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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL  JURISDICTION

WRIT PETITION (C) NO. 411 OF 2017

GLOCAL MEDICAL COLLEGE AND SUPER SPECIALITY HOSPITAL & RESEARCH  CENTRE ….PETITIONER

VERSUS UNION OF INDIA AND ANOTHER ….RESPONDENTS

WITH

W.P. (C)  NOS. 430, 432, 437, 436, 438, 441, 442, 445,448, 450, 468,477,511, 496, 511, 514, 515, 525 and 533 of 2017.

JUDGMENT       AMITAVA ROY,J.

In assailment is the order dated 31.05.2017 of the

Government of India,  Ministry of  Health and  Family  Welfare

(Department of Health and Family Welfare) whereby the

conditional permission for the establishment of the  medical

colleges, involved herein with   number of seats as mentioned,

for the academic year 2016­17, granted  on the basis of the

approval  of the Supreme Court Mandated Oversight Committee

(for short, hereinafter to be referred to as “Oversight Committee”)

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has been cancelled and the colleges have been debarred from

admitting students in the next two academic years i.e. 2017­18

and 2018­19.  Thereby, the Medical Council of India, (for short,

hereinafter to be referred to as “MCI'/Council”)  has also been

authorised to encash the bank guarantees submitted by the

colleges/institutions, as required for availing the conditional

permission as above.   The colleges/institutions have been

directed not to admit students in the  MBBS  Course in the

academic years 2017­18 and 2018­19.   

2. We have heard  M/s. Salman  Khurshid, S.G. Hasnain,

Gurukrishna Kumar,   A. Sharan, P.S. Patwalia, Kapil Sibal, V.

Giri, Nidhesh Gupta, R. Basant, Raju Ramachandran, Sanjay R.

Hegde,   Dr. Rajeev Dhawan, C.A. Sundaram, Vikas Singh,

Maninder Singh, Ajit  Kumar Sinha, Senior Advocates and Mr.

Mishra Saurabh, learned counsel for the parties.

3. It is submitted across the Bar that the foundational facts,

which constitute the essence of the dissension, are identical so

much so that the sequence of events, if drawn from any of the

petitions would suffice to comprehend   the issues to be

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addressed.  Having regard to the striking likeness of the factual

framework  of the cases in  hand, for the sake  of brevity and

convenience,  facts in bare   minimum  as available in the

pleadings of W.P. (C) No. 411 of 2017 – Glocal Medical College

and Super Specialty Hospital and Research Centre vs.

Union of India and Another   and W.P.(C) No. 436 of 2017 –

Gayatri Vidya Parishad  Society  &  Another vs. Union of

India and Another would be adverted to.

4. The colleges/institutions in this  batch had,  as required

under Section 10A of the Indian Medical Council Act, 1956 (for

short, hereinafter to be referred to as “the Act”)   and the

Establishment of Medical College Regulations, 1999 (for short,

hereinafter to be referred to as “Regulations”) framed thereunder

duly  submitted   schemes for  grant  of letter  of  permission  to

establish   new  medical college  with annual intake of  MBBS

students, as mentioned in their individual applications, from the

academic year 2016­17.  As ordained in law, the Council caused

an inspection of the colleges to be  made by its Council of

Assessors on 11th  and 12th  December, 2015, whereafter the

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assessment report was laid before the Executive Committee of

the MCI, which in its meeting dated 28.12.2015, on a

consideration of the deficiencies pointed out, forwarded its

recommendation  to the  Central  Government  disapproving the

schemes for the academic year 2016­17 on 31.12.2015.

5. The Central Government in its turn, by letter dated

05.02.2016 consequently disapproved as well, the schemes of the

petitioner colleges/institutions for the academic year 2016­17.

6. Shortly thereafter, this Court by its judgment and order

dated 02.05.2016 rendered in  Modern Dental College and

Research Centre  & Anr. vs.  State  of  Madhya Pradesh &

Ors.1  constituted the Oversight  Committee,  amongst  others to

oversee the functioning of the Council  under the Act.  As the

records demonstrate, the Oversight Committee intervened in the

process as reportedly many colleges/institutions did complain of

denial of  opportunity to submit their compliance write up, to the

deficiencies pointed out by the assessors and by its

communication dated 22.06.2016 permitted those

1 (2016)7SCC 353

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colleges/institutions to submit their compliance inputs afresh to

the Ministry of Health and Family Welfare and further directed

the  Council to conduct   compliance verification inspection  of

those colleges/institutions and submit the inspection report to

the Central Government.   

7. Subsequent   thereto, the Oversight Committee by its

communication dated   11.8.2016 addressed to the Central

Government,  Ministry  of  Health  and  Family  Welfare,   for the

reasons recorded,   granted conditional approval to the

colleges/institutions, as  mentioned therein,   subject to   the

following conditions:

“(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  along  with the application.

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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) in 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.”

8.  Accordingly, the Central Government vide letter No. U­

12011/13/2016­ME­I   dated 20.8.2016,   in deference to the

above directions of the Oversight Committee, issued the letter

of permission subject to the above conditions, initially for   a

period of one year and renewable on yearly basis also  subject

to the verification of  the achievement of  annual targets, as

indicated in their schemes and re­validation of the

performance bank guarantees.  It was mentioned as well that

the next batch of students of   MBBS Course for the academic

session  2017­18 would be admitted in the colleges only after

obtaining permission from Central Government   and on

fulfilling the conditions   laid down by the Oversight

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Committee, as stipulated hereinabove.    

9. The petitioners assert   that on being intimated   of the

above order, they   accordingly, through their authorised

representatives, as directed   submitted the affidavits of

compliance affirming that they had rectified all the

deficiencies pointed out  in the inspection  conducted by the

Council on 11/12.12.2015  and also had furnished the bank

guarantees, as required.   The communications to this effect

are on 30.8.2016 and 1.9.2016.   The colleges/institutions,

as have been mentioned in   course of the arguments,   have

meanwhile, acting on this conditional  letter of permission,

admitted students to the academic year 2016­17.

10. The MCI caused another inspection of the

colleges/institutions to be made by its Council of Assessors

on 21/22.12.2016, whereafter on a consideration of the

report submitted  by its  assessors, in its  meeting  held on

13.1.2017  did record, a number of  persisting deficiencies. It

was thus of the view that the colleges/institutions had failed

to abide by the undertaking   given by them to the Central

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Government that there  was no deficiency   as per clause

3.2(1) of the   communication dated 11.8.2016   of the

Oversight Committee and as   a consequence, recommended

in terms  of  paragraph  3.2(b) of the  above communication

that the said colleges/institutions   be debarred from

admitting students in the MBBS Course for the two academic

years   i.e. 2017­18,  2018­19  and further that   the  bank

guarantees furnished  by them be encashed.  As  per the

decision taken, a copy of the recommendations to the above

effect  was forwarded to the  Central  Government and the

Oversight Committee.  

11. The Central Government in turn, by its communication

dated 2.2.2017, addressed to the petitioner

colleges/institutions informed that an opportunity of

personal hearing would be granted on 17.1.2017 and

8.2.2017 on the issue of the recommendation of the MCI for

debarment of the colleges for two academic sessions,   as

above  and  for  encashment  of their  bank guarantees.  The

colleges/institutions were instructed to depute their

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authorised representatives to present their case vis­a­vis the

recommendations of the MCI along with the requisite

information  in the  prescribed format to  be laid  before the

committee concerned.

12. In response, the petitioner colleges/institutions   in

time   submitted their reply  maintaining  that almost all the

deficiencies pointed out in the inspection carried on

11/12.12.2015 had been rectified and that the deficiencies

noted in the subsequent inspection  were not the same and

further  were at best minor in nature.    

13. Item­wise replies with clarifications  were furnished by

the colleges vis­a­vis the deficiencies pointed out in the

inspection  held   on  21st  and  22nd  December,  2016.  The

colleges/institutions claimed that in fact there was no

deficiency and that they were making all efforts   to

overcome, if there be any, and prayed that the minor

deficiencies be condoned and the conditional LOP (Letter of

Permission) be confirmed.   

14. A hearing   was provided to the institutions/colleges

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by a Hearing Committee   of the Central  Government on

17.1.2017 and 8.2.2017 and  the comments of the Hearing

Committee  along with the  recommendations/comments  of

the  Director  General  of  Health  Services in respect  of the

colleges mentioned therein,   were forwarded to the Central

Government on 23.3.2017.   As would be evident from this

document,   it contained four  columns and  the third  and

fourth thereof did   set out   the comments of the Hearing

Committee and recommendations/comments of   Director

General of Health Services (for short “DGHS”) respectively. It

may be noted in the passing that whereas the comments of

the Hearing Committee in respect of most of the

colleges/institutions was “No satisfactory evidence

available”, the recommendations/comments of the  DGHS

disclosed that the said authority on noting the deficiencies

highlighted   did suggest   some relaxation in the approach

thereto,   to  be  brought to the  notice of the  Oversight

Committee   and  also   recommended   that the  Oversight

Committee  may take necessary initiatives in this regard. As

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this document would  also  reveal, the recommendations of

the  MCI and the comments of the  Hearing Committee and

the   DGHS were forwarded to the Central Government be

submitted   for further directions/comments from the

Oversight Committee.   

15. A lull followed and  it was only on 5.5.2017 that the

Central Government   forwarded   the aforementioned

recommendations   dated 23.3.2017 to the Oversight

Committee.  As this communication  would reveal, the

Hearing Committee/DGHS had granted personal hearing to

the colleges on 17.1.2017 and 8.2.2017.   Noticeably,

however   though  the  contents  of the  proceedings  dated

23.3.2017 of the Hearing Committee/DGHS were set out  in

that letter dated 5.5.2017, the column containing the

recommendations/comments of the DGHS did not find

place therein.  In other words, as is patent, only a truncated

version of the document dated  23.3.2017 was forwarded by

the Central Government to the Oversight Committee.   The

letter mentioned   that the observations of the Hearing

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Committee   constituted by the DGHS, be construed to be

the views of the Ministry of Health and Family Welfare.

16. The letter No. OC/UG/2016­16 (Conditional

Approvals) 258 dated 14.5.2017 of the Oversight Committee

followed  in response.    As this letter  would  evince, the

Oversight Committee on a detailed consideration of the

factual backdrop   and on an in­depth analysis of the

deficiencies pointed out by the assessors of the MCI, the

views of the Hearing Committee   and of the Central

Government, by recording reasons,   dismissed the

deficiencies   enumerated   and recommended confirmation

of the conditional letter of permission earlier granted to the

colleges/institutions concerned.    

17. The impugned   decision conveyed  by the letter  No.

U.I2012/27/2016­ME­I [FTS.30844749] dated 31st  May,

2017,   as referred to hereinabove  was thereafter issued.

Thereby to reiterate,  the decision of the Central Government

to debar  the  petitioner colleges/institutions from admitting

students in the next two academic years 2017­18 and 2018­

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19 and also to authorise the  MCI to encash the bank

guarantees  was communicated.  Directions were also issued

to the concerned colleges/institutions not to admit students

in the MBBS course in the said academic years.  

18. The quintessence of the contrasting contentions next

needs to be outlined. It has been insistently urged on behalf

of the petitioners that in the pronounced backdrop of facts

outlining the march of events, the impugned decision is on

the face of  it,  unsustainable being bereft of  any reason or

relevant consideration.   It has been argued that the

Oversight Committee having been constituted by this Court

by its judgment and order dated 02.05.2016 in  Modern

Dental College Research Centre    (supra) authorizing it to

oversee all statutory functions   under the Act and leaving it

at liberty to issue appropriate remedial directions, the

impugned order is in the teeth of the recommendations of the

said Committee, as communicated in its letter dated

14.05.2017 overruling the deficiencies on the basis of which

purportedly, the petitioner colleges/institutions are being

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sought to be debarred from admitting students in the

academic session  for  the years 2017­18 and 2018­19 and

their bank guarantees are ordered to be encashed.   It has

been emphatically asserted that having regard to the status

of the Oversight Committee and the role assigned to it by this

Court, its recommendations/views, as conveyed by its letter

dated 14.05.2017, by no means could have been

disregarded.  It has been stoutly canvassed that not only the

Central Government in acting only on the recommendations

of the  MCI  had  proceeded in a  manner  which is grossly

unfair and unreasonable vis­à­vis the petitioner

institutions/colleges,   the  manner in  which  the impugned

decision has been taken tantamounts to denial of hearing to

them, as mandated by Section 10A(4) of the Act.  It has been

urged as well that the action of  forwarding the incomplete

proceedings of the Hearing Committee/DGHS to the

Oversight  Committee  betrays inexplicable prejudice and a

predetermined disposition against the petitioner

colleges/institutions,  rendering the  impugned decision non

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est in law.   

19. As against this, it has been argued in emphatic

refutation on behalf of the respondents that the Central

Government being the final decision making authority under

the Act on the issue of grant or refusal of

permission/renewal of permission, there is no embargo on it

to take a decision thereon, more so there being no mandate

that it would be bound by the recommendations of the

Oversight Committee.  It has been contended that the views

expressed by the Oversight Committee in its communication

dated 14.05.2017 are contrary to its directives earlier issued

in its letter dated 11.08.2016, recommending grant of

conditional LOP to the petitioner institutions/colleges.  It has

been insisted that not only the petitioner

institutions/colleges had failed to provide the minimum

teaching, clinical,  infrastructural and other facilities in the

colleges as divulged in the successive inspections, they have

been found to be non­compliant of the undertakings given by

them to the Central Government as well.  It has been argued

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that the impugned decision, in the attendant facts and

circumstances, is unassailable and does not merit any

interference.   

20. After hearing the learned counsel for the parties and on

a consideration of the  materials on record, to the extent

essential, we are of the considered opinion that the

impugned decision cannot be sustained in law as well as on

facts. Significantly,  the authenticity and correctness of the

documents referred to by the parties are not disputed and

form part of the records.    

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 vis­à­

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

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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 sub­section 4 of Section 10A of the Act for ready

reference is set out hereinbelow:

“(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  sub­section  (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 sub­section (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:”

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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  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

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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 disaccord 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

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hearing, as 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

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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 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  co­operate in  compliance  of this

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direction to meet the time frame fixed.  

26.    Let these matters be listed on 24.8.2017.

                                              ...........................................J.                                 [Dipak Misra]

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

          …........................................J.                                          [A.M. Khanwilkar]

New Delhi; August 1, 2017.