REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITIOIN (CIVIL) NO. 747 OF 2017
Royal Medical Trust and Another …Petitioner(s)
Versus
Union of India and Another …Respondent(s)
JUDGMENT
Dipak Misra, CJI.
In this writ petition, the petitioner-Trust and the
college have prayed for issue of a writ of certiorari for
quashing the order dated 31.05.2017 passed by the
respondent No.1 whereunder the petitioners have been
debarred from admitting 150 students in the MBBS course
in the academic years 2017-18 and 2018-19 and further to
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2017.09.12
14:05:34 IST
Reason:
restrain the respondent No.2, Medical Council of India
(MCI), to encash the bank guarantee of Rs. 2 crores
2
furnished by the petitioner-institution. That apart, the
prayer is to quash the order dated 14.08.2017 passed by
the respondent No.1 for reiterating the said order. The relief
has been sought for issue of writ of mandamus,
commanding the respondent No.1 to grant renewal for the
academic year 2017-18 keeping in view the
recommendations dated 14th May, 2017, submitted by the
Oversight Committee constituted in terms of the order of
this Court and to direct the respondents to permit the
institution to admit 150 students in MBBS Course for the
academic year 2017-18.
2. At the very inception, it is necessary to state that
though many a document has been filed and prolonged,
anxious, forceful and sometimes vehement arguments have
been canvassed, yet the controversy, as we perceive, lies in
a narrow compass. And to appreciate the same, we are
required to set out the chronology of litigation. Its life is not
long.
3. The petitioner No.1, a Trust, established under the
Indian Trust Act, 1882 decided to establish a new Medical
3
College by the name of Kerala Medical College at Palakkad,
Kerala. It submitted an application under Section 10-A of
the Indian Medical Council Act, 1956 (for brevity, “the Act”)
to the respondent No.1 to establish the Medical College in
the name and style of Kerala Medical College and Hospital
seeking admission of 150 students in the MBBS Course for
the academic year 2014-15. As certain deficiencies were
pointed out by the MCI, it was not granted Letter of
Permission (LOP) for the year 2014-15. Thereafter, in 2015,
an application was filed for grant of LOP for the academic
session 2016-17. A team of assessors of the respondent No.
2 conducted assessment of the college in regard to grant of
LOP for the academic year 2016-17 and submitted its
report. The respondent No.2, on the basis of the reports of
the assessors dated 16.12.2015 and 17.12.2015 in its
Executive Committee meeting dated 28.12.2015 made
recommendation to the respondent No.1 not to grant LOP
for the academic year 2016-17. On 18.01.2016, the
respondent No.1 afforded an opportunity of hearing to the
petitioner as contemplated under Section 10A(4) of the Act
and the petitioner gave its explanation as regards the
4
deficiencies pointed out by the respondent No.2 and the
respondent No.1 being satisfied referred back the matter to
the respondent No. 2 for review.
4. As the factual narration would evince, on 10th
February, 2016, a team of assessors of the respondent No. 2
conducted verification assessment for grant of LOP for the
academic year 2016-17. In the mean time, the Constitution
Bench in Modern Dental College and Research Center
and others v. State of Madhya Pradesh and others 1
constituted the Oversight Committee headed by Justice
R.M. Lodha former CJI to oversee the functioning of the
MCI. We shall refer the relevant paragraphs of the said
judgment at a later stage. On 13th May, 2016, the report of
the assessors team was considered by the Executive
Committee of the respondent No.2 in its meeting dated
13.05.2016 and on 14.5.2016 the MCI recommended the
disapproval of the scheme of the petitioner under Section
10-A of the Act for the academic year 2016-17. However,
after Oversight Committee was constituted, the Central
Government issued a public notice informing all the Medical
1 (2016) 7 SCC 353
5
Colleges to submit a compliance report concerning their
respective colleges who had applied for LOP for 2016-17. As
the facts would unfold, the 1st respondent sent the
compliance report along with the reply of the MCI to the
Oversight Committee for consideration which on 11.08.2016
approved the same for the year 2016-17 imposing certain
conditions.
5. At this juncture, it is necessary to state in what
circumstances the Oversight Committee was constituted by
the Constitution Bench. It referred to the functioning of
MCI and keeping in view certain other factors including a
report of the Expert Committee directed the Central
Government to consider and to take further appropriate
action in the matter at the earliest. At the same time,
however, in exercise of power under Article 142, the Court
constituted the Oversight Committee to oversee the
functioning of the MCI and all other matters. In this regard
the Court said:-
“In view of the above, while we do not find any
error in the view taken by the High Court and
dismiss these appeals, we direct the constitution
6of an Oversight Committee consisting of the
following members:
1. Justice R.M. Lodha (former Chief
Justice of India)
2. Prof. (Dr) Shiv Sareen (Director, Institute
of Liver and Biliary Sciences)
3. Shri Vinod Rai (former Comptroller and
Auditor General of India)A notification with respect to constitution of the
said Committee be issued within two weeks from
today. The Committee be given all facilities to
function. The remuneration of the Members of
the Committee may be fixed in consultation with
them.
The said Committee will have the authority to
oversee all statutory functions under the MCI
Act. All policy decisions of MCI will require
approval of the Oversight Committee. The
Committee will be free to issue appropriate
remedial directions. The Committee will function
till the Central Government puts in place any
other appropriate mechanism after due
consideration of the Expert Committee Report.
Initially the Committee will function for a period
of one year, unless suitable mechanism is
brought in place earlier which will substitute the
said Committee. We do hope that within the said
period the Central Government will come out
with an appropriate mechanism.”
6. As mentioned earlier, the Government constituted the
Oversight Committee and thereafter the assessment report
7
and the views of the Executive Committee were sent to the
Oversight Committee.
7. The Oversight Committee, after some analysis, took
the applications for consideration pertaining to
establishment of Medical Colleges for the academic year
2016-2017, forwarded by Ministry of Health and Family
Welfare (MHFW) on 22nd July, 2016. Dealing with the
present college, the Oversight Committee directed as
follows:-
“Kerala Medical College, Palakkad, Kerala, MBBS
(150 seats), LOP for 2016-2-17 u/s 10A.
The Institution had stated that all deficiencies
(faculty/resident/clinical material and
infrastructure) pointed out by MCI have been
made up by them. The OC peruse the statement
in the compliance report submitted by the
college. These statements satisfy the criteria
stated in para 3.1 above. Accordingly, the
application is approved subject to conditions laid
down in aforementioned para 3.2.”
8. Para 3.2 of the said order read as follows:-
“3.2 The applicants for new private colleges for
UG for 2016-17 whose applications, have been
approved by OC, shall submit to MHFW, within
15 days of issue of notification of approval by
MHFW u/s 10A(4) of IMC Act, 1956, the
following:
8
(i) An affidavit from the Dean/Principal and
Chairman of the Trust 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 alongwith the
application.
3.2(a) OC may direct inspection to verify the
compliance submitted by the college and
considered by OC, anytime after 30 September
2016.
(b) In default of the conditions (i) and (ii) para 3.2
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.”
9. In compliance of the conditional approval granted by
the Oversight Committee, the assessment was carried out
on 28th and 29th December, 2016, by the team of assessors
and the following defects were pointed out:-
“1. Deficiency of faculty is 13.84% as detailed
in the report.
2. Shortage of Residents is 8.69% as detailed
in the report.
3. No Anti Sera are available in Microbiology
laboratory.
4. Bed Occupancy is 50% at 10 a.m. on day of
assessment as under:
9
# Department Beds
Available Occupied
1 General 72 29
Medicine
2 Paediatrics 24 20
3 TB Chest 08 07
4 Psychiatry 08 06
5 Skin VD 08 07
6 General 90 31
Surgery
7 Orthopaedics 30 25
8 Opthamology 10 02
9 ENT 10 02
10 O.G. 40 21
TOTAL 300 150
5. Casualty: Separate casualty for O.G. is not
available. Crash Cart is not available.
6. O.T.: Preoperative beds are not available.
7. ICUs: There was only 1 patient in ICCU,
SICU on day of assessment.
8. Only 1 out of 2 Static X-ray machines has
AERB approval.
9. Blood Bank: Only 2 units were dispensed
on day of assessment.
10. ETO Sterlizer is not available.
11. OPD: Separate Registration counters for
OPD/IPD are not available.
12. Audiometry (Soundproof Air-conditioned)
is not available. There was no Audiometer.
13. Other deficiencies as pointed out in the
assessment report.”
10. The Executive Committee took into consideration the
report of the assessors and letter dated 29th December,
2016 of the Principal, Kerala Medical College, Palakkad
regarding promotion of Dr. Munir U.A. from Assistant
10
Professor to Associate Professor in the department of
Pediatrics and the clinical material and leave of the faculty
and resident doctors during MCI assessment. Regard being
had to the deficiencies, the MCI recommended to the
Central Government not to grant Letter of Permission.
11. Thereafter, the Union of India passed an order on 31st
May, 2017, debarring the petitioner-College to admit the
students in the MBBS course in the academic years 2017-
2018 and 2018-2019 and also authorized the MCI to
encash the bank guarantee of Rs.2.00 crore. The said order
reads thus:-
“In continuation to this Ministry’s letter dated
20.08.2016 granting conditional permission for
establishment of a medical college 150 seats for
the academic year 2016-2017 on the basis of
approval communicated by Supreme Court
Mandated Oversight Committee on MCI and after
granting an opportunity of hearing to the College
with reference to the recommendation of the
MCI’s letter NO.MCI-36(41)(e-86)/2016-
Med./167376 dated 15.01.2017, I am directed to
convey the decision of the Central Government to
debar Kerala Medical College, Palakkad from
admitting students in next two academic years
i.e. 2017-2018 2018-2019 and also to
authorize MCI to encash the Bank Guarantee of
Rs.2.00 crore.
11
You are therefore, directed not to admit
students in the MBBS course in the academic
years 2017-2018 2018-2019 at your College.
Thereafter, next batch of students shall be
admitted in the College only after obtaining
permission of the Central Government for
renewal.
Admissions made in violation of the above
directives will be treated as irregular and action
will be initiated under IMC Act Regulations
made thereunder.”
12. The petitioner-Trust challenged the order of the
Central Government before the High Court of Kerala at
Ernakulam in Writ Petition (C) No.21195/2017 (Y) and the
High Court placing reliance on the judgment passed by this
Court in Glocal Medical College and Super Specialty
Hospital Research Centre v. Union of India 2 on 1st
August, 21017, passed the following order:-
“In the light of the order passed by the Apex
Court in Writ Petition (Civil) No.411 of 2017 and
connected matters on 01.08.2017, as the medical
colleges involved in these cases are similarly
placed, I deem it appropriate to pass an interim
order directing the Central Government to
consider afresh the materials on record
pertaining to the issue of renewal or otherwise of
the letter of permission granted to the petitioner
colleges/institutions. Ordered accordingly. It is
made clear that while undertaking this exercise,
the Central Government shall re-evaluate the2 (2017) 8 SCALE 356
12recommendations/views of the MCI, Hearing
Committee, Director General of Health Services
and the Oversight Committee, as available on
records. The Central Government shall also
afford an opportunity of hearing to the petitioner
colleges/institutions to the extent necessary.
The process of hearing and the final reasoned
decision thereon, as ordered, shall be completed
peremptorily, within a period of fifteen days from
today.”
13. In pursuance of the aforesaid order, the Central
Government on 14th August, 2017, passed an order
declining Letter Of Permission to the petitioner-institution.
The Central Government noted:-
“Whereas, the MCI vide letter dated 15.1.2017
has informed and recommended to the Ministry
as under:
“In view of the above, the college has failed to
abide by the undertaking it had given to the
Central Govt. that there are no deficiencies as
per clause 3.2(i) of the directions passed by the
Supreme Court mandated Oversight Committee
vide communication dated 11/8/2016. The
Executive Committee, after due deliberation and
discussion, have decided that the college has
failed to comply with the stipulation laid down by
the Oversight Committee. Accordingly, the
Executive Committee recommends that as per
the directions passed by Oversight Committee in
para 3.2(b) vide communication dated
11/08/2016 the college should be debarred from
admitting students in the above course for a
period of two academic years i.e. 2017-18
2018-19 as even after giving an undertaking that
they have fulfilled the entire infrastructure for
establishment of new medical college at Palakkad
13
by Royal Medical TGrust under Kerala University
of Health Sciences, Thrissur the college was
found to be grossly deficient. It has also been
decided by the Executive Committee that the
Bank Guarantee furnished by the college in
pursuance of the directives passed by the
Oversight Committee as well as GOI letter dated
20/08/2016 is liable to be enchashed.
Ministry decided to grant a personal hearing to
the College on 08.02.2017 by the DGHS. The
Hearing Committee after considering the oral and
written submission of the College, submitted its
report to the Ministry. In its report, the Hearing
Committee observed as under:
Sl. No Deficiencies reported by MCI Observations
of hearing
committee
i. Deficiency of faculty is 13.84% as detailed No
in the report. satisfactory
justification
for
deficiencies.
ii. Shortage of Residents is 8.69% as detailed
in the report
iii. No Anti Sera are available in Microbiology
laboratory.
iv. Bed occupancy is 50% at 10 a.m. on day of
assessment as under
# Departure Beds
Available Occupied
1 General 72 29
Medicine
2 Paediatrics 24 20
3 TB Chest 08 07
4 Psychiatry 08 06
5 Skin VD 08 07
6 General 90 31
Surgery
7 Orthopaedics 30 25
8 Ophtalmology 10 02
9 ENT 10 02
10 O.G. 40 21
Total 300 150
14
v. Casualty : Separate Casualty for O.G. is
not available. Crash Cart is not available
vi. O.T. : Preoperative beds are not available
vii. ICUs : There was only 1 patient in ICCU,
SICU on day of assessment.
viii. Only 1 out of 2 Static X-ray machines has
AERB approval.
ix. Blood Bank: Only 2 units were dispensed
on day of assessment.
x. ETO Sterilizer is not available.
xi. OPD : Separate Registration counters for
OPD/IPD are not available.
xii. Audiometry (Soundproof Air-conditioned)
is not available. There was no Audiometer.
Whereas, the Ministry forwarded the Hearing
Committee report to the OC for guidance. The
OC vide its letter dated 14.05.2017 conveyed
their following views to the Ministry:-
(i) Faculty:- Considering the 7 members of
faculty (out of 8) as explained by the College, the
deficiency is 3.03% which is within the
acceptable limits.
(ii) Residents:- Considering the 4 residents as
explained by the College, there is no deficiency.
(iii) No Anti Sera:- The deficiency is subjective
though explained by the College.
(iv) Bed occupancy:- The College has explained
the grounds.
(v) Casualty:- The College has explained the
grounds. This deficiency is subjective. No MSR.
(vi) OT:- The College has explained the grounds.
(vii) ICUs:- The College has explained the
grounds. This deficiency is subjective. No MSR.
(viii) X-Ray machines:- The statement of College
is correct as seen from the attached approvals.
(ix) Blood Bank:- The ColLege has explained
the grounds. This deficiency is subjective. No
MSR.
(x) ETO:- The College has explained the
grounds.
(xi) OPD:- The College has explained the
grounds.
15
(xii) Audiometry:- The College explanation is
acceptable on the basis of photos attached.
LOP confirmed.”
14. After so noting, the Central Government referred to its
earlier order dated 31st May, 2017 and the order dated 2nd
August, 2017, passed by the High Court of Kerala at
Ernakulam and held thus:-
“Now, in compliance with the above direction of
Hon’ble High Court dated 2.8.2017, the Ministry
granted hearing to the college on 8.8.2017. The
Hearing Committee after considering the record
and oral written submission of the college
submitted its report to the Ministry. Findings of
Hearing Committee are as under:
“MCI has pointed out deficiency of 9 faculty
and 4 residents against the requirement.
The shortfall is attributed by the college to
leave opted by staffs during the Christmas –
New Year week. Supporting documents
such as bank statement Form-16 (for
financial year 2015-16) were also submitted
for the doctors on leave. It is observed that
the appointment orders issued by the
college are without any reference number.
Nothing could be conclusively established
about the faculty on leave.
The submission of the college regarding
static x-ray machine, pre-operative beds,
ETO sterilizer, audiometry, etc. may be
accepted. However, the college seems
deficient in bed occupancy.
In view of the Committee, the college is at
LoP stage and the facilities have to be
satisfactorily verified.
16
The Committee agrees with the decision of
the Ministry vide letter dated 31.05.2017 to
debar the college for two years and also
permit MCI to encash bank guarantee.
Accepting the recommendations of Hearing
Committee, the Ministry reiterates it earlier
decision dated 31.5.2017 to debar the
college from admitting students for a period
of 2 years i.e., 2017-18 2018-19 and also
authorize MCI to encash Bank Guarantee of
Rs.2 crores.”
The said order is the subject matter of assail in this
Writ Petition.
15. We have heard Dr. Rajiv Dhawan and Mr. Mukul
Rohatgi, learned senior counsel for the petitioners, Mr. Ajit
Kumar Sinha, learned senior counsel for the Union of India
and Mr. Vikas Singh, learned senior counsel along with Mr.
Gaurav Sharma, learned counsel for the MCI.
16. Learned counsel for the petitioners submit that the
inspection that has been carried out by the MCI is a
composite inspection for 2016-2017 and 2017-2018 and
when the deficiencies are marginal and, in fact, it can be
said there is really no deficiency, there is no justification to
deny the LOP for 2017-2018. It is urged by them that the
explanation offered by the petitioner-institution has really
17
not been taken into consideration and had it been
appositely appreciated, such an assessment could not have
been made by the assessors. They have also highlighted
that certain other institutions having more deficiencies have
been extended the benefit of LOP for 2017-2018, but for no
fathomable or acceptable reason, the institution in question
has been deprived of the said benefit. It is urged with
vehemence that the order passed by the Central
Government is not in consonance with the judgments
rendered by this Court in Glocal Medical College (supra),
IQ City Foundation and Another v. Union of India
Ors3. That apart, it is contended that the inspection by the
MCI was done during the Christmas and New Year, which is
not permissible as per the Regulations and hence, the whole
report deserves to be disregarded. Additionally, it is
propounded that the status of the order passed by the
Central Government still remains an unreasoned one and
by stretch of reasoning, it can be conferred the distinction
of a reasoned order. Dr. Rajiv Dhawan, pyramiding the
aforesaid submissions along with Mr. Mukul Rohatgi,
3 (2017) 8 SCALE 369
18
submits that the Court does not sit in appeal over such
order and, therefore, when the order is absolutely perverse
and arbitrary, it should be overturned in exercise of power
of judicial review and the institution should be granted LOP
for the academic year 2017-2018.
17. Mr. Ajit Kumar Sinha, learned senior counsel
appearing for the Union of India, per contra, would contend
that the Oversight Committee had passed a conditional
order and when the conditions were not fulfilled, the
institution has to face the consequences and in such a
situation it is extremely hollow on the part of the petitioner-
institution to set forth unacceptable criticism pertaining to
the order passed by the Central Government. He would
further submit that the order dated 31st May, 2017, as this
Court has already held, was not an order which reflected
reason, but the order impugned is irrefragably a reasoned
one because there is reference to the history of the
institution, the chronology of events, the report of the
Oversight Committee, the opinion of the Hearing Committee
and eventual expression of an opinion. According to him, if
such an order is not given the stamp of a ‘reasoned order’, it
19
will be granting premium to recalcitrant institutions, which
are bent upon imparting medical education in an
unscrupulous manner. According to Mr. Sinha, concept of
negative equality is not within the ambit of Article 14 of the
Constitution of India and, in any case, this Court has
issued notice to the other institutions and, therefore, the
petitioners cannot claim parity. Additionally, he would put
forth that in most of the matters, this Court has directed for
consideration of the LOP for the year 2018-2019 and the
present fact situation does not exposit a different scenario
and hence, this Court should not make any distinction in
the present case.
18. Mr. Vikas Singh, learned senior counsel appearing for
the MCI refuting the arguments advanced by the learned
senior counsel for the petitioners, contends that ascribing of
reasons by an administrative authority should not be
equated to a judgment of the Court, for what is required is
to see whether the reasons are discernible and whether
there has been application of mind. Mr. Singh would further
contend that the allegation made by the petitioner-
institution that the Executive Committee has not considered
20
the explanation offered by the competent authority of the
college shows an attitude of obstinacy and deviancy.
Learned senior counsel would contend that the in IQ City
Foundation (supra) when this Court remanded the matter
and in Glocal Medical College (supra) when this Court
granted the benefit on proper appreciation, it would be quite
lucent, the role conferred on the MCI of India and the
reason for extending the benefit to an institution for 2017-
2018. That apart, propounds Mr. Singh, that the
educational institutions cannot remain disobedient to the
framework of the Regulations brought into existence under
Section 33 of the Act and assert with stubbornness that
they should be given the LOP. According to him, if such a
situation is allowed to prevail, the Act, the Regulations and
Minimum Standard Requirement (MSR) for the MCI would
be tenuous and ultimately come within the tentacles of
unscrupulous institutions.
19. This Court in IQ City Foundation (supra), after
referring to Dr. Ashish Ranjan and Others v. Union of
21
India and Others4 and Manohar Lal Sharma v. Medical
Council of India and Others5, Medical Council of India
v. Kalinga Institute of Medical Sciences (KIMS) and
Others 6 and Royal Medical Trust (Registered) and
Another v. Union of India and Another7 held thus:-
“On a reading of Section 10-A of the Act, Rules
and the Regulations, as has been referred to in
Manohar Lal Sharma (supra), and the view
expressed in Royal Medical Trust (supra), it
would be inapposite to restrict the power of the
MCI by laying down as an absolute principle that
once the Central Government sends back the
matter to MCI for compliance verification and the
Assessors visit the College they shall only verify
the mentioned items and turn a Nelson’s eye even
if they perceive certain other deficiencies. It
would be playing possum. The direction of the
Central Government for compliance verification
report should not be construed as a limited
remand as is understood within the framework of
Code of Civil Procedure or any other law. The
distinction between the principles of open
remand and limited remand, we are disposed to
think, is not attracted. Be it clearly stated, the
said principle also does not flow from the
authority in Royal Medical Trust (supra). In this
context, the objectivity of the Hearing Committee
and the role of the Central Government assume
great significance. The real compliant institutions
should not always be kept under the sword of
Damocles. Stability can be brought by affirmative
role played by the Central Government. And the4 (2016) 11 SCC 225
5 (2013) 10 SCC 60
6 (2016) 11 SCC 530
7 (2015) 10 SCC 19
22stability and objectivity would be perceptible if
reasons are ascribed while expressing a view and
absence of reasons makes the decision sensitively
susceptible.
Having said this, we are not inclined to close
the matter. The petitioners have been running
the College since 2013-14. We have been
apprised that students who have been continuing
their education shall continue for 2017-18. As we
find the order of the Central Government is not a
reasoned one. It is obligatory on its part to
ascribe reasons. For the said purpose, we would
like the Central Government to afford a further
opportunity of hearing to the petitioners and also
take the assistance of the newly constituted
Oversight Committee as per the order dated July
18, 2017 passed by the Constitution Bench in
Writ Petition (Civil) No. 408 of 2017 titled Amma
Chandravati Educational and Charitable
Trust and others v. Union of India and
another and thereafter take a decision within
two weeks. Needless to say, the decision shall
contain reasons. We repeat at the cost of
repetition that the decision must be an informed
one.”
20. Section 10-A of the Act deals with permission for
establishment of new medical college, new course of study,
etc. Sub-section (7) of Section 10-A reads as follows:-
“(7) The Council, while making its
recommendations under clause (b) of sub-
section (3) and the Central Government, while
passing an order, either approving or
disapproving the scheme under sub-section (4),
shall have due regard to the following factors,
namely—
23
(a) whether the proposed medical college or the
existing medical college seeking to open a new or
higher course of study or training, would be in a
position to offer the minimum standards of
medical education as prescribed by the Council
under Section 19A or, as the case may be, under
Section 20 in the case of postgraduate medical
education.
(b) whether the person seeking to establish a
medical college or the existing medical college
seeking to open a new or higher course of study
or training or to increase its admission capacity
has adequate financial resources;
(c) whether necessary facilities in respect of staff,
equipment, accommodation, training and other
facilities to ensure proper functioning of the
medical college or conducting the new course or
study or training or accommodating the
increased admission capacity, have been
provided or would be provided within the time-
limit specified in the scheme;
(d) whether adequate hospital facilities, having
regard to the number of students likely to attend
such medical college or course of study or
training or as a result of the increased admission
capacity, have been provided or would be
provided within the time-limit specified in the
scheme;
(e) whether any arrangement has been made or
programme drawn to impart proper training to
students likely to attend such medical college or
course of study or training by persons having the
recognised medical qualifications;
(f) the requirement of manpower in the field of
practice of medicine; and
24
(g) any other factors as may be prescribed.”
21. Section 3-B of Indian Medical Council (Amendment)
Act, 2010, which confers the powers on the Board of
Governors, reads as follows:-
“3-B. Certain modifications of the Act.—
During the period when the Council stands
superseded—
* * *
(b) The Board of Governors shall—
(i) exercise the powers and discharge the
functions of the Council under this Act and for
this purpose, the provisions of this Act shall have
effect subject to the modification that references
therein to the Council shall be construed as
references to the Board of Governors;
(ii) grant independently permission for
establishment of new medical colleges or opening
a new or higher course of study or training or
increase in admission capacity in any course of
study or training referred to in Section 10A or
giving the person or college concerned a
reasonable opportunity of being heard as
provided under Section 10A without prior
permission of the Central Government under that
section, including exercise of the power to finally
approve or disapprove the same; and
(iii) dispose of the matters pending with the
Central Government under Section 10A upon
receipt of the same from it.”
22. In Manohar Lal Sharma (supra), Section 3-B was
interpreted thus:-
25
“MCI, with the previous sanction by the Central
Government, in exercise of its powers conferred
by Sections 10-A and 33 of the Indian Medical
Council Act, 1956, made the Regulations known
as the Establishment of Medical College
Regulations, 1999. Regulation 8 of the 1999
Regulations deals with grant of permission for
establishment of new college. Application/
Scheme submitted by the applicants is evaluated
and the verification takes place by conducting
physical inspection by the team of inspectors of
MCI. The Board of Governors may grant LoP to
the applicant for making admissions in the first
year of MBBS course in the medical college and
the permission is renewed every year subject to
the college achieving the yearly target mentioned
in “Minimum Standard Requirements for the
Medical College for 150 Admissions Annually
Regulations, 1999”. Schedule I of the
abovementioned Regulation provides for
accommodation in the medical college and its
teaching hospital. Schedule II deals with
equipment required for various departments in
the college and hospital. The requirements are
statutorily prescribed and, therefore, the Board
of Governors has no power to dilute the statutory
requirements mentioned in the abovementioned
Regulations.”
23. In Royal Medical Trust (supra), the Court after due
advertence to Section 10-A of the Act and the Regulations
framed by the Medical Council of India, has ruled:-
“MCI and the Central Government have been
vested with monitoring powers under Section
10A and the Regulations. It is expected of these
authorities to discharge their functions well
within the statutory confines as well as in
26conformity with the Schedule to the Regulations.
If there is inaction on their part or non-
observance of the time schedule, it is bound to
have adverse effect on all concerned. The affidavit
filed on behalf of the Union of India shows that
though the number of seats had risen, obviously
because of permissions granted for establishment
of new colleges, because of disapproval of
renewal cases the resultant effect was net loss in
terms of number of seats available for the
academic year. It thus not only caused loss of
opportunity to the students community but at
the same time caused loss to the society in terms
of less number of doctors being available. MCI
and the Central Government must therefore
show due diligence right from the day when the
applications are received. The Schedule giving
various stages and time-limits must
accommodate every possible eventuality and at
the same time must comply with the
requirements of observance of natural justice at
various levels. In our view the Schedule must
ideally take care of:
(A) Initial assessment of the application at the
first level should comprise of checking necessary
requirements such as essentiality certificate,
consent for affiliation and physical features like
land and hospital requirement. If an applicant
fails to fulfil these requirements, the application
on the face of it, would be incomplete and be
rejected. Those who fulfil the basic requirements
would be considered at the next stage.
(B) Inspection should then be conducted by the
Inspectors of MCI. By very nature such
inspection must have an element of surprise.
Therefore sufficient time of about three to four
months ought to be given to MCI to cause
inspection at any time and such inspection
should normally be undertaken latest by
27
January. Surprise inspection would ensure that
the required facilities and infrastructure are
always in place and not borrowed or put in
temporarily.
(C) Intimation of the result or outcome of the
inspection would then be communicated. If the
infrastructure and facilities are in order, the
medical college concerned should be given
requisite permission/renewal. However, if there
are any deficiencies or shortcomings, MCI must,
after pointing out the deficiencies, grant to the
college concerned sufficient time to report
compliance.
(D) If compliance is reported and the applicant
states that the deficiencies stand removed, MCI
must cause compliance verification. It is possible
that such compliance could be accepted even
without actual physical verification but that
assessment be left entirely to the discretion of
MCI and the Central Government. In cases where
actual physical verification is required, MCI and
the Central Government must cause such
verification before the deadline.
(E) The result of such verification if positive in
favour of the medical college concerned, the
applicant ought to be given requisite
permission/renewal. But if the deficiencies still
persist or had not been removed, the applicant
will stand disentitled so far as that academic year
is concerned.”
[Emphasis added]
24. On a perusal of the aforesaid, it is clear as crystal that
the surprise inspection is permissible and the college is
required to remain compliant. The thrust of the matter is
28
whether the inspection is justified and the decision taken by
the Central Government is correct or not. To appreciate the
propriety and correctness of the inspection during
Christmas and New Year, it is necessary to refer to clause
8(3)(1)(d) of the Establishment of Medical College
Regulations, 1999. The said clause reads as follows:-
“However, the office of the Council shall ensure
that such inspections are not carried out at least
2 days before and 2 days after important religious
and festival holidays declared by the
Central/State Govt.”
25. In the case at hand, the assessors had gone for
inspection on 28th and 29th December, 2016. In Shri
Venkateshwara University Through its Registrar
Another vs. Union of India and Another8 [Writ Petition
(Civil) No. 445 of 2017] this Court has referred to the
decision in Kanachur Islamic Education Trust (R) vs.
Union of India and Another 9 and after reproducing few
paragraphs has held:-
“On a careful reading of the aforesaid judgment,
we do not think that the clause has been
interpreted as not to allow any inspection on a
8
2017 SCC Online SC 1034
9 (2017) 10 SCALE 321
29Sunday, but the Court have said in the factual
matrix of the said case that the Institution was a
minority institution and a major festival for the
said community was scheduled on 12th
December, 2016 and the day previous thereto i.e.
11th December, 2016, was a Sunday and the said
facts are not wholly irrelevant. The said analysis
cannot be regarded as the construction of the
clause.
Having said that, we shall proceed to
analyze what the clause precisely conveys. On a
careful reading of the same, it is quite clear and
unambiguous that the obligation of the MCI is to
ensure that inspections are not to be carried out
at least 2 days before and 2 days after an
important religious and festival holidays declared
by the Central/State Government. In the clause,
the words which gain significance are “important
religious and festival holidays”. On 12th
December, 2016, it was Milad-un-Nabi and it is
the day of festival. The inspection was done on
9th December, 2016, which was a Friday. The
amended clause of the notification state only
covers 2 days before the festival declared as a
holiday by the Central/State Government and 2
days thereafter. In the case at hand, the
inspection team had gone for inspection on 9th
December, 2016, and they were deprived to carry
out the inspection. It was not covered by the
concept of two days of moratorium.”
26. At this juncture, it is pertinent to understand and
appreciate the ratio of Kanachur Islamic Education Trust
(R) (supra) because it is being highlighted in certain cases
that there is no acceptability or permissibility to have a
30
second inspection in quite succession. The paragraph that
has been highlighted from Kanachur Islamic Education
Trust (R) (supra) reads thus:-
“That against the inspections conducted by the
MCI, the petitioner’s college/institution had
submitted representations on 15.12.2016 and
16.1.2017 before the Central Government is a
matter of record. That the report qua the
inspection conducted on 17-18.11.2016 did not
disclose any substantial deficiency warranting
disapproval as observed by the Hearing
Committee is also not in dispute. It is
unambiguously clear that the inspection of the
petitioner’s college undertaken on 17-18.11.2016
did not divulge any substantial deficiency
justifying disapproval of the LOP to it. The
reason for the surprise inspection on 9-
10.12.2016, i.e. within three weeks of the first
exercise and that too in absence of any
noticeable substantial deficiency, is convincingly
not forthcoming.”
27. On a careful reading of the said paragraph, it is limpid
that is not the ratio of the decision that there cannot be a
surprise inspection and every time reasons have to be
recorded. Be it noted, the Court has also clarified the
position at the end of the verdict stating thus:-
31
“We make it clear that the decision rendered and
the directions issued are in the singular facts
and circumstances of the case.”
28. It is well settled in law that the ratio of a decision has
to be understood regard being had to its context and factual
exposition. The ratiocination in an authority is basically
founded on the interpretation of the statutory provision. If
it is based on a particular fact or the decision of the Court
is guided by specific nature of the case, it will not amount
to the ratio of the judgment. Lord Halsbury in Quinn v.
Leathem10 has ruled:-
“… every judgment must be read as applicable to
the particular facts proved, or assumed to be
proved, since the generality of the expressions
which may be found there are not intended to be
expositions of the whole law, but are governed
and qualified by the particular facts of the case in
which such expressions are to be found.”
29. A three-Judge Bench in Union of India and others v.
Dhanwanti Devi and others 11 , while adverting to the
concept of precedent under Article 141 of the Constitution,
has opined thus:-
“Before adverting to and considering whether
solatium and interest would be payable under the
101901 AC 495 : (1900-03) ALL ER Rep 1 (HL)
11 (1996) 6 SCC 44
32
Act, at the outset, we will dispose of the objection
raised by Shri Vaidyanathan that Hari Krishan
Khosla case12 is not a binding precedent nor does
it operate as ratio decidendi to be followed as a
precedent and is per se per incuriam. It is not
everything said by a Judge while giving judgment
that constitutes a precedent. The only thing in a
Judge’s decision binding a party is the principle
upon which the case is decided and for this
reason it is important to analyse a decision and
isolate from it the ratio decidendi. According to
the well-settled theory of precedents, every
decision contains three basic postulates—(i)
findings of material facts, direct and inferential.
An inferential finding of facts is the inference
which the Judge draws from the direct, or
perceptible facts; (ii) statements of the principles
of law applicable to the legal problems disclosed
by the facts; and (iii) judgment based on the
combined effect of the above. A decision is only
an authority for what it actually decides. What is
of the essence in a decision is its ratio and not
every observation found therein nor what
logically follows from the various observations
made in the judgment. Every judgment must be
read as applicable to the particular facts proved,
or assumed to be proved, since the generality of
the expressions which may be found there is not
intended to be exposition of the whole law, but
governed and qualified by the particular facts of
the case in which such expressions are to be
found. It would, therefore, be not profitable to
extract a sentence here and there from the
judgment and to build upon it because the
essence of the decision is its ratio and not every
observation found therein. The enunciation of the
reason or principle on which a question before a
court has been decided is alone binding as a
precedent. The concrete decision alone is binding
between the parties to it, but it is the abstract
12 (1993) Supp (2) 149
33
ratio decidendi, ascertained on a consideration of
the judgment in relation to the subject-matter of
the decision, which alone has the force of law and
which, when it is clear what it was, is binding. It
is only the principle laid down in the judgment
that is binding law under Article 141 of the
Constitution. A deliberate judicial decision
arrived at after hearing an argument on a
question which arises in the case or is put in
issue may constitute a precedent, no matter for
what reason, and the precedent by long
recognition may mature into rule of stare decisis.
It is the rule deductible from the application of
law to the facts and circumstances of the case
which constitutes its ratio decidendi.
Therefore, in order to understand and
appreciate the binding force of a decision it is
always necessary to see what were the facts in
the case in which the decision was given and
what was the point which had to be decided. No
judgment can be read as if it is a statute. A word
or a clause or a sentence in the judgment cannot
be regarded as a full exposition of law. Law
cannot afford to be static and therefore, Judges
are to employ an intelligent technique in the use
of precedents.”
30. In Bussa Overseas and Properties Private Limited
and Another vs. Union of India and Another 13 , while
dealing with the precedential value of the decision in
Thungabhadra Industries Limited vs. State of A.P. 14 ,
the two-Judge Bench held:-
13 (2016) 4 SCC 696
14 AIR 1964 SC1372
34
“The aforesaid decision in Thungabhadra
Industries Ltd. case when properly appreciated
clearly reveals that it pertains to the stage when
objection is to be taken. It does not lay down that
a special leave petition against a review petition is
maintainable or not. The focus on the stage of
taking objection is fact-centric but not principle-
oriented. To elaborate, the said decision does not
lay down as a principle that the Court is bereft of
power to hear on maintainability. If we
understand the view expressed therein, it can be
said that the Court has been guided by the
concept of propriety.”
[Emphasis supplied]
31. In Royal Medical Trust (supra), this Court has clearly
held that there can be surprise inspection as that ensures
that the required facilities and infrastructure are always in
place and not borrowed or put in temporarily.
32. In IQ City Foundation and Another (supra), after
referring to Royal Medical Trust (supra), the Court has
held:-
“Therefore, the emphasis is on the complaint
institutions that can really educate doctors by
imparting quality education so that they will have
the inherent as well as cultivated attributes of
excellence.”
33. Thus, in our considered opinion what has been stated
in Royal Medical Trust (supra) and IQ City Foundation
(supra) has the precedential value under Article 141 of the
35
Constitution. We have no hesitation in saying that the
pronouncement in Kanachur Islamic Education Trust (R)
(supra) has to rest on its own facts.
34. Having said that, it is necessary to scrutinise the
explanation offered by the Principal of the petitioner-
institution. The Principal has justified the leave availed of
by the faculty and the residents during the period of
inspection of the assessors of the Medical Council of India.
We think it appropriate to reproduce the said explanation:-
“We would like to bring to your kind notice that
few faculty and residents were on leave and half
day leave on various reasons during the
assessment conducted by MCI in Kerala Medical
College, Palakkad on 28-12-2016. The details are
mentioned below for your kind perusal.
1. Dr. Gurusiddana Gowda, Associate Professor
of Radio Diagnosis.
His father had expired two weeks back and he
had gone to perform the rituals of his father as
per Hindu religious custom. He is the elder son
in the family. Form 16, salary statement from
bank and attendance register copy is enclosed
herewith.
2. Dr. R. Balamurugan Ramdas, Associate
Professor of Bio Chemistry.
36
He had gone to his native Pondichery during
Christmas Holidays taking leave till 01-01-2017
because of personal reasons.
Form 16, salary statement from bank and
attendance register copy is enclosed herewith-
leave submission form.
3. Dr. MS Ramaiyah, Associate Professor of
Medicine.
He was on half day leave on 28-12-2016 and
reported in the afternoon. He was presented
before the inspectors but not accepted as he was
not present at the time of taking attendance at
11 a.m.
Form 16, salary statement from the bank and
attendance register copy is enclosed herewith.
4. Dr. N. Natarajan, Associate Professor of
Medicine.
He was on half day leave on 28-12-2016 and
reported in the afternoon. He was presented
before the inspectors but not accepted as he was
not present at the time of taking attendance at
11 a.m.
Form 16, salary statement from the bank and
attendance register copy is enclosed herewith.
5. Dr. MS Dhananjaya, Professor of OBG.
His cousin brother had expired and the 12th day
ritual ceremony was on 28-12-2016 and he had
been sanctioned leave. He is present on 29-12-
2016 and presented before the assessors.
Form 16, salary statement from the bank and
attendance register copy is enclosed herewith.
37
6. Dr. Ravi Chandra, Associate Professor of
Surgery.
He had gone to his native during Christmas
holidays taking leave till 31-12.2016 because of
personal reasons.
Salary statement from bank and attendance
register copy is enclosed herewith.
7. Dr. Asha S Jagtap, Professor of PSM
She had gone to her native during Christmas
holidays taking leave till 31-12-2016 because of
personal reasons.
Form 16, salary statement from the bank and
attendance register copy is enclosed herewith.
8. Dr. Girist A, Senior Resident in Medicine.
He was on half day leave on 28-12-2016 and
reported in the afternoon. He was presented
before the inspectors but not accepted as he was
not present at the time of taking attendance at
11 a.m.
Salary statement from the bank and attendance
register copy is enclosed herewith.
9. Dr. Basavaraj SK, Senior resident of Medicine.
He had gone to his native during Christmas
holidays taking leave till 31-12-2016 because of
personal reasons.
Salary statement from bank and attendance
register copy is enclosed herewith.
10. Dr. B. Ravindra Shivaji, Senior Resident of
Radio Diagnosis.
38
He had gone to his native during Christmas
holidays taking leave till 31-12-2016 because of
personal reasons.
Salary statement from bank and attendance
register copy is enclosed herewith.
11. Dr. Harithakumari Landa, Senior Resident of
pulmonary medicine.
She had gone to his native during Christmas
holidays taking leave till 31-12-2016 because of
personal reasons.
Salary statement from the bank and attendance
register copy is enclosed herewith.”
35. It is submitted by the learned senior counsel
appearing for the petitioners that the Medical Council of
India as well as the Central Government should have
accepted the leave position and, in any case, it was within
the permissible limit.
36. In this regard, Mr. Vikas Singh learned senior counsel
for the MCI has drawn our attention to the extract of the
Minutes of the Executive Committee dated 21st August,
2014. It reads as follows:-
“Regarding specifying the type of acceptable leave
during inspection of medical colleges.
39
Read: the matter with regard to regarding
specifying the type of acceptable leave during
inspection of medical colleges.
The Executive Committee of the Council
considered the report of the Sub Committee dt.
17.04.2014 as constituted by the Executive
Committee at its meeting held on 14th March,
2014 and decided to accept the report with the
following amendments:-
(1) The faculty who is on leave due to the
following reasons would be accepted;
(a) For attending International/National
conferences organized by the respective
International/National Associations or Societies;
(b) For attending any work assigned by Medical
Council of India, either at headquarters or for
assessment of a medical college;
(c) For conducting examination of the concerned
subject in a medical college in Central/State
University;
(d) For attending Courts;
Provided that appropriate documents certifying
the same which are countersigned by the dean
are furnished.
(2) The faculty who is on sanctioned Maternity
leave would be accepted provided the appropriate
leave sanction order issued by the sanctioning
authority and countersigned by the Dean is
furnished with all necessary certificates.”
40
37. The said resolution is strenuously contested by the
learned senior counsel for the petitioners. It is urged with
immense vehemence that the resolution smacks of gross
arbitrariness and reveals a sense of hidden base for use of
power of an absolute tyrant and a despot. Mr. Singh
explaining the same would submit that a hospital to remain
compliant has to have the requisite number of doctors and
staff, and to run a medical college constant compliance is
imperative. According to him, when a college is granted
LOP for the first year, 5% margin with regard to absence is
granted and that is why certain categories of leave have not
been mentioned in the resolution, but that does not mean
that the college can grant leave to the doctors at its whim
and fancy. Be that as it may, the absence of faculty
members which has been taken note of by the Medical
Council of India and accepted by the Central Government
cannot be allowed to pale into total insignificance. In this
regard, a submission advanced by the learned senior
counsel for the petitioners requires to be noted. It is urged
by them that the engagement of the faculty members are to
41
be believed as they are paid their salaries by the petitioners
and it is shown in the necessary Income Tax form.
38. It needs no special emphasis to state that the said
submission cannot be the guiding factor for our analysis.
The issue is the deficiency of the doctors and the absence of
the doctors during the period of inspection. We have
already held that the period in which the assessors
inspected cannot be said to be a period covered under the
Regulations. That apart, as is noticeable, the Hearing
Committee which has been constituted on the basis of the
decision in Amma Chandravati Educational and
Charitable Trust (supra), has also held that the college is
deficient in bed occupancy at the conditional LOP stage
other facilities have to be specifically verified and in the
absence of satisfaction, the LOP ought not to be granted.
39. In the course of hearing, Mr. Rohatgi, learned senior
counsel for the petitioners has placed heavy reliance on
Krishna Mohan Medical College and Hospital Anr v.
Union of India Anr 15 (Writ Petition (Civil) No. 448 of
2017 decided on 01.09.2017) and Dr. Jagat Narain
15
2017 SCC Online SC 1032
42
Subharti Charitable Trust Anr v. Union of India
Ors16.
40. In Krishna Mohan Medical College (supra), this
Court has held:-
“… 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.”
41. In Dr. Jagat Narain Subharti Charitable Trust
(supra), the Court, while granting the benefit for academic
session 2017-2018, opined:-
“Thus, there has been substantial compliance of
the said requirement by the petitioners.
16
(2017) 10 SCALE 308
43Assuming that the notification dated 16.10.2015
applied even to the proposal of the petitioners,
suffice it to observe that failure to furnish
information in the prescribed Form-5 cannot be
held against the petitioners. In any case, that is
not a deficiency relating to infrastructure or
academic matters as such, which may require a
different approach.”
42. The aforesaid decisions speak for themselves and,
therefore, reliance on the same by the petitioners is of no
avail.
43. Dr. Rajiv Dhawan would submit that this Court should
not exercise appellate jurisdiction which is fundamentally
called an error jurisdiction or rectification of errors. We are
absolutely conscious of the appellate jurisdiction and the
jurisdiction this Court is required to exercise while
determining the controversy in exercise of power of judicial
review under Article 32 of the Constitution. The principle of
judicial review by the constitutional courts have been
lucidly stated in many an authority of this Court. In Tata
Cellular v. Union of India17, dealing with the concept of
Judicial Review, the Court held:-
17 (1994) 6 SCC 651
44
“Lord Scarman in Nottinghamshire County Council
v. Secretary of State for the Environment
proclaimed:
‘Judicial review’ is a great weapon in
the hands of the judges; but the judges
must observe the constitutional limits set
by our parliamentary system upon the
exercise of this beneficial power.”Commenting upon this Michael Supperstone and
James Goudie in their work Judicial Review
(1992 Edn.) at p. 16 say:
“If anyone were prompted to dismiss this
sage warning as a mere obiter dictum
from the most radical member of the
higher judiciary of recent times, and
therefore to be treated as an idiosyncratic
aberration, it has received the
endorsement of the Law Lords generally.
The words of Lord Scarman were echoed
by Lord Bridge of Harwich, speaking on
behalf of the Board when reversing an
interventionist decision of the New
Zealand Court of Appeal in Butcher v.
Petrocorp Exploration Ltd. 18-3-1991.”
Observance of judicial restraint is currently the
mood in England. The judicial power of review is
exercised to rein in any unbridled executive
functioning. The restraint has two contemporary
manifestations. One is the ambit of judicial
intervention; the other covers the scope of the
court’s ability to quash an administrative decision
on its merits. These restraints bear the hallmarks
of judicial control over administrative action.
Judicial review is concerned with reviewing not
the merits of the decision in support of which the
45
application for judicial review is made, but the
decision-making process itself.”
44. After so stating, reference was made to the law
enunciated in Chief Constable of the North Wales Police
v. Evans18 wherein, it has been ruled:-
“Judicial review, as the words imply, is not an
appeal from a decision, but a review of the
manner in which the decision was made.
* * *
Judicial review is concerned, not with the
decision, but with the decision-making process.
Unless that restriction on the power of the court
is observed, the court will in my view, under the
guise of preventing the abuse of power, be itself
guilty of usurping power.”
45. In the said case, the Court also referred to R. v. Panel
on Take-overs and Mergers, ex. P. Datafin plc19 wherein
Sir John Donaldson, M.R. commented:-
“An application for judicial review is not an
appeal.”
46. The three Judge Bench further held:-
“The duty of the court is to confine itself to the
question of legality. Its concern should be:
1. Whether a decision-making
authority exceeded its powers?
2. Committed an error of law,
18 (1982) 3 All ER 141
19 (1987) 1 All ER 564
463. committed a breach of the rules of
natural justice,4. reached a decision which no
reasonable tribunal would have reached
or,5. abused its powers.”
47. The Court further opined that in the process of judicial
review, it is only concerned with the manner in which the
decisions have been taken. The extent of the duty is to act
fairly. It will vary from case to case. Explicating further, it
ruled:-
“Shortly put, the grounds upon which an
administrative action is subject to control by
judicial review can be classified as under:(i) Illegality : This means the
decision-maker must understand
correctly the law that regulates his
decision-making power and must give
effect to it.(ii) Irrationality, namely, Wednesbury
unreasonableness.(iii) Procedural impropriety.
The above are only the broad grounds but it does
not rule out addition of further grounds in course
of time. As a matter of fact, in R. v. Secretary of
State for the Home Department, ex Brind, Lord
Diplock refers specifically to one development,
namely, the possible recognition of the principle
of proportionality. In all these cases the test to be
adopted is that the court should, “consider
whether something has gone wrong of a nature
and degree which requires its intervention”.47
48. Thereafter, the Court referred to the authorities in R.
v. Askew 20 and Council of Civil Service Unions v.
Minister for Civil Service21 and further expressed:-
“At this stage, The Supreme Court Practice, 1993,
Vol. 1, pp. 849-850, may be quoted:“4. Wednesbury principle.— A decision of
a public authority will be liable to be
quashed or otherwise dealt with by an
appropriate order in judicial review
proceedings where the court concludes
that the decision is such that no
authority properly directing itself on the
relevant law and acting reasonably could
have reached it. (Associated Provincial
Picture Houses Ltd. v. Wednesbury
Corpn., per Lord Greene, M.R.)”We may hasten to add, though the decision was
rendered in the context of justification of grant of contract
but the principles set out as regards the judicial review are
of extreme significance.
49. Discussing at length, the principle of judicial review in
many a decision, the two Judge Bench in Reliance
Telecom Ltd. Another v. Union of India Another22,
has held:-
20 (1768) 4 Burr 2186 : 98 ER 139
21 (1985) 1 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174
22 (2017) 4 SCC 269
48“As we find, the decision taken by the Central
Government is based upon certain norms and
parameters. Though criticism has been advanced
that it is perverse and irrational, yet we are
disposed to think that it is a policy decision which
subserves the consumers’ interest. It is extremely
difficult to say that the decision to conduct the
auction in such a manner can be considered to be
mala fide or based on extraneous considerations.”50. Thus analysed, it is evincible that the exercise of
power of judicial review and the extent to which it has to be
done will vary from case to case. It is necessary to state
with emphasis that it has its own complexity and would
depend upon the factual projection. The broad principles
have been laid down in Tata Cellular (supra) and other
decisions make it absolutely clear that judicial review, by no
stretch of imagination, can be equated with the power of
appeal, for while exercising the power under Article 226 or
32 of the Constitution, the constitutional courts do not
exercise such power. The process of adjudication on merit
by re-appreciation of the materials brought on record which
is the duty of the appellate court is not permissible.
51. The duty of the Court in exercise of the power of
judicial review to zealously guard the human rights,
fundamental rights and the citizens’ right of life and liberty
49as also many non-statutory powers of governmental bodies
as regards their control over property and assets of various
kinds. (See : Union of India and Anr. v S.B. Vohra23)
52. What Dr. Dhawan submits basically is that as the
order passed by the Central Government after the order
passed by the High Court of Kerala does not really reflect
any reason, this Court should axe the same treating it as
arbitrary and grant the LOP and that would be within the
power of judicial review. The order passed by the Central
Government has to be appreciated in its entirety. We repeat
at the cost of repetition that neither the Central
Government nor the Hearing Committee is expected to pass
a judgment as a Judge is expected to do. The order must
reflect application of mind and should indicate reasons. We
may reiterate that the order dated 31st May, 2017, was
bereft of reason, but the order impugned, that is the order
dated 14th August, 2017, cannot be said to be sans reason.
Learned senior counsel would contend with all the vigour at
his command that it is not a reasoned one and for the same
23 (2004) 2 SCC 150
50our attention has been drawn to the penultimate paragraph
of the order.
53. We are of the considered opinion that the order of the
present nature has to be appreciated in entirety and when
we peruse the entire order, we find that substantial reasons
have been ascribed and, therefore, we are compelled to repel
the submissions so assiduously and astutely advanced by
Dr. Dhawan.
54. Keeping in view the facts and circumstances of the
case, we sum up our conclusions and directions, thus:-
(a) The petitioners are not entitled to Letter Of Permission
(LOP) for the academic session 2017-2018. We direct that
the order passed in the present writ petition shall be
applicable hereafter for the academic session 2017-2018
since the cut off date for admissions to MBBS course for
academic session 2017-2018 is over and the academic
session has commenced. No petition shall be entertained
from any institution/college/society/trust or any party for
grant of LOP for 2017-2018. We say so as the controversy
for grant of LOP for the academic year 2017-2018 should
51come to an end and cannot become an event that defeats
time. The students who are continuing their studies on the
basis of LOP granted for the academic year 2016-2017
should be allowed to continue their studies in the college
and they shall be permitted to continue till completion of
the course.
(b) The applications submitted for 2017-2018 shall be
treated as applications for 2018-2019 and the petitioners
shall keep the bank guarantee deposited with the Medical
Council of India alive and the MCI shall not encash the
same.
(c) The Medical Council of India shall conduct a fresh
inspection as per the Regulations within a period of two
months. It shall apprise the petitioner-institution with
regard to the deficiencies and afford an opportunity to
comply with the same and, thereafter, proceed to act as
contemplated under the Act.
(d) The inspection shall be carried out for the purpose of
grant of LOP for the academic session 2018-2019.
52(e) After the Medical Council of India sends its
recommendation to the Central Government, it shall take
the final decision as per law after affording an opportunity
of hearing to the petitioners. Needless to say, it shall take
the assistance of the Hearing Committee as constituted by
the Constitution Bench decision in Amma Chandravati
Educational and Charitable Trust (supra) or other
directions given in the said decision.
55. The writ petition is, accordingly, disposed of. There
shall be no order as to costs.
................................CJI
(Dipak Misra)….................................J.
(Amitava Roy)....................................J.
(A.M. Khanwilkar)New Delhi,
September 12 , 2017.
