent No.1 not to accord permission in
these two specialties for the current academic session, the petitioner
made a representation to Respondent No.1 and along with the said
report it also submitted a comparative statement of the deficiencies.
The petitioner also requested for personal hearing. However, without
affording any hearing, a decision was taken by the Central Government
vide letter dated 30th March 2013, addressed to the petitioner,
whereby the permission was declined for renewal of the second year MDS
course in the two specialties mentioned above.
10. Aggrieved by this decision, the petitioner preferred the Writ
Petition in the High Court of Punjab and Haryana questioning the
validity thereof. Apart from contending that the petitioner-college
did not suffer from any deficiencies and the order of the Central
Government declining the permission of renewal was bad in law, the
petitioner also submitted that before taking the impugned decision
Respondent No.1 had not granted personal hearing thereby violating the
mandatory requirement of the provisions of Section 10A (4) of the
Dental Council of India 1948 (hereinafter referred to as the Act).
11. Show cause notice was issued in the said writ and after
completion of the pleadings, the matter was heard by the learned
Single Judge who has, vide the impugned judgment dated 1.8.2013
dismissed the Writ Petition filed by the petitioner finding no merit
in both the contentions raised by the petitioner.
12. The present SLP challenges the said order of the learned Single
Judge.
13. The first and foremost contention of Mr. Patwalia, the learned
senior counsel appearing for the petitioner was that the High Court
had committed a grave error of law in taking a view that no personal
hearing was required to be given by the Central Government before
passing the order refusing to grant the renewal. Submission was that
Section 10A(4) of the Act categorically provides for opportunity of
being heard and in the face of such a provision the decision of the
High Court on this aspect was palpably wrong,
14. Section 10A of the Act reads as under:
“10A Permission for establishment of new dental college, new
courses of study, etc.
(1) Notwithstanding anything contained in this Act or any
other law for the time being in force
(a) no person shall establish an authority or institution
for a course of study or training (including a post-
graduate course of study or training) which would enable a
student of such course or training to qualify himself for
the grant of recognized dental qualification’ or
(b) no authority or institution conducting a course of
study or training (including a post-graduate course of
study or training) for grant of recognized dental
qualification shall
(i) open a new or higher course of study or
training (including a post-graduate course of study
or training) which would enable a student of such
course or training to qualify himself for the award
of any recognized dental qualification; or
(ii) increase its admission capacity in any course
of study or training (including a post-graduate
course of study or training), except with the
previous permission of the Central Government
obtained in accordance with the provisions of this
section.
Explanation 1. – for the purposes of this section, “person”
includes any University or a trust but does not include the
Central Government.
Explanation 2. – For the purposes of this Section, “admission
capacity”, in relation to any course of study or training
(includes a post-graduate course of study or training) in an
authority or institution granting recognized dental
qualification, means the maximum number of students that may be
fixed by the Council from time to time for being admitted to
such course or training.
(2) (a) Every person, authority or institution granting
recognized dental qualification shall, for the purpose of
obtaining permission under sub-section (1), submit to the
Central Government a scheme in accordance with the
provision of clause (b) and the Central Government shall
refer the said scheme to the Council for its
recommendations.
(b) The scheme referred to in clause (a) shall be in such
form and contain such particulars and be preferred in such
manner and be accompanied with such fee as may be
prescribed.
(3) On receipt of a scheme by the Council under sub-section
(2), the Council may obtain such other particulars as may be
considered necessary by it from the person, authority or
institution concerned, granting recognized dental qualification
and thereafter, it may,
(a) if the scheme is defective and does not contain any
necessary particulars, give a reasonable opportunity to the
person, authority or institution concerned for making a
written representation and it shall be open to such person,
authority or institution to rectify the defects, if any,
specified by the Council;
(b) consider the scheme, having regard to the factors
referred to in sub-section (7), and submit the scheme
together with its recommendations thereon to the Central
Government,
(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, authority or
institution 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, authority or
institution concerned granting recognized dental qualification a
reasonable opportunity of being heard.”
15. A bare reading of sub-section (4) makes it abundantly clear that
even the Central Government, before taking a decision on the
recommendation of the DCI is required to give a reasonable opportunity
of being heard in case it proposes to disapprove the scheme submitted
by an educational institution. It was, however, argued before the
High Court that such a hearing is required only when the question of
permission for establishment of new dental college or new course or
studies comes up for consideration and Section 10A does not deal with
the cases of renewal of permission. The High Court has accepted this
contention of the Government. This becomes apparent from the
following discussion contained in the impugned judgment of the High
Court:
“Thus, in my considered opinion, the proviso of section
10(A)(4) of the Act cannot be read in the case of renewal of
permission as it deals with a specific situation. Had it been
the intention of the Legislature to provide an opportunity of
hearing in the case of renewal of permission to be given by the
Government of Indian on the recommendation of the DCI, it would
have been a part of the Act itself but here is a case in which
the petition had admittedly been given an opportunity for
rectification of their errors because after first inspection of
the DCI, the deficiencies noted were communicated to the
petitioner, who allegedly removed the deficiencies and submitted
the compliance report and in order to verify the compliance,
another inspection team was sent, but still
shortcomings/deficiencies were found which cannot be even
condoned as it goes against the regulations.
Hence, in the absence of any statutory provision with
regard to an opportunity of hearing by the Government of India
while with negative recommendations of DCI in the case of
renewal of permission, the impugned order dated 30.3.2013 cannot
be held to be illegal.”
16. With respect to the High Court, we are unable to subscribe to
the aforesaid interpretation given to the provision of Section 10A of
the Act. No doubt, heading of this section suggests that it deals
with “permission for establishment of new dental college, new courses
of study, etc.” However, holistic reading of the provisions of this
section prescribing the scheme containing the procedure for
establishment of new dental college and new courses of study etc.
would clearly demonstrate that this provision applies even to the
cases of renewal of such permission as well.
17. In the present case, as already noticed above, the two courses
in question were the new courses, along with other courses, for which
permission was given by Respondent No.1 for the academic session 2012-
13. It is a common case that the procedure contained in section 10A
for seeking permission, applies to new courses of studies as well.
Section 10A(1)(b) deals with opening of new or higher course of study
or training as well as increasing its admission capacity in any course
of study or training. In both the eventualities prior permission of
Central Government is to be obtained. Explanation 2 clarifies the
meaning of “admission capacity” in relation to any course of study or
training to mean “the maximum number of students that may be fixed by
the Council from time to time for being admitted to such course or
training.”
18. When the permission to start courses in two specialties in
question was granted for the academic session 2012-13 intake of three
students, for seeking renewal for the next academic session 2013-14 it
was to seek fresh permission to have the same admission capacity for
this year as well. We are, therefore, of the opinion that the cases
of renewal cannot be excluded from the provisions of Section 10A of
the Act. It was not disputed before us that when the petitioner-
college applied for renewal of the permission, the application was
processed in accordance with the procedure laid down in section 10A.
As per this procedure, when a request is received in the form of a
requisite scheme, as required in sub-section (2) of Section 10A of the
Act, the same is to be processed in the manner provided under sub-
section (3) thereof. Once it is found by the DCI that all the
parameters for granting permission are met, it recommends the grant of
approval of the scheme to the Central Government. In case Scheme it is
found to be deficient, sub-section (3) (a) of Section 10A of the Act
casts an obligation on the part of the DCI to give a reasonable
opportunity for making a written representation and also to rectify
the deficiencies, any, specified by the DCI. After the recommendation
is sent by the DCI to the Central Government, Central Government is
required to process the same in accordance with the procedure
contained in sub-section (4) of Section 10A. It can either approve or
disapprove the Scheme. However, in case the Central Government is
proposing to disapprove the Scheme, a final decision in this behalf
can be taken only after giving the concerned person, authority or
institution, a reasonable opportunity of being heard. This is the
mandate of the proviso to Section 10A (4) of the Act.
19. Thus, the procedure prescribed in Section 10A contains the
requirement of following this principle of natural justice at two
stages. In the first place, by the DCI when it finds deficiencies
while examining the school in the second stage at the level of the
Central Government before it passes away adverse orders, as it is the
final administrative authority vested with powers to pass such an
order. The law, thus specifically requires that at the stage of a
decision by the Central Government, again an opportunity of being
heard is to be provided. This proviso, thus, acknowledges the need of
and confers a very valuable right in favour of the petitioner.
20. In the present case, the petitioner had been accorded permission
in these two specialties for the previous academic session. Non-
renewal thereof in the present academic session has an adverse affect.
It has visited the petitioner with civil and/ or evil consequences
barring the petitioner to enroll fresh students in this year. We
would like to reproduce the following discussion from the judgment in
the case of Sahara India (Firm), Lucknow vs. Commissioner of Income
Tax, Central-1 and Anr. (2008) 14 SCC 151
“15.Rules of "natural justice" are not embodied rules. The phrase
"natural justice" is also not capable of a precise definition.
The underlying principle of natural justice, evolved under the
common law, is to check arbitrary exercise of power by the State
or its functionaries. therefore, the principle implies a duty to
act fairly, i.e. fair play in action. As observed by this Court
in A.K. Kraipak and Ors. v. Union of India and
Ors.[1970]1SCR457 , the aim of rules of natural justice is to
secure justice or to put it negatively to prevent miscarriage of
justice. These rules can operate only in areas not covered by
any law validly made. They do not supplant the law but
supplement it. (Also see: Income Tax Officer and Ors.v. Madnani
Engineering Works Ltd., Calcutta [1979]118ITR1(SC) )
16.In Swadeshi Cotton Mills v. Union of India [1981]2SCR533
R.S. Sarkaria, J., speaking for the majority in a three-Judge
Bench, lucidly explained the meaning and scope of the concept of
"natural justice". Referring to several decisions, his Lordship
observed thus (SCC p.666):
Rules of natural justice are not embodied rules. Being means to
an end and not an end in themselves, it is not possible to make
an exhaustive catalogue of such rules. But there are two
fundamental maxims of natural justice viz. (i) audi alteram
partem and (ii) nemo judex in re sua. The audi alteram partem
rule has many facets, two of them being (a) notice of the case
to be met; and (b) opportunity to explain. This rule cannot be
sacrificed at the altar of administrative convenience or
celerity. The general principle - as distinguished from an
absolute rule of uniform application - seems to be that where a
statute does not, in terms, exclude this rule of prior hearing
but contemplates a post- decisional hearing amounting to a full
review of the original order on merits, then such a statute
would be construed as excluding the audi alteram partem rule at
the pre-decisional stage. Conversely if the statute conferring
the power is silent with regard to the giving of a pre-
decisional hearing to the person affected and the administrative
decision taken by the authority involves civil consequences of a
grave nature, and no full review or appeal on merits against
that decision is provided, courts will be extremely reluctant to
construe such a statute as excluding the duty of affording even
a minimal hearing, shorn of all its formal trappings and
dilatory features at the pre-decisional stage, unless, viewed
pragmatically, it would paralyse the administrative process or
frustrate the need for utmost promptitude. In short, this rule
of fair play must not be jettisoned save in very exceptional
circumstances where compulsive necessity so demands. The court
must make every effort to salvage this cardinal rule to the
maximum extent possible, with situational modifications. But,
the core of it must, however, remain, namely, that the person
affected must have reasonable opportunity of being heard and the
hearing must be a genuine hearing and not an empty public
relations exercise.
17. xxxxxxxxxxxxxxx
18,. Xxxxxxxxxxxxxxxxx
19.Thus, it is trite that unless a statutory provision either
specifically or by necessary implication excludes the
application of principles of natural justice, because in that
event the Court would not ignore the legislative mandate, the
requirement of giving reasonable opportunity of being heard
before an order is made, is generally read into the provisions
of a statute, particularly when the order has adverse civil
consequences for the party affected. The principle will hold
good irrespective of whether the power conferred on a statutory
body or tribunal is administrative or quasi-judicial.
20.We may, however, hasten to add that no general rule of
universal application can be laid down as to the applicability
of the principle audi alteram partem, in addition to the
language of the provision. Undoubtedly, there can be exceptions
to the said doctrine. therefore, we refrain from giving an
exhaustive catalogue of the cases where the said principle
should be applied. The question whether the principle has to be
applied or not is to be considered bearing in mind the express
language and the basic scheme of the provision conferring the
power; the nature of the power conferred and the purpose for
which the power is conferred and the final effect of the
exercise of that power. It is only upon a consideration of all
these matters that the question of application of the said
principle can be properly determined. (See: Union of
India v. Col. J.N. Sinha and Ors. (1970)IILLJ284SC )”
21. It is trite that even in the absence of specific provision of
giving hearing, the hearing is required in such cases unless
specifically excluded by a statutory provision. In such a situation
the proviso to sub-section (4) of Section 10 A has to be liberally
construed to encompass the cases of renewal of permission as well.
22. In fact, this case itself provides an excellent example of the
importance of such a hearing and adhering to the principle of natural
justice viz. audi alteram partem. According to the DCI, even after
second inspection some deficiencies were found. On that basis and
without confronting the petitioner and further, it sent its report to
the Central Government recommending denial of permission. However, as
per the petitioner, there were no such deficiencies. It had filed the
additional affidavit dated 2.7.2013 in the High Court in its attempt
to refute the stand of the DCI regarding deficiencies. To demonstrate,
one of the deficiencies pointed out by the DCI was that total number
of surgeries/ major as well as minor, conducted by the petitioner-
college were far less than the benchmark stated in the Regulations to
enable the petitioner to seek renewal of permission. The DCI had
stated that there is requirement of one (1) major Surgery and Eight
(8) Minor Surgeries per week as per Performa. However, the surgeries
performed by the petitioner-college, as per the Performa attached by
the college itself was much less then the aforesaid requirements. The
petitioner-college sought to clarify and explain this position in its
aforesaid affidavit dated 2.7.2013 by pointing out that while
calculating the figure, the DCI had taken into consideration PG
surgeries only and ignored the figure pertaining to UG surgeries
whereas the inspection Performa supplied by the DCI categorically
mentioned “both UG and PG together”. It was sought to demonstrate
that if figures of UG and PG surgeries are taken together, the
petitioner-college had satisfied the stipulated requirements. At this
juncture, we are not commenting as to whether the aforesaid stand of
the petitioner-college is correct or not. We are highlighting the
importance, necessity and justification of granting an opportunity of
being heard by the Central Government as well, before taking final
decision after the report of the DCI is sent to the Central Government
which is against the applicant seeking permission for renewal. In that
event, if the opportunity of being heard is given, the applicant would
get a chance to point out mistakes if any, factual or otherwise, in
the report of the DCI and the Central Government would have version of
the applicant also before it at the time of taking final decision on
the report. In the given case itself on such an opportunity of being
heard given by the Central Government to the petitioner, the
petitioner could have explained its stand before the Central
Government to enable the Central Government to take a view as to
whether it should accept the report of DCI or discard the same finding
the explanation of the petitioner thereto, as satisfactory.
23. The significance of principle of natural justice was highlighted
in the case of Managing Director, ECIL, Hyderabad, Etc. vs. Karunakar,
etc. (1993) 4 SCC 727. Though, it was a case of disciplinary enquiry
against an employee, the rationale given justifying the furnishing of
enquiry report and giving an opportunity to meet, explain and
controvert the same would apply here as well, as would be clear from
the following passage in that judgment.
“The reason why the right to receive the report of the
Inquiry Officer is considered an essential part of the
reasonable opportunity at the first stage and also principle
of natural justice is that the findings recorded by the
Inquiry Officer form an important material before the
disciplinary authority which along with the evidence is taken
into consideration by it to come to its conclusion. It is
difficult to say in advance, to what extent the said findings
including the punishment, if any, recommended in the report
would influence the disciplinary authority while drawing its
conclusions. The findings further might have been recorded
without considering the relevant evidence on record, or by
misconstruing it or unsupported by it. If such a finding is to
be one of the documents to be considered by the disciplinary
authority, the principles of natural justice require that the
employee should have a fair opportunity to meet, explain and
controvert it before he is condemned. It is the negation of
the tenets of justice and a denial of fair opportunity to the
employee to consider the findings recorded by a third party
like the Inquiry Officer without giving the employee an
opportunity to reply to it. Although it is true that the
disciplinary authority is supposed to arrive at its own
findings on the basis of the evidence recorded in the inquiry,
it is also equally true that the disciplinary authority takes
into consideration the findings recorded by the Inquiry
Officer along with the evidence on record. In the
circumstances, the findings of the Inquiry Officer do
constitute an important material before the disciplinary
authority which is likely to influence its conclusions. If the
Inquiry Officer were only to record the evidence and forward
the same to the disciplinary authority, that would not
constitute any additional material before the disciplinary
authority of which the delinquent employee has no knowledge.
However, when the Inquiry Officer goes further and records his
findings, as stated above, which may or may not be based on
the evidence on record or are contrary to the same or in
ignorance of it, such findings are an additional material
unknown to the employee but are taken into consideration by
the disciplinary authority while arriving at its conclusions.
Both the dictates of the reasonable opportunity as well as the
principles of natural justice, therefore, require that before
the disciplinary authority comes to its own conclusion, the
delinquent employee should have an opportunity to reply to the
Inquiry Officer's findings. The disciplinary authority is then
required to consider the evidence, the report of the Inquiry
Officer and the representation of the employee against it.”
24. In fact, judgment of this Court in Priyadarshini Dental College
& Hospital Vs. Union of India (2011) 4 SCC 623 throws some light on
the issue at hand, though this issue did not come up directly for
discussion. That was also a case of renewal of permission. DCI had
sent negative recommendation to refuse permission. On receipt
thereof, though the Central Government constituted a committee for
giving personal hearing and letter in this behalf was also dispatched,
such a hearing was not granted and the renewal permission was
declined. The petitioner in that case approached the Madras High
Court by filing the Writ Petition which was allowed by the High Court
on the ground that mandatory requirement of reasonable opportunity of
being heard contained in the proviso to Section 10A(4) of the Act was
not complied with. The matter was remitted back to the Central
Government to take a decision after giving hearing. Hearing was
accorded by the committee constituted by the Central Government which
recommended the renewal. However, since the last date of 15th July
fixed by this Court had expired, while granting the permission the
appellant Institute was asked to approach this Court for seeking
Court’s approval to get the permission after the expiry of the
stipulated period. It was held that in view of the specific
provisions contained in Dental Council of India (Establishment of New
Dental College, Opening of New or Higher Course of Study or Training
and Increase of Admission Capacity in Dental Colleges) Regulations,
2006 empowering the Central Government to modify the time schedule for
reasons to be recorded in writing, there was no need to direct the
appellant to approach this Court for seeking extension and the Central
Government could have itself extended the time schedule. In the
process, the Bench made certain observations which reflect that even
in the case of renewals proviso to sub-section (4) of Section 10A of
the Act would be applicable. We reproduce herein below those portions
from the judgment:
“The Central Government, sent a general Circular dated 21.6.2010
to all dental colleges in whole cases DCI had recommended that
permission should not be renewed, including the Chairmanship of
the Director General of Health Services will give a personal
hearing to them, as required under the first proviso to Section
10-A(4) of the Act to consider the proposal for renewal of
permission for the BDS course for the academic year 2010-11, on
23.6.2010, 24.6.2010 and 25.6.2010. The said letter was
dispatached on 22.6.2010 and reached the petitioner College on
25.6.2010, making it impossible for the petitioner College
situated at Chennai (Tamil Nadu) to send its
Principal/representative for the personal hearing. In the
circumstances, the petitioner College by letter dated 25.6.2010,
requested for such hearing. However, such hearing was not
granted. By communication dated 15.7.2010, the Central Government
communicated its decision not to grant renewal permission to the
Dental College for the academic year 2010-2011. A consequential
direction was issued to the College not to admit students for the
academic year 2010-2011.
Feeling aggrieved, the petitioner approached the Madras High
Court by filing a writ petition on 19.7.2010 praying that the
order of rejection dated 15.7.2010 be quashed and seeking a
direction to the Central Government to permit the College to
admit fresh students for the BDS course for the academic year
2010-2011 and also seeking a direction to the Central Government
to grant renewal permission to conduct the fourth year of the BDS
course during the academic year 2010-2011. The said writ petition
was allowed by the Madras High Court by order dated 29.7.2010.
The High Court held that dispatch of the Letter dated 21.6.2010
on 22.6.2010 fixing the personal hearing on 23.6.2010, 24.6.2010
and 25.6.2010, did not amount to grant of a hearing at all, if
the letter reached the College on 25.6.2010, after the time fixed
for hearing. It, therefore, held that the mandatory requirement
of reasonable opportunity of being heard, required under the
proviso to Section 10-A(4) of the Act was not complied with. As a
consequence, the High Court remitted the petitioner’s application
for renewal of permission for 2010-2011, for reconsideration by
the Central Government, by giving a due hearing to the
petitioner. The High Court also directed the three-member
Committee constituted by the Central Government to hear the
petitioner on 6.8.2010, consider the documents furnished by it
and pass final orders. It also reserved liberty to DCI, if
necessary, to make further inspection to verify the correctness
of the compliance report submitted by the petitioner College and
send a further report so as to reach the three-member Committee
of the Central Government before 6.8.2010.”
25. We are, therefore, of the considered opinion that the High Court
has not correctly interpreted the provisions of Section 10A of the Act
by holding that the cases of renewal of permission would not be
covered by this Section and therefore it was not necessary for the
Central Government to give opportunity of being heard to the
petitioner before rejecting the renewal permission.
26. We, accordingly, sum up the legal position, touching upon the
issue, on the interpretation of
Section 10A (4) of the Act, as below:
(a) Section 10A applies to the cases of renewal of permission
as well;
(b) It contemplates grant of opportunity of being heard at
two stages. First stage would be at the level of DCI after the
scheme is submitted to DCI under sub-section (2) of Section 10A
of the Act. Once it is found by the DCI that all the parameters
for granting permission are met, it recommends the grant of
approval of the scheme to the Central Government. In case Scheme
it is found to be deficient, sub-section (3) (a) of Section 10A
of the Act casts an obligation on the part of the DCI to give
a reasonable opportunity for making a written representation
and also to rectify the deficiencies, if any, specified by the
DCI. Second stage of adherence to the principles of natural
justice is provided at the level of Central Government at the
time when it has to take final decision, after the receipt of
the recommendation sent by the DCI. This requirement of hearing
is stipulated in proviso to sub-section (4) of Section 10A, in
the event the Central Government is proposing to disapprove the
scheme.
(c) The expression “opportunity of being heard” occurring in
this proviso would mean that the material that goes against the
applicant and is to be taken into consideration, is to be
supplied to the applicant within an opportunity to make
representation. For this purpose either the report of the DCI
itself can be supplied or atleast the deficiencies pointed out
in the report have to be communicated by the Central Government
to the applicant with an opportunity to furnish its comments
thereupon. At that stage while giving its reply, if the
applicant claims personal hearing, such a personal heaing should
also be accorded.
27. As in the present case, since no such opportunity of being heard
the requirement of proviso to sub-section (4) of Section 10A of the
Act was not afforded to the petitioner, the decision dated 30th March
2013 of the Central Government warrants to be set aside on this ground
alone.
28. Notwithstanding the aforesaid discussion clarifying the position
in law on this aspect which goes in favour of the petitioner, other
circumstances appearing in this case desist us from giving the relief
to the petitioner that is claimed by it in so far academic session
2013-2014 is concerned.
The effect of the aforesaid view taken by us
would be to set aside the orders dated 30th March 2013 passed by the
Central Government rejecting the request of renewal. However, from
that it would not automatically follow that direction can be issued to
the Central Government to accord such a permission.
This Court could
only remit the case to the Central Government to pass appropriate
orders after giving hearing to the petitioner.
However, it is too
late for the Central Government to re-examine the issue for the
current academic session.
Fact remains that as per the report of the
DCI, there are deficiencies. Deficiencies are not limited to the
number of minor and major surgeries which are required to be performed
by a College for second renewal. The argument of the petitioner that
while calculating the number of surgeries, both PG and UG surgeries
are to be taken into consideration was countered by Mr. Rakesh Khanna,
learned ASG.
This is, therefore, an aspect which the Central
Government is supposed to examine. However, there are other
deficiencies mentioned by the DCI also in its report.
With respect to
Oral Scheme the DCI found the following deficiencies:-
“(i) Clinical training is not upto the mark.
(ii) Back volumes are not available for last ten years.
(vi) No. of cases operated in GA and LA are inadequate.
As far as Ortho Scheme is concerned, the deficiencies noted in
the report of DCI are as follows:
“(i) University affiliation letter dated 27.3.2013 from Pt.
B.D. Sharma University states that the college does not
comply for the removal of deficiencies.
(ii) There is deficiency of number of journals.
(iii) Irregular supply of journals.
(iv) Back volumes are available only from 2011.
(v) There is deficiency of clinical material.
(vi) Inspectors have pointed out that the clinical material
in the specialty and the OPB are not tallying.”
29. As per DCI report, deficiency in the Laboratory maintained by
the petitioner was also found in respect of the specialties of Oral
scheme.
It is stated by the DCI that the Dental Institutions are
supposed to maintain the Library at two levels.
One is called a
Central Library which is mainly maintained by UG level and
other is
maintained by PG in each and every specialty department.
The DCI
inspected each specialty and report is submitted by the Inspector in
respect of each specialty.
The deficiency has been pointed out in
respect of the specialty of Oral stream that the petitioner does not
have the back volumes of journals for the last 10 years.
Thus, DCI
reported that despite repeated inspections, the deficiencies have been
found.
In respect of Ortho scheme as well similar deficiencies are
pointed out.
Therefore, this Court cannot issue any mandamus
straightaway and the petitioner is required to give its satisfactory
explanation qua the aforesaid deficiencies to the Central Government.
However, the time has run out in so far current year is concerned.
The session in respect of PG streams started on 15th July 2013. The
necessary admissions have already been given to the students in
different colleges.
On remitting the matter, some time will have to
be given to the Central Government as well for taking a fresh
decision.
If that is also taken into account, by the time decision
is taken, the present academic session would have progressed
significantly.
This Court in number of cases highlighted the
importance of the cut off date for starting of courses impressing upon
that such deadline should not be extended.
(See: Priya Gupta vs. State
of Chhattisgarh (2012) 7 SCC 433 and Maa Vaishno Devi Mahila
Mahavidyalaya vs. State of U.P. (2013) 2 SCC 617)
30. For the aforesaid reasons,
we are of the view that in so far as
the academic session 2013-14 is concerned, it is not possible to put
the clock back.
Thus, while setting aside the impugned orders and
remitting the case back to the Central Government for taking fresh
decision, we make it clear that it would not relate to the academic
session 2013-14.
However, the case can be considered for renewal of
permission for the next academic session on the basis of existing
material.
For this, hearing should be given to the petitioner to
demonstrate that they have overcome the deficiencies and they no
longer exist.
If the Central Government is satisfied on these
aspects it may grant renewal permission for the next academic session
2014-15.
In case the renewal of permission is rejected, the
petitioner will have to undergo the process of seeking fresh
permission for next academic session i.e. 2014-15 by submitting fresh
scheme/proposal to the DCI for that year, as per the procedure
prescribed in the Act & Regulations.
31. The Special Leave Petition is disposed of in the above terms. No
costs.
…………………………….J.
(K.S.Radhakrishnan)
……………………………J.
(A.K.Sikri)
New Delhi
27th August , 2013
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETTIION (Civil) No. 25698 OF 2013
Swamy Devi Dayal Hospital & Dental College …Petitioner
Vs.
The Union of India & Ors. …
.Respondents
J U D G M E N T
A.K.SIKRI,J.
1. The petitioner is a Dental College set up in the year 2004 for
imparting education in the B.D.S. course (Bachelor of Dental Science).
The petitioner is recognized and affiliated to Respondent No.4
University, viz. Pt. B.D. Sharma University, Rohtak, Haryana.
2. The petitioner – college was desirous to start the MDS Course
(Master of Dental Surgery). For starting the said course the
petitioner was required to complete the formalities i.e. (i)
Essentiality and No Objection Certificate from the State Government;
(ii) Affiliation from Pt. B.D.Sharma University for Health Sciences,
Rohtak and (iii) Recognition from the Dental Council of India/Union of
India.
3. Respondent No.3 – State of Haryana, vide letter dated 12.1.2010,
granted ‘No Objection Certificate’ to the petitioner for starting MDS
Course. The said ‘No Objection Certificate’ was granted by the State
Government for starting MDS Course in 9 specialties i.e. Oral Surgery,
Orthodontics, Conservative Dentistry, Prosthodontics, Periodontics,
Oral Diagnosis, Oral Pathology, Pedodontics, Periodontics, Oral
Diagnosis, Oral Pathology, Pedodontics & Community Dentistry with 3
seats in each specialty from the session 2010-11.
4. Thereafter, Respondent No.4 – University granted provisional
affiliation to the petitioner-college for 6 out of 9 specialties for
academic session 2011-12. Respondent No.1, i.e. the Central
Government also, on the recommendations of Respondent No.2/ Dental
Council of India (hereinafter referred to ‘DCI’), issued Letter of
Intent to the petitioner for the aforesaid 6 specialties and later on
granted permission to the petitioner-college to start MDS Courses in 6
specialties i.e. (i) Periodontology wih 3 seats (ii) Conservative
Dentistry and Endodontics with 3 seats (iii) Oral Pathology &
Microbiology with 3 seats (iv) Public Health Dentistry with 3 sets (v)
Prosthodontics and Preventive Dentistry with 3 seats (vi) Paedodontics
and Preventive Dentistry with 3 seats for the session 2011-12. The
said permission was extended for the academic session 2012-13 and now
the same has been extended for the academic session 2013-14.
5. In the present case, however, we are not concerned with the
aforesaid six specialties. As pointed out above, though for the
session 2011-12, the petitioner was permitted to start courses and six
specialties out of 9 courses mooted by it, for the academic session
2012-13, Respondent No.4 University granted provisionally affiliation
to the petitioner for two more specialties namely (1) Oral Medicines &
Radiology and (ii) Oral and Maxillofacial Surgery with an intake of 3
seats each. This was followed by affiliation for the 9th specialty
also, viz the Orthodontics and Dentofacial Orthopedics for the
academic session 2012-13. In the instant petition, we are concerned
with the two disciplines namely Oral and Maxillofacial Surgery as well
as Orthodontics and Dentofacial Orthopaedics.
6. As pointed out above, in respect of these two specialties,
Respondent No.4 University had given the affiliation and students were
admitted by the petitioner-College in these disciplines as well for
the academic session 2012-13. However, for the academic session 2013-
14, permission has not been extended for these two specialties
although for Oral Medicine and Radiology the requisite approval has
been accorded. The events that followed for non-grant of permission
in respect of these specialties for the academic session 2013-14 are
recapitulated below, briefly:
7. For granting renewal of permission for the aforesaid 2
specialties i.e. Oral and Maxillofacial Surgery and Orthodontics and
Dentofacial Orthopedics with three seats each for the academic session
2013-14, the DCI conducted the inspection of the petitioner-college on
8.12.2012 and 9.12.2012. The petitioner was not supplied with the
report of the Inspectors but vide letter dated 26.12.2012 and
27.12.2012, the petitioner was informed by the DCI about the
deficiencies in these two specialties. The petitioner, vide letter
dated 19.1.2013 and 25.1.2013 submitted compliance report regarding
the deficiencies in these two specialties.
8. Thereafter DCI conducted the verification inspection on
14.2.2013 and 18.2.2013. On the basis of this inspection, report
dated 18.2.2013 was prepared by the DCI enlisting the deficiencies
which according to DCI remained uncured.
9. The DCI, accordingly, vide its letter dated 28.2.2013,
recommended to the Central Government not to extend the permission in
these two specialties and not to allow the petitioner-college to admit
the students in these two specialties for the academic session 2013-
14. According to the petitioner, though it was not supplied the copy
of the report dated 18.2.2013 but could procure the same and on coming
to know of the aforesaid negative recommendation dated 28.2.2013 of
the DCI impressing upon Respondent No.1 not to accord permission in
these two specialties for the current academic session, the petitioner
made a representation to Respondent No.1 and along with the said
report it also submitted a comparative statement of the deficiencies.
The petitioner also requested for personal hearing. However, without
affording any hearing, a decision was taken by the Central Government
vide letter dated 30th March 2013, addressed to the petitioner,
whereby the permission was declined for renewal of the second year MDS
course in the two specialties mentioned above.
10. Aggrieved by this decision, the petitioner preferred the Writ
Petition in the High Court of Punjab and Haryana questioning the
validity thereof. Apart from contending that the petitioner-college
did not suffer from any deficiencies and the order of the Central
Government declining the permission of renewal was bad in law, the
petitioner also submitted that before taking the impugned decision
Respondent No.1 had not granted personal hearing thereby violating the
mandatory requirement of the provisions of Section 10A (4) of the
Dental Council of India 1948 (hereinafter referred to as the Act).
11. Show cause notice was issued in the said writ and after
completion of the pleadings, the matter was heard by the learned
Single Judge who has, vide the impugned judgment dated 1.8.2013
dismissed the Writ Petition filed by the petitioner finding no merit
in both the contentions raised by the petitioner.
12. The present SLP challenges the said order of the learned Single
Judge.
13. The first and foremost contention of Mr. Patwalia, the learned
senior counsel appearing for the petitioner was that the High Court
had committed a grave error of law in taking a view that no personal
hearing was required to be given by the Central Government before
passing the order refusing to grant the renewal. Submission was that
Section 10A(4) of the Act categorically provides for opportunity of
being heard and in the face of such a provision the decision of the
High Court on this aspect was palpably wrong,
14. Section 10A of the Act reads as under:
“10A Permission for establishment of new dental college, new
courses of study, etc.
(1) Notwithstanding anything contained in this Act or any
other law for the time being in force
(a) no person shall establish an authority or institution
for a course of study or training (including a post-
graduate course of study or training) which would enable a
student of such course or training to qualify himself for
the grant of recognized dental qualification’ or
(b) no authority or institution conducting a course of
study or training (including a post-graduate course of
study or training) for grant of recognized dental
qualification shall
(i) open a new or higher course of study or
training (including a post-graduate course of study
or training) which would enable a student of such
course or training to qualify himself for the award
of any recognized dental qualification; or
(ii) increase its admission capacity in any course
of study or training (including a post-graduate
course of study or training), except with the
previous permission of the Central Government
obtained in accordance with the provisions of this
section.
Explanation 1. – for the purposes of this section, “person”
includes any University or a trust but does not include the
Central Government.
Explanation 2. – For the purposes of this Section, “admission
capacity”, in relation to any course of study or training
(includes a post-graduate course of study or training) in an
authority or institution granting recognized dental
qualification, means the maximum number of students that may be
fixed by the Council from time to time for being admitted to
such course or training.
(2) (a) Every person, authority or institution granting
recognized dental qualification shall, for the purpose of
obtaining permission under sub-section (1), submit to the
Central Government a scheme in accordance with the
provision of clause (b) and the Central Government shall
refer the said scheme to the Council for its
recommendations.
(b) The scheme referred to in clause (a) shall be in such
form and contain such particulars and be preferred in such
manner and be accompanied with such fee as may be
prescribed.
(3) On receipt of a scheme by the Council under sub-section
(2), the Council may obtain such other particulars as may be
considered necessary by it from the person, authority or
institution concerned, granting recognized dental qualification
and thereafter, it may,
(a) if the scheme is defective and does not contain any
necessary particulars, give a reasonable opportunity to the
person, authority or institution concerned for making a
written representation and it shall be open to such person,
authority or institution to rectify the defects, if any,
specified by the Council;
(b) consider the scheme, having regard to the factors
referred to in sub-section (7), and submit the scheme
together with its recommendations thereon to the Central
Government,
(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, authority or
institution 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, authority or
institution concerned granting recognized dental qualification a
reasonable opportunity of being heard.”
15. A bare reading of sub-section (4) makes it abundantly clear that
even the Central Government, before taking a decision on the
recommendation of the DCI is required to give a reasonable opportunity
of being heard in case it proposes to disapprove the scheme submitted
by an educational institution. It was, however, argued before the
High Court that such a hearing is required only when the question of
permission for establishment of new dental college or new course or
studies comes up for consideration and Section 10A does not deal with
the cases of renewal of permission. The High Court has accepted this
contention of the Government. This becomes apparent from the
following discussion contained in the impugned judgment of the High
Court:
“Thus, in my considered opinion, the proviso of section
10(A)(4) of the Act cannot be read in the case of renewal of
permission as it deals with a specific situation. Had it been
the intention of the Legislature to provide an opportunity of
hearing in the case of renewal of permission to be given by the
Government of Indian on the recommendation of the DCI, it would
have been a part of the Act itself but here is a case in which
the petition had admittedly been given an opportunity for
rectification of their errors because after first inspection of
the DCI, the deficiencies noted were communicated to the
petitioner, who allegedly removed the deficiencies and submitted
the compliance report and in order to verify the compliance,
another inspection team was sent, but still
shortcomings/deficiencies were found which cannot be even
condoned as it goes against the regulations.
Hence, in the absence of any statutory provision with
regard to an opportunity of hearing by the Government of India
while with negative recommendations of DCI in the case of
renewal of permission, the impugned order dated 30.3.2013 cannot
be held to be illegal.”
16. With respect to the High Court, we are unable to subscribe to
the aforesaid interpretation given to the provision of Section 10A of
the Act. No doubt, heading of this section suggests that it deals
with “permission for establishment of new dental college, new courses
of study, etc.” However, holistic reading of the provisions of this
section prescribing the scheme containing the procedure for
establishment of new dental college and new courses of study etc.
would clearly demonstrate that this provision applies even to the
cases of renewal of such permission as well.
17. In the present case, as already noticed above, the two courses
in question were the new courses, along with other courses, for which
permission was given by Respondent No.1 for the academic session 2012-
13. It is a common case that the procedure contained in section 10A
for seeking permission, applies to new courses of studies as well.
Section 10A(1)(b) deals with opening of new or higher course of study
or training as well as increasing its admission capacity in any course
of study or training. In both the eventualities prior permission of
Central Government is to be obtained. Explanation 2 clarifies the
meaning of “admission capacity” in relation to any course of study or
training to mean “the maximum number of students that may be fixed by
the Council from time to time for being admitted to such course or
training.”
18. When the permission to start courses in two specialties in
question was granted for the academic session 2012-13 intake of three
students, for seeking renewal for the next academic session 2013-14 it
was to seek fresh permission to have the same admission capacity for
this year as well. We are, therefore, of the opinion that the cases
of renewal cannot be excluded from the provisions of Section 10A of
the Act. It was not disputed before us that when the petitioner-
college applied for renewal of the permission, the application was
processed in accordance with the procedure laid down in section 10A.
As per this procedure, when a request is received in the form of a
requisite scheme, as required in sub-section (2) of Section 10A of the
Act, the same is to be processed in the manner provided under sub-
section (3) thereof. Once it is found by the DCI that all the
parameters for granting permission are met, it recommends the grant of
approval of the scheme to the Central Government. In case Scheme it is
found to be deficient, sub-section (3) (a) of Section 10A of the Act
casts an obligation on the part of the DCI to give a reasonable
opportunity for making a written representation and also to rectify
the deficiencies, any, specified by the DCI. After the recommendation
is sent by the DCI to the Central Government, Central Government is
required to process the same in accordance with the procedure
contained in sub-section (4) of Section 10A. It can either approve or
disapprove the Scheme. However, in case the Central Government is
proposing to disapprove the Scheme, a final decision in this behalf
can be taken only after giving the concerned person, authority or
institution, a reasonable opportunity of being heard. This is the
mandate of the proviso to Section 10A (4) of the Act.
19. Thus, the procedure prescribed in Section 10A contains the
requirement of following this principle of natural justice at two
stages. In the first place, by the DCI when it finds deficiencies
while examining the school in the second stage at the level of the
Central Government before it passes away adverse orders, as it is the
final administrative authority vested with powers to pass such an
order. The law, thus specifically requires that at the stage of a
decision by the Central Government, again an opportunity of being
heard is to be provided. This proviso, thus, acknowledges the need of
and confers a very valuable right in favour of the petitioner.
20. In the present case, the petitioner had been accorded permission
in these two specialties for the previous academic session. Non-
renewal thereof in the present academic session has an adverse affect.
It has visited the petitioner with civil and/ or evil consequences
barring the petitioner to enroll fresh students in this year. We
would like to reproduce the following discussion from the judgment in
the case of Sahara India (Firm), Lucknow vs. Commissioner of Income
Tax, Central-1 and Anr. (2008) 14 SCC 151
“15.Rules of "natural justice" are not embodied rules. The phrase
"natural justice" is also not capable of a precise definition.
The underlying principle of natural justice, evolved under the
common law, is to check arbitrary exercise of power by the State
or its functionaries. therefore, the principle implies a duty to
act fairly, i.e. fair play in action. As observed by this Court
in A.K. Kraipak and Ors. v. Union of India and
Ors.[1970]1SCR457 , the aim of rules of natural justice is to
secure justice or to put it negatively to prevent miscarriage of
justice. These rules can operate only in areas not covered by
any law validly made. They do not supplant the law but
supplement it. (Also see: Income Tax Officer and Ors.v. Madnani
Engineering Works Ltd., Calcutta [1979]118ITR1(SC) )
16.In Swadeshi Cotton Mills v. Union of India [1981]2SCR533
R.S. Sarkaria, J., speaking for the majority in a three-Judge
Bench, lucidly explained the meaning and scope of the concept of
"natural justice". Referring to several decisions, his Lordship
observed thus (SCC p.666):
Rules of natural justice are not embodied rules. Being means to
an end and not an end in themselves, it is not possible to make
an exhaustive catalogue of such rules. But there are two
fundamental maxims of natural justice viz. (i) audi alteram
partem and (ii) nemo judex in re sua. The audi alteram partem
rule has many facets, two of them being (a) notice of the case
to be met; and (b) opportunity to explain. This rule cannot be
sacrificed at the altar of administrative convenience or
celerity. The general principle - as distinguished from an
absolute rule of uniform application - seems to be that where a
statute does not, in terms, exclude this rule of prior hearing
but contemplates a post- decisional hearing amounting to a full
review of the original order on merits, then such a statute
would be construed as excluding the audi alteram partem rule at
the pre-decisional stage. Conversely if the statute conferring
the power is silent with regard to the giving of a pre-
decisional hearing to the person affected and the administrative
decision taken by the authority involves civil consequences of a
grave nature, and no full review or appeal on merits against
that decision is provided, courts will be extremely reluctant to
construe such a statute as excluding the duty of affording even
a minimal hearing, shorn of all its formal trappings and
dilatory features at the pre-decisional stage, unless, viewed
pragmatically, it would paralyse the administrative process or
frustrate the need for utmost promptitude. In short, this rule
of fair play must not be jettisoned save in very exceptional
circumstances where compulsive necessity so demands. The court
must make every effort to salvage this cardinal rule to the
maximum extent possible, with situational modifications. But,
the core of it must, however, remain, namely, that the person
affected must have reasonable opportunity of being heard and the
hearing must be a genuine hearing and not an empty public
relations exercise.
17. xxxxxxxxxxxxxxx
18,. Xxxxxxxxxxxxxxxxx
19.Thus, it is trite that unless a statutory provision either
specifically or by necessary implication excludes the
application of principles of natural justice, because in that
event the Court would not ignore the legislative mandate, the
requirement of giving reasonable opportunity of being heard
before an order is made, is generally read into the provisions
of a statute, particularly when the order has adverse civil
consequences for the party affected. The principle will hold
good irrespective of whether the power conferred on a statutory
body or tribunal is administrative or quasi-judicial.
20.We may, however, hasten to add that no general rule of
universal application can be laid down as to the applicability
of the principle audi alteram partem, in addition to the
language of the provision. Undoubtedly, there can be exceptions
to the said doctrine. therefore, we refrain from giving an
exhaustive catalogue of the cases where the said principle
should be applied. The question whether the principle has to be
applied or not is to be considered bearing in mind the express
language and the basic scheme of the provision conferring the
power; the nature of the power conferred and the purpose for
which the power is conferred and the final effect of the
exercise of that power. It is only upon a consideration of all
these matters that the question of application of the said
principle can be properly determined. (See: Union of
India v. Col. J.N. Sinha and Ors. (1970)IILLJ284SC )”
21. It is trite that even in the absence of specific provision of
giving hearing, the hearing is required in such cases unless
specifically excluded by a statutory provision. In such a situation
the proviso to sub-section (4) of Section 10 A has to be liberally
construed to encompass the cases of renewal of permission as well.
22. In fact, this case itself provides an excellent example of the
importance of such a hearing and adhering to the principle of natural
justice viz. audi alteram partem. According to the DCI, even after
second inspection some deficiencies were found. On that basis and
without confronting the petitioner and further, it sent its report to
the Central Government recommending denial of permission. However, as
per the petitioner, there were no such deficiencies. It had filed the
additional affidavit dated 2.7.2013 in the High Court in its attempt
to refute the stand of the DCI regarding deficiencies. To demonstrate,
one of the deficiencies pointed out by the DCI was that total number
of surgeries/ major as well as minor, conducted by the petitioner-
college were far less than the benchmark stated in the Regulations to
enable the petitioner to seek renewal of permission. The DCI had
stated that there is requirement of one (1) major Surgery and Eight
(8) Minor Surgeries per week as per Performa. However, the surgeries
performed by the petitioner-college, as per the Performa attached by
the college itself was much less then the aforesaid requirements. The
petitioner-college sought to clarify and explain this position in its
aforesaid affidavit dated 2.7.2013 by pointing out that while
calculating the figure, the DCI had taken into consideration PG
surgeries only and ignored the figure pertaining to UG surgeries
whereas the inspection Performa supplied by the DCI categorically
mentioned “both UG and PG together”. It was sought to demonstrate
that if figures of UG and PG surgeries are taken together, the
petitioner-college had satisfied the stipulated requirements. At this
juncture, we are not commenting as to whether the aforesaid stand of
the petitioner-college is correct or not. We are highlighting the
importance, necessity and justification of granting an opportunity of
being heard by the Central Government as well, before taking final
decision after the report of the DCI is sent to the Central Government
which is against the applicant seeking permission for renewal. In that
event, if the opportunity of being heard is given, the applicant would
get a chance to point out mistakes if any, factual or otherwise, in
the report of the DCI and the Central Government would have version of
the applicant also before it at the time of taking final decision on
the report. In the given case itself on such an opportunity of being
heard given by the Central Government to the petitioner, the
petitioner could have explained its stand before the Central
Government to enable the Central Government to take a view as to
whether it should accept the report of DCI or discard the same finding
the explanation of the petitioner thereto, as satisfactory.
23. The significance of principle of natural justice was highlighted
in the case of Managing Director, ECIL, Hyderabad, Etc. vs. Karunakar,
etc. (1993) 4 SCC 727. Though, it was a case of disciplinary enquiry
against an employee, the rationale given justifying the furnishing of
enquiry report and giving an opportunity to meet, explain and
controvert the same would apply here as well, as would be clear from
the following passage in that judgment.
“The reason why the right to receive the report of the
Inquiry Officer is considered an essential part of the
reasonable opportunity at the first stage and also principle
of natural justice is that the findings recorded by the
Inquiry Officer form an important material before the
disciplinary authority which along with the evidence is taken
into consideration by it to come to its conclusion. It is
difficult to say in advance, to what extent the said findings
including the punishment, if any, recommended in the report
would influence the disciplinary authority while drawing its
conclusions. The findings further might have been recorded
without considering the relevant evidence on record, or by
misconstruing it or unsupported by it. If such a finding is to
be one of the documents to be considered by the disciplinary
authority, the principles of natural justice require that the
employee should have a fair opportunity to meet, explain and
controvert it before he is condemned. It is the negation of
the tenets of justice and a denial of fair opportunity to the
employee to consider the findings recorded by a third party
like the Inquiry Officer without giving the employee an
opportunity to reply to it. Although it is true that the
disciplinary authority is supposed to arrive at its own
findings on the basis of the evidence recorded in the inquiry,
it is also equally true that the disciplinary authority takes
into consideration the findings recorded by the Inquiry
Officer along with the evidence on record. In the
circumstances, the findings of the Inquiry Officer do
constitute an important material before the disciplinary
authority which is likely to influence its conclusions. If the
Inquiry Officer were only to record the evidence and forward
the same to the disciplinary authority, that would not
constitute any additional material before the disciplinary
authority of which the delinquent employee has no knowledge.
However, when the Inquiry Officer goes further and records his
findings, as stated above, which may or may not be based on
the evidence on record or are contrary to the same or in
ignorance of it, such findings are an additional material
unknown to the employee but are taken into consideration by
the disciplinary authority while arriving at its conclusions.
Both the dictates of the reasonable opportunity as well as the
principles of natural justice, therefore, require that before
the disciplinary authority comes to its own conclusion, the
delinquent employee should have an opportunity to reply to the
Inquiry Officer's findings. The disciplinary authority is then
required to consider the evidence, the report of the Inquiry
Officer and the representation of the employee against it.”
24. In fact, judgment of this Court in Priyadarshini Dental College
& Hospital Vs. Union of India (2011) 4 SCC 623 throws some light on
the issue at hand, though this issue did not come up directly for
discussion. That was also a case of renewal of permission. DCI had
sent negative recommendation to refuse permission. On receipt
thereof, though the Central Government constituted a committee for
giving personal hearing and letter in this behalf was also dispatched,
such a hearing was not granted and the renewal permission was
declined. The petitioner in that case approached the Madras High
Court by filing the Writ Petition which was allowed by the High Court
on the ground that mandatory requirement of reasonable opportunity of
being heard contained in the proviso to Section 10A(4) of the Act was
not complied with. The matter was remitted back to the Central
Government to take a decision after giving hearing. Hearing was
accorded by the committee constituted by the Central Government which
recommended the renewal. However, since the last date of 15th July
fixed by this Court had expired, while granting the permission the
appellant Institute was asked to approach this Court for seeking
Court’s approval to get the permission after the expiry of the
stipulated period. It was held that in view of the specific
provisions contained in Dental Council of India (Establishment of New
Dental College, Opening of New or Higher Course of Study or Training
and Increase of Admission Capacity in Dental Colleges) Regulations,
2006 empowering the Central Government to modify the time schedule for
reasons to be recorded in writing, there was no need to direct the
appellant to approach this Court for seeking extension and the Central
Government could have itself extended the time schedule. In the
process, the Bench made certain observations which reflect that even
in the case of renewals proviso to sub-section (4) of Section 10A of
the Act would be applicable. We reproduce herein below those portions
from the judgment:
“The Central Government, sent a general Circular dated 21.6.2010
to all dental colleges in whole cases DCI had recommended that
permission should not be renewed, including the Chairmanship of
the Director General of Health Services will give a personal
hearing to them, as required under the first proviso to Section
10-A(4) of the Act to consider the proposal for renewal of
permission for the BDS course for the academic year 2010-11, on
23.6.2010, 24.6.2010 and 25.6.2010. The said letter was
dispatached on 22.6.2010 and reached the petitioner College on
25.6.2010, making it impossible for the petitioner College
situated at Chennai (Tamil Nadu) to send its
Principal/representative for the personal hearing. In the
circumstances, the petitioner College by letter dated 25.6.2010,
requested for such hearing. However, such hearing was not
granted. By communication dated 15.7.2010, the Central Government
communicated its decision not to grant renewal permission to the
Dental College for the academic year 2010-2011. A consequential
direction was issued to the College not to admit students for the
academic year 2010-2011.
Feeling aggrieved, the petitioner approached the Madras High
Court by filing a writ petition on 19.7.2010 praying that the
order of rejection dated 15.7.2010 be quashed and seeking a
direction to the Central Government to permit the College to
admit fresh students for the BDS course for the academic year
2010-2011 and also seeking a direction to the Central Government
to grant renewal permission to conduct the fourth year of the BDS
course during the academic year 2010-2011. The said writ petition
was allowed by the Madras High Court by order dated 29.7.2010.
The High Court held that dispatch of the Letter dated 21.6.2010
on 22.6.2010 fixing the personal hearing on 23.6.2010, 24.6.2010
and 25.6.2010, did not amount to grant of a hearing at all, if
the letter reached the College on 25.6.2010, after the time fixed
for hearing. It, therefore, held that the mandatory requirement
of reasonable opportunity of being heard, required under the
proviso to Section 10-A(4) of the Act was not complied with. As a
consequence, the High Court remitted the petitioner’s application
for renewal of permission for 2010-2011, for reconsideration by
the Central Government, by giving a due hearing to the
petitioner. The High Court also directed the three-member
Committee constituted by the Central Government to hear the
petitioner on 6.8.2010, consider the documents furnished by it
and pass final orders. It also reserved liberty to DCI, if
necessary, to make further inspection to verify the correctness
of the compliance report submitted by the petitioner College and
send a further report so as to reach the three-member Committee
of the Central Government before 6.8.2010.”
25. We are, therefore, of the considered opinion that the High Court
has not correctly interpreted the provisions of Section 10A of the Act
by holding that the cases of renewal of permission would not be
covered by this Section and therefore it was not necessary for the
Central Government to give opportunity of being heard to the
petitioner before rejecting the renewal permission.
26. We, accordingly, sum up the legal position, touching upon the
issue, on the interpretation of
Section 10A (4) of the Act, as below:
(a) Section 10A applies to the cases of renewal of permission
as well;
(b) It contemplates grant of opportunity of being heard at
two stages. First stage would be at the level of DCI after the
scheme is submitted to DCI under sub-section (2) of Section 10A
of the Act. Once it is found by the DCI that all the parameters
for granting permission are met, it recommends the grant of
approval of the scheme to the Central Government. In case Scheme
it is found to be deficient, sub-section (3) (a) of Section 10A
of the Act casts an obligation on the part of the DCI to give
a reasonable opportunity for making a written representation
and also to rectify the deficiencies, if any, specified by the
DCI. Second stage of adherence to the principles of natural
justice is provided at the level of Central Government at the
time when it has to take final decision, after the receipt of
the recommendation sent by the DCI. This requirement of hearing
is stipulated in proviso to sub-section (4) of Section 10A, in
the event the Central Government is proposing to disapprove the
scheme.
(c) The expression “opportunity of being heard” occurring in
this proviso would mean that the material that goes against the
applicant and is to be taken into consideration, is to be
supplied to the applicant within an opportunity to make
representation. For this purpose either the report of the DCI
itself can be supplied or atleast the deficiencies pointed out
in the report have to be communicated by the Central Government
to the applicant with an opportunity to furnish its comments
thereupon. At that stage while giving its reply, if the
applicant claims personal hearing, such a personal heaing should
also be accorded.
27. As in the present case, since no such opportunity of being heard
the requirement of proviso to sub-section (4) of Section 10A of the
Act was not afforded to the petitioner, the decision dated 30th March
2013 of the Central Government warrants to be set aside on this ground
alone.
28. Notwithstanding the aforesaid discussion clarifying the position
in law on this aspect which goes in favour of the petitioner, other
circumstances appearing in this case desist us from giving the relief
to the petitioner that is claimed by it in so far academic session
2013-2014 is concerned.
The effect of the aforesaid view taken by us
would be to set aside the orders dated 30th March 2013 passed by the
Central Government rejecting the request of renewal. However, from
that it would not automatically follow that direction can be issued to
the Central Government to accord such a permission.
This Court could
only remit the case to the Central Government to pass appropriate
orders after giving hearing to the petitioner.
However, it is too
late for the Central Government to re-examine the issue for the
current academic session.
Fact remains that as per the report of the
DCI, there are deficiencies. Deficiencies are not limited to the
number of minor and major surgeries which are required to be performed
by a College for second renewal. The argument of the petitioner that
while calculating the number of surgeries, both PG and UG surgeries
are to be taken into consideration was countered by Mr. Rakesh Khanna,
learned ASG.
This is, therefore, an aspect which the Central
Government is supposed to examine. However, there are other
deficiencies mentioned by the DCI also in its report.
With respect to
Oral Scheme the DCI found the following deficiencies:-
“(i) Clinical training is not upto the mark.
(ii) Back volumes are not available for last ten years.
(vi) No. of cases operated in GA and LA are inadequate.
As far as Ortho Scheme is concerned, the deficiencies noted in
the report of DCI are as follows:
“(i) University affiliation letter dated 27.3.2013 from Pt.
B.D. Sharma University states that the college does not
comply for the removal of deficiencies.
(ii) There is deficiency of number of journals.
(iii) Irregular supply of journals.
(iv) Back volumes are available only from 2011.
(v) There is deficiency of clinical material.
(vi) Inspectors have pointed out that the clinical material
in the specialty and the OPB are not tallying.”
29. As per DCI report, deficiency in the Laboratory maintained by
the petitioner was also found in respect of the specialties of Oral
scheme.
It is stated by the DCI that the Dental Institutions are
supposed to maintain the Library at two levels.
One is called a
Central Library which is mainly maintained by UG level and
other is
maintained by PG in each and every specialty department.
The DCI
inspected each specialty and report is submitted by the Inspector in
respect of each specialty.
The deficiency has been pointed out in
respect of the specialty of Oral stream that the petitioner does not
have the back volumes of journals for the last 10 years.
Thus, DCI
reported that despite repeated inspections, the deficiencies have been
found.
In respect of Ortho scheme as well similar deficiencies are
pointed out.
Therefore, this Court cannot issue any mandamus
straightaway and the petitioner is required to give its satisfactory
explanation qua the aforesaid deficiencies to the Central Government.
However, the time has run out in so far current year is concerned.
The session in respect of PG streams started on 15th July 2013. The
necessary admissions have already been given to the students in
different colleges.
On remitting the matter, some time will have to
be given to the Central Government as well for taking a fresh
decision.
If that is also taken into account, by the time decision
is taken, the present academic session would have progressed
significantly.
This Court in number of cases highlighted the
importance of the cut off date for starting of courses impressing upon
that such deadline should not be extended.
(See: Priya Gupta vs. State
of Chhattisgarh (2012) 7 SCC 433 and Maa Vaishno Devi Mahila
Mahavidyalaya vs. State of U.P. (2013) 2 SCC 617)
30. For the aforesaid reasons,
we are of the view that in so far as
the academic session 2013-14 is concerned, it is not possible to put
the clock back.
Thus, while setting aside the impugned orders and
remitting the case back to the Central Government for taking fresh
decision, we make it clear that it would not relate to the academic
session 2013-14.
However, the case can be considered for renewal of
permission for the next academic session on the basis of existing
material.
For this, hearing should be given to the petitioner to
demonstrate that they have overcome the deficiencies and they no
longer exist.
If the Central Government is satisfied on these
aspects it may grant renewal permission for the next academic session
2014-15.
In case the renewal of permission is rejected, the
petitioner will have to undergo the process of seeking fresh
permission for next academic session i.e. 2014-15 by submitting fresh
scheme/proposal to the DCI for that year, as per the procedure
prescribed in the Act & Regulations.
31. The Special Leave Petition is disposed of in the above terms. No
costs.
…………………………….J.
(K.S.Radhakrishnan)
……………………………J.
(A.K.Sikri)
New Delhi
27th August , 2013
