Telangana High Court
The Surabhi Educational Society vs Board Of Governors, on 19 November, 2020
Author: M.S. Ramachandra Rao
Bench: M.S.Ramachandra Rao
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
WRIT PETITION No.19379 of 2020
ORDER:(Per Hon'ble Sri Justice M.S. Ramachandra Rao) The petitioners are challenging the order dt.24.09.2020 in Proceedings No.MCI-34 (41) (R-22) / 2019 - MED / 115 passed by the Board of Governor of the Medical Council of India (1st respondent) which was received by the petitioners on 09.10.2020 rejecting renewal of permission of the M.B.B.S. II Batch of the 2nd petitioner-Institution for the Academic Year 2020-21. Petitioners also seek a consequential order to permit admissions to be made to the 2nd petitioner - Institution for the said Academic Year by granting renewal of permission for the said batch for the Academic Year 2020-21.
2. The 1st petitioner is a Society registered under the provisions of the A.P. Societies Registration Act, 2001 and it had established the 2nd petitioner - Institution to promote and develop Medical education in the area of Siddipet in Telangana State. The 3rd petitioner is the Chairman of the 1st and 2nd petitioner
3. The 1st respondent is the Board of Governors of the Indian Medical Council which was constituted under the Indian Medical Council Act,1956 ( for short 'the Act').
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4. The Parliament had amended the Indian Medical Council Act, 1956 vide Act 31 of 1993 w.e.f. 27.08.1992 and introduced Section 3-B, which provided that, during the period when the Indian Medical Council stood superseded, the provisions of the Indian Medical Council Act referring to the word 'Council' shall be construed as if the said word is substituted by the words 'Board of Governors'; and the said Board shall exercise the powers and discharge the functions of the Council under the Act.
5. Clause (ii) of Sub-Section (b) of Section 3-B is relevant and it stated as under :
"3-B. Certain Modifications of the Act :
During the period when the Council stands superseded -
(a) ......
(b) The Board of Governors shall -
(i) .........
(ii) grant independently permission for establishment of
new medical colleges or opening a new or higher
course of study or training or increase in admission capacity in any course of study or training referred to in Section 10A or giving the person or college concerned a reasonable opportunity of being heard as provided under Section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and
(iii) ... ... ..."
6. In 2018, the Medical Council of India was superseded by its Board of Governors (1st respondent) vide Indian Medical Council (Amendment) Ordinance, 2018 and the term of the 1st respondent was ::3::
extended by the Indian Medical Council (Amendment) Second Ordinance, 2019.
7. Parliament had enacted the National Medical Commission Act, 2019 and the National Medical Commission (2nd respondent) was constituted under the said Act.
8. Initially, only provisions of Sections 3 to 6, 8, 11, 16 to 19 and 56 to 57 of the said Act were brought into force w.e.f. 02.09.2019.
9. On 24.09.2020, the day on which the impugned order was passed by the 1st respondent, the 1st respondent was dissolved and the remaining provisions of the National Medical Commission Act, 2019 were brought into force w.e.f. 25.09.2020.
10. Consequently, from 25.09.2020, the 2nd respondent took over the functions of the Medical Council of India as the Indian Medical Council Act, 1956 stood repealed.
The case of the petitioner
11. The case of the petitioner in this Writ Petition is that the 1st respondent had not given a reasonable opportunity to the petitioner of being heard as contemplated by the above provision while considering petitioner's application for renewal of permission for the M.B.B.S. II Batch in the petitioner - Institution for the Academic Year 2020-21 and that the 1st respondent has not considered the material submitted by the petitioner in support of its claim for grant of such renewal.
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12. Petitioner's case is that letter of permission had been granted to it on 22.05.2019 for the initial batch of 150 M.B.B.S. students for the Academic Year 2019-20 after the 1st respondent had satisfied itself about compliance with all the requirements and specified facilities; that petitioner had applied for renewal of permission for the Academic Year 2020-21 in order to make admission of a second Batch of 150 M.B.B.S. students; that the 1st respondent got inspection made of the 2nd petitioner - Institution on 14 / 15 October, 2019 and had pointed out certain deficiencies in the facilities available in the 2nd petitioner and also shortage in the number of Doctors, Residents and number of patients.
13. An assessment report was communicated by the 1st respondent to the 2nd petitioner through e-mail dt.10.12.2019 asking it to submit point-wise compliance along with documentary evidence.
14. Petitioners allege that though none of such alleged deficiencies were present in the 2nd petitioner - Institution, it complied with the alleged deficiencies and submitted compliance report on 08.01.2020 pointing out that the reason for lack of attendance on the days of inspection was the complete transport strike by employees of the Telangana State Road Transport Corporation.
15. Thereafter, there was another inspection done by the 1st respondent of the 2nd petitioner - Institution on 28.02.2020 to verify the compliance with the alleged deficiencies pointed out in the first assessment report dt.10.12.2019.
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16. A second assessment report dt.28.02.2020 was communicated to the petitioner again pointing out certain deficiencies.
17. Thereafter, on 10.09.2020, the 2nd petitioner received a letter dt.08.09.2020 (Ex.P.6) directing the 2nd petitioner to appear before the Hearing Committee through video-conferencing on 10.09.2020 at 03:00 p.m. and furnish explanation as to why its application should not be disapproved by the Board of Governors for renewal of permission under Section 10-A of the Indian Medical Council Act, 1956 for the Academic Year 2020-21. It was informed that the link for the video- conference will be provided in due course of time.
18. Petitioners allege that the link for the video-conference was shared at 03:48 p.m. on 10.09.2020 for the meeting scheduled at 03:00 p.m. on that date (Ex.P.7 is the e-mail received by the 2nd petitioner from the 1st respondent's representative one Ms. Savitha); that at 04:12 p.m. on 10.09.2020, a person by name Amarjeet Singh representing the 1st respondent made a telephone call and asked the petitioners to appear in the video-conference; since the link for the video-conference was received late, petitioners appeared at the hearing and sought time for submitting material / explanation and the 1st respondent did grant time to the petitioners to submit the same by deferring the hearing to 16.09.2020.
19. On 11.09.2020, an e-mail Ex.P.8 was received from the 1st respondent that hearing through video-conference would be held at 10:00 a.m. on 16.09.2020; and the petitioners were requested to ::6::
complete the attached table in the given format by 03:00 p.m. on 15.09.2020 confirming their attendance at their meeting.
20. On 14.09.2020, the petitioners sent a letter dt.14.09.2020 mentioning about the parties who would be attending the meeting on 16.09.2020 and also information in the format specified (Ex.P.9 COLLY).
21. According to petitioners, on 15.09.2020, vide Ex.P.24 - email, the petitioners had submitted list of faculty / residents to the 1st respondent's email which was received by the 1st respondent.
22. Petitioners allege that their representatives participated in the video-conferencing hearing on 16.09.2020 and submitted explanation for all deficiencies pointed out in the second assessment report and allegedly showed that there were no deficiencies in the 2nd petitioner - Institution.
23. It is also the contention of the petitioners that during the course of the hearing, the 1st respondent asked the petitioners to submit the entire set of documents in relation to the same by e-mail to it on 16.09.2020 itself, and that under Ex.P.10 e-mail dt.16.09.2020 at 04:00 p.m., the petitioners sent a detailed explanation and documents vide Ex.P.11 by way of attachment to the said e-mail answering point- wise.
24. Petitioners allege that the 1st respondent was obliged to consider the material which it had sent to the 1st respondent under Exs.P.24 ::7::
email dt.15.09.2020 and Exs.P.10 and P.11 emails dt.16.09.2020; that in the impugned order dt.24.09.2020, passed almost after one week thereafter, there is no reference to any of this material; and it is simply stated by the 1st respondent that the "hearing committee informed it that no documents were submitted by the petitioners in support of their claim that the deficiencies were rectified by them; and so, the 1st respondent had decided not to renew permission for admission of second batch of 150 M.B.B.S. seats in the 2nd petitioner - Institution".
25. Petitioners contend that non-consideration by the 1st respondent of the material submitted by the petitioner to it vitiates the impugned order rendering it wholly arbitrary and violative of principles of natural justice.
26. Counsel for petitioners pointed out that limit for issuance of letter of permission for Under-Graduate seats was extended from 16.10.2020 to 15.11.2020 initially under Ex.P.23 - Public Notice; that the first-round of counselling would end by 14.11.2020, that the second-round of counselling would end on 10.12.2020, that the mop- up round would end by 22.12.2020 and the last date for joining of students to the M.B.B.S. Course is 31.12.2020. He relied upon the decisions of the Supreme Court in Priyadarshini Dental College and Hospital vs. Union of India and others1 and Asha vs. B.B. Sharma University of Health Sciences2 and contended that if the applicant / petitioners were not at fault and had complied with all requirements, 1 (2011) 4 S.C.C. 623 2 (2012) 7 S.C.C. 389 ::8::
that there were not responsible in any manner for the delay in considering their application, time-schedule can be extended and then renewal of permission can be granted, provided the last date for admissions had not expired.
27. He also contended that under a bona fide impression that there was a mistake on the part of the 1st respondent in passing the order, petitioners had sent a letter on 09.10.2020 to the 2nd respondent (which succeeded the 1st respondent on 25.09.2020) disputing that it had not submitted any documents as evidence and enclosing screen shot of their e-mail dt.16.09.2020; that they had also sent another letter on 21.10.2020 to the 2nd respondent to the same effect; and having waited for a response from the 2nd respondent for a reasonable time, filed this Writ Petition on 28.10.2020; and therefore, there was no delay on the part of the petitioners in approaching this Court.
The events after filing of the Writ petition
28. It is important to note that this Writ Petition had been filed on 01.11.2020, long before 15.11.2020, the date fixed under the Public Notice dt.04.09.2020 issued by the 1st respondent for renewal of permission. It cannot therefore be said to have been filed belatedly.
29. On 03.11.2020, Ms. Pujitha took notice for respondent nos.1 and 2 and sought time to file counter-affidavit. The matter was then adjourned to 10.11.2020. On that date, she again sought time and it ::9::
was adjourned to 12.11.2020. On that date, arguments were heard and orders were reserved.
30. We may note that Ms. Pujitha stated that on account of certain transition issues (transition from Medical Council of India to National Medical Commission), it is not possible to file counter-affidavits in a short time granted by this Court.
31. We fail to understand how there could be such problems in transition because the 2nd respondent took over the affairs of the 1st respondent on 25.9.2020 and this Writ petition was filed on 1.11.2020 and was heard on 12.11.2020. The 2nd respondent had ample time ( of atleast 47 days) to sort out whatever issues they faced by 12.11.2020 and cannot plead that as a pretext to delay the hearing of the Writ Petition.
32. The counsel for the 2nd respondent anyway did not file any counter-affidavit but filed two submissions - (i) instructions of the 2nd respondent; and (ii) broad contentions on behalf of 2nd respondent.
33. On the basis of the same, we are disposing of this Writ Petition in view of the urgency in the matter, to which course of action the counsel for the 2nd respondent agreed.
The consideration of the contentions of petitioner and the 2nd respondent
34. The first contention of the standing counsel for 2nd respondent is that the impugned order dt.24.09.2020 was communicated to the 2nd ::10::
respondent and had been received on 01.10.2020 and that the petitioners incorrectly stated that they received it on 09.10.2020.
35. No material is filed by her to show that the impugned order was served on 01.10.2020.
36. The petitioners have filed Ex.P.13 - Letter of the Postman stating that he handed over the cover containing the impugned order to the 2nd petitioner on 09.10.2020.
37. Therefore, we do not accept the plea of the counsel for the 2nd respondent that there was any misrepresentation of fact by the petitioners.
38. The counsel for 2nd respondent also did not dispute that the petitioners had sent letters dt.09.10.2020 and 21.10.2020 through courier to the 2nd respondent and the 2nd respondent had not responded to the same till the date of filing of the Writ Petition.
Therefore, having kept quiet for over 20 days without replying to the petitioners' letters, it does not lie in the mouth of the 2nd respondent to say that the petitioners filed the Writ Petition with delay or laches. Therefore, we reject this contention of the counsel for 2nd respondent.
We are also of the opinion that a statutory body like the 2nd respondent which is accused of not considering the material placed before it or its predecessor, cannot take such technical pleas and oppose grant of relief to the petitioners.
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39. Next it is contended by the counsel for the 2nd respondent that Section 10A of the Indian Medical Council Act prescribes the procedure for renewal of permission, that it provides for two inspections to be conducted subsequent to which opportunity of hearing has to be granted, and thereafter the college has to supply compliance report after deficiencies are noticed in the first inspection report. According to the 2nd respondent, there would be a compliance verification conducted by way of second inspection and if even subsequently, deficiencies persist, opportunity of hearing would be given and then basing on the recommendations of the Expert Body, decision on letter of permission is taken.
40. It is the contention of 2nd respondent that after the first inspection report wherein deficiencies were pointed out, a show cause notice was issued on 10.12.2019, the 2nd petitioner then sent a compliance report, that thereafter second inspection was done and major deficiencies were also mentioned in the second inspection report. It is the contention of the 2nd respondent that two opportunities of hearing were granted on 10.09.2020 and 16.09.2020 but the petitioners failed to submit any explanations/documents in the said hearings as required under Section 10A. It is also the contention of the 2nd respondent that Section 10A does not provide for any submission of documents post hearing and that no such permission was given by the MCI to the petitioners to submit documents after the hearing was held on 16.09.2020.
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41. The counsel for the 2nd respondent did not dispute the fact that the Medical Council of India was superseded by the Board of Governors in 2018 and that at the time when the petitioners' application was considered by it for renewal of permission for MBBS Second Batch, it was not the Medical Council of India but it was the Board of Governors which was considering such application.
42. No doubt in Manohar Lal Sharma Vs. Medical Council of India3 cited by the counsel for 2nd respondent, it was held that under Sec.10 A of the Act, after surprise inspection no further time or opportunity to rectify the deficiencies is contemplated and no further opportunity of being heard is provided.
43. But the Board of Governors, while exercising the powers of the Medical Council of India after supersession of the said Council in 2018 would be acting under Section 3B(b)(ii). The said provision contemplates exercise of independent powers by the Board of Governors for grant of permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in admission capacity in any course of study or training referred to in Section 10A after giving the person or college concerned a reasonable opportunity of being heard as provided under Section 10A.
44. Therefore it is not permissible only to look at Section 10A and ignore Section 3B(b)(ii).
3 (2013) 10 SCC 60 ::13::
45. In Krishna Mohan Medical College and Hospital v. Union of India4, in the context of use of words "reasonable opportunity of being heard" in the proviso to Sec.10-A(4) of the Indian Medical Council Act,1956, the Supreme Court held :
" 20. Reasonable opportunity of hearing which is synonymous to "fair hearing", it is no longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of "fair hearing" requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to "fair hearing" casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done."
46. Again in the context of the use of the same words in Sec.10-A (4) of the Indian Medical Council Act,1956, in another case Glocal Medical College and Super Speciality Hospital & Research Centre v. Union of India5, the Supreme Court held:
" 23. ... ... It cannot be gainsaid that the reasonable opportunity of hearing, as obligated by Section 10-A(4) inheres fairness in action to meet the legislative edict."
47. The question is whether the 1st respondent, i.e., the Board of Governors had complied with the statutory requirement of giving 4 (2017) 15 SCC 719 5 (2017) 15 SCC 690, at page 700 ::14::
reasonable opportunity of being heard to the petitioners on 10.09.2020 or 16.09.2020.
48. It is not disputed by the counsel for the 2nd respondent that the link for the video-conference hearing on 10.09.2020 had been sent at 3.48 p.m. though the said hearing was to start at 3.00 p.m. as per the letter Ex.P6 dt.08.09.2020 sent to the petitioners by the 1st respondent. It is also not disputed that a phone call was made at 4.12 p.m. to the petitioners to log in. Petitioners therefore sought time to submit explanation in relation to alleged deficiencies pointed out by the 1st respondent in the second assessment report and admittedly such time was granted to the petitioners.
49. Thereafter it was the 1st respondent which sent an e-mail dt.11.09.2020 (Ex.P8) stating that the opportunity of hearing would be given on 16.09.2020 via video conferencing at 10.00 a.m. and asked the petitioners to reply by 15.09.2020 by 3.00 p.m.
50. Petitioners contend that they had submitted vide Ex.P24 e-mail dt.15.09.2020 list of faculty/resident's chart to the designated e-mail of the 1st respondent.
51. Curiously in the written submissions/instructions of 2nd respondent a plea is taken that this e-mail and its annexures were not received by the 1st respondent.
52. If all the earlier and later e-mails sent by the petitioners to the same e-mail ID [email protected] had reached the 1st respondent such as ::15::
the e-mail dt.10.12.2019, 16.09.2020, 09.10.2020, Ex.P24 e-mail dt.15.09.2020 would also have reached the 1st respondent. No affidavit on oath of any official of the 1st respondent has been filed taking the plea of non-receipt of the e-mail Ex.P24 dt.15.09.2020 sent by the petitioners. So we reject the plea of the counsel for the 2nd respondent that e-mail Ex.P24 dt.15.09.2020 sent by the petitioners was not received by the 1st respondent. Obviously this plea is conveniently raised to support the impugned order passed by the 1st respondent.
53. It is the plea of the petitioners that during the course of the hearing on 16.09.2020 by the Hearing Committee of the 1st respondent, explanation was submitted by the petitioners of all alleged deficiencies pointed out in the second assessment report; and upon hearing the same, the Hearing Committee asked the petitioners to submit the entire set of documents in relation to the same through e- mail on 16.09.2020 itself; and that such material was submitted through Ex.P10 e-mail dt.16.09.2020. No affidavit of any member of the Hearing Committee which participated in the video-conference on 16.09.2020 with the petitioners is filed by the 1st respondent denying the statement of the petitioners that opportunity was given to the petitioners to submit entire set of documents relating to compliance by the petitioners of the deficiencies pointed out in the second assessment report on 16.09.2020. Therefore we draw an adverse inference against the 1st respondent that such permission to submit documents was ::16::
granted to the petitioners by the Hearing Committee of the 1st respondent in the video-conference held on 16.09.2020.
54. If such opportunity was granted to petitioners by the Hearing Committee of the 2nd respondent on 16.9.2020, it is not open to the 2nd respondent to contend that such opportunity was not permitted to be given by Sec.10-A.
55. In our considered opinion, reasonable opportunity of being heard provided for in Section 10A and also Section 3B(b)(ii) of the Indian Medical Council Act, 1956 requires 'fairness in action' by the 1st respondent and by ignoring the material submitted by the petitioners on 15.09.2020 and 16.09.2020, it had not acted fairly in compliance with the statutory obligation cast on it by the above provisions.
56. If such opportunity is granted by the members of the Hearing Committee to the petitioners, and if the petitioners had also submitted documents on 16.09.2020, it was incumbent on the 1st respondent to consider the same and also the material furnished by the petitioners to the 1st respondent on 15.09.2020.
57. Non-consideration of the same has vitiated the decision-making process of the 1st respondent.
58. That any findings of fact rendered by a statutory body would be vitiated by non-consideration of material evidence and can be interfered by a High Court exercising jurisdiction under Art.226 of the ::17::
Constitution of India is a well established principle. ( see Sumathi P.Rai v. Isa D'Almedia6, State of A.P vs.P.V.Hanumantha Rao7).
59. The counsel for the 2nd respondent contended that the Supreme Court in Medical Council of India Vs. Sarang8 had held that scope of judicial review by High Courts under Article 226 of the Constitution of India is limited and sought to contend that we should therefore dismiss the Writ Petition.
60. We may point out that in Sarang (8 supra), the Supreme Court was dealing with Regulations of the Medical Council of India dealing with migration of students from one college to another and in that context it had observed:
"6. In matters of academic standards, courts should not normally interfere or interpret the rules and such matters should be left to the experts in the field. This position has been made clear by this Court in University of Mysore v. C.D. Govinda Rao, State of Kerala v. Kumari T.P. Roshana and Shirish Govind Prabhudesai v. State of Maharashtra. The object of the said Regulation appears to be that although the course of study leading to the IInd professional examination is common to all medical colleges, the sequence of coverage of subjects varies from college to college.
Therefore, the requirement of 18 months of study in the college from which the student wants to appear in the examination is appropriately insisted upon. Migration is not normally allowed and has got to be given in exceptional circumstances. In the absence of such a stipulation as contained in Regulation 6(5), it is clear that the migrated student is likely to miss instruction and study in some of the subjects, which will ultimately affect his academic attainments. 6 (2004) 13 SCC 524 7 (2003) 10 SCC 121 8 (2001) 8 SCC 427 ::18::
Therefore, the strained meaning given by the High Court, which actually changes the language of Regulation 6(5), is not permissible. Thus we disagree with the view taken by the High Court and state that the correct interpretation is as given by the Medical Council of India, set forth above by us."
(emphasis supplied)
61. As can be seen from the above extract, the Supreme Court in Sarang (8 Supra) had observed that in academic matters, Courts should not normally interfere. This statement of law cannot be quoted out of context and applied as if it is an absolute rule of law to bar exercise of jurisdiction by this Court under Article 226 of Constitution of India. When a clear case for interference by this Court with decision dt.24.09.2020 of the 1st respondent is made out by the petitioners, i.e., non-consideration of the material evidence placed before the 1st respondent by the petitioners, and the decisions quoted by us supra mandate interference with the decision on the ground that the decision-making process is vitiated, this Court cannot be asked to do nothing.
62. The possibility of the 1st respondent also hurriedly passing the order on 24.09.2020 without considering the material submitted by the petitioners cannot be ruled out, because on that day, the 1st respondent was dissolved, and from the next day, the 2nd respondent came into existence, and took over the functions of the 1st respondent.
63. We therefore reject the plea of the 2nd respondent that 1st respondent had provided reasonable opportunity of being heard to the petitioners, that the petitioners did not rectify the deficiencies ::19::
pointed out by it and that the impugned order dt.24.09.2020 passed by the 1st respondent cannot be interfered with.
64. We also reject the plea of the 2nd respondent that in the absence of allegations of malafides, the decision of the Expert Committee cannot be interfered with.
65. In Urban Improvement Trust, Bikaner V.Mohanlal9 the Supreme Court has held that statutory authorities have to discharge functions in public interest, that they should act as responsible litigants; and that they cannot raise frivolous and unjust objections by behaving like private litigants. It criticized the attitude of Government officials in deliberately delaying taking crucial decisions affecting citizens and then contesting the same on technical pleas without justification. It declared:
"5. ... ... Statutory authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and high-handed manner. They can not behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.
6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions 9 (2010) 1 SCC 512 ::20::
to obstruct the path of justice. We may refer to some of the decisions in this behalf.
7. In Dilbagh Rai Jarry v. Union of India10 this Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case11):
"25. ... '5. ... The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The layout on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.' "
8. In Madras Port Trust v. Hymanshu International12 this Court held: (SCC p. 177, para 2) "2. ... It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, 10 (1974) 3 SCC 554 11 AIR 1972 KERALA 103 12 1979 (4) SCC 176 ::21::
unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable."
9. In a three-Judge Bench judgment of Bhag Singh v. UT of Chandigarh13 this Court held: (SCC p. 741, para 3)
"3. ... The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen."
10. Unwarranted litigation by Governments and statutory authorities basically stems from the two general baseless assumptions by their officers. They are:
(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision-making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision-making to courts and tribunals."(emphasis supplied)
66. These observations aptly get attracted to the instant case and we deprecate the conduct of the 2nd respondent in the matter of consideration of petitioners' case for renewal of permission for the 2nd Year MBBS Course.
13 1985 (3) SCC 737 ::22::
67. We may point out that after the 2nd inspection done on 28.2.2020, the 1st respondent woke up only on 8.9.2020, 6 months later, hurried through the process because it was to be dissolved on 24.9.2020, ignored the material placed before it, and passed the impugned order on 24.9.2020 rejecting petitioners' request.
68. In Priyadarshini Dental College and Hospital (1 supra), the Supreme Court had held that time schedule can be extended by Central Government under Section 10A of the Dentists Act, 1948 if an applicant college had complied with the requirements for renewal of permission and was not at fault and was also not responsible in any manner for the delay in considering its application provided the last date for admissions had not expired. It held :
"20. If the Central Government was of the view that a dental college deserved renewal of permission in accordance with the Act and the Regulations, it should grant such permission. If it was of the view that the dental college did not deserve renewal of permission, it should refuse the permission. If the Central Government felt that the last date for granting renewal of permission was over and there was no justification for extending the time schedule, it could refuse the renewal of permission on that ground. On the other hand, if the Central Government was of the view that the applicant College had complied with the requirements and was not at fault, and it was not responsible in any manner for the delay in considering the application, and there were other applicants of similar nature, it could have recorded those reasons in writing and extended the time schedule for that category of applicants and then granted the renewal of permission, provided the last date for admissions had not expired. Note 2 to the Schedule to the DCI Regulations enables the Central Government to modify the time schedule, for reasons to be recorded in writing, in respect of any class or category of ::23::
applications. The applicants for renewal of permission for the fourth or fifth year, where there is compliance with the requirements relating to infrastructure, equipment and faculty, could be such a class or category of applications. Similarly, applications where the High Courts have directed consideration beyond 15th July in view of special circumstances, can also constitute a class or category of applicants".
69. In Asha (2 supra), the Supreme Court held that in certain exceptional circumstances Courts have power to mould relief even when cut-off date for admissions to medical courses is past. It observed:
"28. In the present case, there is no dispute that the appellant was present at the place and on the date of the second counselling but the dispute relates to her absence at the particular time when her name was called out for the purpose of counselling. As far as this issue is concerned, we have already expressed the opinion that there is no substance in the defence taken by the respondents and the appellant should be entitled to the relief prayed for.
29. However, the question that immediately follows is whether any mid-term admission can be granted after 30th September of the academic year concerned, that being the last date for admissions. The respondents before us have argued with some vehemence that it will amount to a mid-term admission which is impermissible, will result in indiscipline and will cause prejudice to other candidates. Reliance has been placed upon the judgments of this Court in Medical Council of India v. Madhu Singh, Neelu Arora v. Union of India, Aman Deep Jaswal v. State of Punjab, Medical Council of India v. Naina Verma and Mridul Dhar v. Union of India.
30. There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining ::24::
of the professional career of a meritorious candidate, is the question we have to answer.
31. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission.
32. Though there can be the rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. (Refer Arti Sapru v. State of J&K, Chhavi Mehrotra v.
DG, Health Services and Arvind Kumar Kankane v. State of U.P.)"
70. Admittedly as per the time schedule announced by the Government of India, the admission process for undergraduate courses in Medicine for the academic year 2020-21 would commence on 27.10.2020 when the first round of counselling would start, and would end on 31.12.2020, the last date for joining of students after the mop up round of counselling ends on 22.12.2020.
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71. There is thus ample time for the 2nd respondent to consider the claim of the petitioners for grant of renewal of permission for MBBS Second Batch for the academic year 2020-21 by giving a fresh personal hearing by the 2nd respondent and also, if necessary, to conduct fresh inspection to verify whether all the deficiencies pointed out by the second inspection report of the 1st respondent have been rectified by the petitioners.
72. Accordingly, the Writ Petition is allowed; the impugned order No.MCI-34(41)(R-22)/2019-MED/115 passed by the 1st respondent is set aside; the 2nd respondent as successor of the 1st respondent is directed to give a fresh personal hearing to the petitioners, consider all the material made available by the petitioners on 15.09.2020 and 16.09.2020 and then pass a reasoned order in accordance with law with regard to petitioners' application for grant of renewal of permission for the MBBS Second Batch for the academic year 2020-
21. This exercise shall be completed on or before 4th December, 2020.
It is open to the 2nd respondent to even make a fresh inspection of the 2nd petitioner college if it so chooses within this time frame. The petitioners are directed to attend the personal hearing which shall be provided by the 2nd respondent and also cooperate for any physical inspection of the facilities and infrastructure in the 2nd petitioner college, if the 2nd respondent chooses to do so. The 2nd respondent shall communicate its decision to the petitioners within the above time frame. No costs.
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73. Consequently, miscellaneous petitions, pending if any, shall stand closed.
____________________________ M.S. RAMACHANDRA RAO, J ______________________ T.AMARNATH GOUD, J Date: 19-11-2020 Svv