AI Drafter 
TaxTMI 
TaxTMI 
2013 (8) TMI 1011
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.... 'No Objection Certificate' to the petitioner for starting MDS Course. The said 'No Objection Certificate' was granted by the State Government for starting MDS Course in 9 specialties i.e. Oral Surgery, Orthodontics, Conservative Dentistry, Prosthodontics, Periodontics, Oral Diagnosis, Oral Pathology, Pedodontics, Periodontics, Oral Diagnosis, Oral Pathology, Pedodontics & Community Dentistry with 3 seats in each specialty from the session 2010-11. 4. Thereafter, Respondent No.4 - University granted provisional affiliation to the petitioner-college for 6 out of 9 specialties for academic session 2011-12. Respondent No.1, i.e. the Central Government also, on the recommendations of Respondent No.2/ Dental Council of India (hereinafter referred to 'DCI'), issued Letter of Intent to the petitioner for the aforesaid 6 specialties and later on granted permission to the petitioner-college to start MDS Courses in 6 specialties i.e. (i) Periodontology wih 3 seats (ii) Conservative Dentistry and Endodontics with 3 seats (iii) Oral Pathology & Microbiology with 3 seats (iv) Public Health Dentistry with 3 sets (v) Prosthodontics and Preventive Dentistry with 3 seats (vi) P....
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....encies which according to DCI remained uncured. 9. The DCI, accordingly, vide its letter dated 28.2.2013, recommended to the Central Government not to extend the permission in these two specialties and not to allow the petitioner-college to admit the students in these two specialties for the academic session 2013-14. According to the petitioner, though it was not supplied the copy of the report dated 18.2.2013 but could procure the same and on coming to know of the aforesaid negative recommendation dated 28.2.2013 of the DCI impressing upon Respondent No.1 not to accord permission in these two specialties for the current academic session, the petitioner made a representation to Respondent No.1 and along with the said report it also submitted a comparative statement of the deficiencies. The petitioner also requested for personal hearing. However, without affording any hearing, a decision was taken by the Central Government vide letter dated 30th March 2013, addressed to the petitioner, whereby the permission was declined for renewal of the second year MDS course in the two specialties mentioned above. 10. Aggrieved by this decision, the petitioner preferred the Writ Petitio....
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.... (ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation 1. - for the purposes of this section, "person" includes any University or a trust but does not include the Central Government. Explanation 2. - For the purposes of this Section, "admission capacity", in relation to any course of study or training (includes a post-graduate course of study or training) in an authority or institution granting recognized dental qualification, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training. (2) (a) Every person, authority or institution granting recognized dental qualification shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provision of clause (b) and the Central Government shall refer the said scheme to the Council for its recommendations. (b) The scheme referred to in clause (a) shall be in ....
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....Court: "Thus, in my considered opinion, the proviso of section 10(A)(4) of the Act cannot be read in the case of renewal of permission as it deals with a specific situation. Had it been the intention of the Legislature to provide an opportunity of hearing in the case of renewal of permission to be given by the Government of Indian on the recommendation of the DCI, it would have been a part of the Act itself but here is a case in which the petition had admittedly been given an opportunity for rectification of their errors because after first inspection of the DCI, the deficiencies noted were communicated to the petitioner, who allegedly removed the deficiencies and submitted the compliance report and in order to verify the compliance, another inspection team was sent, but still shortcomings/deficiencies were found which cannot be even condoned as it goes against the regulations. Hence, in the absence of any statutory provision with regard to an opportunity of hearing by the Government of India while with negative recommendations of DCI in the case of renewal of permission, the impugned order dated 30.3.2013 cannot be held to be illegal." 16. With respect to the High Court, ....
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....s found to be deficient, subsection (3) (a) of Section 10A of the Act casts an obligation on the part of the DCI to give a reasonable opportunity for making a written representation and also to rectify the deficiencies, any, specified by the DCI. After the recommendation is sent by the DCI to the Central Government, Central Government is required to process the same in accordance with the procedure contained in sub-section (4) of Section 10A. It can either approve or disapprove the Scheme. However, in case the Central Government is proposing to disapprove the Scheme, a final decision in this behalf can be taken only after giving the concerned person, authority or institution, a reasonable opportunity of being heard. This is the mandate of the proviso to Section 10A (4) of the Act. 19. Thus, the procedure prescribed in Section 10A contains the requirement of following this principle of natural justice at two stages. In the first place, by the DCI when it finds deficiencies while examining the school in the second stage at the level of the Central Government before it passes away adverse orders, as it is the final administrative authority vested with powers to pass such an order. ....
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....uished from an absolute rule of uniform application - seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post- decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre- decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the ma....
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....found. On that basis and without confronting the petitioner and further, it sent its report to the Central Government recommending denial of permission. However, as per the petitioner, there were no such deficiencies. It had filed the additional affidavit dated 2.7.2013 in the High Court in its attempt to refute the stand of the DCI regarding deficiencies. To demonstrate, one of the deficiencies pointed out by the DCI was that total number of surgeries/ major as well as minor, conducted by the petitioner-college were far less than the benchmark stated in the Regulations to enable the petitioner to seek renewal of permission. The DCI had stated that there is requirement of one (1) major Surgery and Eight (8) Minor Surgeries per week as per Performa. However, the surgeries performed by the petitioner-college, as per the Performa attached by the college itself was much less then the aforesaid requirements. The petitioner-college sought to clarify and explain this position in its aforesaid affidavit dated 2.7.2013 by pointing out that while calculating the figure, the DCI had taken into consideration PG surgeries only and ignored the figure pertaining to UG surgeries whereas the inspec....
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.... might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would ....
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....se of Admission Capacity in Dental Colleges) Regulations, 2006 empowering the Central Government to modify the time schedule for reasons to be recorded in writing, there was no need to direct the appellant to approach this Court for seeking extension and the Central Government could have itself extended the time schedule. In the process, the Bench made certain observations which reflect that even in the case of renewals proviso to sub-section (4) of Section 10A of the Act would be applicable. We reproduce herein below those portions from the judgment: "The Central Government, sent a general Circular dated 21.6.2010 to all dental colleges in whole cases DCI had recommended that permission should not be renewed, including the Chairmanship of the Director General of Health Services will give a personal hearing to them, as required under the first proviso to Section 10-A(4) of the Act to consider the proposal for renewal of permission for the BDS course for the academic year 2010-11, on 23.6.2010, 24.6.2010 and 25.6.2010. The said letter was dispatached on 22.6.2010 and reached the petitioner College on 25.6.2010, making it impossible for the petitioner College situated at Chennai (....
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....n and therefore it was not necessary for the Central Government to give opportunity of being heard to the petitioner before rejecting the renewal permission. 26. We, accordingly, sum up the legal position, touching upon the issue, on the interpretation of Section 10A (4) of the Act, as below: (a) Section 10A applies to the cases of renewal of permission as well; (b) It contemplates grant of opportunity of being heard at two stages. First stage would be at the level of DCI after the scheme is submitted to DCI under sub-section (2) of Section 10A of the Act. Once it is found by the DCI that all the parameters for granting permission are met, it recommends the grant of approval of the scheme to the Central Government. In case Scheme it is found to be deficient, sub-section (3) (a) of Section 10A of the Act casts an obligation on the part of the DCI to give a reasonable opportunity for making a written representation and also to rectify the deficiencies, if any, specified by the DCI. Second stage of adherence to the principles of natural justice is provided at the level of Central Government at the time when it has to take final decision, after the receipt of the recommendatio....
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....ent is supposed to examine. However, there are other deficiencies mentioned by the DCI also in its report. With respect to Oral Scheme the DCI found the following deficiencies:- "(i) Clinical training is not upto the mark. (ii) Back volumes are not available for last ten years. (vi) No. of cases operated in GA and LA are inadequate. As far as Ortho Scheme is concerned, the deficiencies noted in the report of DCI are as follows: "(i) University affiliation letter dated 27.3.2013 from Pt. B.D. Sharma University states that the college does not comply for the removal of deficiencies. (ii) There is deficiency of number of journals. (iii) Irregular supply of journals. (iv) Back volumes are available only from 2011. (v) There is deficiency of clinical material. (vi) Inspectors have pointed out that the clinical material in the specialty and the OPB are not tallying." 29. As per DCI report, deficiency in the Laboratory maintained by the petitioner was also found in respect of the specialties of Oral scheme. It is stated by the DCI that the Dental Institutions are supposed to maintain the Library at two levels. One is called a Central Library which is mainl....