(2017] ll S.C.R. 92

MEDICAL COUNCIL OF INDIA

Q.C.R.G. MEMORIAL TRUST & ORS.

(Civil Appeal No. 19662 of 2017)

NOVEMBER 23, 2017

(DIPAI<i MISRA, C.JI, A. M. KHANWILKAR AND

DR. D. Y. CHANDRACHUD, JJ.) Judicial Propriety/Judicial Discipline:

Medical institution debarred from admitting students for academic years 2017-18 and 2018-19 by order dared 31.05.2017

- Writ petition by respondent-instillllion - High Court directed Central

Government to reconsider the issue of letter of permission granted to the institutir, m - Cemral Government by its order dated 19.08.2017 confirmed its order dated 31.05.2017 - Writ petition 11/Art. 32 by the inslitutiof/ - Petition withdrawn with permission to approach High Court 11/Art. 226 - Supreme Court by its order dated 28.08.2017. 1hi/e permitting to withdraw the petition, made it clear that the High Court, while entertaining the writ petition shall not pass any interim order pertaining to the academic year 2UI 7-18 -

Writ petition .filed u!Art. 226 - High Court quashing the orders dated 19.08.:!017 and 31.05.201 7, granted permission to the respundentinstitution to admit students for academic session 2017-18 - On appeal, held: Despite the order of Supreme Court dated 28.08.2017, the High Court permitted the institution to admit students for academic year 2017-18 that too without giving any opportunity to Central Government and Medical Council of India lo rep(v - The impugned judgment shows unnecessary and uncalled for hun:v. unjustified haste and unreasonable sense of pron1ptitude Judicial propriel)' requires judicial discipline - A Judge is expected tu abandon his personal notion or i111pression gathered from sujective experience

- The process of ac(judicalion lays emphasis on the wise scrutiny of materials sans emotions - The High Omrt had no reason to abandon the concept of judicial propriety and transgress the nil es - If the instit11tion has admitted students, they are debarred from continuing in the course - However, the institution is directed to compensate such students by paying Rs. 10,00,00VIto each student apart from

& ORS.

rejimding their fees - The prayer in respect of academic session 2018-19, is also rejected - Ed11cation!Ed11cational Institutions.

Allowing the appeal, the Court

HELD: 1. The contmt of the order of Supreme Court dated 28.08.2017 is graphically clear. The High Court was not allowed to pass any interim order pertaining to the Academic Session

2017-2018, but the Division Bench of the High Court, for some unfathomable and inscrutable reason, allowed the prayer. Before the High Court, time was sought on behalf of the Central Government and the MCI to file counter affidavits. The same was denied and the contesting parties were deprived of the opportunity to contest. The judgment was delivered without waiting for the reply from the Central Government or MCI. The judgment of the High Court shows unnecessary and uncalled for hurry, unjustified haste and an unreasonable sense of promptitude possibly being oblivious of the fact that the stand of the Medical Council of India and the Central Government could not be given indecent burial when they were parties on record. Such a procedure cannot be countenanced in law. [Para 8][99-H; 100-A- D]

2. The judicial propriety requires judicial discipline. In the absence of a reply tiled by the Medical Council of India and the Central Government, it could not have been possible to answer the factual matrix of the case. What is not possible, is not possible.

In respect of the cases where renewal was granted. In any case, granting renewal for 2017-2018 and confirmation of letter of permission for 2016-2017 was totally unwarranted. [Para 91(100-

E-F]

3. The adjudication by the Division Bench tantamounts to a state as if they dragged themselves to the realm of "willing suspension of disbelieP'. Possibly, they assumed that they could do what they intended to do. A Judge cannot think in terms of "what pleases the Prince has the force of law". The law docs not allow so, for law has to be observed by requisite respect for law. [Para 9][100-G-H]

Shiv Moha11 Singh ~: The State (Delhi Administration)

(1977) 2 SCC 238 : [1977] 3 SCR 172; Om Prakash Chautala v. Kanwar Bhan (2014) 5 SCC 417 : [201<1]

A l SCR 939: Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) ltd. and Am: ( 1997) 6 SCC 450 : [ 1997) l Su pp!. SCR 184 - relied on.

Quillen v. Board of Education 115 NYS 2d 122, 126

(1952) - referred to.

"fl,!J: Justice Frankfurter : 'A Heritage for all Who Love the Law· by Clark, Tom C.. 51A.B.A.J.330, 332 (1965): Foreword, to Memorial issue for Robert f-1. Jackson, 55 Columbia Law Review (April, 1955) p. 436 - referred to.

4. A Judge is expected to abandon his 11ersonal notion or impression gathered from subjective experience. The process of adjudication lays emphasis on the wise scrutiny of materials sans emotions. A studied analysis of facts and evidence is a categorical imperative. Deviation from them is likely to increase the individual gravitational pull which has the potentiality to take justice to her coffin. )Para 15Jl102-F]

5. The Division of High Court Bench had no reason to abandon the concept of judicial propriety and transgress the rules and further proceed on a path where it was not required to. Such things create , institutional problems and the Judges shall be guided by it. (rara 18][103-C-DI

6. As this Court had stayed the operation of the order at the interim stl)ge and further directed that if the Institution had admitted students they were debarred from continuing in the course. The same stands confirmed. The students who were given admission by the institution that had taken recourse to unholy and uncalled for practice should not be allowed to suffer and arc to be compensated. Therefore, the respondent-institution is directed to pay Rs.10,00,000/- to each of the students who had taken admission apart from refunding their fees. Additionally, as the conduct of the l" respondent, is absolutely blameworthy, costs of Rs.25 lacs is imposed to be deposited before this Court. [Para

17][102-G; 103-A-C]

7. As far as the prayer of the institution as regards the Academic Session 2018-2019 is concerned, it docs not deserve H consideration and, accordingly, stands rejected. An unscrupulous

& ORS.

litigant who conceived tbe idea of paving the path of his own desire, moving according to his design, proceeding as per his whim and marching ahead with brazenness abandoning any sense of prudence cannot be leniently dealt with. It is the duty of the Court to take stringent action, for he bas polluted the purity attached to the justice dispensation system and sullied the majesty of law. [Para 1811103-D-E]

Case Law Reference

[1977] 3 SCR 172

[2014] I SCR 939

[1997] I Su11pl. SCR 184

relied on

relied on

relied on

Para 12

Para 13

Para 14

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 19662 of2017.

From the J udgmcnt and Order dated 01.09.2017 of the High Court

of Judicature at Allahabad, at Lucknow in Misc. Bench No. 20275 of D 2017.

Vikas Singh. Sr. Adv., Gaurav Sharma, Dhawal Mohan, Prutcck Bhatia, Abhishek, Ms. Mansi Sharma, Advs. for the Appellant.

Dr. Rajeev Dhawan, P. S. Patwalia, Sr. Advs., Amit Kumar, Ms. Harshika Verma, D. N. Goburcihan, G. Govcradhan, Ms. Liz Mathew.

M. F. Philip. Sarad Kr. Singhania. Gurmect Singh Makkcr, Puncet Jain, Mrs. Pratibha Jain. Somesh Chandra Jha. Ad vs. for the Respondents.

The Judgment of the Court was delivered by

DIPAK MISRA, CJ! I. Leave granted.

2. The present appeal frescoes the scenario where one is tempted to quote a few lines from what has been stated in Quillen v. Bo11rd of Ed11clltio11 1• It reads thus:-

"Thc distinction between the gourmet and the gourmand is as neat and decisive in the prosaic realm of negotiation as in the G festive sphere of gastronomic enjoymentattempting to satisfy an unrestrained or exaggerated appetite in either field may prove discomforting if not disastrous."

'115NYS2dl22.126 (1952)

A The purpose of referring to the same is to highlight the unrestrained and exaggerated appetite. When the factual matrix would be unrolled, the greed mall its colours shall come to the forefront.

3. The present appeal by special leave calls in questwn the legal acceptability of the order dated 0 l" September 2017 passed by a Divis10n B Bench of the High Court of Allahabad, Lucknow Bench m Misc. Bench No.13530 of2017 whereby the High Court has quashed the order dated l ':I"' August 2017 as well as order dated 31" May 2017 passed by the Central Govunment and eventually granted permission to the l" respondent to admit students for the Academic Session 2017-201 8. c

4. When the matter was listed on 06"' September 2017, this Court had passed the following order:

"Issue notice fixing a returnable date within four weeks.

As Mr. Maninder Singh, learned Additional Solicitor Genernl for respondent No.3-Union oflndia and Mr. Mukul Rohatgi, kamed D senior counsel has entered appearance on behalf of respondent N o.1 and 2, no fmiher notice need be issued.

As far as respondent No.5 and 6 arc concerned, let notice be issued.

Dasti in addition is permitted.

As an interim order, it is directed that there shall be stay of the operation of order dated l" September, 20 l 7 further corrected on 4'" $cptcmbcr 2017.

If the Institution has admitted students they are debarred from F continuing in the course. We have passed this order as we while disposing of the writ petition preferred under Article 32 of the Constitution had passed the following order:-

'Le; imed counsel for the petitioners seeks leave of this Court to withdraw the writ petition to approach the High Court under G A1ticle 226 of the Constitution of India.

The writ petition is permitted to be withdrawn. However, it is made clear that the High Comt, while entertaining the writ petition, shall not pass any interim order pertaining to the academic year 2017-2013.'

& ORS. [DIPAK MISRA, CJ!]

We really fail to fathom the manner in which lhe High Court has misconstrued our order and passed the final order for 2017-

2018. We arc issuing notice only to test the propriety of the order and also ifthe Institution is eligible to get the renewal of letter of permission for 2018-20 19."

The aforesaid order eloquently reflects the shock expressed by this Court. As is ret1ectible from the aforesaid, notice was issued only to test the propriety of the order and also if the institution is eligible to get the renewal for 20 l 8-2019.

5. We shall initially address the first issue. To adjudge the issue of propriety of the order passed by the High Court, we arc compelled to travel in a time machine. The respondent-institution had filed a writ petition, i.e., Writ Petition (Civil) No.13530 of2017 before the High Court and was dealt with by the Division Bench of the High Court on 08 11' August 2017. On that day, the following order came to be passed:

"In reference to order dated 4.8.2017, the Central Government, as per the instructions received by Mr. Asit Kumar Chaturvedi, learned Senior Counsel appearing for the respondent no. l, has agreed to entertain the petitioners' matter along with other similar matters and consider it to revaluatc the recommendations/views of the MCI, Hearing Committee, DGHS and the Oversight Committee as available on record for grant of approval to the petitioner-institution to admit the students in MBBS Course, after affording an opportunity ofhcaring to th~ petitioner-institution to the extent necessary. To facilitate the Central Government, the whole paragraph 25 of the judgment in which directive has been issued by the Supreme Court is reproduced below:

'25. In the above persuasive premise, the Central Government is hereby ordered to consider afresh the materials on record pertaining to the issue of confirmation or otherwise of the letter of permission granted to the petitioner colleges/institutions. We make it clear that in undertaking this exercise, the Central Government would revaluate the recommendations/views of the MCI, Hearing Committee, DGHS and the Oversight Committee, as available on records. It would also afford an opportunity ofhearing to the petitioner colleges /institutions to the extent necessary. The process ofhearing and final reasoned

decision thereon, as ordered, would be completed peremptorily within a period of I 0 days from today. The parties would unfailing co-operate in compliance of this direction tu meet the time frame fixed.'

Therefore, we also direct the Central Government lo consider the petitioners' matter accordingly within seven days as framed by Hon'blc the Supreme Court.

The mllter is listed before Hon 'ble the Supreme Comt on 24.8.2017.

We, therefore, also direct the regislly to list this matter on 28.8.2017."

6. In pursuance of the aforesaid order. taking note of the deficiencies, the Central Government passed the following order on 19.8.2017:

"17. Now, in compliance with the above direction of Court, the Ministry granted hearing to the college on 16.08.2017. The Hearing Committee after considering the records and oral & written submission of the college submitted its report to the Ministry. The findings of the Hearing Committee are as under-

The Committee notes that there was no deficiency of faculty and residents as per MCI assessment report. The findings of the assessor indicate some deficiency of clinical material and the observance of hospital protocols.

During the course of hearing, the college produced certain documents contesting the findings of the assessors. The Committee perused the case sheet of single normal delivery on the day of inspection as shown by the college. The delivery of Ms. Sameerun was performed without blood transfusion and the mother was discharged without treatment of anacmcia when she was severely anaemic at the time of admission with a haemoglobin level of 6.5 gm%. This is gross negligence. Further, the college could not produce any Government issued birth certificates in support of their claim of average number of deliveries.

The inept handling of patients in the hospital is further confirmed during the perusal of cases pertaining to casualty and ICUs. The

college could not satisfy regarding the patients in casualty wards.

A None of the 3 patients in !CCU seemed to have cardiac history.

The pulse rate of one of the patient who was a PSVT (tachycardia) case was noted as 72/min at the time of admission. NO investigation was done. Other two patients with diagnosis of Kyphoscoliosis (spinal deformity) and vestibular neuritis (car B problem) were also admitted in the cardiac ICU. This confirms the finding of assessors and the college had no explanation. It is understood that as per MSR, the requirement is for requisite number of beds in ICUs, however, the college seem to be employing doubtful measures to show patients.

It was also noted that the college was neither aware nor following the provisions qfbiomcdical waste (BMW) rules.

The explanation offered by the college in obtaining 14 cadavers from 'Dcra Saccha Sauda' Sirsa, Haiyana without requisite permission and death certificates is a serious issue to be looked into by the concerned authorities.

In view of the above, despite the fact that no deficiency of faculty and residents is noted, the functioning of the hospital as per norms is in serious doubt and the Committee agrees with the decision of the Ministry vidc letter dated 31.05.2017 to debar the college for two years and also permit MCI to encash bank guarantee.

18. Accepting the recommendations of the Hearing Committee, the Ministry reiterates its earlier decision dated 31.05.2017 to debar

the college from admitting students for a period of two years i.e. 2017-18 and 2018-19 and also to authorize NCI to encash the F Bank Guarantee of Rs.2 Crore."

7. As the facts would further uncurtain, the institution filed a petition under Article 32 of the Constitution before this Court and chose to withdraw the same to approach the High Cou11 under Article 226 of the Constitution. The said order has already been quoted while reproducing G the order dated 06.09 .20 l 7.

8. The content of the order dated 28.08.2017 is graphically clear.

The High Court was not allowed to pass any interim order pertaining to the Academic Session 2017-2018 but the Division Bench of the High H

Court, for some unfathomable and inscrmable reason. referred to certain judgments of this Court and allowed the prayer. It is beyond our comprehension as ro how the High Court could have even remotely thought of passing an order granting the Letter of Permission for the Academic Session 2016-2017 and renewal for 2017-2018. It is worthy to mention here that before the High Court, time was sought on behalf of the Central Government and the MCI to file counter affidavits. The same was denied and the contesting parties were deprived of the opportunity to contest. Be it noted, the writ petition that was filed before this Court was withdrawn on 28'h August, 2017 and a fresh writ was filed before the High Court on 29'" August 2017 and the judgment was delivered without waiting for the reply from the Central Gowrnment or MCI on OP' September 2017. ll is clear as the cloudless sky that the judgment of the High Court shows unnecessary and uncalled for hurry, unjustified haste and an unreasonable sense of promptitude possibly being oblivious of the fact that the stand of the Medical Council oflndia and the Central Government could not be given indecent burial when they were parties on record. Such a procedure cannot be countenanced in law.

9. The wntroversy cannot be allowed to end with our aforesaid finding. The judicial propriety requires judicial discipline. In the absence of a reply filed by the Medical Council of India and the Central Government. it could not have been possible to answer the factual matrix of the case. What is not possible, is not possible. We may hasten to add that in respect of the cases where renewal was granted, Mr. Vikas Singh would submit that the deficiency was within the permissible limit but in the present case, it was not so and in any case, granting renewal for 20 I 7-20 l 8 and confirmation of letter of permission for 2016-2017 was totally unwarranted. In most of the cases. this Court has directed forre-inspection by the MCI which would then take a final decision for the academic year 20 l 8-20 I 9. It is a most w1fortunate situation that the Division Bench has paved such a path. One cannot but say that the adjudication by the Division Bench tantamounts to a state as if they dragged themselves to the realm of "willing suspension of disbelief'.

Possibly. they assumed that they could do what they intended to do. A Judge cannot think in terms of"what pleases the Prince has the force of

law". Frankly speaking, the law does not allow so, for law has to be observed by requisite respect for law.

IO. In this context. we may note the eloquent statement of Benjamin A Cardozo who said:

"The judge is not a knight errant, roaming at will in pursuit of his own ideal of beauty and goodness."

11. In this regard, the profound statement ofFclix Frankfurter' is apposite to reproduce:

"For the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which we are all guardians -those impersonal convictions that make a society a civilized community, and not the victims of personal rule."

The learned Judge has further stated':

"What becomes decisive to a Justice's functioning on the Court in the large area within which his individuality moves is his general attitude toward law, the habits of the mind that he has formed or is capable of unforming, his capacity for detachment. his temperament or training for putting his passion behind his judgment instead of in front of it. The attitudes and qualities which I am groping to charncterize are ingredients of what compendiously might be called dominating humility."

12. In Shiv Mohan Singh v. The State (Delhi Admi11istratio11)4, the Coui1 has observed:

" ... a Judge even when he is free, is still not wholly free; he is not to innovate at pleasure; he is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness; he is to draw inspiration from consecrated principles' ... "

13. In this context, we may refer with profit the authority in Om Pr11kaslr Cl11111t11la v. K1111w11r B/11111' wherein it has been stated:

"19. It needs no special emphasis to state that a Judge is not to be guided by any kind ofnotion. The decision-making process expects a Judge or an adjudicator to apply restraint, ostracise perceptual

1 Clark, Ton1 C., •Mr. Justice Frankfurter:' A Heritage for all Who Love the La, v", 51

A.BAJ. 330. 332 (1965) 'Foreword, lo Memorial issue for Robert H. Jackson, 55 Columbia Law Review (April,

1955)p.436.

'(1977)2 SCC238

'(2014)5SCC417

A subjectivity. make one s emotions subservient to one's reasoning and think dispassionately. He is expected to be guided by the established norms of judicial process and decorum."

And again:

"20. A Judge should abandon his passion. He must constantly remind himself that he has a singular master "duty to truth" and such truth is to be arrived at within the legal parameters. No heroism, no rhetorics."

14. In Dwarikesh Sugar Industries Ltd. v. Prem Hea11y Engineering Works (P) Ltd. and anotlier'', the three-Judge Bench observed:

"32. When a position in law is well settled as a result of judicial pronouncement of this Co wt, it would amow1t to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Suchjudieial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the cffoct of granting wrongful and unwarranted relief to one of the panics. It is time that this tendency stops."

15. The aforcstatcd thoughts arc not only meaningfully pregnant but also expressively penetrating. They clearly expound the role of a Judge, especially the effort ofundcrstanding and attitude of judging. A Judge is expected to abandon his personal notion or impression gathered from subjective experience. The process of adjudication lays emphasis on the wise scrutiny of materials sans emotions. A studied analysis of facts and evidence is a categorical imperative. Deviation from them is likely to increase the individual gravitational pull which has the potentiality to take justice to her coflin.

16. As is perceptible, we had stayed the operation of the order at the interim stage and further directed that if the Institution had admitted students they were debarred from continuing in the course. The same stands confirmed.

"( 19971 6 sec 450

17. Further, the question that remains to be adjudicated is whether A the students who were given admission by the institution that had taken recourse to unholy and uncalled for practice should be allowed to suffer.

We think not. Students are to be compensated. They had paid the fees.

Hopes were kindled in their hearts and aspirations in their mind. Their young minds_ were polluted by the institution and, therefore, we direct B the respondent-institution to pay Rs.10,00,000/- to each of the students who had taken admission apart from refunding their fees. Additionally, as the conduct of the I" respondent, namely, GC.R.G. Memorial Trust, is absolutely blameworthy, we impose costs ofRs.25 lacs to be deposited before this Court within eight weeks hence.

18. Before parting, it is necessary to add and repeat that the Division Bench had no reason to abandon the concept of judicial propriety and transgress the rules and further proceed on a path where it was not required to. Such things create institutional problems and we are sure that the learnce! Judges shall be guided by it. As far as the prayer of the institution as regards the Academic Session 2018-2019 is concerned, it does nqt deserve consideration and, accordingly, stands rejected. We .say so as an unscrupulous litigant who conceived the idea of paving the path of his own desire, moving according to his design, proceeding as per hi~ whim and marching ahead with brazenness abandoning any sense of prudence cannot be leniqntly dealt with. It is the duty of the Court to take stringent action, for he has polluted the purity attached to the justice dispensation system and sullied the majesty oflaw.

19. In view of the aforesaid analysis, the appeal stands allowed.

Costs. as already assessed.

Kalpana K. Tripa1hy Appeal allowed.