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)

J U D G M E N T

Dipak Misra, CJI.

In this writ petition, the petitioner-Trust and th e

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 bee n

debarred from admitting 150 students in the MBBS course

in the academic years 2017-18 and 2018-19 and further to

restrain the respondent No.2, Medical Council of In dia

(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 14

th 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 ar e

required to set out the chronology of litigation. Its life is not

long.

3. The petitioner No.1, a Trust, established under t he

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 o f

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 it s

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 10

th

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 Justi ce

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 13

th

May, 2016, the report of

the assessors team was considered by the Executive

Committee of the respondent No.2 in its meeting dat ed

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 Cent ral

Government issued a public notice informing all the Medical

1 (2016) 7 SCC 353

5

Colleges to submit a compliance report concerning t heir

respective colleges who had applied for LOP for 2016-17. As

the facts would unfold, the 1

st 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 cer tain

conditions.

5. At this juncture, it is necessary to state in wh at

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 appropri ate

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

6

of 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, too k

the applications for consideration pertaining to

establishment of Medical Colleges for the academic year

2016-2017, forwarded by Ministry of Health and Fami ly

Welfare (MHFW) on 22

nd July, 2016. Dealing with the

present college, the Oversight Committee directed a s

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 28

th and 29

th 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

Medicine

72 29

2 Paediatrics 24 20

3 TB & Chest 08 07

4 Psychiatry 08 06

5 Skin & VD 08 07

6 General

Surgery

90 31

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 29

th

December,

2016 of the Principal, Kerala Medical College, Palakkad

regarding promotion of Dr. Munir U.A. from Assistan t

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 31

st

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 1

st

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 the

2

(2017) 8 SCALE 356

12

recommendations/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 Centra l

Government on 14

th 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

in the report.

No

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

Medicine

72 29

2 Paediatrics 24 20

3 TB & Chest 08 07

4 Psychiatry 08 06

5 Skin & VD 08 07

6 General

Surgery

90 31

7 Orthopaedics 30 25

8 Ophtalmology 10 02

9 ENT 10 02

10 O.G. 40 21

Total 300 150

14

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. 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.

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 31

st May, 2017 and the order dated 2

nd

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 t his

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 an d

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 highlig hted

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 &

Ors

3. 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 t he

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 t he

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 condition al

order and when the conditions were not fulfilled, t he

institution has to face the consequences and in suc h 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 wou ld

further submit that the order dated 31

st 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 th e

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 lear ned

senior counsel for the petitioners, contends that ascribing of

reasons by an administrative authority should not b e

equated to a judgment of the Court, for what is required is

to see whether the reasons are discernible and whet her

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 woul d

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 Others

4 and Manohar Lal Sharma v. Medical

Council of India and Others

5, 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 Another

7 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 the

4

(2016) 11 SCC 225

5

(2013) 10 SCC 60

6 (2016) 11 SCC 530

7 (2015) 10 SCC 19

22

stability 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 f or

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 (Amendmen t)

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

26

conformity 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 28

th

and 29

th

December, 2016. In Shri

Venkateshwara University Through its Registrar &

Another vs. Union of India and Another

8

[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

29

Sunday, 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 12

th

December, 2016 and the day previous thereto i.e.

11

th 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 12

th

December, 2016, it was Milad-un-Nabi and it is

the day of festival. The inspection was done on

9

th 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 9

th

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.

Leathem

10 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

10

1901 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 case

12 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 petitio ner-

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 12

th

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 21

st 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 14

th 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 gro ss

arbitrariness and reveals a sense of hidden base for use of

power of an absolute tyrant and a despot. Mr. Sing h

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 facul ty

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 ha ve

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 Hear ing

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 s tage

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 &

Ors

16.

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

43

Assuming 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 whi le

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 b een

lucidly stated in many an authority of this Court. In Tata

Cellular v. Union of India

17, 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. Evans

18 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 plc

19 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

46

3. 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 Service

21 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 & Another

22

,

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 wo uld

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 o f

judicial review to zealously guard the human rights ,

fundamental rights and the citizens’ right of life and liberty

49

as 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. Vohra

23)

52. What Dr. Dhawan submits basically is that as th e

order passed by the Central Government after the or der

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 31

st May, 2017, was

bereft of reason, but the order impugned, that is the order

dated 14

th 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

50

our 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

51

come to an end and cannot become an event that defe ats

time. The students who are continuing their studies on the

basis of LOP granted for the academic year 2016-201 7

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 b e

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 fre sh

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.