M. G. R. Educational and Research Institute v. Union of India, rep. by Secretary to Government, Ministry of Human Resources Development
2012-11-09
V.DHANAPALAN
body2012
DigiLaw.ai
Judgment : This Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records comprised in the proceedings of the first respondent dated 31.08.2010 in F.10-9/2007-U.3(A); quash the same and consequently direct the first respondent to pass appropriate orders on the claims of the petitioner for issue of appropriate notification under Section 3 of the U.G.C. Act, by bringing the A.C.S. Medical College and Hospital under the ambit of Dr. M.G.R. Educational and Research Institute (Deemed University) with retrospective effect from the academic year 2008-2009 as positively recommended by the University Grants Commission as was done in the case of two other institutions namely Saveetha Medical College and Sathya Sai Medical College, which are similarly placed, so as to enable regularization of admissions made by the petitioner for the academic years 2008-2009 and 2009-2010 and also to enable the grant of renewal of permission for the academic year 2010-2011, without reference to the issues pending before the Hon'ble Supreme Court in Viplav Sharma's case (W.P.No.142 of 2006). 2. The facts, which are necessary for disposal of the Writ Petition, are as follows : 2.1. Petitioner viz., Dr. M.G.R. Educational and Research Institute, hereafter referred to as "the Institute", is a Deemed University notified under Section 3 of the U.G.C. Act and the said status was conferred in March 2003. The institute was sponsored by Dr. M.G.R. Educational and Research Institute Trust, in furtherance of the object of the parent Trust, namely, Tmt. Kannammal Educational Trust. The institute wanted to start a Medical College under the name A.C.S. Medical College and Hospital, in short, "the College" as a constituent college of the Deemed University and submitted proposals to the University Grants Commission to bring the said Medical College under its purview. Accordingly, the institute obtained Essentiality Certificate from the Government of Tamil Nadu on 11.06.2007 for starting the college from the academic year 2007-2008. The petitioner, being a Deemed University, had issued the consent of affiliation by itself for the College. Thereafter, the proposals were submitted to the second respondent for grant of necessary permission under Section 10-A of the Indian Medical Council Act and, simultaneously, proposals were also sent to UGC for inclusion of the proposed College under the ambit of the Institute. 2.2.
Thereafter, the proposals were submitted to the second respondent for grant of necessary permission under Section 10-A of the Indian Medical Council Act and, simultaneously, proposals were also sent to UGC for inclusion of the proposed College under the ambit of the Institute. 2.2. The UGC., by its letter, dated 31.07.2007, expressed no objection for inclusion of the proposed college under the ambit of the institute, subject to the following conditions : (a) It is recognised/approved by Medical Council of India. (b) It will follow the norms of Medical Council of India and UGC. (c) The proposal will be examined by the UGC with the help of a duly constituted Committee. (d) The final approval of inclusion under the ambit will be notified by the Government of India, on the advice of UGC (after the establishment of the College with the permission of the Central Government). Thus, on the understanding that the College would form part and be a constituent of the Institute, the petitioner pursued the proposal with the second respondent. 2.3. On the basis of the recommendations of Medical Council of India (MCI) through its inspection, the second respondent issued a Letter of Intent (LOI), dated 20.06.2008, for starting the College from the academic year 2008-2009. It was followed by a Letter of Permission (LOP), issued by the second respondent, dated 04.07.2008, permitting the establishment of the College under the name and style "A.C.S. Medical College and Hospital at Chennai" from the academic year 2008-2009, indicating therein a stipulation that the admission process should be completed in accordance with the time schedule stipulated under the Graduate Medical Education Regulations,1997. Letter of Permission was issued in the name of Tmt. Kannammal Educational Trust and not in the name of the institute, thereby leading to the necessity that the College should be brought under the purview of the Deemed University by notification under Section 3 of the U.G.C. Act by the first respondent. 2.4. The petitioner institute, vide its letter, dated 07.07.2008, to UGC., requested to examine the proposal and recommend to the first respondent for grant of final approval to include the college under the ambit of the Deemed University from the year 20082009.
2.4. The petitioner institute, vide its letter, dated 07.07.2008, to UGC., requested to examine the proposal and recommend to the first respondent for grant of final approval to include the college under the ambit of the Deemed University from the year 20082009. As there was a compelling circumstance for the petitioner to complete the admission for 2008-2009 on or before 30.09.2008 as stipulated in the LOP and as per the MCI Regulations, the petitioner, bonafidely believing and anticipating the issue of appropriate notification by the first respondent for bringing the College under the ambit of the Institute, completed the admissions by 30.09.2008, so as to start the college from the academic year 2008-2009 as per the approved time bound program and sent the list of admitted students for the year 2008-2009, as required by MCI. 2.5. Two other Colleges viz., Saveetha Medical College and Sathya Sai Medical College, which were also placed in the same position as that of the petitioner, had made admissions without being brought under the ambit of the respective Deemed Universities or by obtaining provisional affiliation from Tamil Nadu Dr. M.G.R. Medical University. However, after cut-off date 30.09.2008, notifications were issued to those two colleges, bringing them under the ambit of the respective Deemed Universities thereby regularising the admissions made by them without affiliation, but the petitioner college alone was put in an unfortunate circumstance in view of the inaction and delay on the part of UGC, as admitted by it, in conducting timely inspection to consider bringing the college under the ambit of the Deemed University under Section 3 of the U.G.C. Act. 2.6. The petitioner Institute, vide its letter dated 16.01.2009 to UGC, requested for conduct of inspection on the pending proposal and making recommendations to the first respondent for issue of notification for bringing the College under the ambit of the Deemed University. The petitioner submitted all the particulars required by UGC and followed correspondence by letters dated 27.02.2009, 01.04.2009, 03.04.2009, 08.04.2009, 13.04.2009, 15.04.2009 and 02.05.2009 and was hopeful of positive results for bring the Medical College under the ambit of the Deemed University as was done in respect of similarly placed colleges in the past. 2.7.
The petitioner submitted all the particulars required by UGC and followed correspondence by letters dated 27.02.2009, 01.04.2009, 03.04.2009, 08.04.2009, 13.04.2009, 15.04.2009 and 02.05.2009 and was hopeful of positive results for bring the Medical College under the ambit of the Deemed University as was done in respect of similarly placed colleges in the past. 2.7. The first respondent inspected the college for grant of renewal of permission for the academic year 2009-2010 and recommended to the Central Government to renew permission for the second batch, after a detailed inspection and satisfaction about the availability of the required infrastructural and institutional facilities. However, subsequently, taking note of the fact that the proposal of the college for inclusion was pending with UGC and the first respondent, the MCI, by its letters dated 15.05.2009 and 24.06.2009, communicated to the central government and the petitioner its decision to keep the matter of renewal of permission for the second batch in abeyance till the college is brought under the ambit of Deemed University on the recommendation of UGC by the first respondent. Therefore, the petitioner was disabled from admitting students for the second batch during 2009-2010, apart from the fact that the students admitted during 2008-2009 were not able to move to second year. 2.8. The petitioner institute sent a detailed letter dated 24.06.2009 to UGC, requesting for early action for notifying the College as a constituent of the Deemed University under Section 3 of the Act, by conducting appropriate inspection. While so, the MCI, vide its letter dated 08.07.2009, required the petitioner to produce the notification to the effect that the college has become the constituent of the Deemed University. The petitioner sent a letter to MCI, dated 14.07.2009, stating that action was being pursued in that regard with UGC and Central Government and though MCI by its letter dated 15.04.2009 recommended renewal of permission for 2009-2010 which was later kept in abeyance by letter dated 15.07.2009, it later decided to recall the recommendations already made for want of notification under Section 3, based on which the second respondent had also passed an order on 10.08.2009, indicating that the renewal of permission for 2009-2010 could not be granted and that the petitioner should not admit any fresh batch of students for 2009-2010 until the college was brought within the ambit of the Deemed University. 2.9.
2.9. In view of the delay on the part of UGC in conducting inspection to make recommendations to the first respondent for issue of notification, the petitioner institute was constrained to file W.P.No.13419 of 2009 for a mandamus to UGC and the first respondent to issue appropriate notification under Section 3 for bringing the college as a constituent unit under the Deemed University with effect from the academic year 20082009 and the said writ petition was disposed of on 17.08.2009 with a direction to the first respondent to take appropriate decision in accordance with the resolution of the UGC within a period of six weeks. 2.10. As the entire issues were pending including renewal for the second batch for 2009-2010, the petitioner institute moved the Supreme Court in W.P.(Civil) No.349 of 2009for the relief of renewal of permission for 2009-2010. 2.11. Pursuant to the direction of this Court in W.P.No.13419 of 2009, the UGC appointed an expert committee and conveyed its ex post facto approval for bringing the college under the ambit of the Deemed University from the academic year 2008-2009 retrospectively, pointing out that the delay was due to certain administrative processes. In the absence of renewal of permission, a necessity arose for the petitioner to admit students for the academic year 2009-2010, as the cut-off date was to close on 30.09.2009. 2.12. In October 2009, the UGC reviewed the functioning of various deemed Universities including the petitioner for the purpose of continuation of the status and after physically verifying the availability of all the infrastructural facilities and having satisfied with regard to the progress made, the UGC recommended to the first respondent for continuation of the Deemed University status to the petitioner. Notwithstanding the recommendations of the UGC for ex post facto approval from 20082009, the first respondent, by its letter dated 11.11.2009, decided to put on hold the proposal for inclusion of the college under the ambit of the Deemed University, awaiting the completion of review by UGC and the Central Government. At the same time, the first respondent requested the UGC to reconsider its recommendation for ex post facto approval given by it on 30.09.2009, taking into account the deficiencies. 2.13. Based on the directives of the first respondent dated 11.11.2009, the UGC proceeded to reconsider its decision and gave an opportunity to the petitioner to appear for a meeting on 31.12.2009.
2.13. Based on the directives of the first respondent dated 11.11.2009, the UGC proceeded to reconsider its decision and gave an opportunity to the petitioner to appear for a meeting on 31.12.2009. Accordingly, the petitioner appeared and submitted a detailed representation dated 29.12.2009, clarifying the various points raised by the first respondent in its communication and specifically pointing out that UGC and the first respondent had already given ex post facto approval to many other medical colleges though they were situated away from the main campus. 2.14. MCI inspected the petitioner college for grant of renewal of permission for third batch of students for 2010-2011 in February,2010, and pointed out certain deficiencies in the infrastructural facilities by its proceedings dated 06.04.2010. MCI, in the said proceedings, decided to recommend to the Central Government not to renew the admission for the third batch of students for the academic year 2010-2011 and indicated that no inspection would be taken up by the Council until the institute furnished a certificate that it was brought under the ambit of the Deemed University. Subsequently, the petitioner filed W.P.No.10907 of 2010 for a mandamus to receive and consider the deficiency compliance report in respect of the deficiencies pointed out in the letter of the fourth respondent, dated 06.04.2010, by conducting appropriate inspection and forward its recommendation to the Central Government for grant of renewal of permission for 2010-2011 and the same was disposed of on 03.06.2010, as prayed for. Against the said order, the MCI filed W.A.No.1275 of 2010 and after hearing, the W.P.No.10907 of 2010 was allowed to be withdrawn and consequently the order dated 03.06.2010 was recalled by a Division Bench of this Court. 2.15. Thereafter, the petitioner filed W.P.No.13044 of 2010 on the file of this Court for quashing the proceedings of the first respondent dated 15.03.2010 in Letter No.F.10-9/2007-U.3(A) and of the second respondent dated 05.04.2010 in Letter F.No.U.12012/328/2006-ME(P-II) and consequently to direct the first respondent to consider and pass orders on merits and in accordance with law in respect of the claim of the petitioner for issue of appropriate notification under Section 3 of the U.G.C. Act, for bringing the A.C.S. Medical College and Hospital under the ambit of Dr.
M.G.R. Educational and Research Institute (Deemed University) with retrospective effect from the academic year 2008-2009 as recommended by the University Grants Commission so as to enable regularization of the admissions made by the petitioner for the academic years 2008-2009 and 2009-2010 and also to enable the grant of Renewal of Permission for the academic year 2010-2011 well before 15.07.2010, the cut-off date proscribed, without reference to the issue of derecognition of 44 Deemed Universities which are pending before the Hon'ble Supreme Court in Viplav Sharma's case (W.P.No.142 of 2006), with interim orders of status quo being in force, and the same was disposed of by this Court by an order dated 14.07.2010 as prayed for, making it clear that the said order was subject to the outcome of the W.P.(C) No.142 of 2006, which was pending before the Supreme Court. While so, as the first respondent was keeping quiet, the petitioner was constrained to file another Writ Petition No.18682 of 2010, seeking compliance of the order dated 14.07.2010 and the said Writ Petition was disposed of by this Court by its order dated 18.08.2010 with a direction to give effect to the order dated 14.07.2010 within a period of one week. Pursuant to the said order, the first respondent passed the order dated 31.08.2010, turning down the recommendation of UGC, dated 30.09.2009, whereby rejecting the application of the petitioner for inclusion of the college under the ambit of the petitioner Deemed University. The said order is under challenge in this Writ Petition. 3. The first respondent has filed a counter affidavit, stating inter alia as follows : 3.1. Against the order dated 31.08.2010 passed by the respondent, the petitioner institute has filed this Writ Petition, instead of the college, thereby frustrating the due process of law. The acceptance or rejection of the recommendations of UGC is within the powers of this respondent and without permission of this respondent if any admissions are made, this respondent is not at all responsible. Therefore, the impugned order does not suffer from any error apparent on the face of the record or is it illegal, arbitrary, discriminatory or ultra vires the provisions of the Act. At the same time, the impugned order is not contrary to the orders passed in W.P.No.13044 of 2010.
Therefore, the impugned order does not suffer from any error apparent on the face of the record or is it illegal, arbitrary, discriminatory or ultra vires the provisions of the Act. At the same time, the impugned order is not contrary to the orders passed in W.P.No.13044 of 2010. As per Section 22 (1) of the Act, only a University established or incorporated by or under a Central Act, a Provisional Act or a State Act or an institution deemed to be a University under Section 3 or an institution especially empowered by an Act of Parliament can confer or grant degrees and colleges cannot award degrees. As a matter of policy, therefore, no college can admit students to its academic degree programs unless it is either affiliated to a State University or is formally included under the ambit of an institution deemed to be a University as its constituent college. For bringing an existing institution under the ambit of an institution deemed to be university, it is necessary that the said existing institution is affiliated to a State University. In this case, the college is neither affiliated to any State University nor is included under the ambit of any institution deemed to be a University, including the petitioner institute. 3.2. The Central Government, following the public perception regarding the decease in academic standards in certain institutions deemed to be universities, had directed UGC on 04.06.2009 to review all existing institutions deemed to be universities with regard to availability of adequate infrastructure and faculty. In addition, independent of review by UGC, the Central Government constituted a Review Committee on 06.07.2009 comprising eminent academic experts to review the functioning of all the existing institutions deemed to be universities to ensure that standards of higher education and research are maintained by such institutions as to justify their continuance as institutions deemed to be universities. The petitioner is one of the deemed to be universities which have failed to satisfy most of the criteria for retaining the status of an institution deemed to be university. This respondent has accepted in principle the recommendations of the Review Committee. It was, therefore, decided to keep all proposals in respect of declaring institutions as deemed to be universities or including any institution/college in the ambit of an existing institution deemed to be university in abeyance till the completion of the processes of the review.
This respondent has accepted in principle the recommendations of the Review Committee. It was, therefore, decided to keep all proposals in respect of declaring institutions as deemed to be universities or including any institution/college in the ambit of an existing institution deemed to be university in abeyance till the completion of the processes of the review. The said process of review ordered by the Government in public interest of upholding standards of higher education was also brought to the notice of the Hon'ble Supreme Court in the matter of Viplav Sharma v. Union of India and others in W.P.(C) No.142 of 2006 and as desired by the Supreme Court, the progress of review was also reported to it from time to time and the matter is sub judice at present. 3.3. While the review of institutions deemed to be universities was in progress, UGC's recommendations dated 30.09.2009 for inclusion of the college under the ambit of the petitioner institute were received by the Central Government on 05.10.2009. The recommendations dated 30.09.2009 of the UGC were considered by the Central Government. Several deficiencies were observed and conveyed to UGC by the Government. One of the serious deficiencies was that the college in question had already admitted students to its MBBS course since the academic sessions 2008-2009 and 2009-2010 under the enrolment of the petitioner institute, an institution deemed to be university, even before the college was approved by the Government as a constituent unit of the petitioner institute under Section 3, which was in violation of the UGC Guidelines 2000. Moreover, the MCI, in its letter dated 24.06.2009, had decided to recall the recommendation of renewal of permission for admission of second batch of 150 MBBS students issued in respect of the college for the academic year 2009-2010 till the college was brought within the ambit of the institution deemed to be university by UGC. In addition, the Government of Tamil Nadu, Department of Health & Family Welfare, vide Essentiality Certificate dated 11.06.2007, had mentioned inter alia that in case fresh admissions are stopped by the Central Government, the State Government would take over the responsibility of students already admitted in the college with the permission of the Central Government.
In addition, the Government of Tamil Nadu, Department of Health & Family Welfare, vide Essentiality Certificate dated 11.06.2007, had mentioned inter alia that in case fresh admissions are stopped by the Central Government, the State Government would take over the responsibility of students already admitted in the college with the permission of the Central Government. Thus, it is amply clear that the welfare of students already admitted in the college vests in the State Government and by going ahead with admission of students without permission of Central Government, the college has seriously imperiled the future of the students and violated the conditions of the Essentiality Certificate issued by the State Government. As the college is not included in the ambit of the petitioner institute till date, the question of regularisation of the students already admitted for the academic years 2008-2009 and 2009-2010 and the renewal thereof for 2010-2011 did not arise. Therefore, the rejection of the claim of the petitioner was justified and legal. 4. Third respondent/UGC has filed a counter, stating as follows: The proposal of the first respondent vide its letter dated 09.07.2007 received from the petitioner institute was examined by UGC as per the guidelines and UGC constituted an expert committee to have an on the spot assessment of the college and the expert committee recommended for ex post facto approval for bringing the college under the ambit of the petitioner institute/deemed to be university. The UGC at its 463rd meeting held on 25.09.2009 considered the report of the expert committee and passed a resolution to the effect that the proposal of the petitioner had been received on time but, however, due to code of conduct on account of General Parliamentary Elections and subsequent decision of the Ministry of Human Resource Development not to process any case of Deemed to be Universities, this proposal could not be processed and considered by the Commission. Later on, the Commission considered and approved the report of the expert committee for ex post facto approval for bringing the college under the ambit of the petitioner institute from the academic year 2008-2009. The learned Senior Counsel pointed out that the first respondent again requested the Commission to reconsider its proposal for inclusion of the college under the ambit of the petitioner institute.
The learned Senior Counsel pointed out that the first respondent again requested the Commission to reconsider its proposal for inclusion of the college under the ambit of the petitioner institute. The issues raised by the first respondent were again placed before the same expert committee which visited the college and deliberated and the minutes of the Committee were forwarded to the first respondent for necessary action. This Court directed the first respondent to pass appropriate orders on the claim of the petitioner institute based on the recommendations of the Committee dated 30.09.2009 and 01.01.2010 for granting approval, thereby bringing the college under the ambit of the Deemed to be University. 5. Fourth respondent/MCI has also filed a counter, stating as under : The consent of affiliation is not valid and the recommendation of the third respondent/UGC for ex post facto approval cannot be considered. The reason for the delay is stated to be the code of conduct due to general Parliamentary elections. The code of conduct came into effect only from 01.04.2009 and the third respondent has not given any reasons for non-processing of the application of the petitioner from July 2007 till April 2009 and hence the same cannot be a justifiable ground for granting ex post facto approval for the college. Reconsideration of recommendation by the third respondent to grant ex post facto approval bringing the college under the ambit of the petitioner was necessary for certain deficiencies and the third respondent reiterated its recommendations but did not respond to the specific deficiencies and if the impugned order is quashed and the recommendation of the third respondent is accepted, it would amount to validating the admissions made in 2009-2010, when the college was directed not to admit any students and that such a retrospective effect cannot cure the non-existence of a valid consent of affiliation, which is required under Section 10-A of the MCI Act,1956. 6. Mr. R. Muthukumarasamy, learned Senior Counsel appearing for the petitioner, would assail the impugned order on the grounds that it is legally infirmed as there is no reason or basis for rejecting the recommendation of UGC and therefore the order is nonspeaking and visited with arbitrariness and further there is no reason forthcoming as to why and how the recommendation of UGC is bad in law.
It is his further contention that the said order is hit by violation of principles of natural justice, as there was no notice and opportunity of hearing before rejecting the claim of the petitioner. The learned Senior Counsel would vehemently contend that the petitioner institute has acted on the Letter of Permission of the Union of India/first respondent and the No Objection Certificate given by UGC. It was the legitimate expectation of the petitioner to admit the students when there was an approval by the Central Government as was done in the case of Saveetha Medical College and Sathya Sai Medical College and, therefore, the order of the first respondent is discriminatory and violative of Article 14 of the Constitution of India. He also pointed out that due to the reasons for the delay on the part of UGC on account of Parliamentary elections and also the subsequent decision of the Ministry not to process any proposal under Section 3, the UGC was well justified in recommending ex post facto approval from 2008-2009, which was not looked into by the first respondent while passing the impugned order. Lastly, the learned Senior Counsel would contend that the first respondent misconstrued the consent of affiliation referred by the Division Bench and it has to be understood in the context of Notification under Section 3 for bringing the college under the ambit of the Deemed University. 7. Per contra, Mr.
Lastly, the learned Senior Counsel would contend that the first respondent misconstrued the consent of affiliation referred by the Division Bench and it has to be understood in the context of Notification under Section 3 for bringing the college under the ambit of the Deemed University. 7. Per contra, Mr. Haja Mohideen Gisthi, learned Senior Standing Counsel for the Central Government appearing for respondents 1 and 2, would contend that when the MCI wrote to the Ministry of Health and Family Welfare/Government of India to keep the matter for renewal of permission for admission of second batch of students of the college in abeyance till the institute was brought under the ambit of Deemed University, the first respondent, in exercise of the inherent power under Section 3 of the Act and on consideration of the relevant facts, rejected the recommendations of UGC and passed the impugned order and taking into account the public concern over the decrease of academic standards in certain institutions deemed to be universities, a review of such institutions was ordered by the Central Government to review the functioning of all the existing institutions deemed to be universities and the petitioner college was one among them, which were found deficient on various counts and therefore bringing the petitioner college under the ambit of the institute deemed to be university would further weaken its academic standard. Accordingly, he would submit that the impugned order cannot be found fault with. 8. Mr. R. Thyagarajan, learned Senior Counsel appearing for UGC/third respondent would submit that the proposal of the first respondent vide its letter dated 09.07.2007 received from the petitioner institute was examined by UGC as per the guidelines and UGC constituted an expert committee to have an on the spot assessment of the college and the expert committee recommended for ex post facto approval for bringing the college under the ambit of the petitioner institute/deemed to be university. The UGC at its 463rd meeting held on 25.09.2009 considered the report of the expert committee and passed a resolution to the effect that the proposal of the petitioner had been received on time but, however, due to code of conduct on account of General Parliamentary Elections and subsequent decision of the Ministry of Human Resource Development not to process any case of Deemed to be Universities, this proposal could not be processed and considered by the Commission.
Later on, the Commission considered and approved the report of the expert committee for ex post facto approval for bringing the college under the ambit of the petitioner institute from the academic year 2008-2009. The learned Senior Counsel pointed out that the first respondent again requested the Commission to reconsider its proposal for inclusion of the college under the ambit of the petitioner institute. The issues raised by the first respondent were again placed before the same expert committee which visited the college and deliberated and the minutes of the Committee, dated 01.01.2010, were forwarded to the first respondent for necessary action. This Court directed the first respondent to pass appropriate orders on the claim of the petitioner institute based on the recommendations of the Committee dated 30.09.2009 and 01.01.2010 for granting approval, thereby bringing the college under the ambit of the Deemed to be University. 9. Mr. V.P. Raman, learned counsel for MCI, would contend that the consent of affiliation is not valid and the recommendation of the third respondent/UGC for ex post facto approval cannot be considered; the reason for the delay is stated to be the code of conduct due to general Parliamentary elections; the code of conduct came into effect only from 01.04.2009 and the third respondent has not given any reasons for non-processing of the application of the petitioner from July 2007 till April 2009 and hence the same cannot be a justifiable ground for granting ex post facto approval for the college. Further the learned counsel submits that reconsideration of recommendation by the third respondent to grant ex post facto approval bringing the college under the ambit of the petitioner was necessary for certain deficiencies and the third respondent reiterated its recommendations but did not respond to the specific deficiencies and if the impugned order is quashed and the recommendation of the third respondent is accepted, it would amount to validating the admissions made in 2009-2010, when the college was directed not to admit any students and that such a retrospective effect cannot cure the non-existence of a valid consent of affiliation, which is required under Section 10-A of the MCI Act,1956. 10. I have heard the learned Senior Counsel and also the other counsel for the parties; given my thoughtful consideration to their submissions and also gone through the records. 11.
10. I have heard the learned Senior Counsel and also the other counsel for the parties; given my thoughtful consideration to their submissions and also gone through the records. 11. To begin with, it is important to make a mention here that the Supreme Court, by its order dated 24.02.2010 in Transfer Petition (Civil) No.512 of 2011 filed by the petitioner herein, requested this Court to dispose of this Writ Petition as expeditiously as possible, preferably within three months from the date of communication of its order, without waiting for the decision of the Supreme Court in Viplav Sharma's case (cited supra). The said order of the Apex Court reads as follows : "The petitioner -Institute has filed a writ petition (Writ Petition No.20995/2010) before the High Court of Judicature at Madras for bringing the ACS Medical College and Hospital under the ambit of the Deemed University, which is pending before the High Court. This transfer petition has been filed by the petitioner -Institute under Article 139A of the Constitution for transfer of Writ Petition No.20995/2010 from Madras High Court to this Court for being decided by this Court along with W.P.(C) No.142/2006 : Viplav Sharma Vs. Union of India & Ors.(Deemed University case). We have heard the learned counsel for the parties. We are not inclined to transfer the writ petition. However, in the peculiar facts and circumstances of this case, we request the High Court of Judicature at Madras to dispose of the Writ Petition No.20995 of 2010 as expeditiously as possible, preferably within three months from the date of communication of this order, without waiting for the decision of this Court in Viplav Sharma's case (supra). The parties would be at liberty to complete pleadings before the High Court within six weeks from today. The transfer petition is disposed of with the aforementioned observations." Hence, this Writ Petition is taken for disposal. 12.
The parties would be at liberty to complete pleadings before the High Court within six weeks from today. The transfer petition is disposed of with the aforementioned observations." Hence, this Writ Petition is taken for disposal. 12. A circumspection of the facts would reveal that on 11.06.2007, the petitioner institute had obtained an Essentiality Certificate from the Government of Tamil Nadu in the name of the Deemed University for starting the Medical College; consent of affiliation was issued by the petitioner institute, a deemed University, on 21.03.2008; No Objection Certificate was issued by UGC on 31.07.2007; a proposal was submitted to the Ministry of Human Resources Development for starting the college on 13.07.2007; a Letter of Intent was issued by Ministry of Health and Family Welfare on 20.06.2008; Letter of Permission was issued by the Central Government in the name of the Trust on 04.07.2008; considering the schedule of medical admissions to be concluded on or before 30.09.2008, the college admitted the students for the year 2008-2009; Medical Council of India, after inspection, recommended for renewal of permission for 20092010 on 15.04.2009; the renewal was kept in abeyance for want of inclusion of the college under the ambit of the Deemed University vide proceedings dated 24.06.2009; on 15.07.2009, MCI recalled the recommendation for renewal for 2009-2010; on 10.08.2009, Ministry of Health and Family Welfare passed an order not to make admissions until the college was brought under the ambit of the Deemed University; on 17.08.2009, there was an order of this Court in W.P.No.13419 of 2009, directing UGC and Ministry of Human Resources Development Department to inspect the college and decide the inclusion within six weeks; the said order was set aside by an order of a Division Bench of this Court, which had become final; the petitioner moved the Supreme Court in W.P.No.349 of 2009 for renewal of permission and to allow the first year students to move to second year; on 30.09.2009, the UGC inspected the college and recommended for ex post facto approval for inclusion of the college under the ambit of the Deemed University from the academic year 2008-2009, taking note of the need to protect the interest of the students; the petitioner bona fidely completed the admission in the light of the recommendation of UGC based on inspection, wherein MCI nominee was also present; the list of candidates was sent to MCI; in October,2009, UGC reviewed the overall functioning of Deemed Universities including the petitioner and recommended for continuance of the status; however, on 11.11.2009, the Ministry directed UGC to reconsider its recommendation, dated 30.09.2009, but, UGC reiterated its earlier recommendation vide proceedings dated 01.01.2010; in the meanwhile, the case of 44 Deemed Universities including the petitioner institute came up for consideration before the Supreme Court in Viplav Sharma's case and status quo was ordered; on 18.01.2010, in W.P.No.349 of 2009, the Supreme Court directed the Central Government to take appropriate action for inclusion of the college in the light of the recommendations of UGC and the review of Deemed Universities held by Tandon Committee; on 15.03.2010, the Ministry of HRD passed orders declining to consider the inclusion of the college in the light of Viplav Sharma's case; on 29.03.2010, the petitioner moved the Supreme Court challenging the order of first respondent dated 15.03.2010 on the ground that Viplav Sharma's case had no relevance to the issue of inclusion; however, on 05.04.2010, the Ministry of Health and Family Welfare/second respondent refused to consider the renewal of permission for the year 2010-2011; thereafter, the petitioner moved this Court in W.P.No.10907 of 2010 for a direction to MCI to receive compliance report and submit the recommendation for renewal of permission for 2010-2011, however, on appeal by MCI, the said Writ Petition was withdrawn on 05.07.2010; after withdrawing the proceedings before the Supreme Court, the petitioner filed W.P.No.13044 of 2010, challenging the order of Ministry of Human Resources Development dated 15.03.2010 and that of the Ministry of Health and Family Welfare dated 05.04.2010 and prayed for inclusion and regularisation of students admitted for 2008-2009 and 2009-2010 without reference to Viplav Sharma's case and for grant of renewal of permission for 2010-2011 and this Court disposed of the said Writ Petition by its order dated 14.07.2010, directing the first respondent to consider and pass orders on the recommendations of UGC, dated 30.09.2009 and 01.01.2010, pursuant to which the first respondent passed the order of rejection, dated 31.08.2010, rejecting the recommendations of UGC, which is impugned in this Writ Petition.
13. For deciding this Writ Petition, it is imperative to keep in mind the following viz., (1) Letter of Permission by Central Government for 2008-2009, dated 04.07.2008. (2) Notification issued for Saveetha Medical College and Sathya Sai Medical College after closure of admission for 2008-2009 in January 2009. (3) U.G.C. recommendations for retrospective Notification from 2008-2009, admitting delay on its part, dated 30.09.2009 and 01.01.2010. (4) Order passed by Ministry of Human Resources Development, New Delhi, dated 15.03.2010. (5) Order of this Court in W.P.No.13044 of 2010, dated 14.07.2010. (6) Impugned order of the first respondent, dated 31.08.2010. 14. On an analysis of the facts and circumstances of the case and also the various questions raised by the learned counsel for the parties and their submissions made thereon, the following questions arise for consideration : (1) Whether the impugned order is valid in law ? (2) Whether the petitioner institute has given consent of affiliation to the college and whereby : (a) based on the Letter of Permission from the Union of India and No Objection Certificate from the Medical Council of India, the college is entitled to admit the students for the academic year 2008-2009 ? (b) the college is entitled to go further to admit the students for the subsequent year 2009-2010 ? (3) Whether the first respondent acted on discrimination with the petitioner, when it considered the similarly placed persons like that of Saveetha Medical College and Sathya Sai Medical College? (4) Whether the petitioner is entitled to have retrospective benefit of UGC recommendations and the decisions thereon ? 15. The above questions have to be tested on the following legal principles : (1) Arbitrariness, Discrimination and Violation of Article 14 of the Constitution of India. (2) Non-speaking and bereft of reasoning (3) Non-application of mind (4) Legitimate expectation (5) Violation of principles of natural justice. 16. Before proceeding to examine the above legal principles, I would like to discuss the prevalence of law. University Grants Commission Act, 1956, is an Act to make provisions for the coordination and determination of standards in universities and for that purpose to establish a University Grants Commission. Section 3 of the Act, inter alia, provides for application of Act to institutions for higher studies other than Universities.
University Grants Commission Act, 1956, is an Act to make provisions for the coordination and determination of standards in universities and for that purpose to establish a University Grants Commission. Section 3 of the Act, inter alia, provides for application of Act to institutions for higher studies other than Universities. Under this provision, the Central Government may, on the advice of the Commission, declare, by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of Section 2. The definition under clause 2 (f) of University is a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act. 17. Section 22 of the Act lays down the Right to confer degrees. Under Clause (1), the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees; (2) Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree; and (3) For the purposes of this section, degree means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette. 18. As regards medical education, it is to be seen that the Indian Medical Council Act,1956, has been enacted and it occupies the field. Section 10-A of the said Act contemplates Permission for establishment of new medical college, new course of study, etc.
18. As regards medical education, it is to be seen that the Indian Medical Council Act,1956, has been enacted and it occupies the field. Section 10-A of the said Act contemplates Permission for establishment of new medical college, new course of study, etc. Clause (1) says that notwithstanding anything contained in this Act or any other law for the time being in force, (a) no person shall establish a medical college; or (b) no medical college shall (i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section. 19. In exercise of the powers conferred under Section 33 of the Indian Medical Council Act, 1956, the MCI, with a previous sanction of the Central Government, made the regulations called Medical Council of India Regulations,2000, wherein Regulation 53 (1) lays down that a resolution passed by a Committee of the whole Council shall be embodied in a report prepared by the Secretary and signed by the President and shall have no effect unless confirmed by the Council at a meeting. Clause (2) of Regulation 53 says that a resolution passed by a Committee appointed by the Council/Executive Committee/President, as the case may be, shall be embodied in the report prepared by the Secretary of the Committee and signed by the Chairman and other members of the Committee, inclusive of notes of dissent, if any, and shall then be presented to the Council, Executive Committee or President, as the case may be. 20. In the backdrop of the above position of law, let me now examine the legal principles one after another as under : (1) Arbitrariness, Discrimination and Violation of Article 14 of the Constitution : (i) Article 14 guarantees equality before law to the effect that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. (ii) The principle of equality enshrined in Article 14 must guide every state action, whether it is legislative, executive or quasi-judicial.
(ii) The principle of equality enshrined in Article 14 must guide every state action, whether it is legislative, executive or quasi-judicial. An authority has to act properly for the purpose of which power is conferred. He must take a decision in accordance with the Act and the Rules. He must not be guided by extraneous or irrelevant considerations. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision whether in the nature of administrative or quasi-judicial, legislative exercise of power is liable to be quashed being violative of Article 14. (iii) Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution. As enshrined by the Supreme Court in E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 , equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other to the whim and caprice of an absolute monarch. (iv) The power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be reasonably related to the purposes of the enabling legislation. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, Court might well say that Parliament never intended to give authority to make such rules and they are unreasonable and ultra vires. This position has been highlighted by the British Court in the case of Kruse v. Johnson, (1898) 2 QB 91. While examining such action of the executive, it is the ordained principle, as held by Lord Hailsham of St. Marylebone L.C. of the British Court, in the case of Chief Constable of the North Wales Police v. Evans, (1982) 1 WLR 1155, that the function of the Court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law....
Marylebone L.C. of the British Court, in the case of Chief Constable of the North Wales Police v. Evans, (1982) 1 WLR 1155, that the function of the Court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.... The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court. In the same case, Lord Brightman said: 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. (v) When a repository of power acts ultra vires either in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness, the Court can very well examine the position and find out whether the power has been exercised in a right manner. (vi) It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. If the exercise of power is arbitrary and the power has been exercised on a non-consideration or non-application of mind to relevant factors, that exercise of power will be regarded as manifestly erroneous. If a power, whether legislative or administrative, is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (vii) In all State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is fairplay in action.
There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is fairplay in action. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision. (viii) In the light of the above legal principles and guiding factors, if we see the present case, the impugned order of the first respondent, dated 31.08.2010, speaks about the power under Section 3 of the UGC Act, as per which, the Central Government may, on the advice of the Commission, declare, by a notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of Section 2 and whereas a proposal was received by the Central Government in June 2007 from the petitioner institute, deemed to be university, seeking inclusion of a new Department viz., Faculty of Medicine (ACS Medical College and Hospital) Chennai under its ambit, for which the recommendations of the Commission were received by them on 06.10.2009 and after careful examination under the UGC Guidelines,2000, in respect of institutions deemed to be universities, observations were communicated by the Government to UGC on 11.11.2009 for consideration of the Commission. The same were placed before the UGC Expert Committee, which examined the proposal in accordance with the Regulations. The first respondent found that the college and the institute were located at different places and hence the college could not be treated as a Department of the institute under the guidelines.
The same were placed before the UGC Expert Committee, which examined the proposal in accordance with the Regulations. The first respondent found that the college and the institute were located at different places and hence the college could not be treated as a Department of the institute under the guidelines. The college had already admitted students for 2008-2009 academic session under the enrolment of the institute as an institution deemed to be university, even before the college was approved by the Government as a constituent unit of the deemed to be university. Therefore, the first respondent found that it was in violation of the Guidelines and further took note of the fact that the college was issued with an Essentiality Certificate by the Government of Tamil Nadu on 11.06.2007 on condition that the State Government shall take over the responsibility of the already enrolled students, if fresh admissions are stopped by the Central Government. The Central Government, vide its communication dated 11.08.2009, had directed the college not to make admissions for the academic session 2009-2010 without first affiliating the said college with the appropriate State University. However, the college had gone ahead with the admission of students for the academic session 2009-2010. The impugned order further reveals that in the case of ACS Medical College, it was the parent trust by the name of Kannammal Trust and not the Institution deemed to be University which had applied to the Central Government in the Ministry of Health & Family Welfare, for permission to start the Medical College and that the Medical College is sponsored by Kannammal Trust, which obtained such permission from the Central Government and not the institution deemed to be University and hence it was not permissible under the extent of the Guidelines for institutions deemed to be Universities to admit students to a Medical College which was not under its ambit, however, the college continued to admit students for two consecutive academic sessions without it being a duly approved constituent unit of the institution deemed to be University. The impugned order also says that in view of public concern over the decrease in academic standards in certain institutions deemed to be Universities, a review of such institutions was ordered by the Central Government and a Committee comprising eminent academic experts was constituted by the Central Government on 06.07.2009.
The impugned order also says that in view of public concern over the decrease in academic standards in certain institutions deemed to be Universities, a review of such institutions was ordered by the Central Government and a Committee comprising eminent academic experts was constituted by the Central Government on 06.07.2009. Among other institutions deemed to be universities, a review of the petitioner institute was also made by the Committee, which found the institution deficient on various counts and, therefore, bringing yet another institution under the ambit of such institution deemed to be University would further weaken its academic standards. Narrating all the above facts and referring also to an order of this Court dated 18.08.2010, directing the Government to pass appropriate orders after considering the recommendations of UGC within one week of the receipt of a copy of the order, the impugned order states that in exercise of the inherent powers under Section 3 of the UGC Act,1956, and after consideration of all relevant facts, the Government rejected the recommendation of UGC dated 30.09.2009, whereby also rejecting the application of the petitioner for inclusion of the college under the ambit of the institution deemed to be University. (ix) The petitioner assailed the impugned order contending that though the first respondent is empowered to either accept or reject the recommendations of UGC, there are no reasons in the impugned order or any other proceedings to reject the recommendations of UGC. Even if the first respondent has power to disregard the recommendations, it must be for valid reasons, as otherwise, the whole exercise would be arbitrary. In other words, the core of contention of the petitioner is that if the recommendations of UGC are bad in law so as to have the same rejected, the said rejection must be based on substantial reasons. (x) In this context, it is to be stated that the recommendation of UGC is dated 30.09.2009. The Central Government/first respondent, vide its letter dated 11.11.2009, requested the UGC to re-examine the matter. The UGC, in turn, reconsidered the matter and reiterated its views on 01.01.2010, meeting all the points raised by the first respondent.
(x) In this context, it is to be stated that the recommendation of UGC is dated 30.09.2009. The Central Government/first respondent, vide its letter dated 11.11.2009, requested the UGC to re-examine the matter. The UGC, in turn, reconsidered the matter and reiterated its views on 01.01.2010, meeting all the points raised by the first respondent. Thereafter, when the first respondent initially rejected the request of the petitioner to bring the college within the ambit of the University by its proceedings dated 15.03.2010, the only reason assigned by the first respondent was that the petitioner institute was included in the list of Deemed Universities found unfit to continue and as such the claim of the petitioner could not be considered. There was no reference as to the validity or otherwise of the UGC recommendations, dated 30.09.2009 and 01.01.2010. Even in the impugned order, no reason is given and therefore it is patently illegal and arbitrary. Also, this Court, by an order dated 18.08.2010, directed the first respondent to pass appropriate orders after considering the recommendations of UGC, dated 30.09.2009 and 01.01.2010, within one week of the receipt of the copy of the said order. There were two recommendations; the first of which being dated 30.09.2009 and the second being dated 01.01.2010. The impugned order reveals that only based on the recommendation dated 30.09.2009, the first respondent rejected the petitioner claim, even without looking into the direction of this Court. (xi) The specific claim of the petitioner is that admission for the year 2008-2009 was made on the basis of Letter of Permission granted by Government of India/second respondent, dated 04.07.2008. The admission for the year 2009-2010 was made on the basis of the recommendation of UGC dated 30.09.2009, legitimately expecting the consequential orders of the Central Government as was done in the case of Saveetha Medical College and Sathya Sai Medical College. As far as the case of the petitioner is concerned, when the UGC, accepting the delay on its part and not that of the petitioner, made recommendations, the first respondent ought to have accepted the recommendations including the delay, but acted in a different manner, when other institutions similarly placed are considered and granted approval, thereby discriminating the petitioner.
As far as the case of the petitioner is concerned, when the UGC, accepting the delay on its part and not that of the petitioner, made recommendations, the first respondent ought to have accepted the recommendations including the delay, but acted in a different manner, when other institutions similarly placed are considered and granted approval, thereby discriminating the petitioner. (xii) It is also to be seen that before grant of Letter of Permission dated 04.07.2008 by the second respondent, the UGC has given No Objection Certificate by letter dated 31.07.2007, subject to certain conditions, primarily including approval from MCI, for bringing the college under the ambit of the Deemed University. Essentiality Certificate was obtained on 11.06.2007 in the name of the Deemed University on 21.03.2008. The proposal and the scheme for starting the college was submitted on 13.07.2007. Before grant of LOP, proposal was not returned for want of consent of affiliation from State University. MCI accepted the consent of affiliation and made recommendations for grant of LOP and accordingly LOP was granted by an order dated 04.07.2008. Admission was directed to be completed for 2008-2009 before 30.09.2008, which in the case of Saveetha Medical college and Sathya Sai Medical College was also made and notification under Section 3 was issued well in advance for the said two colleges, but the case of the petitioner was delayed by UGC and the said delay was duly accepted by UGC recommending for approval ex post facto, but the first respondent without looking into all these facts arbitrarily decided and rejected the claim of the petitioner. (xiii) Though the petitioner had specifically pleaded that there was a consideration for two other similarly placed colleges viz., Saveetha Medical College and Sathya Sai Medical College and also when the petitioner had consistently placed on record the expert opinion as requested by Union of India to UGC and thereafter minute by minute recommendation had been made and also this Court, after examining that position, directed the authorities to examine the recommendations of UGC, dated 01.01.2010, the first respondent, with a clear mind, not considered the said recommendations, before arriving at the conclusion. From the beginning, the petitioner has pleaded time and again that there was a discrimination and arbitrary exercise of power by the first respondent.
From the beginning, the petitioner has pleaded time and again that there was a discrimination and arbitrary exercise of power by the first respondent. (xiv) The above position would clearly establish that the authorities have acted arbitrarily and contrary to the principle of equality as enshrined in Article 14 and the power of judicial review, when the impugned order has no material application to the issue in question particularly discrimination as well as material consideration and the relevant recommendations of UGC dated 01.01.2010, this Court has no hesitation to come to the conclusion that the authorities have acted arbitrarily and unreasonably and with discrimination. Therefore, the impugned order is arbitrary, discriminative and violation of Article 14 of the Constitution. (2) Non-speaking and bereft of reasoning : (i) Speaking or Reasoning is the heartbeat of every decision of the authority and it introduces clarity in the order. Failure to consider the same or the absence of reasoning would render the order unsustainable. (ii) An important consideration which has to be weighed with the Court for holding that an administrative authority must record the reasons for its decision is that such a decision is subject to the appellate jurisdiction initially of the High Court under Article 226 of the Constitution and later of the Supreme Court under Article 136 of the Constitution and that the reasons, if recorded, would enable the Courts to effectively exercise the appellate power. But, this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making. (iii) Reasons, when recorded by an administrative authority in an order passed by it would no doubt facilitate the exercise of its jurisdiction by the appellate authority. But, the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making.
These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In my opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority irrespective of the fact whether the decision is subject to appeal, revision or judicial review. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority need not give separate reasons if it agrees with the reasons contained in the order under challenge. The above is the law laid down by a Constitution Bench of the Supreme Court in S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 . (iv) In the instant case, a perusal of the impugned order would reveal that in exercise of the power under Section 3 of the UGC Act and in view of the public concern over the decrease in academic standards in certain institutions deemed to be Universities, a committee comprising eminent academic experts was constituted by the Central Government on 06.07.2009 and the said Committee found that the petitioner institute was one among the institutions found deficient on various counts and therefore bringing yet another institution under its ambit would further weaken its academic standards. This is the subject matter in Viplav Sharma's case, which is sub judice before the Supreme Court. In fact, looking into the reason given by the respondent, this Court, on 14.07.2010 in W.P.No.13044 of 2010, on consideration of the entire materials available on record, directed the first respondent to pass appropriate orders, taking into account the recommendations of UGC dated 30.09.2009 and 01.01.2010. However, the first respondent has passed the absurd order, without assigning reasons for rejecting the claim of the petitioner much less one reason as to how the recommendation of UGC is bad in law or the said recommendation or recommendations are in contravention of any rule.
However, the first respondent has passed the absurd order, without assigning reasons for rejecting the claim of the petitioner much less one reason as to how the recommendation of UGC is bad in law or the said recommendation or recommendations are in contravention of any rule. Thus, the impugned order does not speak anything for what reasons the claim of the petitioner has been rejected. (v) When a particular aspect has been directed to be considered in an ordained manner particularly in a case where there is a direction by the Court, it is incumbent on the executive authority to look into the same, applying its mind to the judicial direction and consider the same in accordance with law. (vi) In this case, it is to be seen that the when UGC recommended for ex post facto approval of the college being brought under the ambit of the institute/deemed to be university, the same was not accepted by the first respondent, but, instead, it directed the UGC to reconsider the recommendation, pursuant to which the said recommendation was reconsidered by the expert committee, whereupon a clear recommendation was made on 01.01.2010, reiterating the earlier recommendation dated 30.09.2010. Even that recommendation was not taken into consideration before passing the impugned order, which clearly shows that it is non-speaking and without assigning any reasons. (vii) Mere statement of facts referring to various proceedings would not be construed as a reasoning for the impugned order. The real meaning of speaking order is as to what would be the basis for taking a decision to reject. The materials, such as, LOI, LOP, NOC and subsequent proceedings of the Department and also two of the recommendations of UGC are all the necessary concomitants to be looked into for taking a decision, but, the first respondent had not even given an iota of consideration to those materials, before coming to the conclusion. As such, the mere order of rejection, stating that they have inherent power, is certainly not a speaking order. Therefore, on this count also, the impugned order suffers from legal infirmity. (3) Non-application of mind : (i) It is well settled that any authority, while passing an order, has to apply its mind. This is a sine qua non for the said authority before taking a final decision.
Therefore, on this count also, the impugned order suffers from legal infirmity. (3) Non-application of mind : (i) It is well settled that any authority, while passing an order, has to apply its mind. This is a sine qua non for the said authority before taking a final decision. Therefore, in the absence of application of mind on the part of the authority, any order passed thereon would be a nullity. (ii) When an authority acts in a narrow sense without regard to relevant considerations or with gross unreasonableness or without application of mind, the said act has to be held ultra vires. (iii) Applying the above principle to the case on hand, it is to be stated that when UGC recommended for ex post facto approval of the college vide its letter dated 30.09.2009, the first respondent by its communication dated 11.11.2009, requested the UGC to reconsider its decision and such a request of the first respondent was again placed before the expert committee by UGC, following which the expert committee considered each and every aspect of the matter and re-sent the recommendation dated 01.01.2010, endorsing the earlier one dated 30.09.2009, giving cogent reasons, which was the very basis to be taken into account by the first respondent before passing the impugned order. On the other hand, the impugned order of rejection only reveals that the first respondent has taken into account the first report of UGC, which is contrary to its decision. Therefore, the impugned order is hit by total non-application of mind and without considering the valid materials. (4) Legitimate expectation : (i) Mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and that is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. (ii) In Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 ALL ER 935 (HL), the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power.
Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. (ii) In Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 ALL ER 935 (HL), the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power. Lord Scarman pointed out that the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. Again in Preston, in re, 1985 AC 835 : (1985) (2) ALL ER 327, it was stated by Lord Scarman that the principle of fairness has an important place in the law of judicial review and unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. (iii) This Court, while considering the principle of doctrine of legitimate expectation, in the case of Srinivasa Institute of Engineering and Technology v. All India Council for Technical Education (AICTE), 2010 (4) CTC 225 , has held that the doctrine of legitimate expectation is well settled. A plethora of precedents elucidating the principles of doctrine of legitimate expectation is laid by the Supreme Court. In the case of Government of Tamil Nadu vs. The Director, Directorate of Government Examinations, reported in 2002 (1) L.W. 732 , the Supreme Court has held that the principle of legitimate expectation consists of two parts, i.e. (1) substantive and (2) procedural and that a case of substantive legitimate expectation would arise when a Government or an authority within the meaning of Article 12 of Indian Constitution, by representation or by past practice, arose expectation, which it would be within its powers to fulfil and the Court can interfere when the decision taken by the authority is arbitrary, unreasonable or not taken in public interest. The further requirement is that the representee should suffer detriment acting upon such representation.
The further requirement is that the representee should suffer detriment acting upon such representation. Another legal principle evolved by the Supreme Court in Nagjyoti Coo-group Housing Society vs. Union of India, AIR 1993 S.C.155, is that the doctrine of legitimate expectation as in the case of audi alteram partem, cannot be put into straitjacket formula and that each case has to be weighed on its facts as to whether the doctrine of legitimate expectation is fit to be invoked or not. (iv) Doctrine of legitimate expectation is not a very strong right, but it is based upon various other factors and it can be invoked incidentally. The doctrine of legitimate expectation can be invoked where there is an irreparable loss to the party and public interest does not suffer. Though a right based upon the legitimate expectation is not a legal right, when the expectation is legitimate, reasonable, logical and valid and a certain degree of fairness is required from the other persons, then the doctrine of legitimate expectation can be invoked. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage. (v) In medicine, the admission shall be as per the calendar of schedule and the same has to be concluded within the time as regulated by the Supreme Court of India in the case of Mridul Dhar v. Union of India, 2007 (15) SCC 622. Therefore, it is needless to say as to how the process should be done. In this regard, the petitioner has done everything on time based on the Letter of Permission of the second respondent, dated 04.07.2008, and NOC of UGC dated 31.07.2007, expecting that approval of the Central Government would come. Also, with an intention to close the admissions before 30.09.2008, the petitioner admitted the students and the said process of admissions was with a legitimate expectation, which, in the considered opinion of this Court, cannot be said to be unreasonable . It is always expected by the petitioner, as the basic procedures were already followed with prior permission and NOC by competent authorities. It is equally important that the same should be considered by the first respondent in the manner as contemplated. That being the position, the first respondent considered the case of other institutions, but not the one of the petitioner.
It is equally important that the same should be considered by the first respondent in the manner as contemplated. That being the position, the first respondent considered the case of other institutions, but not the one of the petitioner. When, as in the case of others, with legitimate expectation the petitioner also completed the formalities, for the reasons best known, the first respondent has not granted approval for the petitioner. Therefore, the action of the petitioner in admitting the students for the year 2008-2009 based on the materials, in expectation of approval from the first respondent, was definitely bona fide and in good faith. Hence, the approval for the academic session 2008-2009 cannot be rejected for the petitioner college, which, in fact, ought to have been considered favourably. (vi) It is also significant to point out that UGC, by due consideration of the entire matter, reiterated its earlier recommendation for ex post facto approval from 2008-2009 and regularisation of admissions made by the petitioner from 2008-2009 by its letter dated 01.01.2010 addressed to the first respondent on due consideration of the interests of students and realising that the petitioner was not at fault. In spite of such positive recommendation by UGC, the first respondent has not come forward to issue notification for retrospective regularisation and renewal for the year 2009-2010. (vii) It was at that stage, a Public Interest Litigation in W.P.No.142 of 2006 filed by Viplav Sharma came up for consideration before the Supreme Court, wherein the Union of India filed an affidavit indicating that on the basis of the recommendation of the Review Committee headed by Dr. Tandon and the Task Force, it was proposed to derecognize 44 Deemed Universities including the petitioner institute, as they were found unfit for continuation of the said status.
Tandon and the Task Force, it was proposed to derecognize 44 Deemed Universities including the petitioner institute, as they were found unfit for continuation of the said status. (viii) Be that as it may, the Supreme Court disposed of W.P.No.349 of 2009 filed by the petitioner by its order dated 18.01.2010 holding that the respondent may take appropriate decision within a reasonable period Following the same, the first respondent passed an order dated 15.03.2010, stating that keeping in view that the petitioner institute is included in the list of deemed to be Universities found unfit to continue as such and the matter is sub judice before the Supreme Court, they are not in a position to process the application of the petitioner for inclusion of the college under the ambit of the institute and also observing that the petitioner may apply to the State University dealing with medical education for affiliation. (ix) In the given situation, the second respondent had passed an order dated 05.04.2010 to the effect that the question of regularisation of the students already admitted for the academic year 2008-2009 and 2009-2010 did not arise in view of the fact that no notification was issued by the first respondent to include the college under the ambit of the Deemed University. It was also pointed out therein that renewal of permission for 2010-2011 could not be considered for the very same reason. (x) No doubt, the decision in Viplav Sharma's case would bind the petitioner along with 43 other Deemed Universities, but in view of the order of status quo granted by the Supreme Court and its subsequent order dated 24.02.2012 in Transfer Petition (Civil) No.512 of 2011, that issue cannot be linked to the issue of notification under Section 3. (xi) Therefore, when the college had admitted the students under legitimate expectation and in anticipation of ex post facto approval as per the recommendations of UGC, the order of first respondent, rejecting such recommendations so also turning down the claim of the petitioner, in the considered opinion of this Court, is bad in law.
(xi) Therefore, when the college had admitted the students under legitimate expectation and in anticipation of ex post facto approval as per the recommendations of UGC, the order of first respondent, rejecting such recommendations so also turning down the claim of the petitioner, in the considered opinion of this Court, is bad in law. (5) Violation of principles of natural justice : (i) It is a cardinal principle that when there is a legislative intent and a provision in the legislation to follow certain principles, it is obligatory on the part of the authority to follow the same in accordance with the provision and in the manner as contemplated. The fact that the provisions of the principles of natural justice have to be complied with is undisputed. This is well settled by various decisions of the Supreme Court and also this Court. The principles of natural justice consist, inter alia, of the requirement that no man should be condemned unheard. If, however, a legislation or a statute expressly or by necessary implication excludes the application of any particular principle of natural justice, then it requires a close scrutiny by the court. In other words, no man or no man's right should be affected without an opportunity to ventilate his views. Principles of natural justice are integrally embedded in our constitutional framework and their pristine glory and primacy cannot and should not be allowed to be submerged by the exigencies of particular situations or cases. The Court must always assert primacy of adherence to the principles of natural justice in all adjudications, otherwise the Act and the actions would be violative of Article 14 of the Constitution and would also be destructive of Articles 19(1)(g) and 21 of the Constitution, by denying a procedure which is just, fair and reasonable. But, at the same time, these must be applied in a particular manner in particular cases having regard to the particular circumstances. (ii) In Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537 , the Supreme Court has held that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. (iii) Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental.
(iii) Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. Any act or a quasi-judicial act in violation of the principles of natural justice is void or of no value. (iv) In Siemens Engineering Co. Limited, 1976 (2) SCC 981 , the Supreme Court has taken a view that the rule requiring reasons to be given in support of an order is, like the principles of audi alteram partem, a basic principle of natural justice.". This decision proceeds on the basis that the two well known principles of natural justice, namely (i) that no man should be a judge in his own cause, and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two principles there may be rules which seek to ensure fairness in the process of decision-making and can be regarded as part of the principles of natural justice. It is also held therein that where an authority makes an order, it must record its reasons in support of the order it makes. Every order must be supported by reasons. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice and this rule must be observed in its proper spirit and mere pretense of compliance with it would not satisfy the requirement of law. (v) The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The requirement about recording of reasons for its decision by an administrative authority achieves the object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities.
Keeping in view the expanding horizon of the principles of natural justice, the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. Therefore, an administrative authority is required to record the reasons for its decision (vi) In the present case, as could be seen from the records, the first respondent had not given any notice or opportunity to the petitioner before passing the impugned order, thereby manifestly failing to follow the principles of natural justice, which has led to procedural irregularity and infirmity. Hence, the order of the first respondent suffers from legal infirmity with regard to violation of principles of natural justice and it is to be interfered with on that score as well. 20. The petitioner has challenged the order of the first respondent, dated 31.08.2010, rejecting the recommendation of UGC., dated 30.09.2009, after a lapse of nearly one year whereby also rejecting the application of the petitioner for inclusion of the ACS Medical College and Hospital under the ambit of the petitioner Deemed University. In its recommendation dated 30.09.2009, the UGC., after accepting the delay on their part, has recommended for inclusion of the Medical College under the ambit of the Deemed University with effect from the academic year 2008-2009 retrospectively, duly taking note of the admissions made by the petitioner and the delay ensued in recommending the claim of the petitioner to the Central Government, first respondent herein, for bringing the Medical College under the ambit of the petitioner Deemed University. As a consequence of the impugned order, dated 31.08.2010, not only the students admitted during 2008-2009 and 2009-2010 are prejudiciously affected in their educational career, but the renewal of permission for 2010-2011 has become impossible. Therefore, the impugned order is illegal, arbitrary, discriminatory, ultra vires of the provisions of the U.G.C. Act and the Regulations framed thereunder, apart from being vitiated by failure to take into account relevant considerations coupled with lack of bona fides. At the same time, the impugned order has been passed contrary to the directions contained in the order of this Court in W.P.No.13044 of 2010, dated 14.07.2010.
At the same time, the impugned order has been passed contrary to the directions contained in the order of this Court in W.P.No.13044 of 2010, dated 14.07.2010. Though the said position has been hotly controverted to by the first respondent stating that the college had admitted the students de hors the permission of the Government and that it also failed to be brought under the ambit of the Deemed University, in view of my reasonings as above, the stand of the first respondent cannot be sustained. 21. My discussion at length in the foregoing paragraphs from 11 to 20 would lead to the following conclusions : (1) The impugned order, dated 31.08.2010, is set aside, and the first respondent is directed to issue appropriate notification under Section 3 of the U.G.C. Act, by bringing the A.C.S. Medical College and Hospital under the ambit of Dr. M.G.R. Educational and Research Institute (Deemed University) with retrospective effect from the academic year 2008-2009 as positively recommended by the University Grants Commission. (2) As regards the regularisation of admissions made by the college for the academic year 2009-2010 and grant of renewal of permission for the academic year 2010-2011, the matter is remanded to the first respondent to consider afresh, keeping in mind the discussion made above, and pass appropriate orders within a period of two weeks from the date of receipt of a copy of this order. (3) This order is subject to the decision of the Supreme Court in Viplav Sharma's case in W.P.(C).No.142 of 2006. 22. Writ Petition is allowed with the above directions and observations. No costs. Consequently, the connected M.P.No.2 of 2010 is closed.