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2016 DIGILAW 533 (MP)

Gyanjeet Sewa Mission Trust v. Union of India

2016-07-05

S.K.GANGELE

body2016
JUDGMENT : S.K. Gangele, J. 1. Initially the petitioner filed the petition for the following reliefs:- (i) Issue a writ in the nature of certiorari quashing the impugned decision, dated 13.05.2016 (ANNEXURE P/8) and order, dated 10.06.2016 (ANNEXURE P/16). (ii) Issue a writ in the nature of mandamus directing the respondent no. 1 to issue letter of permission to the petitioner for 150 seats of M.B.B.S. for the academic year 2016-17. 2. During the pendency of the petition, petitioner amended the petition and further claimed relief for quashing of the order and communication dated 10/06/2016. 3. The petitioner submitted an application for opening of a medical college with 150 intake capacity on 25/08/2015 for the academic sessions 2016-17 under Section 10-A of the Indian Medical Council Act, 1956 (hereinafter called as Act of 1056.). 4. Inspection was carried out and the deficiencies were pointed out to the petitioner. As per the petitioner it had cured the deficiencies. A notice was issued to the petitioner to appear before the respondent No. 2 Medical Council of India. The petitioner appeared before the MCI and also submitted representation that he had cured the deficiencies. Respondent No. 2 submitted its report to the respondent No. 1, because MCI in its meeting held on 13/05/2016 had taken a decision to recommend for disapproval of the claim of the petitioner. The petitioner also submitted a representation to the respondent No.1 that the petitioner be provided an opportunity of hearing in accordance with the provisions of Section 10-A(4) of the MIC Act. 5. Without giving any opportunity of hearing the Government of India respondent no. 1 vide letter dated 10/06/2006 informed the petitioner that the Central Government had decided to accept the recommendation of the IMC and the petitioner is at liberty to apply afresh for next academic session. The communication sent to the petitioner by the respondent no. 1 reads as under:- "I am directed to enclose herewith a copy of the letter dated 14.05.2016 of Medical Council of India (MCI) containing its recommendation to disapproved your scheme for Establishment of a new medical college at Jabalpur, Madhya Pradesh, for the academic year 2016-17 and to say that the Central Government has decided to accept the recommendation of MCI. Accordingly, disapproved of your said scheme is conveyed herewith. Accordingly, disapproved of your said scheme is conveyed herewith. However, you are free to apply afresh for next academic session strictly as per provision of IMC Act, 1956 and Regulations framed hereunder." 6. Learned counsel appearing on behalf of the petitioner has raised two points in deciding this petition. First that the communication and decision of the respondent no. 2 to accept the recommendation of MCI without giving opportunity of hearing to the petitioner is against the statutory provisions of Section 10-A(4) of the IMC Act. Learned counsel further submitted that along with the inspection report a summary has also been prepared by the inspection team and the summary was sent to MCI along with inspection report and the procedure adopted by the inspection team is contrary to the guideline issued by the Medical Council of Indian in regard to inspection. In support of his contention, learned counsel for the petitioner relied on the judgment of the Apex Court delivered in the case of Royal Medical Trust (Registered) and another v. Union of India and another reported in (2015) 10 SCC 19 . 7. Contrary to this learned senior counsel appearing on behalf of the respondent no. 2 MCI had contended that the MCI had already afforded an opportunity of hearing to the petitioner and thereafter, the Union of India accepted the recommendation of the MCI, hence, there was no cause to give opportunity of hearing to the petitioner at the second stage by the Union of India. The same argument is advanced by the learned counsel appearing on behalf of the Union of India. It is further contended by both the counsel that along with inspection report summary has been sent and summary is nothing but inspection report. Hence there is no illegality in sending summary by the inspection team along with inspection report. 8. The first point raised by the learned counsel for the petitioner has already been answered by the Apex Court in the case of Royal Medical Trust (Supra). Section 10-A(4) of the Act reads as under:- 4. The Central Govt. Hence there is no illegality in sending summary by the inspection team along with inspection report. 8. The first point raised by the learned counsel for the petitioner has already been answered by the Apex Court in the case of Royal Medical Trust (Supra). Section 10-A(4) of the Act reads as under:- 4. The Central Govt. may after considering the scheme and the recommendations of the Council under subsection (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme, and any such approval shall be a permission under subsection (1): Provided that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard; 9. Proviso of Sub Section 10-A(4) specifically provides that no scheme shall be disapproved by the Central Government accept after giving the person or college concerned a reasonable opportunity of being heard. The aforesaid point has been considered by the Apex Court. In the case of Royal Medical Trust (Registered) and another v. Union of India and another reported in (2015) 10 SCC 19 Court has held as under: "26 While considering the Scheme under Section 10A of the Act, the MCI and the Central Government are required to have due regard to the factors referred to in sub-section (7) thereof. If the initial Scheme itself is found to be defective or is to be disapproved, subsection (3)(a) and proviso to sub-section (4) of Section 10A oblige the MCI and the Central Government respectively to grant to the applicant reasonable opportunity to rectify the defects and of being heard. The Statute thus recognises that before any adverse decision is taken as regards the Scheme, the applicant must be afforded reasonable opportunity. This facet has been considered by this Court while dealing with issues under Section 10A of the Dentists Act in Swami Devi Dayal. The Statute thus recognises that before any adverse decision is taken as regards the Scheme, the applicant must be afforded reasonable opportunity. This facet has been considered by this Court while dealing with issues under Section 10A of the Dentists Act in Swami Devi Dayal. It was laid down that the requirement of following the principles of natural justice is available at two stages, first where the Dental Council of India finds deficiencies during its inspection and secondly at the level of the Central Government before it passes any adverse orders after receipt of the recommendations by the Dental Council of India. The observations in Swami Devi Dayal while considering provisions of Section 10A of the Dentists Act which are pari materia with Section 10Aof the Act, must apply with equal force in relation to cases under the Act. 27. In paragraphs 22.2 and 22.3 it was laid down in Swami Devi Dayal as under : "22.2 It contemplates grant of opportunity of being heard at two stages. First stage would be at the level of DCI after the scheme is submitted to DCI under sub section (2) of Section 10A of the Act. Once it is found by the DCI that all the parameters for granting permission are met, it recommends the grant of approval of the scheme to the Central Government. In case Scheme is found to be deficient, sub section (3) (a) of Section 10 A of the Act 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. Second stage of adherence to the principles of natural justice is provided at the level of Central Government at the time when it has to take final decision, after the receipt of the recommendation sent by the DCI. This requirement of hearing is stipulated in proviso to sub section (4) of Section 10A, in the event the Central Government is proposing to disapprove the scheme. 22.3 The expression "opportunity of being heard" occurring in this proviso would mean that the material that goes against the applicant and is to be taken into consideration, is to be supplied to the applicant within an opportunity to make representation. 22.3 The expression "opportunity of being heard" occurring in this proviso would mean that the material that goes against the applicant and is to be taken into consideration, is to be supplied to the applicant within an opportunity to make representation. For this purpose either the report of the DCI itself can be supplied or at least the deficiencies pointed out in the report have to be communicated by the Central Government to the applicant with an opportunity to furnish its comments thereupon. At that stage while giving its reply, if the applicant claims personal hearing, such a personal hearing should also be accorded." 10. From the judgment of the Apex Court, it is clear that the requirement of following the principles of natural justice is available at two stages, first where the Dental Council of India finds deficiencies during its inspection and second at the level of the Central Government before it passes any adverse order after receipt of the report. 11. In the present case, the petitioner had sent a letter to the respondent no. 1 to the effect that an opportunity of hearing be accorded to the petitioner before accepting recommendation of the MCI. Admittedly, no such opportunity was accorded to the petitioner, hence the impugned order is in violation of section 10A(4) of the MCI. 12. In regard to next question raised by counsel for the petitioner that the summary appended by the inspection team cannot be looked into along with the main inspection report. In our opinion it cannot be decided at this stage. The petitioner can very well raise this point before the respondent no. 1 during personal hearing. 13. Consequently, the petition is disposed of with the following directions:- The impugned communication Annexure P/16 dated 10/06/2016 is hereby quashed. The respondent No. 1 is directed to accord personal hearing to the petitioner and thereafter pass an order on the application of the petitioner. The petitioner is at liberty to raise all the grounds raised in this petition before the respondent No. 1 at the time of hearing. No order as to costs.