TMI Blog2013 (8) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... t and addressed to the petitioner, whereby the permission was declined for renewal. HELD THAT:- The order of Learned single judge was set aside and remitting the case back to the Central Government for taking fresh decision, court directed that it would not relate to the academic session 2013-14. However, the case can be considered for renewal of permission for the next academic session on the basis of existing material. For this, hearing should be given to the petitioner to demonstrate that they have overcome the deficiencies and they no longer exist. If the Central Government is satisfied on these aspects it may grant renewal permission for the next academic session 2014-15. In case the renewal of permission is rejected, the petitioner will have to undergo the process of seeking fresh permission for next academic session i.e. 2014-15 by submitting fresh scheme/proposal to the DCI for that year, as per the procedure prescribed in the Act Regulations. - SPECIAL LEAVE PETTIION (Civil) No. 25698 OF 2013 - - - Dated:- 27-8-2013 - K.S. Radhakrishnan A.K. Sikri JJ. J U D G M E N T A.K.SIKRI, J. 1. The petitioner is a Dental College set up in the year 2004 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, Respondent No.4 University granted provisionally affiliation to the petitioner for two more specialties namely (1) Oral Medicines Radiology and (ii) Oral and Maxillofacial Surgery with an intake of 3 seats each. This was followed by affiliation for the 9th specialty also, viz the Orthodontics and Dentofacial Orthopedics for the academic session 2012-13. In the instant petition, we are concerned with the two disciplines namely Oral and Maxillofacial Surgery as well as Orthodontics and Dentofacial Orthopaedics. 6. As pointed out above, in respect of these two specialties, Respondent No.4 University had given the affiliation and students were admitted by the petitioner-College in these disciplines as well for the academic session 201213. However, for the academic session 2013-14, permission has not been extended for these two specialties although for Oral Medicine and Radiology the requisite approval has been accorded. The events that followed for nongrant of permission in respect of these specialties for the academic session 2013-14 are recapitulated below, briefly: 7. For granting renewal of permission for the aforesaid 2 specialties i.e. Oral and Maxillofacial Surgery a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia 1948 (hereinafter referred to as the Act). 11. Show cause notice was issued in the said writ and after completion of the pleadings, the matter was heard by the learned Single Judge who has, vide the impugned judgment dated 1.8.2013 dismissed the Writ Petition filed by the petitioner finding no merit in both the contentions raised by the petitioner. 12. The present SLP challenges the said order of the learned Single Judge. 13. The first and foremost contention of Mr. Patwalia, the learned senior counsel appearing for the petitioner was that the High Court had committed a grave error of law in taking a view that no personal hearing was required to be given by the Central Government before passing the order refusing to grant the renewal. Submission was that Section 10A(4) of the Act categorically provides for opportunity of being heard and in the face of such a provision the decision of the High Court on this aspect was palpably wrong, 14. Section 10A of the Act reads as under: 10A Permission for establishment of new dental college, new courses of study, etc. (1) Notwithstanding anything contained in this Act or any other law for the time being in force ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable opportunity to the person, authority or institution concerned for making a written representation and it shall be open to such person, authority or institution to rectify the defects, if any, specified by the Council; (b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government, (4) The Central Government 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, authority or institution 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 sub-section (1): Provided that no scheme shall be disapproved by the Central Government except after giving the person, authority or institution concerned granting recognized dental qualification a reasonable opportunity of being heard. 15. A bare reading of sub-section (4) makes it abunda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... newal of such permission as well. 17. In the present case, as already noticed above, the two courses in question were the new courses, along with other courses, for which permission was given by Respondent No.1 for the academic session 2012-13. It is a common case that the procedure contained in section 10A for seeking permission, applies to new courses of studies as well. Section 10A(1)(b) deals with opening of new or higher course of study or training as well as increasing its admission capacity in any course of study or training. In both the eventualities prior permission of Central Government is to be obtained. Explanation 2 clarifies the meaning of admission capacity in relation to any course of study or training to mean the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training. 18. When the permission to start courses in two specialties in question was granted for the academic session 2012-13 intake of three students, for seeking renewal for the next academic session 2013-14 it was to seek fresh permission to have the same admission capacity for this year as well. We are, therefore, of the opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/ or evil consequences barring the petitioner to enroll fresh students in this year. We would like to reproduce the following discussion from the judgment in the case of Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central-1 and Anr. (2008) 14 SCC 151 15.Rules of natural justice are not embodied rules. The phrase natural justice is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. therefore, the principle implies a duty to act fairly, i.e. fair play in action. As observed by this Court in A.K. Kraipak and Ors. v. Union of India and Ors. [1970] 1 SCR 457 , the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. ( Also see: Income Tax Officer and Ors.v. Madnani Engineering Works Ltd., Calcutta [1979]118ITR1(SC) ) 16.In Swadeshi Cotton Mills v. Union of India [1981] 2SCR 533 R.S. Sarkaria, J., speaking for the majority i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial. 20.We may, however, hasten to add that no general rule of universal application can be laid down as to the applicability of the principle audi alteram partem, in addition to the language of the provision. Undoubtedly, there can be exceptions to the said doctrine. therefore, we refrain from giving an exhaustive catalogue of the cases where the said principle should be applied. The question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of all these matters that the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government as well, before taking final decision after the report of the DCI is sent to the Central Government which is against the applicant seeking permission for renewal. In that event, if the opportunity of being heard is given, the applicant would get a chance to point out mistakes if any, factual or otherwise, in the report of the DCI and the Central Government would have version of the applicant also before it at the time of taking final decision on the report. In the given case itself on such an opportunity of being heard given by the Central Government to the petitioner, the petitioner could have explained its stand before the Central Government to enable the Central Government to take a view as to whether it should accept the report of DCI or discard the same finding the explanation of the petitioner thereto, as satisfactory. 23. The significance of principle of natural justice was highlighted in the case of Managing Director, ECIL, Hyderabad, Etc. vs. Karunakar, etc. (1993) 4 SCC 727. Though, it was a case of disciplinary enquiry against an employee, the rationale given justifying the furnishing of enquiry report and giving an opportunity to meet, explain and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusion, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. 24. In fact, judgment of this Court in Priyadarshini Dental College Hospital Vs. Union of India (2011) 4 SCC 623 throws some light on the issue at hand, though this issue did not come up directly for discussion. That was also a case of renewal of permission. DCI had sent negative recommendation to refuse permission. On receipt thereof, though the Central Government constituted a committee for giving personal hearing and letter in this behalf was also dispatched, such a hearing was not granted and the renewal permission was declined. The petitioner in that case approached the Madras High Court by filing the Writ Petition which was allowed by the High Court on the ground that mandatory requirement of reasonable opportunity of being hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mic year 2010-2011. Feeling aggrieved, the petitioner approached the Madras High Court by filing a writ petition on 19.7.2010 praying that the order of rejection dated 15.7.2010 be quashed and seeking a direction to the Central Government to permit the College to admit fresh students for the BDS course for the academic year 2010-2011 and also seeking a direction to the Central Government to grant renewal permission to conduct the fourth year of the BDS course during the academic year 2010-2011. The said writ petition was allowed by the Madras High Court by order dated 29.7.2010. The High Court held that dispatch of the Letter dated 21.6.2010 on 22.6.2010 fixing the personal hearing on 23.6.2010, 24.6.2010 and 25.6.2010, did not amount to grant of a hearing at all, if the letter reached the College on 25.6.2010, after the time fixed for hearing. It, therefore, held that the mandatory requirement of reasonable opportunity of being heard, required under the proviso to Section 10-A(4) of the Act was not complied with. As a consequence, the High Court remitted the petitioner s application for renewal of permission for 2010-2011, for reconsideration by the Central Government, by giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the report of the DCI itself can be supplied or atleast 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 heaing should also be accorded. 27. As in the present case, since no such opportunity of being heard the requirement of proviso to sub-section (4) of Section 10A of the Act was not afforded to the petitioner, the decision dated 30th March 2013 of the Central Government warrants to be set aside on this ground alone. 28. Notwithstanding the aforesaid discussion clarifying the position in law on this aspect which goes in favour of the petitioner, other circumstances appearing in this case desist us from giving the relief to the petitioner that is claimed by it in so far academic session 2013-2014 is concerned. The effect of the aforesaid view taken by us would be to set aside the orders dated 30th March 2013 passed by the Central Government rejecting the request of renewal. However, from that it would not automatically follow that direction can be issued to the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en found. In respect of Ortho scheme as well similar deficiencies are pointed out. Therefore, this Court cannot issue any mandamus straightaway and the petitioner is required to give its satisfactory explanation qua the aforesaid deficiencies to the Central Government. However, the time has run out in so far current year is concerned. The session in respect of PG streams started on 15th July 2013. The necessary admissions have already been given to the students in different colleges. On remitting the matter, some time will have to be given to the Central Government as well for taking a fresh decision. If that is also taken into account, by the time decision is taken, the present academic session would have progressed significantly. This Court in number of cases highlighted the importance of the cut off date for starting of courses impressing upon that such deadline should not be extended. (See: Priya Gupta vs. State of Chhattisgarh (2012) 7 SCC 433 and Maa Vaishno Devi Mahila Mahavidyalaya vs. State of U.P. (2013) 2 SCC 617) 30. For the aforesaid reasons, we are of the view that in so far as the academic session 2013-14 is concerned, it is not possible to put the clock ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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