F.H. Medical College vs Union Of India And Another
2018 Latest Caselaw 1986 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 29
 

 
Case :- WRIT - C No. - 25528 of 2018
 

 
Petitioner :- F.H. Medical College
 
Respondent :- Union Of India And Another
 
Counsel for Petitioner :- Mangla Prasad Rai,Dileep Kumar,Swapnil Kumar
 
Counsel for Respondent :- A.S.G.I.,Avanish Mishra
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Saral Srivastava,J.

Under challenge in this petition is the order dated 31.05.2018 issued by Under Secretary to the Government of India, Ministry of Health and Family Welfare (Department of Health and Family Welfare) refusing to renew the permission for admission to the 5th Batch of M.B.B.S. students at F.H. Medical College, Firozabad in the academic session 2018-19.

The petitioner apart from seeking the quashing of the aforesaid order has prayed that the respondents be directed to renew the permission for admission of the 5th batch of M.B.B.S. students for the academic year 2018-19 and to permit it to admit 150 students in the said batch.

The necessary background facts leading to the passing of the impugned order and for invoking the extraordinary jurisdiction of this court are that that the petitioner is a Medical College which has been established by The Muslim Educational Welfare Society, Nidhauli Kalan Etah (hereinafter referred to as Society). It is affiliated to Dr. B.R. Ambedkar University, Agra.

The aforesaid Society was granted permission under Section 10A of the Indian Medial Council Act, 1956 (hereinafter referred to as the Act) to establish a Medical College at Firozabad for imparting education in the M.B.B.S. Course with the annual intake capacity of 150 students for the academic year 2014-15.

The permission so granted on 07.08.2014 by the respondent No.1 was for a period of one year with the condition that it will be renewed on yearly basis subject to verification of achievements and the annual targets and such renewal of permission will continue till the establishment of the Medical College and expansion of hospital facilities are completed as per the norms of the Medical Council of India (hereinafter referred to as M.C.I.).

Accordingly, the Society established the Medical College and admitted the first batch of 150 students in the academic year 2014-15. However, the petitioner-Medical College was refused permission for admitting the second batch of 150 students in the academic year 2015-16 and the matter in respect of the aforesaid refusal is under challenge and is pending consideration in Writ-C No.40323 of 2015, F.H. Medical College & another Vs. Union of India and others after the interim order passed therein was taken to the Supreme Court and Special Leave Petition thereof was disposed of with the observation that the matter may finally be decided by the High Court.

Subsequently, the petitioner-Medical College was granted permission by the respondent No.1 on the recommendation of the M.C.I. to admit the 3rd batch and the 4th batch of 150 students each in the M.B.B.S. Course for the academic session 2016-17 and 2017-18 vide separate orders dated 30.05.2016 and 15.05.2017.

There is no dispute regarding grant of permission to the petitioner-Medical College to admit 150 students in the 1st, 3rd & 4th batch of M.B.B.S. Course in the academic year 2014-15, 2016-17 and 2017-18. The dispute regarding admission of the 2nd batch of students is the subject matter of another writ petition as referred to above. In the present writ petition the dispute is confined to the permission to admit students in the 5th year of the M.B.B.S. Course for the academic session 2018-19.

In this connection, the inspection was done by the M.C.I. on 18/19-08.2017 and a report thereof was prepared in which apart from other deficiencies it was pointed out that teaching beds in the hospital attached to the petitioner-Medical College are insufficient and that the bed occupancy is only 62.61% as against the prescribed norm of 65%.

The Principal of the petitioner-Medical College at that very moment protested and dissented with the aforesaid note and submitted a representation dated 21.08.2017 to the Oversight Committee constituted by the Supreme Court for the supervision of all decisions of the M.C.I. The Oversight Committee forwarded the said representation to the M.C.I. for consideration.

The M.C.I. submitted a final report/recommendation to the respondent No.1 on 01.11.2017 not to renew the permission to the petitioner-Medical College for admitting the 5th batch of 150 students to the M.B.B.S. Course for the academic year 2018-19.

The Principal of the petitioner-Medical College appeared before the respondent No.1 on 30.11.2017 and submitted a reply/representation and demonstrated that the recommendation not to renew the permission is based on incorrect facts and it should not be accepted.

The respondent No.1 vide order dated 05.12.2017 in the matter of grant of renewal of permission for admitting students in the 5th batch of M.B.B.S. Course 2018-19 directed the M.C.I. to review its order/report. The report of the M.C.I. not to renew the permission to the petitioner-Medical College as such was not accepted and the matter was sent for review/reconsideration at the end of M.C.I.

It is in pursuance thereof that the M.C.I. again vide letter dated 04.05.2018 recommended to the respondent No.1 not to renew the permission to the petitioner-Medical College for the aforesaid batch. On the basis of the said recommendation the impugned order has been passed and the permission has been refused.

We have heard Sri Swapnil Kumar, learned counsel for the petitioner-Medical College, Sri Mukteshwar Upadhaya, learned counsel for the respondent No.1 and Sri Avanish Mishra, learned counsel for the M.C.I. respondent No.4.

The counter affidavit filed by the M.C.I. has also been perused.

Sri Swapnil Kumar, learned counsel for the petitioner-Medical College has attacked the impugned order primarily on two counts. The first is that the recommendation not to renew the permission of the petitioner-Medical College as made by the M.C.I. was not placed before the Oversight Committee for its approval which was mandatory. Secondly, the impugned order is violative of the principles of natural justice as no opportunity of hearing was given to the petitioner-Medical College by the M.C.I. while reviewing its decision. The respondent No.1 passed the impugned order on the basis of the report of the M.C.I. dated 04.05.2018 a copy of which was never supplied and made available to the petitioner-Medical College. The respondent No.1 took the impugned decision in violation of Sub-Section (4) of Section 10A of the Act without affording hearing to the petitioner-Medical College.

Learned counsel for the Union of India and M.C.I. defended the order by alleging that no opportunity is necessary at the stage of review. The recommendation of the M.C.I. stands duly approved by the Oversight Committee as is referred to in the impugned order itself. The petitioner-Medical College was given personal hearing by the respondent No.1 vide letter dated 05.12.2017. Therefore, none of the grounds as raised on behalf of the petitioner-Medical College are sustainable.

In considering the matter on the above two aspects, it would be better for us to refer to certain provisions of the Act which provides for the permission for establishment of Medical Colleges and new courses of studies in Medical Colleges.

Section 10A of the Act is most relevant provision in this regard. It inter alia provides that no person which includes a University or a Trust shall establish a Medical College except with the previous permission of the Central Government. It further provides that every person for obtaining permission for the establishment of Medical College shall submit to the Central Government a scheme containing such particulars and accompanied by such fee as may be prescribed to the Central Government which shall be referred to the M.C.I. for its recommendations.

The M.C.I. shall process the same and if the scheme is defective or is lacking in necessary particulars give reasonable opportunity to the person or the college concerned for making written representation and to rectify the defects before submitting its recommendations to the Central Government. The Central Government thereafter either approve or disapprove the scheme but the disapproval shall not be without giving the person or the college concerned a reasonable opportunity of being heard.

The relevant provisions of Section 10A are reproduced hereinbelow:-

10A. Permission for establishment of new medical college, new course of study.--(1) Notwithstanding anything contained in this Act or any other law for the time being in force,--

(a) no person shall establish a medical college; or

(b) no medical college shall--

(i) open a new or higher course of study or training (including a post- graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

Explanation 1.--......................

2.--.....................

(2) (a) ......................

(b) ......................

(3) On receipt of a scheme by the Council under sub-section(2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may,--

(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council;

(b) ............

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

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

(5) ........................................................

(6)...........................................................

(7).......................................................

(a) .....................................

(b) .......................................

(c) ........................................

(d)......................................

(e) .............................................

(f)................................................

(g) .................................................

(8)...................................................

A simple and plain reading of the above provisions indicate that the person or the college concerned applying for the permission for establishment of the college is entitled to hearing at two stages;

(i) before the M.C.I. at the stage of consideration of the scheme so as to rectify the defects; and

(ii) at the stage of the consideration of the matter for approval or disapproval of the scheme by the Central Government.

In addition to the above provisions, the directions of the Supreme Court dated 18.07.2017 passed in Writ Petition (C) No.408 of 2017, Amma Chandravati Educational and Charitable Trust and others Vs. Union of India and another are also relevant.

The Apex Court by the said order directs for creation of a Oversight Committee consisting of five experts named therein. The said Committee was entrusted with the functions specified in the order and one of the functions is :-

"(b) all decisions/recommendations of the M.C.I. will require approval of the Oversight Committee before they are communicated to the Central Government."

In the view of the above order of the Supreme Court as till date no appropriate mechanism has been put in place by the Central Government, the Oversight Committee continues to function as directed.

In the light of the above, the matter of grant of permission to establish a Medical College or to renew a permission has to be first considered by the M.C.I., then its recommendations have to be vetted by the Oversight Committee and then placed before the Central Government for necessary approval or disapproval.

All the three steps as stated above are mandatory and atleast at two stages the person or the college concerned is legally required to be heard.

There is no dispute to the fact that after the petitioner-Medical College was inspected and an inspection note was prepared, the petitioner Medical College had protested and represented to the Oversight Committee that the inspection note is incorrect which representation was forwarded by the Oversight Committee to the M.C.I. whereupon report/recommendation was made vide letter dated 01.11.2017 by the M.C.I. to the Central Government not to renew the permission for the 5th batch of students to the M.B.B.S. Course. The respondent No.1 while considering the matter allowed opportunity of hearing to the petitioner-Medical College and directed the M.C.I. to review the matter.

Subsequent to the direction to review the matter, the petitioner-Medical College alleges that it was not granted any audience by the M.C.I. or the respondent No.1 and the matter was not even placed before the Oversight Committee before forwarding it to respondent No.1.

It is undisputed that the matter was referred back to the M.C.I. for the purposes its review vide letter dated 05.12.2017.

Thus the moot question is whether after this date for the purpose of consideration of the review any opportunity of hearing was required to be given to the petitioner-Medical College and if yes whether any such opportunity was accorded or not.

The petitioner-Medical College has categorically stated in paragraph Nos.33 and 34 of the writ petition that no opportunity after the matter was referred to the M.C.I. for review was given to the petitioner-Medical College either by the M.C.I. or by the respondent No.1. There is no denial to the said averments in the counter affidavit of the M.C.I.

Sri Avanish Mishra, learned counsel for the M.C.I. contends that at the stage of review no hearing was necessary. Moreover, the earlier recommendations were reiterated and therefore also the petitioner-Medical College was not to be heard.

Sub-Section (3)(a) of Section 10A of the Act clearly provides that the M.C.I. in consideration of such matter if finds that the scheme is defective and does not contain necessary particulars give a reasonable opportunity to the person or the college concerned for making written representation and to rectify the defects.

The earlier recommendations of the M.C.I. not to renew the permission to the petitioner-Medical College were not accepted by the respondent No.1 and the matter was sent back to the M.C.I. for review. Thus, if at the stage of review the M.C.I. was of the opinion that the scheme was defective or that certain particulars were lacking, it ought to have given an opportunity to the petitioner-Medical College to remove those defects or to represent so as to establish that there was no defect. However, this opportunity was denied to the petitioner-Medical College.

This apart the matter of review of any decision by the authority is a quasi-judicial Act and it cannot be done without following the principles of natural justice. The petitioner-Medical College as such was entitle to represent/heard by the M.C.I. while reviewing its earlier recommendation/decision but no such opportunity was given to the petitioner-Medical College.

Now coming to the opportunity required to be given to the petitioner-Medical College at the stage of approval/disapproval of the permission by the respondent No.1 it would be pertinent to refer to the first proviso to Sub-Section (4) of Section 10A of the Act which categorically provides that no scheme shall be disapproved by the Central Government without giving the person or the college concerned a reasonable opportunity of being heard.

The M.C.I. after review of its earlier recommendation submitted its recommendation to the respondent No.1 on 04.05.2018 reiterating its earlier decision not to grant permission to the petitioner-Medical College for the academic year 2018-19. The respondent No.1 in considering the recommendation dated 04.05.2018 apparently gave no opportunity of hearing to the petitioner-Medical College as contemplated by the proviso to Sub-Section (4) of Section 10A of the Act.

Learned counsel for the Union of India and Sri Avanish Mishra both submitted that as it was a case of reiteration of the earlier recommendations in respect whereof the respondent No.1 had given hearing to the petitioner-Medical College there was no necessity for re-hearing it. Secondly, the respondent No.1 had given hearing to the petitioner-Medical College vide letter dated 05.12.2017.

The above submissions are bereft of merit for the reason that the respondent No.1 had referred the matter for review to the M.C.I. on 05.12.2017. Thereafter when the recommendation of the M.C.I. dated 04.05.2018 was placed before the respondent No.1 no opportunity was given to the petitioner.

The matter of approval or disapproval of the said recommendation of the M.C.I. dated 04.05.2018 had come up before the respondent No.1 for the first time may be reiterating the earlier recommendations nonetheless, as the matter was being considered afresh the petitioner-Medical College was entitle to an opportunity of hearing as contemplated by the proviso to Sub-Section (4) of Section 10A of the Act.

The impugned decision was taken by the respondent No.1 solely on the basis of the recommendation of the M.C.I. dated 04.05.2018. The copy of the said recommendation was also not supplied to the petitioner-Medical College to enable it to know the reasons why the M.C.I. has recommended and reiterated not to renew the permission to the 5th batch of the M.B.B.S. Course.

In view of the aforesaid facts and circumstances, we are of the opinion that the petitioner-Medical College was entitle to opportunity of hearing both at the stage of the consideration of the review by the M.C.I. and again at the stage of grant of approval or disapproval to the said recommendations by the respondent No.1 and at both these stages no reasonable or proper opportunity was granted to the petitioner-Medical College and not even the copy of the recommendation of the M.C.I. which forms the basis of the impugned order was supplied to the petitioner.

This brings us to the other limb of the argument that the impugned order stands vitiated as the recommendation of the M.C.I. was not placed before the Oversight Committee before sending it to respondent No.1.

We are unable to appreciate the above submission as the impugned order itself mentions that the matter was placed before the Oversight Committee and that it had considered it in its meeting held on 02.01.2018 wherein it was decided that the recommendation of the M.C.I. vide letter dated 20.12.2017 stands approved by the Oversight Committee. It was only thereafter that the recommendations were forwarded to the respondent No.1 vide letter dated 04.05.2018.

In view of the aforesaid facts and circumstances, as the petitioner-Medical College was denied proper and reasonable opportunity of hearing both before the M.C.I. and the respondent No.1 in passing the impugned order to we consider it appropriate to quash it and to direct the M.C.I. to reconsider the matter from the stage of review as directed by the respondent No.1 vide letter dated 05.12.2017 and to take appropriate decision in accordance with law most expeditiously if possible within the next six weeks of the production of the copy of this order before the respondents.

The impugned order dated 31.05.2018 passed by Under Secretary to the Government of India, Ministry of Health and Family Welfare (Department of Health and Family Welfare), New Delhi is hereby quashed with the direction aforesaid.

The Writ Petition is allowed with no order as to costs.

Order Date :- 16.8.2018

piyush