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Judgment
Ashok B. Hinchigeri, J.—The petitioners'' grievance is over the treating of its application/scheme for the grant of permission for starting the new medical college as Type III application and consequentially returning it. The petitioners have also challenged the second respondent''s order, dated 28.06.2013 (Annexure-H) in this regard. The facts of the case in brief are that the petitioners submitted the application on 26.09.2012 (Annexure-A) seeking the permission for starting M.B.B.S. Course The respondent No. 2 vide its letter, dated 16.01.2013 (Annexure-B) pointed out nine deficiencies in the petitioners'' application and called upon them to supply certain documents. The petitioners sent the compliance report, dated 30.01.2013 (Annexure-C). The respondent No. 2 appears to have been satisfied of the petitioners'' furnishing the information and/or documents on four out of nine deficiencies pointed out earlier. It sought further clarification on five deficiencies vide its letter, dated 05.04.2013 (Annexure-D). The petitioners vide their letter, dated 17.04.2013 (Annexure-E) submitted the compliance report thereto. On 28.06.2013, the respondent No. 2 returned the petitioners'' application and the bank guarantees informing that the petitioners'' application did not fulfill the qualifying criteria laid down in the Establishment of Medical College Regulations, 1999. The respondent No. 2 further observed that the said application does not debar the petitioners from submitting a fresh application for the academic year 2014-15.
Sri Madhusudan R. Naik, the learned Senior Counsel appearing for Sri Abhishek Malipatil for the petitioners submits that the petitioners'' application is returned without affording an opportunity of hearing to the petitioners. He complains of the violation of the principles of natural justice. He submits that even the statutory requirement contained in the proviso to Section 10A(4) of the Indian Medical Council Act, 1956 (''MCI Act'' for short) is not complied with. The said proviso reads as follows:
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.
Sri Naik submits that the impugned order is not supported by any good reasons. He brings to my notice, the Apex Court''s judgment in the case of Organo Chemical Industries and Another Vs. Union of India (UOI) and Others, read out by him is as follows:
In Siemens'' case this Court observed:
"It is now settled law that where an authority makes an order in exercise of a quasi-judicial function it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai v. The Testeels ltd. C.A. No. 245 of 1970, D/- 17.12.1975 (SC)". Fair play in Administration is a finer juristic facet at once fundamental and inviolable and natural justice is an inalienable functional component of quasi-judicial acts. Here, it is indubitable that the imposition of damages on a party, after a statutory hearing, is a quasi-judicial direction. This Court has impressed the requirements of natural justice on such jurisdictions and one such desideratum is spelling out reasons for the order made, in other words, a speaking order. The inscrutable face of a sphinx is ordinarily incongruous with a judicial or quasi-judicial performance. It is, in my view, an imperative of Section 14-B that the Commissioner shall give reasons for his order imposing damages on an employer. The constitutionality of the power, tested on the anvil of Articles 14 and 19, necessitates this prescription. Such a guarantee ensures rational action by the officer, because reasons imply relevant reasons, not capricious ink and the need for cogency rivets the officer''s mind to the pertinent material on record. Moreover, once reasons are set down, the order readily exposes itself to the writ jurisdiction of the court under Article 226 so that perversity, illiteracy, extraneous, influence, mala fides and other blatant infirmities straight get caught and corrected. Thus, viewing the situation from the conspectus of requirements and remedies, statutory agencies may be inhibited and the scare of arbitrary behavior allayed once reasons are required to be given.
He brings to my notice, this Court''s order, dated 12.07.2012 passed in W.P. No. 18514/2012 in the case of Vydehi Institution of Medical Sciences & Research Centre vs. UNION of India and Another, wherein the similar order passed by the respondents was quashed, as the respondents had passed a non-reasoned order. He submits that on receiving the second compliance report on the five deficiencies pointed out, the respondents did not hold any further enquiry. Without even giving the petitioners an opportunity to show that all the deficiencies are cured, they have passed the impugned order.
Sri Zulfikar Kumar Shafi, the learned counsel for the respondent No. 2 submits that the financial details are very crucial for considering the application for the grant of permission for starting a medical college. In this regard, he read out the provisions to Section 10A7(b) of the MCI Act, which are as follows:
10A. (7) The Council, while making its recommendations under clause (b) of sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely.
(a)........................
(b) Whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources.
The learned counsel pointed out the contents of Part II para 8 of the Scheme prescribed by the Medical Council of India Establishment of Medical College Regulations, 1999. They read as follows:
(8) Building programme - building-wise built up area of (a) the medical college, (b) faculty and staff housing, (c) staff and students hostels, (d) administrative office, (e) library, (f) auditorium, (g) animal house, (h) mortuary, (i) cultural and recreational centre and (j) sports complex.
He submits that from the documents produced by the petitioners it is not clear as to what is the amount invested on the construction of the buildings. He submits that the Accounts Officers of the second respondent have minutely considered the compliance report submitted by the petitioners. As they are not satisfied with the compliance shown by the petitioners to the five deficiencies, the petitioners'' application is returned.
My perusal of the impugned order, dated 28.06.2013 reveals that the second compliance report is merely referred to. The clarifications given therein and the documents produced thereto have not received an iota of consideration at the hands of the respondents. The building plans sanctioned by the local body, blue print prepared by the petitioners and the particulars of the payments made to the suppliers of the building materials are the annexures to the scheme/application submitted by the petitioners. They have not been referred to, much less considered. The recording of reasons ensures that the decision-maker applies his mind to the case and the reasons that impelled him to take a decision in question are germane to the content and scope of the power vested in him. The condition to give reasons minimises the arbitrariness.
If the respondent had any doubt about the construction of the buildings, it would have inspected the petitioners'' college.
As per Clause 5 of the Scheme prescribed by the MCI Regulations, once the application/scheme is received, the Central Government registers the application, if it is complete in every respect. If it is not complete in every respect, then the application would not be registered at all. What follows from Clauses 5 and 6 dealing with the registration and its evaluation respectively is that the application can be returned at the threshold stage, only if it is incomplete. On calling upon the applicant to cure certain deficiencies and on the applicant submitting the compliance reports, the matter has to be taken to its logical culmination. The respondents have to approve of the scheme imposing such conditions as they deem necessary. If they do not propose to approve the scheme, it is mandatory that a person or the college concerned be afforded the reasonable opportunity of being heard. Such mandatory requirement is prescribed to give an opportunity to the person to know as to why the case is being decided against him. In this process, he also gets an opportunity to show to the decision-maker that he meets all the prescribed criteria entitling him to the approval. Non-compliance of the proviso to Section 10A(4) of M.C.I. Act invalidates the entire proceedings.
Even if the statutes were not to prescribe the opportunity of hearing, the respondents are bound to observe the principles of natural justice. The applicant, who invests hundreds of crores of rupees for starting a medical college, cannot be shut out even without being given an opportunity of hearing. The principles of natural justice are recognised as a constitutional guardian. In saying so, I am fortified by the Apex Court''s decision in the case of Union of India and Another Vs. Tulsiram Patel and Others,
Thus, viewed from any angle, the impugned order is not sustainable. The impugned order, dated 28.06.2013 (Annexure-H) is quashed. The respondent are directed to afford an opportunity of hearing to the petitioners and then take a decision afresh in the matter in accordance with law. The fresh decision shall be taken within an outer limit of four weeks from today. These petitions are accordingly allowed. No order as to costs.