Kanachur Islamic Education Trust (R) vs Secretary

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 468 OF 2017

KANACHUR ISLAMIC EDUCATION TRUST (R) ….PETITIONER

VERSUS

UNION OF INDIA AND ANOTHER ….RESPONDENTS

With IA No. 73463 of 2017

JUDGMENT

AMITAVA ROY, J.

The instant application under Article 32 of the

Constitution of India is for laciniating the order dated 31.5.2017

issued by the respondent No. 1– Union of India, thereby

debarring the medical college of the petitioner in the name and

style of “Kanachur Institute of Medical Sciences and Research

Centre” (for short, hereinafter to be referred to as

“college/institution”) at Deralakatte, Mangalore, Karnataka from Signature Not Verified Digitally signed by CHETAN KUMAR Date: 2017.08.30 13:33:29 IST making admission in MBBS Course for the academic years Reason:

2017-18 and 2018-19 and authorizing as well the Medical 2

Council of India, (for short hereinafter referred to as “MCI”) to

encash the bank guarantee of Rs. 2 crores furnished by it.

Further, an appropriate writ in the nature of mandamus has

also been sought for to direct the respondents to grant renewal of

permission for the academic year 2017-18 in terms of the

recommendations of the Oversight Committee, constituted by

this Court by order dated 2.5.2016, rendered in Modern Dental

College and Research Centre and others vs. State of Madhya

Pradesh and others1 to oversee the functioning under the

Indian Medical Council Act, 1956, (for short, hereafter to be

referred to as “The Act”) and also to permit the petitioner's

college/institution to admit students for the said academic year.

2. The facts unfolded hereinafter would attest that in the

previous round of contest, the aforementioned order dated

31.5.2017 was annulled by this Court's verdict dated 1.8.2017

delivered in a batch of writ petitions including the one in hand,

the lead petition being Writ Petition (C) No. 411 of 2017 (Glocal

Medical College and Super Specialty Hospital and Research

Centre vs. Union of India and Another) and the issue of

1 (2016) 7 SCC 353 3

confirmation or otherwise of the letter of permission (for short

“LOP”) as involved for the establishment of the above college of

the petitioner was referred back to the Central Government for

consideration afresh of the materials on record, pertaining

thereto and to take a reasoned decision on a re-evaluation of the

recommendations/views of the MCI, Hearing Committee, Director

General of Health Services (for short, hereafter to be referred to

as “DGHS”) and the Oversight Committee and also after affording

an opportunity of hearing to the petitioner college/institution, to

the extent necessary. A time frame was also fixed for that

purpose. The Central Government, having reiterated its decision,

to debar the petitioner's college/institution from conducting

admission in the MBBS for the academic years 2017-18 and

2018-19, as well as to authorise encashment of its bank

guarantee by MCI, it has taken up the cudgel against the same

in its second outing.

3. We have heard Dr. Rajeev Dhawan, learned senior counsel

for the petitioner, Mr. Maninder Singh, learned Additional

Solicitor General for the Union of India and Mr. Vikas Singh,

learned senior counsel for the Medical Council of India. 4

4. The prefatory facts need be scripted to comprehend the

dissension in essential particulars. The petitioner had submitted

an application/scheme for establishment of a new medical

college for the academic year 2016-17, as requited under the Act

and the Establishment of Medical College Regulations, 1999

(abbreviated hereinafter as the “Regulations”) framed thereunder

before the Government of India, the Ministry of Health, Family

Welfare (Department of Health and Family Welfare) Government

of India. The same was forwarded to the MCI for evaluation and

recommendations as per the Act, whereafter an inspection was

made of the college on 7th and 8th January, 2016, in course

whereof, certain deficiencies were noticed. The Executive

Committee of the MCI eventually recommended to the Central

Government not to issue the LOP for the establishment of the

college for the academic year 2016-17.

5. An opportunity of hearing was afforded to the college by the

Hearing Committee of the Central Government whereafter the

matter was referred back to the MCI for review. The MCI,

however, reiterated its recommendation disapproving the

scheme of the petitioner, whereupon the Central Government 5

accepted the same and communicated its decision to the

petitioner vide its letter dated 8.6.2016. The Oversight

Committee, as above, intervened and after obtaining the

compliance affidavit from the petitioner and further scrutiny

thereafter, by its communication dated 11.8.2016 approved the

scheme for establishment of new medical college of the petitioner

with an annual intake of 150 for the academic year 2016-17,

subject to certain conditions as mentioned therein. Subsequent

thereto, the Central Government in deference of such

recommendation of the Oversight Committee, by its letter

29.8.2016/20.9.2016, issued the LOP for establishment of new

college in the name and style of Kanachur Institute of Medical

Sciences with an annual intake of 150 MBBS seats for the

academic year 2016-17 subject to the following conditions:

“(i) An affidavit from the Dean/Principal and Chairman of the Trust/Society/ University/Company etc. concerned, affirming fulfillment of all deficiencies and statements made in the respective compliance report submitted to MHFW by 22 June 2016.

(ii) A bank guarantee in the amount of Rs. 2 crore in favour of MCI, which 6

will be valid for 1 year or until the first renewal assessment, whichever is later. Such bank guarantee will be in addition to the prescribed fee submitted along with the application.

2. The OC has also stipulated as follows:

(a) OC may direct inspection to verify the compliance submitted by the college and considered by OC, anytime after 30 September, 2016.

(b) In default of the conditions (i) and

(ii) in para 1 above and if the compliance are found incomplete in the inspection to be conducted after 30 September, 2016, such college will be debarred from fresh intake of students for 2 years commencing 2017-18.”

6. This letter further mentioned that the permission was being

accorded initially for a period of one year and would be renewed

on yearly basis subject to the verification of the achievement of

the annual targets as indicated in the scheme and revalidaiton of

the performance bank guarantee and that such process of

renewal of permission would continue till such time, the

establishment of medical college and expansion of hospital

facilities were completed and a formal recognition of the medical 7

college was granted. It was mentioned as well that the next

batch of students in MBBS course for the academic year 2017-18

would be admitted in the college only after obtaining permission

of the Central Government and fulfilling of the conditions,

enumerated hereinabove. The petitioner's college/institution

thereafter admitted students to the above course for the

academic year 2016-17 and presently they are continuing their

studies.

7. According to the petitioner, in compliance of the conditions

enumerated in the letter dated 20.8.2016/20.9.2016, it did

submit the affidavit of the authority concerned affirming the

fulfillment of all deficiencies and statements made in the

compliance report before the Central Government and furnished

as well, the bank guarantee.

8. Subsequent thereto, the MCI caused inspection of the

petitioner's college/institution to be made in two successive

sessions, the first during 17-18.11.2016 and second during

9-10.12.2016.

9. The petitioner promptly thereafter submitted a

representation on 15.12.2016 inter alia questioning the 8

permissibility and bona fide of the second inspection on

9-10.12.2016 firstly, being in violation of clause 8(3)(1)(d) of the

Regulations, as amended on 18.3.2016 prohibiting such

inspections at least two days before and two days after important

religious festivals/holidays declared by the Central/State

Governments and secondly, as the findings in the previous

inspection conducted on 17-18.11.2016 testified that the

petitioner's college/institution was largely compliant with the

various norms and standards of physical infrastructure,

teaching faculty and clinical materials, the second inspection was

even otherwise unmerited having been undertaken within three

weeks of the previous exercise was highlighted. It was pleaded as

well that the petitioner's college being a recognized minority

educational institution, the inspection on 9-10.12.2016, just one

working day before the festival of Milad-un-Nabi notified on

12.12.2016, 11.12.2016 being a Sunday, was clearly

impermissible in law and displayed bias and a predetermined

mind. According to the petitioner, the inspection team of the

MCI adamantly refused to acknowledge the physical

infrastructure, teaching faculty and the clinical materials in 9

place in course of the inspection held on 9-10.12.2016 and

submitted its report contrary to the facts. The petitioner also

submitted a detailed representation on 16.1.2017 before the

Central Government furnishing the facts and figures

controverting the findings of deficiencies recorded by the MCI

with supporting documents.

10. The Executive Committee of the MCI, on a consideration of

the assessment reports, based on the two inspections, recorded

the deficiencies noticed and recommended to the Central

Government that the petitioner's college/institution be debarred

from admitting students in the MBBS course for a period of two

academic years i.e. 2017-18 and 2018-19, as even after giving

an undertaking that they had furnished the entire infrastructure

for the establishment of new medical college, it was found to be

grossly deficient. The Central Government thereafter granted

hearing to the petitioner's college/institution on 17.1.2017

through a Hearing Committee in which the DGHS participated as

well. The proceedings of the said hearing were next forwarded to

the Central Government and eventually to the Oversight

Committee along with other relevant records. As noted in the 10

order 1.8.2017, passed by this Court, while dealing with the

challenge to the order dated 31.5.2017, it was, amongst others

minuted that the proceedings of the hearing on 17.1.2017, as

forwarded to the Oversight Committee was not in full,

inasmuch as the observations of the DGHS against the

deficiencies reported by the MCI were not included therein. Be

that as it may, the Oversight Committee by its letter dated

1.4.5.2017 dealt with the deficiencies highlighted by the MCI

and on the basis of the assessment made by it, recommended

confirmation of the conditional LOP granted to the petitioner's

college. As the Central Government, the above notwithstanding,

by its order dated 31.5.2017 concurred with the

recommendations of the MCI and directed debarment of the

petitioner's college/institution from admitting students in the

above course for the two academic years 2017-18 and 2018-19

and also authorized the MCI to encash the bank guarantee, the

same was assailed before this Court in this writ petition and to

reiterate, was interfered with by this Court's order dated

1.8.2017 with a direction to the Central Government to

re-examine the materials on record on merits and enter a 11

reasoned decision.

11. The overwhelming premise in which the above direction was

issued can be culled out from the following excerpts of the

aforementioned order dated 01.08.2017.

“21. A bare perusal of the letter dated 31.05.2017 would demonstrate in clear terms that the same is de hors any reason in support thereof. It mentions only about the grant of conditional permission on the basis of the approval of the Oversight Committee, and an opportunity of hearing vis-à-vis the recommendations of the MCI in its letter dated 15.01.2017 highlighting the deficiencies detected in course of the inspection undertaken on 21st and 22nd December, 2016, but is conspicuously silent with regard to the outcome of the proceedings of the Hearing Committee, the recommendations recorded therein both of the Committee and the DGHS and more importantly those of the Oversight Committee conveyed by its communication dated 14.05.2017, all earlier in point of time to the decision taken. This assumes importance in view of the unequivocal mandate contained in the proviso to Section 10A(4) of the Act, dealing with the issue, amongst others of establishment of a medical college. The relevant excerpt of sub-section 4 of Section 10A of the Act for ready reference is set out hereinbelow:

“(4) The Central Government may, after considering the scheme and 12

the recommendations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under sub-section (1);

Provided that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard:”

22. Though as the records testify, a hearing was provided to the petitioner colleges/institutions through the Hearing Committee constituted by the DGHS (as mentioned in the proceedings dated 23.3.2017) qua the recommendations of the MCI contained in its letter dated

15.01.2017, as noted hereinabove, the proceedings of the Hearing Committee do reflect varying views of the Hearing Committee and the DGHS, the latter recommending various aspects bearing on deficiency to be laid before the OC for an appropriate decision. The Central Government did forward, albeit a pruned version of the proceedings of the Hearing Committee to the Oversight Committee 13

after a time lag of almost six weeks. The reason therefor is however not forthcoming. The Oversight Committee, to reiterate, though on a consideration of all the relevant facts as well as the views of the MCI and the proceedings of the Hearing Committee as laid before it, did cast aside the deficiencies minuted by the MCI and recommended confirmation of the letters of permission of the petitioner colleges/institutions, the impugned decision has been taken by the Central Government which on the face of it does not contain any reference whatsoever of all these developments.

23. As a reasonable opportunity of hearing contained in the proviso to Section 10A(4) is an indispensable pre-condition for disapproval by the Central Government of any scheme for establishment of a medical college, we are of the convinced opinion that having regard to the progression of events and the divergent/irreconcilable views recommendations of the MCI, the Hearing Committee, the DGHS and the Oversight Committee, the impugned order, if sustained in the singular facts and circumstances, would be in dis-accord with the letter and spirit of the prescription of reasonable opportunity of hearing to the petitioner institutions/colleges, as enjoined under Section 10A(4) of the Act. This is more so in the face of the detrimental consequences with which they would be visited. It cannot be gainsaid that the reasonable opportunity of hearing, as 14

obligated by Section 10A(4) inheres fairness in action to meet the legislative edict. With the existing arrangement in place, the MCI, the Central Government and for that matter, the Hearing Committee, DGHS, as in the present case, the Oversight Committee and the concerned colleges/institutions are integral constituents of the hearing mechanism so much so that severance of any one or more of these, by any measure, would render the process undertaken to be mutilative of the letter and spirit of the mandate of Section 10A(4).

24. Having regard to the fact that the Oversight Committee has been constituted by this Court and is also empowered to oversee all statutory functions under the Act, and further all policy decisions of the MCI would require its approval, its recommendations, to state the least, on the issue of establishment of a medical college, as in this case, can by no means be disregarded or left out of consideration. Noticeably, this Court did also empower the Oversight Committee to issue appropriate remedial directions. In our view, in the overall perspective, the materials on record bearing on the claim of the petitioner institutions/colleges for confirmation of the conditional letters of permission granted to them require a fresh consideration to obviate the possibility of any injustice in the process.

25. In the above persuasive premise, the Central Government is hereby ordered to 15

consider afresh the materials on record pertaining to the issue of confirmation or otherwise of the letter of permission granted to the petitioner colleges/institutions. We make it clear that in undertaking this exercise, the Central Government would re-evaluate the recommendations/views of the MCI, Hearing Committee, DGHS and the Oversight Committee, as available on records. It would also afford an opportunity of hearing to the petitioner colleges/institutions to the extent necessary. The process of hearing and final reasoned decision thereon, as ordered, would be completed peremptorily within a period of 10 days from today. The parties would unfailingly co-operate in compliance of this direction to meet the time frame fixed.”

12. The Central Government by its order dated 10.8.2017 in

purported compliance of this Court's direction contained in the

order dated 1.8.2017 has reiterated its decision to debar the

petitioner's college/institution from admitting students in the

MBBS course for the academic years 2017-18 and 2018-19 and

to authorize the MCI to encash the bank guarantee of Rs. 2

crores.

13. The petitioner seeks to impeach this order in the interim

application under consideration. For ready reference, the 16

observations of the Hearing Committee of the Central

Government, based on which the decision presently impugned

has been taken, are extracted hereinabeolw:

“The college submitted that MCI conducted compliance verification on 17-18 November, 2016 where the deficiency of faculty was pointed out as nil and residents as 2% only. However, without assigning any reason, MCI visited the college again on 9-10 December, 2016 to re-inspect. Still, the college complied and MCI conducted another inspection. This time the deficiency of faculty and residents was 12.31% and 32.61% respectively.

The college further alleged that not only did the MCI conducted 2nd surprise inspection in quick succession, but the 2nd inspection was just 3 days before Eid which is a major festival, the institution being a minority institution. It may be noted that 11.12.2016 was Sunday. Eid fell on 12.12.2016. The college was inspected on 09-10 December, 2016. The college requested that the inspection report of November should be considered.

The Committee has noted the submissions made by the college. The college has not explained the deficiency of faculty. The ground of leave on account of NEET (PG) exam could be accepted in case of few residents and not for all 10 as submitted by the college. NEET (PG) exam was held online over a period of one week in early December but a candidate is required to appear in only one session.

The college has tried to dismiss many 17

observations made by the assessors as

non-specific and vague and has chosen not to respond. However, in case of 3 particular cases cited by the assessors at Sr. NO. 11(a) to (c) also the college has not responded. The college also did not respond to the charge of 3 residents signing in the register in advance.

The Committee on random perusal of OPD data furnished by the college at p/277 & p/282 observed that at least 5 instances of multiple entries of same patient in the same department apparently to inflate the OPD figures. There could be more of such instances. The compliance submitted by the college thus does not seem to be reliable. Further, the college is evasive on many observations made by assessors which they ought to have responded. Such observations cannot be dismissed by labeling them as subjective. The assessors are clinical experts and would be expected to note down a comment after their satisfaction.

It is a fact that the November inspection report of MCI does not convey any substantial deficiency warranting disapproval. But in the opinion of the Committee, MCI was not precluded from conducting inspection subject to sufficient reason and justification.

The Committee is of the view that notwithstanding the November assessment report, the college has failed to answer the objections raised in subsequent inspection. The compliance as noted above is not reliable. The Committee agrees with the decision of the Ministry conveyed by letter dated 31.5.2017 to debar the college for two years and also permit MCI to encash bank guarantee.” 18

14. As would be evident from the quoted text, the following are

the salient features gleanable from the observations of the

Hearing Committee:

a) The inspection conducted on 17-18.11.2016

reveal that the deficiencies of the faculty was nil

and of residents was 2% only and that it did not

convey any substantial deficiency warranting

disapproval.

b) In the next inspection undertaken on

9-10.12.2016, the deficiency of faculty and

residents was respectively 12.31% and 32.61%.

c) The college has not explained the deficiency of

faculty.

d) Though the absence of faculty on the ground of

leave due to NEET (P.G.) examination could be

accepted in case of few residents, but not for all.

This is more so as the NEET (P.G.) examination

was held online over a period of one week in early

December and a candidate was required to appear 19

in only one session.

e) The college has tried to dismiss many

observations, made by the assessors as

non-specific and vague but has chosen not to

respond.

f) In three cases, in particular, as noticed in

clause (xii)(a) to (c) (wrongly noted as serial no. 11(a)

to (c), vis-a-vis patients, Ms. Laxmamma, Ms.

Sahfeena and Ms. Mamatha in the inspection

report, the petitioner’s college has not responded.

g) The petitioner's college has also not responded

to the charge of three residents signing in register

in advance.

h) On a perusal of the OPD data, furnished by the

petitioner’s college, at least five instances of

multiple entries of the same patient in the same

department were detected to inflate the OPD figures

and that there could be more of such instances.

i) The compliance submitted by the petitioner’s

college thus does not seem to be reliable. 20

j) The reply of the petitioner's college had been

evasive on many observations made by the

assessors, who are clinical experts.

k) MCI was not precluded from conducting

successive inspections subject to sufficient

reasons and justifications.

l) The petitioner’s college has failed to respond

to the objections raised in the subsequent

inspection.

15. Dr Dhawan, learned senior counsel for the petitioner has

insistently urged that in the face of the findings in the inspection

conducted on 17-18.11.2016, which did not divulge any

deficiency in the infrastructure as a whole, the second inspection

on 9-10.12.2016 was wholly uncalled for and lacks bona fide.

Further, the petitioner’s college being a minority institution, such

inspection was also in violation of the amended Regulation 8(3)(1)

(d) of the Regulations, as amended, the festival being on

12.12.2016 and 11.12.2016 being a Sunday. The learned senior

counsel referred, amongst others to the representations

submitted by the petitioner controverting the findings of 21

deficiencies allegedly noticed by the inspection team as well as

the observations, in particular of the Oversight Committee

recorded in communication 14.5.2017 and also of DGHS in

course of hearing on 17.1.2017 to repudiate the conclusions of

the Committee that it had failed to respond or explain such

deficiencies. Dr. Dhawan also invited our attention to the

explanation furnished by the petitioner for the absence of the

residents who were on leave for NEET (PG) examination during

that period and pleaded that the observation to this effect by the

Hearing Committee was against the weight of the records and

was thus wholly inferential. The learned senior counsel also

referred to the statement of the Professor and Head of

Department of Surgery recorded on 13.12.2016 detailing the

treatment administered to the three patients named in the clause

xii (a) to (c) (mentioned as serial number 11 (a) to (c) in the order

dated 10.8.2017) to negate the observation of the Hearing

Committee that the petitioner’s college/institution had not

responded thereto. Dr. Dhawan was critical as well of the

conclusion of the Hearing Committee that there could be more

instances of multiple entries in the OPD figures as wholly 22

unfounded and hypothetical.

16. Per contra, learned senior counsel for the respondents have

urged that the inspection report having amply demonstrated

lingering deficiencies in the infrastructure and facilities of the

petitioner’s college/institution in contravention of the enjoinment

of the Regulations to that effect, the impugned decision is

unassailable, more particularly in view of the persistent failure of

the petitioner to make up such deficiencies inspite of its

undertakings and the affidavit of compliance as per the

conditions, subject to which it had been granted the conditional

LOP. While contending that in the facts of the case, the second

inspection on 9-10.12.2016 was both permissible and merited in

the attendant facts and circumstances and further was not in

violation of the amended clause 8(3)(1)(d) of the Regulations, it

was asserted that the petitioner's college/institution having failed

to rectify the deficiencies detected or to furnish any convincing

explanation therefor, they are not entitled to any relief in the

face of otherwise binding statutory ordainments.

17. In the above eventful backdrop, we have cautiously

considered the rival assertions, which assuredly would have to be 23

evaluated on the measure of the operative directions contained in

the order dated 1.8.2017, whereby the issue involved was

referred to the Central Government for an appropriate reasoned

decision on a reevaluation of the recommendations/views of the

MCI, Hearing Committee, DGHS and Oversight Committee and

after affording an opportunity of hearing to the petitioner’s

college/institution to the extent necessary. 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. The 24

fact that the petitioner's college/institution is a minority

institution and that a major festival for the said community was

scheduled on 12.12.2016 and that the day previous thereto i.e.

11.12.2016 was a Sunday, are facts which may not be wholly

irrelevant. The observation of the Hearing Committee that

petitioner’s college/institution has not explained the deficiency of

faculty is belied by its representations and also the observations

amongst others of the Oversight Committee. The conclusion that

a few residents might have been on leave on account of NEET

(PG) examination but not all, also seems to be inferential in the

face of exhaustive explanation provided by the petitioner's

college/institution. In this context, the observation of the

Oversight Committee in its communication dated 14.5.2017 that

eight colleges including the petitioner’s college/institution had

been assessed twice in quick succession for the same purpose

though not authorized by it in its guidelines, deserves attention.

The Hearing Committee seems to have ignored the explanation

provided by the Professor and Head of Department of Surgery,

explaining the treatment given to the three patients named in

clause xii (a) to (c) of the Inspection Report in concluding that, 25

the petitioner's college/institution had not responded thereto. Its

deduction that there might have been more instances of multiple

entries in the OPD patient statistics based on five such

instances is also visibly presumptive. The striking feature of the

observations of the Hearing Committee, on the basis of which the

impugned decision has been rendered, is the patent omission on

its part to consider the relevant materials on record, as

mandated by this Court by its order dated 1.8.2017. The

findings of the Hearing Committee, in our comprehension, thus

stands vitiated by the non-consideration of the

representations/explanations of the petitioner's

college/institution, the documents supporting the same, the

recommendations/views of the MCI, the observation of the earlier

Hearing Committee, DGHS and Oversight Committee, as

available on records. The Central Government as well readily

concurred with the observations of the Hearing Committee in

passing the impugned order, which per se, in our estimate, is

unsustainable in the singular facts and circumstances of the

case

18. As the impugned order dated 10.08.2017 would reveal, it is 26

apparent that for all practical purposes, the Hearing

Committee/Central Government did not undertake a

dispassionate,objective, cautious and rational analysis of the

materials on record and in our view, returned wholly casual

findings against the petitioner's college/institution. This order

thus has to be held, not to be in accord with the spirit and

purport of the order dated 01.08.2017 passed by this Court.

Suffice it to state, the order does not inspire the confidence of

this Court to be sustained in the attendant facts and

circumstances.

19. In the predominant factual setting, noted hereinabove, the

approach of the respondents is markedly incompatible with the

essence and import of the proviso to Section 10A(4) mandating

against disapproval by the Central Government of any scheme for

establishment of a college except after giving the person or the

college concerned a reasonable opportunity of being heard.

Reasonable opportunity of hearing which is synonymous to 'fair

hearing', it is not longer res integra is an important ingredient of

audi alteram partem rule and embraces almost every facet of fair

procedure. The rule of 'fair hearing' requires that the affected 27

party should be given an opportunity to meet the case against

him effectively and the right to fair hearing takes within its fold a

just decision supplemented by reasons and rationale. Reasonable

opportunity of hearing or right to 'fair hearing' casts a steadfast

and sacrosanct obligation on the adjudicator to ensure fairness

in procedure and action, so much so that any remiss or

dereliction in connection therewith would be at the pain of

invalidation of the decision eventually taken. Every executive

authority empowered to take an administrative action having the

potential of visiting any person with civil consequences must take

care to ensure that justice is not only done but also manifestly

appears to have been done.

20. No endeavour whatsoever, in our comprehension, has been

made by the respondents and that too in the face of an

unequivocal direction by this Court, to fairly and consummately

examine the materials on record in details before recording a

final decision on the issue of confirmation or otherwise of the

LOP granted to the petitioner's college/institution as on

12.09.2016. True it is that the Regulations do provide for certain

norms of infrastructure to be complied with by the applicant 28

college/institution for being qualified for LOP depending on the

stages involved. This however does not obviate the inalienable

necessity of affording a reasonable opportunity of hearing to the

person or the college/institution concerned vis-a-vis the scheme

for establishment of a college before disapproving the same. The

manner in which the respondents, in the individual facts of the

instant case, have approached the issue, leads to the inevitable

conclusion that the materials on record do not support

determinatively the allegation of deficiency, as alleged. The

respondents having failed to persuasively establish the said

deficiencies, as noted in the impugned order dated 10.08.2017,

inspite of opportunities available including the one granted by

this Court, such a determination cannot be sustained in the facts

and circumstances of the case. We are of the considered opinion

that in view of the persistent defaults and shortcomings in the

decision making process of the respondents, the petitioner’s

college/institution ought not to be penalised. Consequently, on

an overall view of the materials available on record and balancing

all relevant aspects, we are of the considered opinion that the

conditional LOP granted to the petitioner's college/institution on 29

12.09.2016 for the academic year 2016-17 deserves to be

confirmed. Having regard to the progression of events, the

assertions made by the petitioner in the representations

countering the deficiencies alleged, the observations/views

expressed by the Oversight Committee in its communication

dated 14.05.2017 and the DGHS in the hearing held on

17.01.2017, which considerably dilute/negate the findings with

regard to the deficiencies as recorded by the assessors of the MCI

in the inspections conducted, we hold that the petitioner's

college/institution, as prayed for, is also entitled to LOP for the

academic year 2017-18. We order accordingly. However, as the

Act and Regulations framed thereunder have been envisioned to

attain the highest standards of medical education, we consider it

expedient to permit the Central Government/MCI to cause

inspection of the petitioner's college/institution in case of

genuine necessity and as warranted in law besides adopting

other initiatives, as mandated by the Act and Regulations from

time to time. In view of this determination, the date of

counselling for the admissions to the course involved for the

academic year 2017-18 qua the petitioner's college shall stand 30

extended till 05.09.2017. The impugned order dated 10.08.2017

is thus set aside. The writ petition is allowed. We make it clear

that the decision rendered and the directions issued are in the

singular facts and circumstances of the case. I.A. No. 73463 of

2017 also stands disposed of.

.........................................CJI. [Dipak Misra]

…........................................J. [Amitava Roy]

…........................................J. [A.M. Khanwilkar] New Delhi;

August 30, 2017.