Hon'ble Attau Rahman Masoodi,J.
This petition has been filed by a medical institute aggrieved by the withdrawal of permission by the respondents to commence post graduate courses for MD in Radio-Diagnosis and MS Ophthalmology for the academic year 2016-17. The prayer is to quash the withdrawal of recommendation by the Medical Council of India dated 31.01.2016 and the withdrawal of permission by the Central Government, vide order dated 29.02.2016.
The petitioner institute was running courses in the medical field and had applied for permission to run the two courses as well for the Session 2016-17 against the number of seats for which the infrastructure was available. The Medical Council of India according to the petitioner, vide letter dated 27.10.2015 Annexure-9 to the writ petition, forwarded the recommendation along with the decision of the Post Graduate Medical Education Committee in relation to both the courses. This was based on the Council Assessor's report dated 29.09.2015 on the basis of the physical verification and other teaching facilities available. The Committee appears to have considered the same in its meeting dated 23.01.2015 and the Medical Council of India accordingly communicated the said recommendation in favour of the petitioner institute to the concerned Secretary, Ministry of Health and Family Welfare, Government of India.
The Central Government on the strength of such recommendations issued the letter of permission dated 25.01.2016 giving one seat for MS in Ophthalmology and four seats for MD in Radio-Diagnosis. A copy of the said letter is Annexure-10 to the writ petition. This permission was granted in exercise of powers conferred under Section 10(A) of the Indian Medical Council Act, 1956.
It appears that the Medical Council of India on 31.01.2016, in complete reversal of its earlier recommendation dated 27.10.2015, withdrew the said recommendation. The said impugned communication recites that a meeting of the Post Graduate Committee was held on 29.01.2016 to consider the legal opinion of the Assistant Solicitor General Sri Tushar Mehta which had been sought, vide its earlier meeting dated 19.01.2016. On deliberations, it was found that the institute had indulged into misleading the Medical Council, and that fake and forged documents of the experience of the faculty's employees had been utilized in respect of the three faculty members for obtaining such permission of running post graduate courses; The Medical Council of India proceeded to verify and confirm the status of such experience certificates and upon having received information that they were fake and forged documents came to the conclusion that the institute had violated Regulation 8 (3) (1) (d) of the Establishment of Medical College Regulations, 1999 and had endorsed a false declaration. As such, it was clearly hand in gloves with such faculties and had obtained the recommendations on such collusive acts. Therefore, the Council decided to withdraw the recommendation made on 27.10.2015 and further to debar the college for the future two academic years in respect of increase of any post graduate courses.
Relying on the said withdrawal of recommendation dated 31.01.2016, a notice was issued by the Central Government dated 22.02.2016 calling upon the petitioner institute together with an explanation and conducted a hearing on 25.02.2016. The Central Government thereafter on 29.02.2016 passed the impugned order withdrawing the permission on the strength of such withdrawal of recommendation even though it did not approve of the methods of such withdrawal by the Medical Council of India.
While assailing the aforesaid orders, Sri Jaideep Narain Mathur, learned Senior Counsel for the petitioner has invited the attention of the Court to Section 10 (A) of 1956 Act and he contends that the recommendation by the Medical Council of India is one stage head of grant of permission and is a different exercise altogether. He submits that the recommendations are on the strength of physical verification including documents and it is thereafter that the recommendation was made in favour of the institute on 27.10.2015. The certificates of experience of three faculty members were neither fake nor were they ingenuine but at the same time, one of the faculty members had resigned and the contract of two other faculty members were terminated. Even otherwise, the response given to the query also indicates that the status of certificates in no way affected the grant of permission to the petitioner's institute to offer running of the aforesaid two courses. He has urged that the recommendation had crystallized in the shape of a permission by the Central Government and if the recommendations were being withdrawn, then the Medical Council of India should have separately and independently given an opportunity of hearing to the petitioner before withdrawing its recommendation. He contends that it is a statutory requirement and can be clearly inferred even if the provisions of 1999 Regulations are sought to be invoked. He, therefore, submits that if the Medical Council of India did not give any opportunity to the petitioner, as has happened in the present case, then the entire action of withdrawal of recommendation is in violation of principles of natural justice. He further submits that the cause of petitioner institute has been greatly prejudiced and if the Medical Council of India had given an opportunity, the petitioner institute would have explained the status of the experience certificates of the three faculty members and would have also explained the endorsement and declaration made by the institute with regard to such verification.
He then submits that the opportunity given by the Central Government also turned out to be a futile exercise inasmuch as, the explanation given by the petitioner has not been considered and no reason has been recorded by the Central Government as to why the explanation given was not acceptable. He, therefore, contends that at this second stage as well, the impugned order of the Central Government is equally vitiated as it violates the principles of natural justice by not recording reasons.
He then contends that as a matter of fact the decision of the Central Government to the contrary records that the Central Government may agree with the withdrawal of recommendation by the Medical Council of India but this kind of about turn did not convey a healthy practice about the functioning of the Medical Council of India. The said noting is endorsed alongwith the decision that has been brought on record through the supplementary affidavit filed on behalf of the petitioner dated 11.03.2016. He further contends that the reason given for withdrawal of the letter of permission on the suggestion made in paragraph-5 of the noting, also does not amount to a cogent or valid reason recorded for withdrawal of permission.
Sri Mathur submits that even assuming that there was some alleged irregularity in the experience certificate, then too, even the Medical Council of India could have called upon the petitioner to explain the same which was never done and the entire action has been taken on the strength of a legal opinion obtained as recorded in the impugned order of the Medical Council of India dated 31.01.2016.
Sri Mathur has relied on the decisions that have been referred to in the legal opinion obtained by the Medical Council of India with a further reference to the Full Bench Judgement of the Delhi High Court in the case of Malla Reddy Institute of Medical Sciences and another. Vs. Union of India and another, W.P.(C) 7106/2015 & CM No.13029/2015 to urge that this judgment clearly rules that opportunity has to be given by the Medical Council of India before invoking any such provisions as has been done in the present case and the same having not been adopted, the impugned order deserves to be set aside.
Countering the said submissions of the learned counsel for the petitioner, Sri Srivastava for the Medical Council of India, relying on the averments made in the counter affidavit on behalf of the respondent Nos.3 and 4, contends that the fact of the experience certificate of three of the faculties was investigated by the Council and was ultimately found to be contrary to what was represented by the petitioner-institute. The same was considered by the Central Government alongwith the explanation submitted by the petitioner and the Central Government has rightly endorsed the view of the Medical Council for withdrawing the recommendations.
He however submits that so far as the Medical Council is concerned, invoking the principles of General Clauses Act, 1897, the power to recommend also includes the power to withdraw such recommendations, moreso where the documents on the basis whereof recommendation was granted, have not been founded to be genuine. He contends that in such a situation, there was no occasion for granting any opportunity to the petitioner at the time of withdrawal of recommendations by the Medical Council of India. It is urged that the requirement of providing an opportunity was made available at the time when the Central Government proceeded to take a decision and in such a situation, once the withdrawal has been accepted by the Central Government after calling for an explanation from the petitioner, there was no violation of principles of natural justice as alleged.
Sri Srivastava therefore contends that the withdrawal of the recommendations founded on legitimate grounds, does not call for any interference. The full bench decision of the Delhi High Court in the case of Malla Reddy (supra) has been subjected to a challenge before the Supreme Court where notices have been issued and the matter is pending. He further submits that even otherwise, the Apex Court in several decisions that have been placed alongwith the counter affidavit has held that the time schedule for running of the courses should not be altered by judicial intervention and once the recommendation has been withdrawn and permission cancelled, the courses have not been run and therefore no relief can now be granted to the petitioner.
Sri Srivastava has further invited the attention of the Court to the endorsement made on the declaration given by the institution which has been produced in paragraph - 60 of the counter affidavit to contend that the endorsement is about the verification of the documents of the faculties and such endorsement has been found to be false, therefore, the withdrawal was justified as the institute had colluded with the said faculties in trying to seek permission for running the courses on the strength of such ingenuine documents.
Sri S. B. Pandey, learned Assistant Solicitor General of India for the Government of India has contended that full opportunity was given to the petitioner and no error could be found in withdrawal of the recommendations as forwarded by the Medical Council of India as such the government was justified in withdrawing the permission on the basis of facts found. He submits that the reply of the petitioner was not found to be satisfactory and having considered the same, the Central Government cannot be stated to have acted arbitrarily. The arguments on behalf of the Medical Council have also been endorsed by Sri Pandey and he submits that in the absence of any violation of law or principles of natural justice, the orders impugned do not deserve any interference.
We have considered the submissions raised and the charge on the petitioner is that the petitioner surreptitiously while acting hand in glove, with the faculties, had tendered and endorsed certificates that were not genuine in relation to the experience of such faculties. This according to the respondents was a fraud. When there is such a charge being investigated and being made the basis of the withdrawal of the recommendation, then in that event, the authority investigating the same ought to have made an enquiry from the institute itself. We find from the contents of paragraphs - 72 to 88 of the counter affidavit that this exercise of verifying the correctness of the experience certificates of all the three faculties was unilaterally conducted by the Medical Council without any information to the petitioner. The three faculties were Dr. Chandra Prakash Singh, Dr. P. K. Vasisth and Dr. Rajiv Kumar Agrawal. This was initiated vide letter dated 5.1.2016 before the permission had been granted by the Central Government on 26.1.2016. The information appears to have been received by the Medical Council by 19.1.2016 but it is on 29/30.1.2016 that the Post-Graduate Medical Education Committee of the MCI proceeded to make a recommendation for withdrawal of the same. The Medical Council accordingly communicated the decision on 31.1.2016 to the Central Government after the permission had been finally granted five days ago.
Admittedly, no opportunity was given to the petitioner at this stage by the Medical Council of India or the Post-Graduate Medical Education Committee intending to withdraw the recommendations on the alleged grounds.
After having received the said communication, the Central Government constituted a Hearing Committee which called upon the petitioner to show cause by filling-up the forms pertaining to the information sought that was tendered by the petitioner, and the matter was considered and heard on 25.2.2016. Vide order dated 29.2.2016, the permission was withdrawn by the Central Government on the aforesaid stated hearing conducted by it.
At this stage, it is appropriate to refer to the proceedings of the Hearing Committee that have been filed by the petitioner through a supplementary affidavit dated 11.3.2016. The said proceedings were followed by a note sheet and it records the legal opinion of Shri Tushar Mehta that was made the basis of withdrawal of recommendation by the Medical Council of India. The Post-Graduate Medical Education Committee is said to have accepted this opinion in view of Regulation 8 (3) (1) (d) of the Establishment of Medical Regulations, 1999. While proceeding with the noting, the Central Government has recorded as follows:-
"4. In this regard, it is stated that the Institute was granted personal hearing on 25.2.2016 by the PG Hearing Committee. The college representative appeared before the Committee and furnished a written explanation regarding irregularity in experience certificates of 3 faculty members of Deptt. of Orthopaedics and Surgery on which basis the MCI had recommended this Ministry to withdraw the letter of permission imposing clause 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. The college representative informed the Committee that the college has terminated services of 3 faculty members under reference and has informed that even after termination of services of these faculty members the faculty staff component is complete. Further, the Committee has opined that Ministry may like to take decision regarding application of provisions of Regulation Clause 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999 with retrospective effect. The minutes of the Committee are at F/Q."
The same note sheet in paragraph - 5 mentions as follows:-
"5. Submitted for taking a decision on withdrawal of Letter of Permission for starting of MS (Ophthalmology) with 1 (One) seat and MD (Radio Diagnosis) with 4 seats at Hind Institute of Medical Sciences, Barabanki, Uttar Pradesh from the academic session 2016-17."
The proceedings of the hearing that was conducted on 25.2.2016 is recorded as follows:-
"Hearing Committee Meeting Medical - 2015 Dated 25.2.2016 Name of College: Hind Institute of Medical Sciences, Barabanki, Uttar Pradesh Subject (Course):
Starting:
1. MS Ophthalmology
2. MD Radio Diagnosis (1) The College representatives appeared before the Hearing Committee on 25.2.2016.
(2) The College representative informed the Hearing Committee that the college had applied for starting/increase of seats in 12 PG subjects. Out of these 12 subjects, MCI vide their letter of October, 2015 recommended for issue of LoP in 2 subjects namely MS (Ophthalmology) & MD (Radio Diagnosis). MCI recommended to disapprove scheme in respect of 10 subjects. The college submitted the compliance in respect of these 10 subjects. The MCI carried out compliance in respect of these 10 subjects. During the compliance verification assessment, MCI noted irregularity in experience certificates of 3 faculty members of Deptt. Of Orthopaedics and Surgery. Based on this observation, the MCI had recommended to Central Govt. to apply provision of Regulation 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999. The MCI in their letter dated 31.1.2016 has recommended to debar the college for starting/increase of seats in respect of any postgraduate courses for 2 academic years i.e. 2016-17 and 2017-18 as mandated in clause 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. Further, the MCI had recommended to withdraw their earlier recommendation (furnished vide letter dated 27.10.2015) for issue of Letter of Permission for starting of MS (Ophthalmology) and MD (Radio Diagnosis) for the academic year 2016-17.
(3) The college representative submitted written explanation and has informed the hearing committee that the college has terminated services of 3 faculty members under reference and has informed that even after termination of services of these faculty members the faculty staff component is complete. The College representative has submitted written submission to the Hearing Committee. The Hearing Committee observations have been recorded on the compliance report on the basis of the submission made by the College representatives.
(4) In view of the above, the Ministry may like to take decision regarding application of provisions of Regulation clause 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999 with retrospective effect especially when Central Govt. has already issued letter of permission for starting of PG course in MS (Ophthalmology) and MD (Radio Diagnosis) for the academic year 2016-17. This permission was issued by the Central Govt. on the basis of MCI recommendation letter dated 27.10.2015. On perusal of MCI letter dated 31.1.2016, the date of compliance verification assessment is not clear. However, according to college representative it was done after submission of compliance by college after October, 2015.
(5) In view of the above, the Hearing Committee recommends that Ministry to take a policy decision in this matter."
The Hearing Committee had made a recommendation with the Central Government may like to take a policy decision regarding application of the provisions of clause 8 (3) (1) (d) with retrospective effect. However, the note sheet of the Central Government had recommended for withdrawing of the letter of permission as suggested in paragraph - 5 of the note sheet extracted here-in-above.
Surprisingly, the decision as endorsed by the concerned official of the Central Government on the note sheet is worded as follows:-
"We may agree but this kind of about turn does not convey a healthy practice about the functioning of MCI. This may also be conveyed to them."
The aforesaid is the decision dated 29.2.2016 which has been communicated by a letter of the same date filed with the supplementary affidavit as Annexure - 1.
The noting does indicate the reply of the petitioner but it does not indicate as to why it is not acceptable. To the contrary, the endorsement on 29.2.2016 states that the Central Government may agree but the kind of 'U' turn as reflected in the proceedings of the Medical Council does not convey a healthy practice about its functioning.
It is thus clear from the aforesaid facts that even the Central Government was completely unsure about the fairness of the procedure and the applicability of the rules that was considered by the Medical Council for withdrawing the recommendation. The Central Government does not appear to have partly approved of the action of the Medical Council of India. The recommendation of the Hearing Committee as extracted here-in-above for the Ministry to take a policy decision in the matter about the applicability of Regulation 8 (3) (1 (d) has not been elaborated but a peculiar observation has been made as extracted here-in-above. In our opinion, this does not amount to taking a decision on the said recommendations and the doubt expressed by the Central Government itself ought to have been cleared by a decision one way or the other on the said issue. The decision dated 29.2.2016 as extracted above does not indicate as to why the explanation as given by the petitioner and also noted by the hearing committee was not acceptable. No reasons are reflected therein.
So far as the withdrawal of the recommendation and the power of the Medical Council of India to do so while referring to the General Clauses Act is concerned, once the recommendation has been made after carrying out a particular process in favour of the institute and crystallized into a permission of the Central Government, then its withdrawal will also have to follow the same route. In that event, if any discrepancy tantamounting to fraud has been located, then an opportunity to either explain or rectify the same as may be permissible has to be granted by the recommending body which exercises a separate expert authority of making recommendations. The central government comes into the picture at a subsequent stage and is not a substitute for assessing the status of experience or its certificate by the expert recommending Post-Graduate Committee and the Medical Council of India. The principles of natural justice therefore cannot be dispensed with by the Council and on that issue, we find ourselves in full agreement with the principle culled out in the ratio of the Full Bench decision of the Delhi High Court in the case of Malla Reddy (supra). Paragraph - 27 of the said decision is extracted hereunder for reference:-
"27. It is no doubt true that in Swamy Devi Dayal (supra) and Royal Medical Trust (supra), the Supreme Court was not concerned with any provision relatable to Regulation 8 (3) (1) of the Regulations. However, the law is well settled that the Rules or Regulations made on matters permitted by the statute cannot override either the provisions of the statute or the object and scheme of the same. Therefore, the requirement of adherence to the principles of natural justice under Section 10-A(3) and 10-A(4) of the Medical Council Act cannot limited or excluded on any ground whatsoever and no exception can be carved out even with regard to the institutions in respect of which the provisos (a) to (d) of Regulation 8 (3) (1) are invoked. Hence, the distinction sought to be drawn by Sh. Vikas Singh on the ground that in Swamy Devi Dayal (supra), the Supreme Court was not concerned with Regulation 8 (3) (1) cannot be accepted."
Learned Counsel for the respondents has invited the attention of the Court to the decisions that have been placed on record, particularly the decision in the case of Rohil Khand Medical College and Hospital, Bareilly v. Medical Council of India [2013 (15) SCC 516]. In that case, the investigation had been carried out by the Central Bureau of Investigation that had filed a charge sheet revealing that the College had used fake and forged material to get sanction of seats for the intake of 2008-09. In these circumstances, it was found that the Medical Council of India was not required to wait till the culmination of trial and the Court found it not necessary to entertain the claim of the institute therein.
In the instant case, here the allegation was of incorrect periods of experience mentioned in the certificates. This was sought to be explained by the petitioner through the information given which has also been alleged in the writ petition but the fact remains that the verification was carried out by the Medical Council of India and not by the Central Government. It is in this context that an opportunity by the Medical Council of India was necessary to be given for confronting the petitioner with the material that was to be used in this regard to withdraw the recommendation. The authority to recommend in our opinion also inherently, in a matter of alleged misrepresentation or fraud, possesses the power to withdraw the same. Such power deserves to be read to uphold the object and purpose of the function assigned to an expert body to recommend, namely the Medical Council of India. We cannot be oblivious of the general principles of administrative law in an allegation of fraud or misrepresentation so as to denude the expert body of its power to withdraw recommendations or treat it to have become functus officio even if such fraud and misrepresentation has been detected. If after such opportunity a finding would have been arrived at, then in that event, the endorsement on the declaration given by the petitioner-College as extracted in paragraph - 60 of the counter affidavit could have been pressed into service for withdrawal of recommendations. The endorsement ipso facto without any opportunity to the petitioner by the Medical Council of India would not operate adverse to the petitioner unless the said exercise is carried out. The petitioner no doubt had an obligation to make a correct declaration but the petitioner should also have the opportunity to explain as to under what circumstances the certificates of the faculties had been tendered believing it to be true. Collusion and fraud are not terms of ornament. They entail serious consequences and in such matters, where the penalty is harsh, then the observance of the principles of natural justice becomes more necessary. It is for this additional reason as well that we endorse the ratio of the view taken by the Full Bench of the Delhi High Court to be attracted herein. An opportunity should be provided to the Institute in such a case where the subsequent permission is also being withdrawn on the strength of the recommendation of the Medical Council of India.
To us, it appears that the Central Government also overlooked this aspect of the matter while proceeding to communicate the decision impugned herein dated 29.2.2016.
Consequently, for all the reasons given here-in-above, we find that an opportunity ought to have been given to the petitioner by the Medical Council of India before proceeding to withdraw the recommendation. That having not been done, the recommendation was withdrawn in violation of principles of natural justice and accordingly, the said decision of the Medical Council of India date 31.1.2016 deserves to be set aside., Since the very foundation of the withdrawal of permission of the Central Government rests on the withdrawal of the recommendation, consequently the order dated 29.2.2016 passed by the Central Government cannot be sustained. Both the orders are hereby quashed.
The writ petition is allowed to the aforesaid extent with a clarification that quashing of the said orders would however automatically not amount to granting permission to the petitioner-institute to take admissions in the concerned courses for which the orders have been passed. Even otherwise, the schedule of the time for taking admissions and pursuing of courses cannot now be permitted in view of the Apex Court decisions cited on behalf of the respondents. In the event the petitioner succeeds, it may be entitled to claim a fresh permission for running the courses in future and in order to avoid debarment.
For the reasons aforesaid, the writ petition is allowed only to the aforesaid extent leaving it open to the Medical Council of India to grant a hearing to the petitioner-institute and pass fresh orders relating to the recommendations which it had proposed to withdraw. In the event, such an exercise is undertaken and any decision adverse to the petitioner is given, then the Central Government would also before withdrawing the permission grant an opportunity to the petitioner and then pass appropriate orders. The aforesaid exercise may be concluded preferably within a period of two months by the Medical Council of India and the Central Government from the date of receipt of a certified copy of this order.
Dt.02.05.2016 Rajneesh/lakshman [Attau Rahman Masoodi, J.] [Amreshwar Pratap Sahi, J.]