DM WAYANAD INSTITUTE OF MEDICAL SCIENCES vs. UNION OF INDIA

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 441 OF 2015 DM Wayanad Institute of Medical Sciences …..Petitioner(s) versus Union of India and another …..Respondent(s) AND WRIT PETITION (C) NO. 448 OF 2015 P. Krishna Das and another …..Petitioner(s) versus Union of India and others …..Respondent(s) J U D G M E N T M. Y. EQBAL, J. Knocking the doors of this Court in the first instance JUDGMENT under the garb of a petition under Article 32 of the Constitution, instead of approaching the High Court, for the enforcement of right claimed in these writ petitions is the preliminary question we are deciding herein. 1 Page 1 2. In these two writ petitions, the petitioners have invoked the jurisdiction of this Court under Article 32 of the Constitution of India challenging the refusal of the Medical

3. The petitioner institute was said to have been granted permission for admitting 150 students in the MBBS course for the academic year 2013-14 and permission was renewed for the academic year 2014-15. The petitioner applied for renewal of permission for the academic year 2015-16 pursuant to JUDGMENT which the assessors from the MCI conducted an inspection on th th 12 and 13 December, 2014 and submitted a report dated 15.12.2014 in which no deficiencies were alleged to have been pointed out. 2 Page 2 4. However, the assessors from MCI were alleged to have th made another surprise inspection on 6 February, 2015 at 3.00 PM and directed the Dean to call for a faculty meeting at

to have left the college for lunch or Friday prayers or having gone home for the weekend while many others who came after 3.30 PM from different parts of the campus were not allowed to attend the meeting. Many of the Resident Doctors were stated to have been absent on account of the imminent State Level PG Entrance Test. Another inspection was conducted on th 7 February, 2015. The inspection report was alleged to have been inaccurate and signed in protest by the Dean. JUDGMENT 5. The aforesaid report was considered by the Executive th Committee of the MCI on 10 February, 2015 and it was decided not to recommend the renewal of the permission of the petitioner and the same was communicated to the Union Government, which sent letter dated 04.03.2015 to the petitioner to appear for a hearing. After the hearing where the 3 Page 3 petitioner was said to have justified the deficiencies that were pointed out, the Central Government sent letter dated 22.05.2015 directing the MCI to conduct a reassessment.

as directed on the ground that a decision had already been made not to recommend the renewal by invoking Regulation 8 (3) (1) (a) of the Establishment of Medical College Regulations, 1999. 6. Thereafter, the Union Government published a list on 17.06.2015 stating that the permission of the petitioner college for the academic year 2015-16 had not been renewed and a letter dated 15.06.2015 was sent to the petitioner informing the same. JUDGMENT 7. The petitioner filed the present petition praying for th th declaring the second inspection conducted on 6 and 7 February, 2015 to be illegal and for directing the MCI to recommend the renewal of the approval of the petitioner college for the academic year 2015-16 on the basis of the first th th inspection conducted on 12 and 13 December, 2014. A 4 Page 4 prayer has also been made for directing the Central Government to issue the letter of renewal accordingly.

2014-15 with 150 students. It appears that a surprise inspection was made by MCI and many deficiencies were pointed out. The Executive Committee of MCI after considering the inspection report recommended disapproval of the college. The Central Government directed the MCI to reconsider the matter. However, the MCI reiterated its stand of not recommending the renewal of permission for the sessions 2015-16. The petitioner has challenged the decision of the Medical Council of India. JUDGMENT 9. We have heard Mr. Kapil Sibal, learned senior counsel appearing in W.P. (Civil) No.441 of 2015 and Mr. V. Giri, learned senior counsel appearing in W.P.(Civil) No. 448 of 2015 on the maintainability of the writ petition under Article 32 of the Constitution of India. 5 Page 5 10. Mr. Sibal, learned senior counsel appearing for the petitioner, submitted that because of the time schedule fixed in Priya Gupta’s case , 2012 (7) SCC 433, the petitioner has no

issuance of appropriate directions to the respondents. Learned senior counsel also drawn our attention to para 13 of the judgment rendered by this Court in Priyadarshini Dental College and Hospital vs. Union of India & Ors. , (2011) 4 SCC 623. 11. Mr. V. Giri, learned senior counsel appearing in one of the writ petitions, advanced the same arguments for filing the writ petition before this Court under Article 32 of the Constitution instead of approaching the High Court. JUDGMENT 12. Both the learned senior counsel, however, claimed their right guaranteed under Article 19(1)(g) of the Constitution of India. 13. At the very outset, we wish to extract the relevant portion of Article 19 of the Constitution which reads as under:- 6 Page 6

14. From a bare reading of the provision contained in Article 19(1)(g) it is evidently clear that the citizens have been 7 Page 7 conferred with the right to practice any profession or carry on any occupation, trade or business, but such right is subject to the restriction and imposition of condition as provided under

15. In Unni Krishnan’s case , 1993 (1) SCC 645, the right guaranteed under Article 19(1)(g) has been elaborately discussed by the five Judges Constitution Bench. The Court held that imparting education cannot be treated as a trade or business. Trade or business normally connotes an activity carried on with a profit motive. This Court observed that education has never been nor can it be allowed to become commerce in this country. Education has always been treated JUDGMENT in this country as religious and charitable activity and making it commercial is opposed to the ethos, tradition and sensibilities of this nation. A citizen of this country may have a right to establish an educational institution but no citizen, 8 Page 8 person or institution has a right much less of fundamental right to affiliation or recognition. Their Lordships observed:-

67a. It is not merely an establishment of educational institution, that is urged by the petitioners, but, to run the educational institution dependent on recognition by the State. There is absolutely no fundamental right to recognition in any citizen. The right to establishment and run the educational institution with State’s recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the statute. Therefore, where it is dependent on the permission under the statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Then again, the State policy may dictate a different course. xxx xxx xxx 72. Accordingly, it is held that there is no fundamental right under Article 19(1)( g ) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that anyone desirous of starting an institution purely for the purposes of educating the students could do so but Sections 22 and 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind.” JUDGMENT 9 Page 9 16. Considering the facts of the case as averred by the petitioners and the rights claimed therein, we are of the considered opinion that the petitioners, even though have a

technical education, such right is not a fundamental right. 17. From reading of Article 32, it is manifest that clause 1(i) of Article 32 guarantees the right to move the Supreme Court for an appropriate writ for the purpose of enforcing the Fundamental Rights included in Part-III of the Constitution. The sole object of Article 32 is the enforcement of Fundamental Rights guaranteed by the Constitution. It follows that no question other than relating to the Fundamental Right JUDGMENT will be determined in a proceeding under Article 32 of the Constitution. The difference between Article 32 and 226 of the Constitution is that while an application under Article 32 lies only for the enforcement of Fundamental Rights, the High Court under Article 226 has a wider power to exercise its 10 Page 10 jurisdiction not only for the enforcement of Fundamental Rights but also ordinary legal right.

will not interfere with an administrative order where the constitutionality of the statute or the order made thereunder is not challenged on the ground of contravention of Fundamental Rights. At the same time if the validity of the provisions of statute is challenged on the ground other than the contravention of Fundamental Rights, this Court will not entertain that challenge in a proceeding under Article 32 of the Constitution. JUDGMENT 19. In the case of Northern Corporation vs. Union of India, (1990) 4 SCC 239, a petition under Article 32 of the Constitution of India was moved by the transferee licence holder. The maintainability of the application under Article 32 of the Constitution of India was seriously objected by the 11 Page 11 Union of India. Writing the judgment, Hon’ble Sabyasachi Mukherjee, the then CJI, held:-

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JUDGMENT 20. In the case of Kanubhai Brahmbhatt vs. State of Gujarat, AIR 1987 SC 1159, this Court took serious concern of the litigants coming to this Court under Article 32 of the Constitution instead of first moving the appropriate High 13 Page 13 Court for the redressal of their grievances. This Court observed as under:

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21. In the case of Ram Jawaya Kapur vs. State of Punjab, AIR 1955 SC 549 = (1955) 2 SCR 225, the petitioner was carrying on business of printing, publishing books for sale including text books used in the schools of State of Punjab. The State of Punjab decided in furtherance of their policy of JUDGMENT nationalization of text books for the school students. According to the Policy, all recognized schools had to follow the course of studies approved by the Government. The petitioners alleged in support of their petitions under Article 32 that the Punjab Government has in pursuance of their 15 Page 15 policy of nationalization of text books issued a series of notifications regarding the printing, publication and sale of these books and thereby ousted them from the business

Constitution Bench, headed by the then Chief Justice observed:- “21. As in our view the petitioners have no fundamental right in the present case which can be said to have been infringed by the action of the Government, the petition is bound to fail on that ground. This being the position, the other two points raised by Mr Pathak do not require consideration at all. As the petitioners have no fundamental right under Article 19(1)( g ) of the Constitution, the question whether the Government could establish a monopoly without any legislation under Article 19(6) of the Constitution is altogether immaterial. Again a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest in an undertaking within the meaning of Article 31(2) of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same. The result is that the petition is dismissed with costs.” JUDGMENT 22. In the case of Hindi Hitrakshak Samiti vs. Union of India, (1990) 2 SCC 352, a similar question relating to the maintainability of the writ petition under Article 32 of the 16 Page 16 Constitution came for consideration before a three Judges’ Bench of this Court for the enforcement of any Government policy. In the writ petition, the petitioner sought for issuance

pre-medical and pre-dental examination in Hindi and regional languages, which according to the petitioner is mandated by Article 29(2) of the Constitution of India. While permitting the petitioner to withdraw its petition, the Court observed that Article 32 of the Constitution guarantees enforcement of Fundamental Rights but violation of Fundamental Right is the sine qua non for seeking enforcement of those rights by the Supreme Court. In order to establish the violation of fundamental right, the Court has to consider the direct and JUDGMENT inevitable consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced. Where the existence of fundamental right has to be established by acceptance of a particular policy, or a course of action for which there is no legal compulsion or statutory imperative and on which there are divergent views, the same 17 Page 17 cannot be sought to be enforced by Article 32 of the Constitution.

Controller of Imports and Exports , (1975) 1 SCC 716, this Court, while considering writ petition under Article 32 of the Constitution, observed that a petition under Article 32 will not be competent to challenge any erroneous decision of an authority. A wrong application of law would not amount to a violation of fundamental right. If the provisions of law are good and the orders passed are within the jurisdiction of the authorities, there is no infraction of fundamental right if the authorities are right or wrong on facts. JUDGMENT 24. In the case of Ujjam Bai vs. State of U.P, AIR 1962 SC 1621=(1963) 1 SCR 778, before the seven Judges’ Constitution Bench, a question came for consideration as to whether an assessment made by an authority under the taxing statute which is intra vires and in the undoubted exercise of its 18 Page 18 jurisdiction can be challenged under Article 32 of the Constitution of India? Answering the question, Their Lordships held as under:

JUDGMENT 25. Their Lordships further observed: 19 Page 19

JUDGMENT 26. Coming back to the instant writ petitions, indisputably, the petitioners have challenged the decision of MCI and the Central Government refusing to grant permission or renewal to carry on their courses for the Academic Session 2015-16. The 20 Page 20 decisions are based on the inspection reports submitted by the teams of MCI. The jurisdiction of MCI or the Central Government to grant or refuse to grant permission has not

MCI which is statutory body to take a decision based on the inspection of the college to satisfy itself the compliance of various provisions of the acts, rules and regulations. 27. Under Article 32 of the Constitution, this Court is not supposed to go into finding of facts recorded by the authorities and to come to a different conclusion. Moreover, having regard to the law settled by Constitution Bench of this Court in number of decisions, in our considered opinion, the rights JUDGMENT so claimed by the petitioners are not fundamental rights; hence the same cannot be agitated directly before this Court under Article 32 of the constitution. 21 Page 21 28. We, therefore, dismiss these writ petitions filed under Article 32 of the Constitution. However, this will not prevent the petitioners from agitating their grievances before the

jurisdiction to deal with the matter. …………………………….J. (M.Y. Eqbal) …………………………….J. (Arun Mishra) New Delhi July 23, 2015 JUDGMENT 22 Page 22