Jamia Hamdard (Deemed University) v. Union of India

(v) UOI, as per Section 10A(4) of the Indian Medical Council

(IMC) Act, 1956 gave an opportunity of personal hearing to the petitioners and the Hearing Committee constituted by the UOI for the said purpose, after hearing the petitioners on 19th January, 2015, recommended: ―An undertaking may be obtained from the college. Recommended for approval‖

(vi) UOI, vide its letter dated 7th / 8th May, 2015 to the MCI stated as under: ―3. After considering recommendations of MCI and Hearing Committee, the Ministry has decided that the MCI may be asked for compliance verification.

4. In view of above, MCI is requested to send revised recommendation after compliance verification.‖

(vii) In the meanwhile, the petitioners, in pursuance to the letter dated 22nd December, 2014 supra of the MCI copy of which as aforesaid was marked to the petitioners with a request to submit detailed point-wise compliance, reported compliance and in verification assessment whereof the MCI carried out another inspection of the petitioner No.2 Medical College on 12th and 13th February, 2015 and vide letter dated 11th May, 2015 to the UOI communicated the decision taken in the meeting of its Executive Council held on 29th April, 2015 as under: ―The Executive Committee of the Council considered the Compliance Verification Assessment Report (12th & 13th Feb., 15) alongwith the previous assessment report (12th & 13th November, 2014) and representation of the college authorities dated 18/02/2015 and noted that the resident doctors had been counted who were on leave due to their own marriage and one Professor of TB & Chest department who had been considered eligible in the previous assessment had been declared ineligible by the Assessors in the current assessment. Taking into consideration the above and on recalculation, the following was noted:-

1. Faculty deficiency 11.3%

2. Deficiency of Resident Doctors: 12.62%

3. Other deficiencies as pointed out in the assessment report. In view of the above, the Executive Committee of the Council decided to recommend the Central Govt. not to renew the permission for admission of 4th batch of 100 seats of Hamdard Institute of Medical Sciences & Research, New Delhi under Jamia Hamdard (Hamdard University) u/s 10A of the IMC Act, 1956 for the academic year 2015- 2016.‖

(viii) A copy of the aforesaid letter dated 7th /8th May, 2015 of the UOI to the MCI was also marked to the petitioners and the petitioners vide their letter dated 12th May, 2015 to the MCI represented that all the deficiencies as pointed out in the inspection held on 12th & 13th November, 2014 and thereafter on 12th & 13th February, 2015 regarding Faculty, Residents, Senior Residents, Junior Residents and pertaining to the occupancy had been complied with and undertaking to comply with all the directions / guidelines issued by the MCI from time to time.

(ix) It is the case of the MCI that by the time of dispatching the letter dated 11th May, 2015 supra it had not received the letter dated 7th /8th May, 2015 supra of the UOI containing recommendation of the Hearing Committee and directing the MCI for compliance verification and to thereafter send revised recommendation. MCI accordingly, vide its letter dated 14th May, 2015 to the UOI, communicated the decision taken by its Executive Committee in the meeting held on 13th May, 2015, after receipt of the letter dated 7th /8th May, 2015 of the UOI as under: ―The Committee further observed that Council had already conducted compliance verification assessment on 12/13th February 2015 and the report was considered by the committee at its meeting held on 29.04.2015 wherein in view of persistent deficiencies it was decided to recommend to central government not to renew the permission for admission of 4th batch of 100 seats of Hamdard Institute of Medical Sciences & Research, New Delhi under Jamia Hamdard (Hamdard University) u/s 10A of the IMC Act, 1956 for the academic year 2015-

2016. This decision has been communicated to the Central Government vide letter dt. 11.05.2015. In view of above the Executive Committee of the Council decided to reiterate its earlier decision recommending to the Central Govt. not to renew the permission for admission of 4th batch of 100 seats of Hamdard Institute of Medical Sciences & Research, New Delhi under Jamia Hamdard (Hamdard University) u/s 10A of the IMC Act, 1956 for the academic year 2015-2016.‖

(x) The petitioners filed W.P.(C) No.5763/2015 in this Court impugning the negative recommendation contained in the letter dated 14th May, 2015 of the MCI contending that the same was not in conformity with the letter dated 7th /8th May, 2015 of the UOI. It was contended that the Hearing Committee constituted by the UOI in compliance of Section 10A(4) of the IMC Act having recommended the petitioner No.2 Medical College for approval on the condition ―that an undertaking may be obtained from the college‖, all that the MCI was required to do was to accept the undertaking from the petitioners as recommended by the Hearing Committee and which had already been done.

(xi) Per contra, it was the contention of the MCI during the hearing of the aforesaid writ petition on 29th May, 2015 and as recorded in the order of that date that the letter dated 7th / 8th May, 2015 of the UOI did not require the MCI to accept any undertaking; that as per the said letter, the only direction to the MCI was for ―compliance verification‖ and to send ―revised recommendation‖ and since the MCI had in the inspection of 12th / 13th February, 2015 already done the compliance verification, no further compliance verification was necessary and MCI was justified in, vide its letter dated 14th May, 2015, reiterating its negative recommendation.

(xii) During the hearing of the aforesaid writ petition on 29th May,

2015 ―All parties, including Central Government‖ agreed that no further inspection was to be carried out pursuant to the letter dated 7th / 8th May, 2015 and in view thereof, the learned Single Judge dealing with the said writ petition observed that ―it is not necessary to further dwell into the course that MCI was required to follow because, MCI has already made its recommendation‖ and that all that remained was for the UOI to take its decision. Accordingly, the writ petition was disposed of directing the Central Government to take a final view on the petitioners‘ application for renewal on or before 7th June, 2015.

(xiii) The petitioners preferred LPA No.388/2015 against the order dated 29th May, 2015 in the earlier writ petition, of which notice was issued by the Vacation Bench on 3rd June, 2015. However, thereafter when the said appeal came up before the Division Bench (Vacation) on 8th June, 2015, the counsel for UOI informed that in accordance with the order dated 29th May, 2015 of the learned Single Judge, the UOI has taken the decision dated 7th June, 2015 supra. In view thereof, the petitioners were, vide order dated 8th June, 2015, permitted to withdraw LPA No.388/2015, with liberty to challenge the decision dated 7th June, 2015 of the UOI in accordance with law. (I may record that the order dated 8th June, 2015 has not been filed by either of the parties but has been accessed by me from the file of LPA No.388/2015). Thereafter, this petition impugning the decision dated 7th as well as the negative recommendation contained in the letter dated 14th May, 2015 of the MCI, has been filed.

7. The senior counsel for the petitioners has argued: (a) that the UOI, after hearing the petitioners in compliance of Section 10A(4) of the IMC Act, had vide letter dated 7th / 8th May, 2015 renewed the permission of the petitioner No.2 Medical College to admit fourth batch of 100 students to the MBBS course in the academic year 2015-2016 subject to the petitioners furnishing an undertaking of the deficiencies pointed out in the letter dated 22nd December, 2014 of the MCI of negative recommendation having been removed; (b) that the petitioners had immediately thereafter submitted such an undertaking to the MCI and which has not been rejected by the MCI;

(c) however, MCI instead mis-interpreted the letter dated 7th / 8th May, 2015 of the UOI as requiring a fresh inspection of the petitioner No.2 Medical College and acting on the said erroneous premise, on the basis of the inspection of 12th / 13th February, 2015, again gave a negative recommendation and the UOI, without considering that it had vide letter dated 7th / 8th May, 2015 already accorded renewal of permission, has erroneously issued the letter dated 7th denying the renewal of permission;

(d) that neither the IMC Act nor the Establishment of Medical

College Regulations, 1999 (EMC Regulations) permit such a course of action; (e) that no opportunity / hearing within the meaning of Section 10A(4) of the IMC Act was afforded to the petitioners qua the second negative recommendations dated 11th May, 2015 and 14th May, 2015 of the MCI; (f) that the report of the second inspection was even otherwise never communicated to the petitioners and cannot be the basis for denial of renewal of permission to the petitioners; (g) that the petitioners, immediately after the letter dated 7th / 8th May, 2015 of the UOI had vide representation dated 18th May, 2015 stated that the deficiencies pointed out in the inspection of 12th / 13th February, 2015 had also been removed and the MCI, in compliance of the letter dated 7th / 8th May, 2015 of the UOI, ought to have verified whether the said representation was correct and could not have without such verification given the second negative recommendation vide letter dated 14th May, 2015; (g) that the deficiencies are even otherwise within the permissible limits.

8. The senior counsel for the MCI argued:

(i) that as per the Regulation 8(3) of the EMC Regulations, a

Medical College, while applying for renewal of permission is required to have achieved the prescribed parameters in terms of infrastructure, teaching and other facilities including adequate hostel facilities for boys and girls, staff and provision of extra beds and corresponding infrastructure in the hospital as provided in the time bound action plan as per MCI norms for the proposed intake of the College—this was intimated to the petitioners vide letter dated 20th August, 2014 also;

(ii) that the inspection carried out by the MCI is only for the purposes of verification, whether the self declaration made by the Medical College of having on the date of making the application achieved all the requisite parameters aforesaid is correct or not;

(iii) that the petitioners have not disputed the deficiencies found in the first inspection on 12th and 13th November, 2014 and as recorded in the letter dated 22nd December, 2014 supra of the MCI;

(iv) that the petitioners have also not imputed any mala fides to the

(v) that though MCI was not required to intimate the deficiencies found, on the basis whereof negative recommendation was being made to the UOI vide letter dated 22nd December, 2014 but still, since the time for making recommendation is upto 15th May of each year, intimated the said deficiencies to the petitioners and asked the petitioners to rectify the same;

(vi) that the contention of the petitioners that the deficiencies were within the limits permissible under the Regulations supra is misconceived; the limits prescribed in the proviso to Regulation 8(3) are only for determining whether an opportunity to rectify the deficiencies is to be given or not; the same cannot be interpreted as making any deficiency permissible; vis-à-vis Private Unaided Medical Colleges, MCI and UOI follow the policy of ‗zero‘ tolerance;

(vii) that no such opportunity to rectify the deficiencies found in the second inspection on 12th and 13th February, 2015 was required to be given;

(viii) attention was drawn to the report prepared of the second inspection on 12th and 13th February, 2015 to show that the same is signed by the Dean of the petitioner No.2 Medical College also;

(ix) that it is not as if the MCI while making the second negative recommendation dated 11th May, 2015 and 14th May, 2015 did not consider the representation dated 18th February, 2015 of the petitioners qua the second inspection conducted on 12th and 13th February, 2015—however after taking into consideration the said representation also, the faculty deficiency of 11.3%, deficiency of resident doctors of 12.62% and other deficiencies pointed out in the inspection report remained—thus the representation was properly considered;

(x) that the MCI vide the letter dated 11th May, 2015 had communicated to the UOI the decision taken in the meeting held on 29th April, 2015 of its Executive Committee; on 29th April, 2015, the MCI was not aware of the decision contained in the letter dated 7th / 8th May, 2015 of the UOI;

(xi) that under Section 10A of the IMC Act, it is only the UOI which is to give the hearing and the MCI is not required to give any hearing; reference was made to Manohar Lal Sharma Vs. Medical Council of India (2013) 10 SCC 60 laying down that MCI, while deciding to grant permission or not to grant permission is not functioning as a quasi-judicial authority but only as an administrative authority and rigid rules of natural justice are not contemplated or envisaged and no further time or opportunity to rectify the deficiencies is required to be given;

(xii) that after the orders in W.P.(C) No.5763/2015 earlier filed by the petitioners, it is not open to the petitioners to contend that the letter dated 7th / 8th May, 2015 of the UOI is the letter of renewal of permission; the interpretation of the said letter stands concluded by the order dated 29th May, 2015 in the earlier writ petition filed by the petitioners;

(xiii) that the order dated 29th May, 2015 in the earlier writ petition filed by the petitioners is a consent order and the petitioners cannot again urge that the letter dated 7th / 8th May, 2015 of the UOI is the letter of renewal of permission for the academic year 2015-2016;

(xiv) that though no hearing was given by the UOI to the petitioners after 19th January, 2015 but the UOI / Hearing Committee constituted having heard the petitioners on the same aspect, were not required to hear the petitioners again;

(xv) that only if the deficiencies pointed out as a result of the second inspection are materially different from the deficiencies discovered in the first inspection would the question of second hearing arise;

(xvi) that the Supreme Court in Mridul Dhar (Minor) Vs. Union of

India (2005) 2 SCC 65 reiterated in Priya Gupta Vs. State of Chhattisgarh (2012) 7 SCC 433 emphasized the need for adherence to the schedule prescribed and the last date as per which schedule for grant of renewal permission was 15th July,2015 and the petitioners, for this reason also, are not entitled to any relief now;

(xvii) that where the deficiencies found are fundamental and crucial, as the deficiencies in faculty and resident doctors found in the case of petitioners are, the same cannot be ignored in the interest of medical education and in the interest of the student community; that the parameters which are prescribed are the minimum parameters and if the same are diluted, it would constitute violence to the statutory requirements; reliance in this regard was again placed on Manohar Lal Sharma supra;

(xviii) that the principles of natural justice applicable, are to be moulded in accordance with the aforesaid factors.

9. The counsel for the UOI adopted the arguments of the MCI. I may also record that the UOI in the short affidavit filed by it has inter alia pleaded that it had issued the impugned letter dated 7th June, 2015 of disapproval, on the recommendation of the MCI.

10. The senior counsel for the petitioners in rejoinder contended: (a) that the Supreme Court in Swamy Devi Dayal Hospital and Dental College Vs. Union of India (2014) 13 SCC 506 while interpreting Section 10-A of the Dentists Act, 1948 which is identical to Section 10A of the IMC Act has held—(i) that the same contemplates grant of opportunity of being heard at two stages, first at the level of Dental Council of India (DCI), after the scheme is submitted and second stage of adherence to the principles of natural justice is provided at the level of UOI at the time when it has to take a final decision, after receipt of recommendation sent by DCI; (ii) that in case a scheme is found to be deficient, sub-section (3)(a) of Section 10A casts an obligation on the part of the DCI to give a reasonable opportunity for making a written representation and also to rectify the deficiencies, if any, specified by the DCI; (iii) similarly if the UOI is proposing to disapprove the scheme, it is required to give an opportunity of hearing under Section 10A(4); (iv) that the opportunity of being heard would mean that the material that goes against the applicant and is to be taken into consideration is to be supplied to the applicant with opportunity to make representation; (v) for this purpose, either the report of DCI itself can be supplied or at least the deficiencies pointed out in the report have to be communicated by the UOI to the applicant with an opportunity to furnish its comments thereupon and to give a personal hearing, if so desired; (b) that the procedure followed by the MCI as well as the UOI in the present case is contrary to the aforesaid; neither the MCI gave opportunity to the petitioner to rectify the deficiencies found in the second inspection on 12th and 13th February, 2015 nor did the UOI hear the petitioners thereon;

(c) that the scheme of the Act and the Regulations do not convey the idea of ―ambushing‖ a Medical College;

(d) that the hearing given by the UOI to the petitioners on 19th January, 2015 was irrelevant; if the UOI was to ultimately deny renewal of permission on the basis of second inspection conducted on 12th and 13th February, 2015, what transpired in the hearing on 19th January, 2015 ceased to be relevant for the purpose of the decision of the UOI in the letter dated 7th June, 2015; (e) that an inspection of the record of the UOI pertaining to the petitioners (permitted to the counsels for the petitioners during the hearing) showed that the UOI, prior to taking the decision contained in the impugned letter dated 7th June, 2015, did not consider the representation dated 18th May, 2015 of the petitioners; (f) that the dicta of the Supreme Court in Manohar Lal Sharma supra was in the context of Section 3A of the IMC Act, when MCI stood superceded and the UOI, besides performing its functions under Section 10A was, through the Board of Governors, also performing the functions of the MCI—it was in that context held in the said judgment that no hearing was required to be given by the MCI—thus the judgment applicable as of today is Swamy Devi Dayal Hospital and Dental College supra; (g) that if the petitioners succeed, the renewal of permission granted to them by this Court shall relate back to the date of 15th July, 2015 and thus the question of date prescribed by the Supreme Court for granting renewal permission, is not relevant; that the Division Bench of this Court vide order dated 13th August, 2015 in W.P.(C) No.7101/2015 titled Mediciti Institute of Medical Sciences Vs. Union of India has directed inspection of the medical college, notwithstanding the date of 15th July having lapsed; (h) that the Division Bench of this Court in order dated 5th August, 2015 in W.P.(C) No.6699/2015 titled Career Institute of Medical Sciences and Hospitals Vs. Union of India has expressed doubts as to the view taken by the earlier Division Bench in judgment dated 20th May, 2015 in W.P.(C) No.5041/2015 titled Shree Chhatrapati Shivaji Education Society Vs. Union of India.

11. The senior counsel for the MCI added:

(i) that Swamy Devi Dayal Hospital and Dental College supra was a case of no hearing having been granted before rejection / disapproval of the scheme; in the present case there have been two rounds of inspections, representations and considerations;

(ii) that the dicta of the Supreme Court in Swamy Devi Dayal

Hospital and Dental College supra is being misinterpreted by the petitioners; Sections 10A(2) as well as 10A(3) use the word ―particulars‖ and which can only mean paper compliance and do not contain a provision for an opportunity to be given by the MCI for rectification of the defects found in inspection carried out;

(iii) that Section 10A(4) cannot be compartmentalized; that the procedure followed of, after granting hearing, remitting to the MCI for verifying whether the representation in the hearing of having removed the deficiencies earlier found is correct or not and thereafter on the basis of the report of the MCI taking a decision whether to grant approval or not, is one single step and thus no second hearing is to be granted;

(iv) that the time schedule prescribed by the Supreme Court is required to be followed;

(v) that no reliance can be placed by the petitioners on the office notings made in the process of decision making and it is only the ultimate decision which is relevant.

12. I have considered the aforesaid rival contentions and my findings thereon are as under.

13. I am unable to agree with the MCI that the petitioners are to be denied relief, even if otherwise found entitled thereto, owing to the last date prescribed for grant of renewal permission by the UOI having lapsed, (A) for the reason that the Supreme Court in the order dated 3rd July, 2015 in SLP(C) No.17177/2015 supra arising from this petition, in the light of the fact that the result of the examination for admission to the first year MBBS course in the academic session 2015-2016 was to be declared by 17th August, 2015 and owing whereto it was not possible to grant any admission till that date, has directed this writ petition to be decided by 17th August, 2015. It is also worth noting that the said SLP was preferred against the order dated 12th June, 2015 of the Division Bench (Vacation) of this Court in LPA No.397/2015 and which itself recorded that if a party aggrieved by refusal of permission by the UOI successfully challenges such refusal, the date on which such party is granted permission would relate back to the date fixed in the schedule, subject to the adherence to the other time schedule as regards admission of students; (B) for the reason that the Division Bench of this Court also, in Mediciti Institute of Medical Sciences supra has for reasons recorded, directed fresh inspection of the medical college as recently as vide order dated 13th August, 2015.

14. I am also unable to accept the contention of the petitioners, of the deficiencies found in the petitioner No.2 Medical College, even if deemed to be correct, being within the permissible limits. Neither the IMC Act nor the Regulations supra permit grant of approval / renewal permission if any deficiencies, howsoever miniscule, exist. (A) Reliance placed in this regard on Clauses (a) to (d) of the proviso to Regulation 8(3) is totally misconceived. The said proviso to Regulation 8(3) has been interpreted by the Division Bench of this Court of which the undersigned was a member in Shree Chhatrapati Shivaji Education Society supra. The said Clauses of the proviso are an exception to Regulation 8(3) providing for an opportunity to rectify the deficiency to be given; the same provide that no such opportunity to rectify the deficiencies is to be given when the deficiencies are more than as mentioned in Clauses (a) to

(d) of the proviso.

(B) No other provision, rule or regulation permitting deficiencies to any extent below the parameters prescribed has been cited. On the contrary, as noticed above, the Supreme Court in Manohar Lal Sharma supra has held the parameters prescribed to be fulfilled being the minimum parameters and incapable of being diluted.

(C) The order in Career Institute of Medical Sciences and Hospitals supra is an interim order vide which inspection only has been directed with a direction of submission for the report thereof in a sealed cover. It thus cannot be said that as far as this Bench is concerned, Shree Chhatrapati Shivaji Education Society supra is to be ignored.

15. I am also unable to accept the contention of the petitioners that Section 10A(3) of the IMC Act imposes any obligation on the MCI to, after inspection of the Medical College, and if finding any deficiencies therein, give any opportunity to the Medical College to rectify the defects. For the sake of convenience, Sections 10A(2) & (3) are reproduced herein below: “10A(2)(a) Every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations. (b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanies with such fee as my be prescribed. (3) On receipt of a scheme by the Council under sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may,— (a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council; (b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government.” (A) A plain reading of the aforesaid provision shows, (i) that a person desirous of obtaining the permission of the Central Government for establishing a Medical College (and which has also been held by the Supreme Court in Swamy Devi Dayal Hospital & Dental College supra to include renewal of the permission to admit students in the subsequent year/s and recognition of the Medical College) is required to submit to the Central Government, a scheme in accordance with Clause (b) of sub-section (2) of Section 10A of the IMC Act; ii) said Clause (b) requires the said scheme to be in such form and to contain such ‗particulars‘ as may be prescribed; iii) the MCI, in Regulation 3 of EMC Regulations has prescribed the form in which the scheme is to be submitted and the ‗particulars‘ required to be contained therein; iv) sub-section (3) of Section 10A of the IMC Act empowers the MCI to, after receipt of such scheme, require the applicant to furnish such other particulars as may be considered necessary by the MCI and thereafter requires the MCI to, if the scheme is found to be defective and not containing the necessary ‗particulars‘, give a reasonable opportunity to the applicant for making a written representation and in which representation, the applicant may rectify the defects, if any, pointed out by the MCI in the scheme, as provided in Clause (a) of sub-section (3); v) it is only thereafter, if the applicant, upon being given opportunity to rectify the defects pointed out by the MCI has so rectified the defects and the scheme is in the form and containing such particulars as are prescribed by the MCI, that Clause (b) of sub-section (3) requires the MCI to consider the same with regard to the factors prescribed in Section 10A(7); vi) clause (a) of Section 10A(7) requires the MCI to, while so considering the scheme satisfy itself, whether the proposed Medical College or the existing Medical College seeking to open a new or higher course of study of training would be in a position to offer the minimum standards prescribed by the MCI; similarly, Clause (c) of Section 10A(7) requires the MCI to, during the said consideration of the scheme satisfy itself, whether the necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the Medical College for which the scheme is submitted or the permission has been sought, are provided in the Medical College; similarly, Clause (d) of Section 10A(7) requires the MCI to, during the said consideration satisfy itself, whether adequate hospital facilities for the students are available and clause (f) of Section 10A(7) requires the MCI to, during the said consideration satisfy itself, as to the availability in the Medical College of the manpower prescribed; vii) a perusal of the form and the particulars to be mentioned therein, prescribed for submitting a scheme and / or for seeking renewal permission, recognition etc., shows that the application is required to state therein, the existence / availability in the Medical College of all the said factors; viii) it is to satisfy itself during the stage of consideration prescribed in Clause (b) of sub-section (3) of Section 10A, whether what the applicant has stated in its scheme exists on the spot or not that the physical inspection at the site of the Medical College is carried out by the MCI. The Supreme Court in Manohar Lal Sharma supra has held that such inspection, to be efficacious, ought to be a surprise inspection, to rule out the possibility of the applicant, on the date of the inspection, making available the requisite infrastructure, manpower, though it otherwise may not exist; (B) The words ―give a reasonable opportunity to the person or College concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council‖ found in Clause (a) are conspicuous from their absence in Clause (b) of Section 10A(3) of the IMC Act. The only inference therefrom is that the opportunity to make a written representation and to rectify the defects, is to be given at the stage of clause (a) of sub-section (3) of Section 10A when the MCI is evaluating the scheme to see whether all the particulars required to be filled up in the form prescribed have been filled up or not and whether all the documents required to be submitted are annexed to the scheme or not. The said is a stage of paper examination, to be performed in the offices of MCI, as distinct from the stage of on the spot inspection at the proposed medical college prescribed in clause (b) of sub-section (3) of Section 10A and which is to follow only after stage (a) is crossed. If the intention of the Legislature was that the MCI should grant an opportunity to the applicant, of making a written representation and rectify the defects found not only during paper inspection but also those found during the on the spot inspection of the medical college, there was no need for the Legislature to bifurcate the consideration of the scheme into Clauses (a) and (b) of sub-section (3) of Section 10A and the Legislature would have placed the words ―give a reasonable opportunity and to make a representation and to rectify the defects‖ at the end of Clause (b).

(C) It may be noted that the EMC Regulations supra made by the

MCI in exercise of powers under Section 10A and 33 of the IMC Act also, in Regulations 6 & 7, while providing for evaluation by the MCI and the report to be submitted by the MCI to the Central Government, provide for two stages of consideration i.e. of evaluating the application submitted and seeking further information, clarification, additional documents and thereafter carrying out of physical inspection to verify the information submitted by the applicant. The same also do not provide for an opportunity to represent or to make up the deficiencies found in the physical inspection to be given. No challenge has been made to the said Regulations on the ground of the same not providing for an opportunity, to rectify the defects found during the physical on the spot inspection, to be given.

(D) As far as the reliance by the petitioners on Swamy Devi Dayal

Hospital and Dental College supra in this regard is concerned, the well settled principle of reading a judgment as a precedent is that a judgment is a precedent only on what falls for decision therein and not on what may be logically deducted / inferred therefrom and that observations made on matters which were not for decision do not constitute a precedent. Reliance, if any required in this regard may be made to conspectus of the case law in this regard noticed by the Division Benches of this Court in Ashwani Suri Vs. M/s Ganga Automobiles Ltd. (in liquidation) MANU/DE/3171/2012 and in Housing and Urban Development Corporation Limited Vs. Leela Hotels Limited MANU/DE/0623/2013, SLP (Civil) No.24474/2013 preferred whereagainst was dismissed on 21st August, 2013. Reference in addition may be made to – The State of Orissa Vs. Sudhansu Sekhar Misra AIR 1968 SC 647; (ii) Ambica Quarry Works Vs. State of Gujarat (1987) 1 SCC 213; (iii) Commission of Income Tax Vs. M/s Sun Engineering Works (P) Ltd. (1992) 4 SCC 363; (iv) Islamic Academy of Education Vs. State of Karnataka (2003) 6 SCC 697; (v) Union of India Vs. Chajju Ram (2003) 5 SCC 568; Subsequently also the Supreme Court has reiterated the same in (i) Arasmeta Captive Power Company Pvt. Ltd. Vs. Lafarge India Pvt. Ltd.(2013) 15 SCC 414; (ii) Dr. Subramanian Swamy Vs. State of Tamilnadu (2014) 5 SCC 75; (iii) Deepak Bhandari Vs. Himanchal Pradesh State Industrial Development Corporation Ltd. (2015) 5 SCC 518; (v) Balwant Rai Saluja Vs. Air India Limited (2014) 9 SCC 407; (v) Dinubhai Boghabhai Solanki Vs. State of Gujarat (2014) 4 SCC 626; (vi) Chauharya Tripathi Vs. L.I.C.(2015) 7 SCC 263; (v) Madhya Pradesh Housing & Infrastructure Development Board Vs. B.S.S. Parihar 2015 (8) SCALE 100. The Supreme Court in Swamy Devi Dayal Hospital and Dental College supra was concerned with a recommendation made by the DCI, after carrying out inspection of the applicant College, to the Central Government, not to extend the permission to admit students to the academic session 2013-2014. It was the contention of the applicant Medical College that though the DCI had represented to the UOI against the said report but the UOI had declined renewal permission, without affording any hearing to the applicant College. The High Court, in the judgment against which the Supreme Court was approached held that Section 10A(4) deals only with the permission for establishing a Medical College and not with grant of renewal permission and thus the hearing required to be given by the UOI under Section 10A(4) is not applicable to the stage of seeking renewal of permission in successive years to admit students. The Supreme Court held that though heading of Section 10A suggests that it deals only with ―permission for establishment of new medical college, new course of study‖ but a holistic reading thereof shows that the same applied even to the cases of renewal of such permission. It would thus be seen that the question with which the Supreme Court in Swamy Devi Dayal Hospital and Dental College supra was concerned was not whether Section 10A(3) requires the DCI to, after on the spot physical inspection of the applicant College and before making a recommendation to the UOI give an opportunity to the applicant College to rectify the deficiencies if any found in the inspection or to represent against the deficiencies found, if disputing the same. Though undoubtedly para 22.[2] of Swamy Devi Dayal Hospital and Dental College supra records that Section 10A contemplates grant of opportunity of being heard at two stages but merely reproduces the language of Section 10A(3)(a) and which, there can be no dispute, does provide for an opportunity to represent and rectify the deficiencies. However, the opportunity to be given under Section 10A(3)(a) is to rectify the deficiencies in the particulars required to be given in the scheme / application and not an opportunity to rectify the deficiencies found in the on the spot physical inspection which follows such evaluation of the particulars stated, as held by me above. Also, unfortunately Manohar Lal Sharma supra remained to be noticed. (E) There is another aspect of the matter. It is not as if the time available after the dates prescribed for submitting the application and for recommendation / report to be submitted by the MCI is indefinite or endless. The said time is limited and if Section 10A were to be interpreted as providing for an opportunity, to rectify the defects found during the on the spot physical inspection, to be given by the MCI and if the recommendation / report of the MCI remained negative, for an opportunity to be given again by the UOI, then I am afraid, adherence to the time schedule, in all likelihood, will pose problems. The applicant Medical College on the date of making an application is required to have the infrastructure and manpower prescribed. If it were to be held that for the sake of providing such opportunity at two stages i.e. by MCI as well as UOI, the application can be submitted well before the academic year for which permission is sought, it would entail requiring the application Medical College to have the infrastructure / manpower in existence well before required and would also not be feasible. (F) It is also not as if the compliance of the principles of natural justice i.e. of giving an opportunity to rectify is inbuilt or essential before making a negative recommendation. Under the scheme of the IMC Act, MCI is only a recommendatory body and the decision is to be taken by the UOI. It has been held by the Supreme Court in Nawabkhan Abbaskhan vs The State of Gujarat (1974) 2 SCC 121 that not all violations of natural justice knock down the order with nullity and that in Indian constitutional law, natural justice does not exist as an absolute jural value but is humanistically read by courts into those great rights enshrined in Part III as the quintessence of reasonableness. Similarly in Maneka Gandhi vs Union Of India 1978 (1) SCC 248 it was held that what opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation; it may be a hearing prior to the decision or it may even be a post-decisional remedial hearing; the audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise. Reference in this regard may also be made to Sales Tax Bar Association (Regd.) Vs. Govt. of NCT of Delhi 196 (2013) DLT 270; Meenakshi College of Pharmacy & Research Centre Vs. All India Council For Technical Education 201 (2014) DLT 422 and to Danish Infratech Private Limited Vs. Delhi Cantonment Board AIR 2015 Delhi 38. Seen in this light it would follow that MCI as recommendatory authority/body, before making recommendation is not required to satisfy the principle of natural justice inasmuch a provision therefor has been made before the Union of India entrusted with the decision to be taken on the said recommendation. It thus also follows that the recommendation cannot be said to be causing any prejudice to the applicant College. (G) Thus, no error can be found in the MCI not giving any opportunity to the petitioners to, after the second inspection on 12th & 13th February, 2015, to rectify the defects found in the said inspection. I may however notice that the MCI, after the first inspection on 12th & 13th November, 2014, while making the negative recommendation to the UOI vide its letter dated 22nd December, 2014 in which deficiencies found were listed, marked a copy thereof to the petitioners and asked the petitioners to submit a report of having rectified the deficiencies. Not only so, upon the petitioners submitting such a report, the MCI, without waiting for the decision of the UOI under Section 10A(4), conducted the second inspection on 12th & 13th February, 2015. However it was explained that the same was done to utilize the time and without being required in law to do the same.

16. Though on first blush, the contention of the senior counsel for the petitioners, that under Section 10A(4) of the IMC Act a fresh hearing ought to have been given by the UOI to the petitioners before refusing the renewal permission on the basis of the report / recommendation of the MCI on the basis of second inspection conducted on 12th & 13th February, 2015, appeared to be attractive but on further consideration I am unable to find any merit therein also.

17. I am however not satisfied with the contention of the senior counsel for the MCI that the UOI, in the letter dated 7th / 8th May, 2015 supra, had remitted the application of the petitioners for renewal of permission for the Academic Year 2015-16 to the MCI for verifying whether the petitioners had complied with the deficiencies found in the first inspection conducted on 12th & 13th November, 2014.

18. It is the unequivocal case of the petitioners that they have furnished the undertaking subject to which they were vide order dated 7th / 8th May, 2015 accorded approval. There is no denial thereof either by the MCI or by the UOI.

19. Though I have held as aforesaid but a doubt having nevertheless arisen, of the deficiencies persisting in the petitioner No.2 Medical College, as found in the second inspection, it is deemed appropriate to:

(i) Require the petitioners to, within 24 hours hereof and as a precondition to participation in the counselling and admit students, file an affidavit with the MCI of having removed the deficiencies found in the second inspection of 12th & 13th February, 2014 and as recorded in the letters dated 11th May, 2015 and 14th May, 2015 supra of the MCI; and,

(ii) Suggest to the UOI/MCI to, if so deem necessary, notwithstanding having granted approval as aforesaid, vide letter dated 7th / 8th May, 2015, conduct inspection of the petitioner No.2 Medical College and the attached hospital to verify whether the undertakings given of having removed the deficiencies are correct and are being honoured or not. Needless to state that if it is found that inspite of having given the undertakings of having removed the deficiencies, the deficiencies persist, the consequences shall follow.

20. The petition is disposed of in above terms, (a) By holding that the UOI has vide letter dated 7th / 8th May, 2015 accorded approval to the petitioner No.2 Hamdard Institute of Medical Sciences & Research to admit 100 students to the MBBS course in the academic year 2015-16 and that the condition subject to which such approval was accorded has been satisfied by the petitioner No.2 Medical College. Axiomatically, the petitioner No.2 Medical College would be entitled to participate in the counselling being held for admission to the medical colleges in the academic year 2015-16 and / or admit 100 students to the MBBS course in the current academic year, subject to the petitioners within 24 hours filing a further undertaking as aforesaid with the MCI; and, (b) By suggesting to the UOI / MCI to, in view of the doubts arisen as to the petitioner No.2 Medical College having complied with the undertaking furnished by it earlier, if deem necessary, inspect the petitioner No.2 Medical College and if finds the petitioners to have not honoured their undertaking, take appropriate action. It is however clarified that the same shall not come in the way of the petitioner No.2 Medical College making admissions as aforesaid in the current academic year. No costs.