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 the  

college have prayed for issue of a writ of certiorari for  

quashing the order dated 31.05.2017 passed by the  

respondent No.1 whereunder the petitioners have been  

debarred from admitting 150 students in the MBBS course  

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

restrain the respondent No.2, Medical Council of India  

(MCI), to encash the bank guarantee of Rs. 2 crores

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furnished by the petitioner-institution. That apart, the  

prayer is to quash the order dated 14.08.2017 passed by  

the respondent No.1 for reiterating the said order.  The relief  

has been sought for issue of writ of mandamus,  

commanding the respondent No.1 to grant renewal for the  

academic year 2017-18 keeping in view the  

recommendations dated 14th May, 2017, submitted by the  

Oversight Committee constituted in terms of the order of  

this Court and to direct the respondents to permit the  

institution to admit 150 students in MBBS Course for the  

academic year 2017-18.   

2. At the very inception, it is necessary to state that  

though many a document has been filed and prolonged,  

anxious, forceful and sometimes vehement arguments have  

been canvassed, yet the controversy, as we perceive, lies in  

a narrow compass. And to appreciate the same, we are  

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

long.   

3. The petitioner No.1, a Trust, established under the  

Indian Trust Act, 1882 decided to establish a new Medical

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College by the name of Kerala Medical College at Palakkad,  

Kerala. It submitted an application under Section 10-A of  

the Indian Medical Council Act, 1956 (for brevity, “the Act”)  

to the respondent No.1 to establish the Medical College in  

the name and style of Kerala Medical College and Hospital  

seeking admission of 150 students in the MBBS Course for  

the academic year 2014-15. As certain deficiencies were  

pointed out by the MCI, it was not granted Letter of  

Permission (LOP) for the year 2014-15. Thereafter, in 2015,  

an application was filed for grant of LOP for the academic  

session 2016-17. A team of assessors of the respondent No.  

2 conducted assessment of the college in regard to grant of  

LOP for the academic year 2016-17 and submitted its  

report.  The respondent No.2, on the basis of the reports of  

the assessors dated 16.12.2015 and 17.12.2015 in its  

Executive Committee meeting dated 28.12.2015 made  

recommendation to the respondent No.1 not to grant LOP  

for the academic year 2016-17. On 18.01.2016, the  

respondent No.1 afforded an opportunity of hearing to the  

petitioner as contemplated under Section 10A(4) of the Act  

and the petitioner gave its explanation as regards the

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deficiencies pointed out by the respondent No.2 and the  

respondent No.1 being satisfied referred back the matter to  

the respondent No. 2 for review.    

4. As the factual narration would evince, on 10th  

February, 2016, a team of assessors of the respondent No. 2  

conducted verification assessment for grant of LOP for the  

academic year 2016-17. In the mean time, the Constitution  

Bench in Modern Dental College and Research Center  

and others v. State of Madhya Pradesh and others1  

constituted the Oversight Committee headed by Justice  

R.M. Lodha former CJI to oversee the functioning of the  

MCI. We shall refer the relevant paragraphs of the said  

judgment at a later stage.  On 13th May, 2016, the report of  

the assessors team was considered by the Executive  

Committee of the respondent No.2 in its meeting dated  

13.05.2016 and on 14.5.2016 the MCI recommended the  

disapproval of the scheme of the petitioner under Section  

10-A of the Act for the academic year 2016-17.  However,  

after Oversight Committee was constituted, the Central  

Government issued a public notice informing all the Medical  

                                                             1 (2016) 7 SCC 353

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Colleges to submit a compliance report concerning their  

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

the facts would unfold, the 1st respondent sent the  

compliance report along with the reply of the MCI to the  

Oversight Committee for consideration which on 11.08.2016  

approved the same for the year 2016-17 imposing certain  

conditions.    

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

circumstances the Oversight Committee was constituted by  

the Constitution Bench.  It referred to the functioning of  

MCI and keeping in view certain other factors including a  

report of the Expert Committee directed the Central  

Government to consider and to take further appropriate  

action in the matter at the earliest.  At the same time,  

however, in exercise of power under Article 142, the Court  

constituted the Oversight Committee to oversee the  

functioning of the MCI and all other matters.  In this regard  

the Court said:-  

“In view of the above, while we do not find any  error in the view taken by the High Court and  dismiss these appeals, we direct the constitution

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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

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and the views of the Executive Committee were sent to the  

Oversight Committee.    

7. The Oversight Committee, after some analysis, took  

the applications for consideration pertaining to  

establishment of Medical Colleges for the academic year  

2016-2017, forwarded by Ministry of Health and Family  

Welfare (MHFW) on 22nd July, 2016.  Dealing with the  

present college, the Oversight Committee directed as  

follows:-  

“Kerala Medical College, Palakkad, Kerala, MBBS  (150 seats), LOP for 2016-2-17 u/s 10A.  

The Institution had stated that all deficiencies  (faculty/resident/clinical material and  infrastructure) pointed out by MCI have been  made up by them.  The OC peruse the statement  in the compliance report submitted by the  college.  These statements satisfy the criteria  stated in para 3.1 above.  Accordingly, the  application is approved subject to conditions laid  down in aforementioned para 3.2.”  

8. Para 3.2 of the said order read as follows:-  

“3.2 The applicants for new private colleges for  UG for 2016-17 whose applications, have been  approved by OC, shall submit to MHFW, within  15 days of issue of notification of approval by  MHFW u/s 10A(4) of IMC Act, 1956, the  following:

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

(ii) A bank guarantee in the amount of Rs. 2  crore in favour of MCI, which will be valid  for 1 year or until the first renewal  assessment, whichever is later. Such bank  guarantee will be in addition to the  prescribed fee submitted alongwith the  application.  

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

(b) In default of the conditions (i) and (ii) para 3.2  above and if the compliances are found  incomplete in the inspection to be conducted  after 30 September 2016, such college will be  debarred from fresh intake of students for 2  years commencing 2017-18.”   

9. In compliance of the conditional approval granted by  

the Oversight Committee, the assessment was carried out  

on 28th and 29th December, 2016, by the team of assessors  

and the following defects were pointed out:-  

“1. Deficiency of faculty is 13.84% as detailed  in the report.  2. Shortage of Residents is 8.69% as detailed  in the report.  3. No Anti Sera are available in Microbiology  laboratory.  4. Bed Occupancy is 50% at 10 a.m. on day of  assessment as under:

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# 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 29th December,  

2016 of the Principal, Kerala Medical College, Palakkad  

regarding promotion of Dr. Munir U.A. from Assistant

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Professor to Associate Professor in the department of  

Pediatrics and the clinical material and leave of the faculty  

and resident doctors during MCI assessment.  Regard being  

had to the deficiencies, the MCI recommended to the  

Central Government not to grant Letter of Permission.  

11. Thereafter, the Union of India passed an order on 31st  

May, 2017, debarring the petitioner-College to admit the  

students in the MBBS course in the academic years 2017-

2018 and 2018-2019 and also authorized the MCI to  

encash the bank guarantee of Rs.2.00 crore.  The said order  

reads thus:-  

“In continuation to this Ministry’s letter dated  20.08.2016 granting conditional permission for  establishment of a medical college 150 seats for  the academic year 2016-2017 on the basis of  approval communicated by Supreme Court  Mandated Oversight Committee on MCI and after  granting an opportunity of hearing to the College  with reference to the recommendation of the  MCI’s letter NO.MCI-36(41)(e-86)/2016- Med./167376 dated 15.01.2017, I am directed to  convey the decision of the Central Government to  debar Kerala Medical College, Palakkad from  admitting students in next two academic years  i.e. 2017-2018 & 2018-2019 and also to  authorize MCI to encash the Bank Guarantee of  Rs.2.00 crore.  

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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 India2 on 1st  

August, 21017, passed the following order:-  

“In the light of the order passed by the Apex  Court in Writ Petition (Civil) No.411 of 2017 and  connected matters on 01.08.2017, as the medical  colleges involved in these cases are similarly  placed, I deem it appropriate to pass an interim  order directing the Central Government to  consider afresh the materials on record  pertaining to the issue of renewal or otherwise of  the letter of permission granted to the petitioner  colleges/institutions.  Ordered accordingly.  It is  made clear that while undertaking this exercise,  the Central Government shall re-evaluate the  

2 (2017) 8 SCALE 356  

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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 Central  

Government on 14th August, 2017, passed an order  

declining Letter Of Permission to the petitioner-institution.   

The Central Government noted:-  

“Whereas, the MCI vide letter dated 15.1.2017  has informed and recommended to the Ministry  as under:  

“In view of the above, the college has failed to  abide by the undertaking it had given to the  Central Govt. that there are no deficiencies as  per clause 3.2(i) of the directions passed by the  Supreme Court mandated Oversight Committee  vide communication dated 11/8/2016.  The  Executive Committee, after due deliberation and  discussion, have decided that the college has  failed to comply with the stipulation laid down by  the Oversight Committee.  Accordingly, the  Executive Committee recommends that as per  the directions passed by Oversight Committee in  para 3.2(b) vide communication dated  11/08/2016 the college should be debarred from  admitting students in the above course for a  period of two academic years i.e. 2017-18 &  2018-19 as even after giving an undertaking that  they have fulfilled the entire infrastructure for  establishment of new medical college at Palakkad

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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   

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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.  

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(xii) Audiometry:- The College explanation is  acceptable on the basis of photos attached.  LOP confirmed.”  

14. After so noting, the Central Government referred to its  

earlier order dated 31st May, 2017 and the order dated 2nd  

August, 2017, passed by the High Court of Kerala at  

Ernakulam and held thus:-  

“Now, in compliance with the above direction of  Hon’ble High Court dated 2.8.2017, the Ministry  granted hearing to the college on 8.8.2017.  The  Hearing Committee after considering the record  and oral & written submission of the college  submitted its report to the Ministry.  Findings of  Hearing Committee are as under:  

“MCI has pointed out deficiency of 9 faculty  and 4 residents against the requirement.   The shortfall is attributed by the college to  leave opted by staffs during the Christmas –  New Year week.  Supporting documents  such as bank statement Form-16 (for  financial year 2015-16) were also submitted  for the doctors on leave.  It is observed that  the appointment orders issued by the  college are without any reference number.   Nothing could be conclusively established  about the faculty on leave.  

The submission of the college regarding  static x-ray machine, pre-operative beds,  ETO sterilizer, audiometry, etc. may be  accepted.  However, the college seems  deficient in bed occupancy.  

In view of the Committee, the college is at  LoP stage and the facilities have to be  satisfactorily verified.

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The Committee agrees with the decision of  the Ministry vide letter dated 31.05.2017 to  debar the college for two years and also  permit MCI to encash bank guarantee.  

Accepting the recommendations of Hearing  Committee, the Ministry reiterates it earlier  decision dated 31.5.2017 to debar the  college from admitting students for a period  of 2 years i.e., 2017-18 & 2018-19 and also  authorize MCI to encash Bank Guarantee of  Rs.2 crores.”  

The said order is the subject matter of assail in this  

Writ Petition.  

15. We have heard Dr. Rajiv Dhawan and Mr. Mukul  

Rohatgi, learned senior counsel for the petitioners, Mr. Ajit  

Kumar Sinha, learned senior counsel for the Union of India  

and Mr. Vikas Singh, learned senior counsel along with Mr.  

Gaurav Sharma, learned counsel for the MCI.  

16. Learned counsel for the petitioners submit that the  

inspection that has been carried out by the MCI is a  

composite inspection for 2016-2017 and 2017-2018 and  

when the deficiencies are marginal and, in fact, it can be  

said there is really no deficiency, there is no justification to  

deny the LOP for 2017-2018.  It is urged by them that the  

explanation offered by the petitioner-institution has really

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not been taken into consideration and had it been  

appositely appreciated, such an assessment could not have  

been made by the assessors.  They have also highlighted  

that certain other institutions having more deficiencies have  

been extended the benefit of LOP for 2017-2018, but for no  

fathomable or acceptable reason, the institution in question  

has been deprived of the said benefit.  It is urged with  

vehemence that the order passed by the Central  

Government is not in consonance with the judgments  

rendered by this Court in Glocal Medical College (supra),  

IQ City Foundation and Another v. Union of India &  

Ors3.  That apart, it is contended that the inspection by the  

MCI was done during the Christmas and New Year, which is  

not permissible as per the Regulations and hence, the whole  

report deserves to be disregarded. Additionally, it is  

propounded that the status of the order passed by the  

Central Government still remains an unreasoned one and  

by stretch of reasoning, it can be conferred the distinction  

of a reasoned order. Dr. Rajiv Dhawan, pyramiding the  

aforesaid submissions along with Mr. Mukul Rohatgi,  

                                                             3 (2017) 8 SCALE 369

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submits that the Court does not sit in appeal over such  

order and, therefore, when the order is absolutely perverse  

and arbitrary, it should be overturned in exercise of power  

of judicial review and the institution should be granted LOP  

for the academic year 2017-2018.  

17. Mr. Ajit Kumar Sinha, learned senior counsel  

appearing for the Union of India, per contra, would contend  

that the Oversight Committee had passed a conditional  

order and when the conditions were not fulfilled, the  

institution has to face the consequences and in such a  

situation it is extremely hollow on the part of the petitioner-

institution to set forth unacceptable criticism pertaining to  

the order passed by the Central Government.  He would  

further submit that the order dated 31st May, 2017, as this  

Court has already held, was not an order which reflected  

reason, but the order impugned is irrefragably a reasoned  

one because there is reference to the history of the  

institution, the chronology of events, the report of the  

Oversight Committee, the opinion of the Hearing Committee  

and eventual expression of an opinion.  According to him, if  

such an order is not given the stamp of a ‘reasoned order’, it

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will be granting premium to recalcitrant institutions, which  

are bent upon imparting medical education in an  

unscrupulous manner.  According to Mr. Sinha, concept of  

negative equality is not within the ambit of Article 14 of the  

Constitution of India and, in any case, this Court has  

issued notice to the other institutions and, therefore, the  

petitioners cannot claim parity.  Additionally, he would put  

forth that in most of the matters, this Court has directed for  

consideration of the LOP for the year 2018-2019 and the  

present fact situation does not exposit a different scenario  

and hence, this Court should not make any distinction in  

the present case.  

18. Mr. Vikas Singh, learned senior counsel appearing for  

the MCI refuting the arguments advanced by the learned  

senior counsel for the petitioners, contends that ascribing of  

reasons by an administrative authority should not be  

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

to see whether the reasons are discernible and whether  

there has been application of mind. Mr. Singh would further  

contend that the allegation made by the petitioner-

institution that the Executive Committee has not considered

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the explanation offered by the competent authority of the  

college shows an attitude of obstinacy and deviancy.    

Learned senior counsel would contend that the in IQ City  

Foundation (supra) when this Court remanded the matter  

and in Glocal Medical College (supra) when this Court  

granted the benefit on proper appreciation, it would be quite  

lucent, the role conferred on the MCI of India and the  

reason for extending the benefit to an institution for 2017-

2018.  That apart, propounds Mr. Singh, that the  

educational institutions cannot remain disobedient to the  

framework of the Regulations brought into existence under  

Section 33 of the Act and assert with stubbornness that  

they should be given the LOP. According to him, if such a  

situation is allowed to prevail, the Act, the Regulations and  

Minimum Standard Requirement (MSR) for the MCI would  

be tenuous and ultimately come within the tentacles of  

unscrupulous institutions.  

19. This Court in IQ City Foundation (supra), after  

referring to Dr. Ashish Ranjan and Others v. Union of

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India and Others4 and Manohar Lal Sharma v. Medical  

Council of India and Others5, Medical Council of India  

v. Kalinga Institute of Medical Sciences (KIMS) and  

Others 6  and Royal Medical Trust (Registered) and  

Another v. Union of India and Another7 held thus:-  

“On a reading of Section 10-A of the Act, Rules  and the   Regulations, as has been referred to in  Manohar Lal Sharma (supra), and the view  expressed in Royal Medical Trust (supra), it  would be inapposite to restrict the power of the  MCI by laying down as an absolute principle that  once the Central Government sends back the  matter to MCI for compliance verification and the  Assessors visit the College they shall only verify  the mentioned items and turn a Nelson’s eye even  if they perceive certain other deficiencies.  It  would be playing possum. The direction of the  Central Government for compliance verification  report should not be construed as a limited  remand as is understood within the framework of  Code of Civil Procedure or any other law. The  distinction between the principles of open  remand and limited remand, we are disposed to  think, is not attracted. Be it clearly stated, the  said principle also does not flow from the  authority in Royal Medical Trust (supra). In this  context, the objectivity of the Hearing Committee  and the role of the Central Government assume  great significance. The real compliant institutions  should not always be kept under the sword of  Damocles. Stability can be brought by affirmative  role played by the Central Government. And the  

                                                             4 (2016) 11 SCC 225  5 (2013) 10 SCC 60  6 (2016) 11 SCC 530  7 (2015) 10 SCC 19

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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 for  

establishment of new medical college, new course of study,  

etc.  Sub-section (7) of Section 10-A reads as follows:-  

“(7) The Council, while making its  recommendations under clause (b) of  sub- section (3) and the Central Government, while  passing an order, either approving or  disapproving the scheme under sub-section (4),  shall have due regard to the following factors,  namely—  

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(a) whether the proposed medical college or the  existing medical college seeking to open a new or  higher course of study or training, would be in a  position to offer the minimum standards of  medical education as prescribed by the Council  under Section 19A or, as the case may be, under  Section 20 in the case of postgraduate medical  education.  

(b) whether the person seeking to establish a  medical college or the existing medical college  seeking to open a new or higher course of study  or training or to increase its admission capacity  has adequate financial resources;  

(c) whether necessary facilities in respect of staff,  equipment, accommodation, training and other  facilities to ensure proper functioning of the  medical college or conducting the new course or  study or training or accommodating the  increased admission capacity, have been  provided or would be provided within the time- limit specified in the scheme;  

(d) whether adequate hospital facilities, having  regard to the number of students likely to attend  such medical college or course of study or  training or as a result of the increased admission  capacity, have been provided or would be  provided within the time-limit specified in the  scheme;  

(e) whether any arrangement has been made or  programme drawn to impart proper training to  students likely to attend such medical college or  course of study or training by persons having the  recognised medical qualifications;  

(f) the requirement of manpower in the field of  practice of medicine; and  

24

(g) any other factors as may be prescribed.”  

21. Section 3-B of Indian Medical Council (Amendment)  

Act, 2010, which confers the powers on the Board of  

Governors, reads as follows:-  

“3-B. Certain modifications of the Act.— During the period when the Council stands  superseded—  

                          * * *  

(b) The Board of Governors shall—  

(i) exercise the powers and discharge the  functions of the Council under this Act and for  this purpose, the provisions of this Act shall have  effect subject to the modification that references  therein to the Council shall be construed as  references to the Board of Governors;  

(ii) grant independently permission for  establishment of new medical colleges or opening  a new or higher course of study or training or  increase in admission capacity in any course of  study or training referred to in Section 10A or  giving the person or college concerned a  reasonable opportunity of being heard as  provided under Section 10A without prior  permission of the Central Government under that  section, including exercise of the power to finally  approve or disapprove the same; and  

(iii) dispose of the matters pending with the  Central Government under Section 10A upon  receipt of the same from it.”  

22. In Manohar Lal Sharma (supra), Section 3-B was  

interpreted thus:-

25

“MCI, with the previous sanction by the Central  Government, in exercise of its powers conferred  by Sections 10-A and 33 of the Indian Medical  Council Act, 1956, made the Regulations known  as the Establishment of Medical College  Regulations, 1999. Regulation 8 of the 1999  Regulations deals with grant of permission for  establishment of new college. Application/  Scheme submitted by the applicants is evaluated  and the verification takes place by conducting  physical inspection by the team of inspectors of  MCI. The Board of Governors may grant LoP to  the applicant for making admissions in the first  year of MBBS course in the medical college and  the permission is renewed every year subject to  the college achieving the yearly target mentioned  in “Minimum Standard Requirements for the  Medical College for 150 Admissions Annually  Regulations, 1999”. Schedule I of the  abovementioned Regulation provides for  accommodation in the medical college and its  teaching hospital. Schedule II deals with  equipment required for various departments in  the college and hospital. The requirements are  statutorily prescribed and, therefore, the Board  of Governors has no power to dilute the statutory  requirements mentioned in the abovementioned  Regulations.”  

23. In Royal Medical Trust (supra), the Court after due  

advertence to Section 10-A of the Act and the Regulations  

framed by the Medical Council of India, has ruled:-  

“MCI and the Central Government have been  vested with monitoring powers under Section  10A and the Regulations. It is expected of these  authorities to discharge their functions well  within the statutory confines as well as in

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 28th and 29th December, 2016.  In Shri  

Venkateshwara University Through its Registrar &  

Another vs. Union of India and Another8 [Writ Petition  

(Civil) No. 445 of 2017] this Court has referred to the  

decision in Kanachur Islamic Education Trust (R) vs.  

Union of India and Another9 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 12th  December, 2016 and the day previous thereto i.e.  11th December, 2016, was a Sunday and the said  facts are not wholly irrelevant.  The said analysis  cannot be regarded as the construction of the  clause.     Having said that, we shall proceed to  analyze what the clause precisely conveys.  On a  careful reading of the same, it is quite clear and  unambiguous that the obligation of the MCI is to  ensure that inspections are not to be carried out  at least 2 days before and 2 days after an  important religious and festival holidays declared  by the Central/State Government.  In the clause,  the words which gain significance are “important  religious and festival holidays”.  On 12th  December, 2016, it was Milad-un-Nabi and it is  the day of festival.  The inspection was done on  9th December, 2016, which was a Friday.  The  amended clause of the notification state only  covers 2 days before the festival declared as a  holiday by the Central/State Government and 2  days thereafter.  In the case at hand, the  inspection team had gone for inspection on 9th  December, 2016, and they were deprived to carry  out the inspection.  It was not covered by the  concept of two days of moratorium.”  

26. At this juncture, it is pertinent to understand and  

appreciate the ratio of Kanachur Islamic Education Trust  

(R) (supra) because it is being highlighted in certain cases  

that there is no acceptability or permissibility to have a

30

second inspection in quite succession.  The paragraph that  

has been highlighted from Kanachur Islamic Education  

Trust (R) (supra) reads thus:-  

“That against the inspections conducted by the  

MCI, the petitioner’s college/institution had  

submitted representations on 15.12.2016 and  

16.1.2017 before the Central Government is a  

matter of record.  That the report qua the  

inspection conducted on 17-18.11.2016 did not  

disclose any substantial deficiency warranting  

disapproval as observed by the Hearing  

Committee is also not in dispute.  It is  

unambiguously clear that the inspection of the  

petitioner’s college undertaken on 17-18.11.2016   

did not divulge any substantial deficiency  

justifying disapproval of the LOP to it.  The  

reason for the surprise inspection on 9-

10.12.2016, i.e. within three weeks of the first  

exercise and that too in absence of any  

noticeable substantial deficiency, is convincingly  

not forthcoming.”  

27. On a careful reading of the said paragraph, it is limpid  

that is not the ratio of the decision that there cannot be a  

surprise inspection and every time reasons have to be  

recorded.  Be it noted, the Court has also clarified the  

position at the end of the verdict stating thus:-

31

“We make it clear that the decision rendered and  

the directions issued are in the singular facts  

and circumstances of the case.”  

28. It is well settled in law that the ratio of a decision has  

to be understood regard being had to its context and factual  

exposition. The ratiocination in an authority is basically  

founded on the interpretation of the statutory provision.  If  

it is based on a particular fact or the decision of the Court  

is guided by specific nature of the case, it will not amount  

to the ratio of the judgment. Lord Halsbury in Quinn v.  

Leathem10  has ruled:-  

“… every judgment must be read as applicable to  the particular facts proved, or assumed to be  proved, since the generality of the expressions  which may be found there are not intended to be  expositions of the whole law, but are governed  and qualified by the particular facts of the case in  which such expressions are to be found.”  

 29. A three-Judge Bench in Union of India and others v.  

Dhanwanti Devi and others 11 , while adverting to the  

concept of precedent under Article 141 of the Constitution,  

has opined thus:-  

“Before adverting to and considering whether  solatium and interest would be payable under the  

                                                             101901 AC 495 : (1900-03) ALL ER Rep 1 (HL)   11 (1996) 6 SCC 44

32

Act, at the outset, we will dispose of the objection  raised by Shri Vaidyanathan that Hari Krishan  Khosla case12 is not a binding precedent nor does  it operate as ratio decidendi to be followed as a  precedent and is per se per incuriam. It is not  everything said by a Judge while giving judgment  that constitutes a precedent. The only thing in a  Judge’s decision binding a party is the principle  upon which the case is decided and for this  reason it is important to analyse a decision and  isolate from it the ratio decidendi. According to  the well-settled theory of precedents, every  decision contains three basic postulates—(i)  findings of material facts, direct and inferential.  An inferential finding of facts is the inference  which the Judge draws from the direct, or  perceptible facts; (ii) statements of the principles  of law applicable to the legal problems disclosed  by the facts; and (iii) judgment based on the  combined effect of the above. A decision is only  an authority for what it actually decides. What is  of the essence in a decision is its ratio and not  every observation found therein nor what  logically follows from the various observations  made in the judgment. Every judgment must be  read as applicable to the particular facts proved,  or assumed to be proved, since the generality of  the expressions which may be found there is not  intended to be exposition of the whole law, but  governed and qualified by the particular facts of  the case in which such expressions are to be  found. It would, therefore, be not profitable to  extract a sentence here and there from the  judgment and to build upon it because the  essence of the decision is its ratio and not every  observation found therein. The enunciation of the  reason or principle on which a question before a  court has been decided is alone binding as a  precedent. The concrete decision alone is binding  between the parties to it, but it is the abstract  

                                                             12 (1993) Supp (2) 149

33

ratio decidendi, ascertained on a consideration of  the judgment in relation to the subject-matter of  the decision, which alone has the force of law and  which, when it is clear what it was, is binding. It  is only the principle laid down in the judgment  that is binding law under Article 141 of the  Constitution. A deliberate judicial decision  arrived at after hearing an argument on a  question which arises in the case or is put in  issue may constitute a precedent, no matter for  what reason, and the precedent by long  recognition may mature into rule of stare decisis.  It is the rule deductible from the application of  law to the facts and circumstances of the case  which constitutes its ratio decidendi.    

Therefore, in order to understand and  appreciate the binding force of a decision it is  always necessary to see what were the facts in  the case in which the decision was given and  what was the point which had to be decided. No  judgment can be read as if it is a statute. A word  or a clause or a sentence in the judgment cannot  be regarded as a full exposition of law. Law  cannot afford to be static and therefore, Judges  are to employ an intelligent technique in the use  of precedents.”  

 30. In Bussa Overseas and Properties Private Limited  

and Another vs. Union of India and Another13, while  

dealing with the precedential value of the decision in  

Thungabhadra Industries Limited vs. State of A.P.14,  

the two-Judge Bench held:-  

                                                             13 (2016) 4 SCC 696  14 AIR 1964 SC1372

34

“The aforesaid decision in Thungabhadra  Industries Ltd. case when properly appreciated  clearly reveals that it pertains to the stage when  objection is to be taken. It does not lay down that  a special leave petition against a review petition is  maintainable or not. The focus on the stage of  taking objection is fact-centric but not principle- oriented. To elaborate, the said decision does not  lay down as a principle that the Court is bereft of  power to hear on maintainability. If we  understand the view expressed therein, it can be  said that the Court has been guided by the  concept of propriety.”  

[Emphasis supplied]  

31. In Royal Medical Trust (supra), this Court has clearly  

held that there can be surprise inspection as that ensures  

that the required facilities and infrastructure are always in  

place and not borrowed or put in temporarily.  

32. In IQ City Foundation and Another (supra), after  

referring to Royal Medical Trust (supra), the Court has  

held:-  

“Therefore, the emphasis is on the complaint  institutions that can really educate doctors by  imparting quality education so that they will have  the inherent as well as cultivated attributes of  excellence.”  

33. Thus, in our considered opinion what has been stated  

in Royal Medical Trust (supra) and IQ City Foundation  

(supra) has the precedential value under Article 141 of the

35

Constitution.  We have no hesitation in saying that the  

pronouncement in Kanachur Islamic Education Trust (R)  

(supra) has to rest on its own facts.    

34. Having said that, it is necessary to scrutinise the  

explanation offered by the Principal of the petitioner-

institution. The Principal has justified the leave availed of  

by the faculty and the residents during the period of  

inspection of the assessors of the Medical Council of India.  

We think it appropriate to reproduce the said explanation:-  

“We would like to bring to your kind notice that  

few faculty and residents were on leave and half  

day leave on various reasons during the  

assessment conducted by MCI in Kerala Medical  

College, Palakkad on 28-12-2016. The details are  

mentioned below for your kind perusal.  

1. Dr. Gurusiddana Gowda, Associate Professor  

of Radio Diagnosis.  

His father had expired two weeks back and he  

had gone to perform the rituals of his father as  

per Hindu religious custom. He is the elder son  

in the family. Form 16, salary statement from  

bank and attendance register copy is enclosed  

herewith.  

2. Dr. R. Balamurugan Ramdas, Associate  

Professor of Bio Chemistry.

36

He had gone to his native Pondichery during  

Christmas Holidays taking leave till 01-01-2017  

because of personal reasons.   

Form 16, salary statement from bank and  

attendance register copy is enclosed herewith-

leave submission form.  

3. Dr. MS Ramaiyah, Associate Professor of  

Medicine.  

He was on half day leave on 28-12-2016 and  

reported in the afternoon. He was presented  

before the inspectors but not accepted as he was  

not present at the time of taking attendance at  

11 a.m.  

Form 16, salary statement from the bank and  

attendance register copy is enclosed herewith.  

4. Dr. N. Natarajan, Associate Professor of  

Medicine.  

He was on half day leave on 28-12-2016 and  

reported in the afternoon. He was presented  

before the inspectors but not accepted as he was  

not present at the time of taking attendance at  

11 a.m.  

Form 16, salary statement from the bank and  

attendance register copy is enclosed herewith.  

5. Dr. MS Dhananjaya, Professor of OBG.  

His cousin brother had expired and the 12th day  

ritual ceremony was on 28-12-2016 and he had  

been sanctioned leave. He is present on 29-12-

2016 and presented before the assessors.  

Form 16, salary statement from the bank and  

attendance register copy is enclosed herewith.

37

6. Dr. Ravi Chandra, Associate Professor of  

Surgery.  

He had gone to his native during Christmas  

holidays taking leave till 31-12.2016 because of  

personal reasons.  

Salary statement from bank and attendance  

register copy is enclosed herewith.  

7. Dr. Asha S Jagtap, Professor of PSM  

She had gone to her native during Christmas  

holidays taking leave till 31-12-2016 because of  

personal reasons.   

Form 16, salary statement from the bank and  

attendance register copy is enclosed herewith.  

8. Dr. Girist A, Senior Resident in Medicine.  

He was on half day leave on 28-12-2016 and  

reported in the afternoon. He was presented  

before the inspectors but not accepted as he was  

not present at the time of taking attendance at  

11 a.m.  

Salary statement from the bank and attendance  

register copy is enclosed herewith.  

9. Dr. Basavaraj SK, Senior resident of Medicine.  

He had gone to his native during Christmas  

holidays taking leave till 31-12-2016 because of  

personal reasons.  

Salary statement from bank and attendance  

register copy is enclosed herewith.  

10. Dr. B. Ravindra Shivaji, Senior Resident of  

Radio Diagnosis.

38

He had gone to his native during Christmas  

holidays taking leave till 31-12-2016 because of  

personal reasons.  

Salary statement from bank and attendance  

register copy is enclosed herewith.  

11. Dr. Harithakumari Landa, Senior Resident of  

pulmonary medicine.  

She had gone to his native during Christmas  

holidays taking leave till 31-12-2016 because of  

personal reasons.   

Salary statement from the bank and attendance  

register copy is enclosed herewith.”  

35. It is submitted by the learned senior counsel  

appearing for the petitioners that the Medical Council of  

India as well as the Central Government should have  

accepted the leave position and, in any case, it was within  

the permissible limit.    

36. In this regard, Mr. Vikas Singh learned senior counsel  

for the MCI has drawn our attention to the extract of the  

Minutes of the Executive Committee dated 21st August,  

2014.  It reads as follows:-  

“Regarding specifying the type of acceptable leave  

during inspection of medical colleges.

39

Read: the matter with regard to regarding  

specifying the type of acceptable leave during  

inspection of medical colleges.  

The Executive Committee of the Council  

considered the report of the Sub Committee dt.  

17.04.2014 as constituted by the Executive  

Committee at its meeting held on 14th March,  

2014 and decided to accept the report with the  

following amendments:-  

(1) The faculty who is on leave due to the  

following reasons would be accepted;  

(a) For attending International/National  

conferences organized by the respective  

International/National Associations or Societies;  

(b) For attending any work assigned by Medical  

Council of India, either at headquarters or for  

assessment of a medical college;  

(c) For conducting examination of the concerned  

subject in a medical college in Central/State  

University;  

(d) For attending Courts;  

Provided that appropriate documents certifying  

the same which are countersigned by the dean  

are furnished.  

(2) The faculty who is on sanctioned Maternity  leave would be accepted provided the appropriate  leave sanction order issued by the sanctioning  authority and countersigned by the Dean is  furnished with all necessary certificates.”  

40

37. The said resolution is strenuously contested by the  

learned senior counsel for the petitioners.  It is urged with  

immense vehemence that the resolution smacks of gross  

arbitrariness and reveals a sense of hidden base for use of  

power of an absolute tyrant and a despot.  Mr. Singh  

explaining the same would submit that a hospital to remain  

compliant has to have the requisite number of doctors and  

staff, and to run a medical college constant compliance is  

imperative.  According to him, when a college is granted  

LOP for the first year, 5% margin with regard to absence is  

granted and that is why certain categories of leave have not  

been mentioned in the resolution, but that does not mean  

that the college can grant leave to the doctors at its whim  

and fancy.  Be that as it may, the absence of faculty  

members which has been taken note of by the Medical  

Council of India and accepted by the Central Government  

cannot be allowed to pale into total insignificance.  In this  

regard, a submission advanced by the learned senior  

counsel for the petitioners requires to be noted.  It is urged  

by them that the engagement of the faculty members are to

41

be believed as they are paid their salaries by the petitioners  

and it is shown in the necessary Income Tax form.  

38. It needs no special emphasis to state that the said  

submission cannot be the guiding factor for our analysis.   

The issue is the deficiency of the doctors and the absence of  

the doctors during the period of inspection.  We have  

already held that the period in which the assessors  

inspected cannot be said to be a period covered under the  

Regulations. That apart, as is noticeable, the Hearing  

Committee which has been constituted on the basis of the  

decision in Amma Chandravati Educational and  

Charitable Trust  (supra),  has also held that the college is  

deficient in bed occupancy at the conditional LOP stage  

other facilities have to be specifically verified and in the  

absence of satisfaction, the LOP ought not to be granted.  

39. In the course of hearing, Mr. Rohatgi, learned senior  

counsel for the petitioners has placed heavy reliance on  

Krishna Mohan Medical College and Hospital & Anr v.  

Union of India & Anr15 (Writ Petition (Civil) No. 448 of  

2017 decided on 01.09.2017) and Dr. Jagat Narain  

                                                             15

 2017 SCC Online SC 1032

42

Subharti Charitable Trust & Anr v. Union of India &  

Ors16.   

40. In Krishna Mohan Medical College (supra), this  

Court has held:-  

“… as the Act and Regulations framed thereunder  have been envisioned to attain the highest  standards of medical education, we direct the  Central Government/MCI to cause a fresh  inspection of the petitioner college/institution to  be made in accordance therewith for the  academic year 2018-19 and lay the report in  respect thereof before this Court within a period  of eight weeks herefrom. A copy of the report,  needless to state, would be furnished to the  petitioner college/institution at the earliest so as  to enable it to avail its remedies, if so advised,  under the Act and the Regulations. The Central  Government/MCI would not encash the bank  guarantee furnished by the petitioner  college/institution. For the present, the  impugned order dated 10.8.2017 stands modified  to this extent only. The direction for a writ, order  or direction to the respondents to permit the  petitioner college/institution to admit students  for the academic year 2017-18, in the facts of the  case, is declined.”  

41. In Dr. Jagat Narain Subharti Charitable Trust  

(supra), the Court, while granting the benefit for academic  

session 2017-2018, opined:-  

“Thus, there has been substantial compliance of  the said requirement by the petitioners.  

                                                             16

 (2017) 10 SCALE 308

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 while  

determining the controversy in exercise of power of judicial  

review under Article 32 of the Constitution.  The principle of  

judicial review by the constitutional courts have been  

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

Cellular v. Union of India17, dealing with the concept of  

Judicial Review, the Court held:-  

                                                             17  (1994) 6 SCC 651

44

“Lord Scarman in Nottinghamshire County Council  v. Secretary of State for the Environment  proclaimed:  

‘Judicial review’ is a great weapon in  the hands of the judges; but the judges  must observe the constitutional limits set  by our parliamentary system upon the  exercise of this beneficial power.”  

Commenting upon this Michael Supperstone and  James Goudie in their work Judicial Review  (1992 Edn.) at p. 16 say:  

“If anyone were prompted to dismiss this  sage warning as a mere obiter dictum  from the most radical member of the  higher judiciary of recent times, and  therefore to be treated as an idiosyncratic  aberration, it has received the  endorsement of the Law Lords generally.  The words of Lord Scarman were echoed  by Lord Bridge of Harwich, speaking on  behalf of the Board when reversing an  interventionist decision of the New  Zealand Court of Appeal in Butcher v.  Petrocorp Exploration Ltd. 18-3-1991.”  

Observance of judicial restraint is currently the  mood in England. The judicial power of review is  exercised to rein in any unbridled executive  functioning. The restraint has two contemporary  manifestations. One is the ambit of judicial  intervention; the other covers the scope of the  court’s ability to quash an administrative decision  on its merits. These restraints bear the hallmarks  of judicial control over administrative action.  

Judicial review is concerned with reviewing not  the merits of the decision in support of which the

45

application for judicial review is made, but the  decision-making process itself.”  

 44. After so stating, reference was made to the law  

enunciated in Chief Constable of the North Wales Police  

v. Evans18 wherein, it has been ruled:-  

“Judicial review, as the words imply, is not an  appeal from a decision, but a review of the  manner in which the decision was made.  

* * *  Judicial review is concerned, not with the  

decision, but with the decision-making process.  Unless that restriction on the power of the court  is observed, the court will in my view, under the  guise of preventing the abuse of power, be itself  guilty of usurping power.”  

 45. In the said case, the Court also referred to R. v. Panel  

on Take-overs and Mergers, ex. P. Datafin plc19 wherein  

Sir John Donaldson, M.R. commented:-  

“An application for judicial review is not an  appeal.”  

 46. The three Judge Bench further held:-    

“The duty of the court is to confine itself to the  question of legality. Its concern should be:  

1.  Whether a decision-making  authority exceeded its powers?  

2. Committed an error of law,                                                                18  (1982) 3 All ER 141  19  (1987) 1 All ER 564

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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”.

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48. Thereafter, the Court referred to the authorities in R.  

v. Askew 20  and Council of Civil Service Unions v.  

Minister for Civil Service21 and further expressed:-  

“At this stage, The Supreme Court Practice, 1993,  Vol. 1, pp. 849-850, may be quoted:  

“4. Wednesbury principle.— A decision of  a public authority will be liable to be  quashed or otherwise dealt with by an  appropriate order in judicial review  proceedings where the court concludes  that the decision is such that no  authority properly directing itself on the  relevant law and acting reasonably could  have reached it. (Associated Provincial  Picture Houses Ltd. v. Wednesbury  Corpn., per Lord Greene, M.R.)”  

 We may hasten to add, though the decision was  

rendered in the context of justification of grant of contract  

but the principles set out as regards the judicial review are  

of extreme significance.  

49. Discussing at length, the principle of judicial review in  

many a decision, the two Judge Bench in Reliance  

Telecom Ltd. & Another v. Union of India & Another22,  

has held:-  

                                                             20  (1768) 4 Burr 2186 : 98 ER 139  21  (1985) 1 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174  22  (2017) 4 SCC 269

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“As we find, the decision taken by the Central  Government is based upon certain norms and  parameters. Though criticism has been advanced  that it is perverse and irrational, yet we are  disposed to think that it is a policy decision which  subserves the consumers’ interest. It is extremely  difficult to say that the decision to conduct the  auction in such a manner can be considered to be  mala fide or based on extraneous considerations.”  

50. Thus analysed, it is evincible that the exercise of  

power of judicial review and the extent to which it has to be  

done will vary from case to case.  It is necessary to state  

with emphasis that it has its own complexity and would  

depend upon the factual projection.  The broad principles  

have been laid down in Tata Cellular (supra) and other  

decisions make it absolutely clear that judicial review, by no  

stretch of imagination, can be equated with the power of  

appeal, for while exercising the power under Article 226 or  

32 of the Constitution, the constitutional courts do not  

exercise such power.  The process of adjudication on merit  

by re-appreciation of the materials brought on record which  

is the duty of the appellate court is not permissible.   

51. The duty of the Court in exercise of the power of  

judicial review to zealously guard the human rights,  

fundamental rights and the citizens’ right of life and liberty

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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. Vohra23)   

52. What Dr. Dhawan submits basically is that as the  

order passed by the Central Government after the order  

passed by the High Court of Kerala does not really reflect  

any reason, this Court should axe the same treating it as  

arbitrary and grant the LOP and that would be within the  

power of judicial review.  The order passed by the Central  

Government has to be appreciated in its entirety.  We repeat  

at the cost of repetition that neither the Central  

Government nor the Hearing Committee is expected to pass  

a judgment as a Judge is expected to do.  The order must  

reflect application of mind and should indicate reasons.  We  

may reiterate that the order dated 31st May, 2017, was  

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

dated 14th August, 2017, cannot be said to be sans reason.   

Learned senior counsel would contend with all the vigour at  

his command that it is not a reasoned one and for the same  

                                                             23  (2004) 2 SCC 150

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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

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come to an end and cannot become an event that defeats  

time.   The students who are continuing their studies on the  

basis of LOP granted for the academic year 2016-2017  

should be allowed to continue their studies in the college  

and they shall be permitted to continue till completion of  

the course.  

(b) The applications submitted for 2017-2018 shall be  

treated as applications for 2018-2019 and the petitioners  

shall keep the bank guarantee deposited with the Medical  

Council of India alive and the MCI shall not encash the  

same.  

(c) The Medical Council of India shall conduct a fresh  

inspection as per the Regulations within a period of two  

months.  It shall apprise the petitioner-institution with  

regard to the deficiencies and afford an opportunity to  

comply with the same and, thereafter, proceed to act as  

contemplated under the Act.  

(d) The inspection shall be carried out for the purpose of  

grant of LOP for the academic session 2018-2019.

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(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.