# Hind Institute Of Medical Science v. Union Of India

- **Citation:** (2016) 5 ILRA 306
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-02
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hind-institute-of-medical-science-v-union-of-india-43827
- **Pages:** 11

## Text

306 INDIAN LAW REPORTS ALLAHABAD SERIES

37. Accordingly, the impugned order dated 13.5.2010 rejecting the claim of the petitioner for
compassionate allowance is confirmed. However, the impugned order so far as it relates to
rejection of payment of gratuity to the petitioner, is hereby quashed. A writ of Mandamus is issued
directing the competent authority to examine the claim of the petitioner for payment of gratuity and
pay the same, if there is no legal impediment, expeditiously, say, within a maximum period of three
months from the date of receipt of a certified copy of this order. The order with regard to payment
of gratuity shall also be communicated to the petitioner within the aforesaid period.

38. The writ petition stands disposed of finally.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 5204 Of 2016

Hind Institute Of Medical Science ...Petitioner
Versus
Union Of India ...Respondent

Counsel for Petitioner:
Aakash Prasad, Atharva Arya

Counsel for Respondent:
A.S.G., G.K. Srivastava

Present petition has been filed by a medical institute aggrieved by the withdrawal of permission by the
respondents to commence post graduate courses for MD in Radio-Diagnosis and MS Ophthalmology for the
academic year 2016-17. The petitioner institute was running courses in the medical field and had applied for
permission to run the two courses as well for the Session 2016-17 against the number of seats for which the
infrastructure was available.

In the present case allegation was of incorrect periods of experience mentioned in the certificates.

Court observed that in a matter of alleged misrepresentation or fraud, possesses the power to withdraw the
same. Such power deserves to be read to uphold the object and purpose of the function assigned to an expert
body to recommend, namely the Medical Council of India. We cannot be oblivious of the general principles of
administrative law in an allegation of fraud or misrepresentation so as to denude the expert body of its power
to withdraw recommendations or treat it to have become functus officio even if such fraud and
misrepresentation has been detected. If after such opportunity a finding would have been arrived at, then in
that event, the endorsement on the declaration given by the petitioner-College as extracted in paragraph - 60
of the counter affidavit could have been pressed into service for withdrawal of recommendations. The
endorsement ipso facto without any opportunity to the petitioner by the Medical Council of India would not
5 All. Hind Institute Of Medical Science Vs Union Of India

307
operate adverse to the petitioner unless the said exercise is carried out. The petitioner no doubt had an
obligation to make a correct declaration but the petitioner should also have the opportunity to explain as to
under what circumstances the certificates of the faculties had been tendered believing it to be true. Collusion
and fraud are not terms of ornament. They entail serious consequences and in such matters, where the
penalty is harsh, then the observance of the principles of natural justice becomes more necessary.

The writ petition is allowed to the aforesaid extent with a clarification that quashing of the said orders would
however automatically not amount to granting permission to the petitioner-institute to take admissions in the
concerned courses for which the orders have been passed.

The writ petition is allowed.

List of Cases Cited

1. Malla Reddy Institute of Medical Sciences and another. Vs. Union of India and another,
W.P.(C) 7106/2015
2. Rohil Khand Medical College and Hospital, Bareilly v. Medical Council of India 2013 (15) SCC
516

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Attau Rahman Masoodi, J.)

1. This petition has been filed by a medical institute aggrieved by the withdrawal of
permission by the respondents to commence post graduate courses for MD in Radio-Diagnosis and
MS Ophthalmology for the academic year 2016-17. The prayer is to quash the withdrawal of
recommendation by the Medical Council of India dated 31.01.2016 and the withdrawal of
permission by the Central Government, vide order dated 29.02.2016.

2. The petitioner institute was running courses in the medical field and had applied for
permission to run the two courses as well for the Session 2016-17 against the number of seats for
which the infrastructure was available. The Medical Council of India according to the petitioner,
vide letter dated 27.10.2015 Annexure-9 to the writ petition, forwarded the recommendation along
with the decision of the Post Graduate Medical Education Committee in relation to both the
courses. This was based on the Council Assessor's report dated 29.09.2015 on the basis of the
physical verification and other teaching facilities available. The Committee appears to have
considered the same in its meeting dated 23.01.2015 and the Medical Council of India accordingly
communicated the said recommendation in favour of the petitioner institute to the concerned
Secretary, Ministry of Health and Family Welfare, Government of India.

3. The Central Government on the strength of such recommendations issued the letter of
permission dated 25.01.2016 giving one seat for MS in Ophthalmology and four seats for MD in
Radio-Diagnosis. A copy of the said letter is Annexure-10 to the writ petition. This permission was
granted in exercise of powers conferred under Section 10(A) of the Indian Medical Council Act,
1956.
308 INDIAN LAW REPORTS ALLAHABAD SERIES

4. It appears that the Medical Council of India on 31.01.2016, in complete reversal of its
earlier recommendation dated 27.10.2015, withdrew the said recommendation. The said impugned
communication recites that a meeting of the Post Graduate Committee was held on 29.01.2016 to
consider the legal opinion of the Assistant Solicitor General Sri Tushar Mehta which had been
sought, vide its earlier meeting dated 19.01.2016. On deliberations, it was found that the institute
had indulged into misleading the Medical Council, and that fake and forged documents of the
experience of the faculty's employees had been utilized in respect of the three faculty members for
obtaining such permission of running post graduate courses; The Medical Council of India
proceeded to verify and confirm the status of such experience certificates and upon having received
information that they were fake and forged documents came to the conclusion that the institute had
violated Regulation 8 (3) (1) (d) of the Establishment of Medical College Regulations, 1999 and
had endorsed a false declaration. As such, it was clearly hand in gloves with such faculties and had
obtained the recommendations on such collusive acts. Therefore, the Council decided to withdraw
the recommendation made on 27.10.2015 and further to debar the college for the future two
academic years in respect of increase of any post graduate courses.

5. Relying on the said withdrawal of recommendation dated 31.01.2016, a notice was issued
by the Central Government dated 22.02.2016 calling upon the petitioner institute together with an
explanation and conducted a hearing on 25.02.2016. The Central Government thereafter on
29.02.2016 passed the impugned order withdrawing the permission on the strength of such
withdrawal of recommendation even though it did not approve of the methods of such withdrawal
by the Medical Council of India.

6. While assailing the aforesaid orders, Sri Jaideep Narain Mathur, learned Senior Counsel for
the petitioner has invited the attention of the Court to Section 10 (A) of 1956 Act and he contends
that the recommendation by the Medical Council of India is one stage head of grant of permission
and is a different exercise altogether. He submits that the recommendations are on the strength of
physical verification including documents and it is thereafter that the recommendation was made in
favour of the institute on 27.10.2015. The certificates of experience of three faculty members were
neither fake nor were they ingenuine but at the same time, one of the faculty members had resigned
and the contract of two other faculty members were terminated. Even otherwise, the response given
to the query also indicates that the status of certificates in no way affected the grant of permission
to the petitioner's institute to offer running of the aforesaid two courses. He has urged that the
recommendation had crystallized in the shape of a permission by the Central Government and if the
recommendations were being withdrawn, then the Medical Council of India should have separately
and independently given an opportunity of hearing to the petitioner before withdrawing its
recommendation. He contends that it is a statutory requirement and can be clearly inferred even if
the provisions of 1999 Regulations are sought to be invoked. He, therefore, submits that if the
Medical Council of India did not give any opportunity to the petitioner, as has happened in the
present case, then the entire action of withdrawal of recommendation is in violation of principles of
natural justice. He further submits that the cause of petitioner institute has been greatly prejudiced
and if the Medical Council of India had given an opportunity, the petitioner institute would have
5 All. Hind Institute Of Medical Science Vs Union Of India

309
explained the status of the experience certificates of the three faculty members and would have also
explained the endorsement and declaration made by the institute with regard to such verification.

7. He then submits that the opportunity given by the Central Government also turned out to be
a futile exercise inasmuch as, the explanation given by the petitioner has not been considered and
no reason has been recorded by the Central Government as to why the explanation given was not
acceptable. He, therefore, contends that at this second stage as well, the impugned order of the
Central Government is equally vitiated as it violates the principles of natural justice by not
recording reasons.

8. He then contends that as a matter of fact the decision of the Central Government to the
contrary records that the Central Government may agree with the withdrawal of recommendation
by the Medical Council of India but this kind of about turn did not convey a healthy practice about
the functioning of the Medical Council of India. The said noting is endorsed alongwith the decision
that has been brought on record through the supplementary affidavit filed on behalf of the petitioner
dated 11.03.2016. He further contends that the reason given for withdrawal of the letter of
permission on the suggestion made in paragraph-5 of the noting, also does not amount to a cogent
or valid reason recorded for withdrawal of permission.

9. Sri Mathur submits that even assuming that there was some alleged irregularity in the
experience certificate, then too, even the Medical Council of India could have called upon the
petitioner to explain the same which was never done and the entire action has been taken on the
strength of a legal opinion obtained as recorded in the impugned order of the Medical Council of
India dated 31.01.2016.

10. Sri Mathur has relied on the decisions that have been referred to in the legal opinion
obtained by the Medical Council of India with a further reference to the Full Bench Judgement of
the Delhi High Court in the case of Malla Reddy Institute of Medical Sciences and another. Vs.
Union of India and another, W.P.(C) 7106/2015 & CM No.13029/2015 to urge that this judgment
clearly rules that opportunity has to be given by the Medical Council of India before invoking any
such provisions as has been done in the present case and the same having not been adopted, the
impugned order deserves to be set aside.

11. Countering the said submissions of the learned counsel for the petitioner, Sri Srivastava for
the Medical Council of India, relying on the averments made in the counter affidavit on behalf of
the respondent Nos.3 and 4, contends that the fact of the experience certificate of three of the
faculties was investigated by the Council and was ultimately found to be contrary to what was
represented by the petitioner-institute. The same was considered by the Central Government
alongwith the explanation submitted by the petitioner and the Central Government has rightly
endorsed the view of the Medical Council for withdrawing the recommendations.

12. He however submits that so far as the Medical Council is concerned, invoking the
principles of General Clauses Act, 1897, the power to recommend also includes the power to
310 INDIAN LAW REPORTS ALLAHABAD SERIES
withdraw such recommendations, moreso where the documents on the basis whereof
recommendation was granted, have not been founded to be genuine. He contends that in such a
situation, there was no occasion for granting any opportunity to the petitioner at the time of
withdrawal of recommendations by the Medical Council of India. It is urged that the requirement of
providing an opportunity was made available at the time when the Central Government proceeded
to take a decision and in such a situation, once the withdrawal has been accepted by the Central
Government after calling for an explanation from the petitioner, there was no violation of principles
of natural justice as alleged.

13. Sri Srivastava therefore contends that the withdrawal of the recommendations founded on
legitimate grounds, does not call for any interference. The full bench decision of the Delhi High
Court in the case of Malla Reddy (supra) has been subjected to a challenge before the Supreme
Court where notices have been issued and the matter is pending. He further submits that even
otherwise, the Apex Court in several decisions that have been placed alongwith the counter
affidavit has held that the time schedule for running of the courses should not be altered by judicial
intervention and once the recommendation has been withdrawn and permission cancelled, the
courses have not been run and therefore no relief can now be granted to the petitioner.

14. Sri Srivastava has further invited the attention of the Court to the endorsement made on the
declaration given by the institution which has been produced in paragraph - 60 of the counter
affidavit to contend that the endorsement is about the verification of the documents of the faculties
and such endorsement has been found to be false, therefore, the withdrawal was justified as the
institute had colluded with the said faculties in trying to seek permission for running the courses on
the strength of such ingenuine documents.

15. Sri S. B. Pandey, learned Assistant Solicitor General of India for the Government of India
has contended that full opportunity was given to the petitioner and no error could be found in
withdrawal of the recommendations as forwarded by the Medical Council of India as such the
government was justified in withdrawing the permission on the basis of facts found. He submits
that the reply of the petitioner was not found to be satisfactory and having considered the same, the
Central Government cannot be stated to have acted arbitrarily. The arguments on behalf of the
Medical Council have also been endorsed by Sri Pandey and he submits that in the absence of any
violation of law or principles of natural justice, the orders impugned do not deserve any
interference.

16. We have considered the submissions raised and the charge on the petitioner is that the
petitioner surreptitiously while acting hand in glove, with the faculties, had tendered and endorsed
certificates that were not genuine in relation to the experience of such faculties. This according to
the respondents was a fraud. When there is such a charge being investigated and being made the
basis of the withdrawal of the recommendation, then in that event, the authority investigating the
same ought to have made an enquiry from the institute itself. We find from the contents of
paragraphs - 72 to 88 of the counter affidavit that this exercise of verifying the correctness of the
experience certificates of all the three faculties was unilaterally conducted by the Medical Council
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311
without any information to the petitioner. The three faculties were Dr. Chandra Prakash Singh, Dr.
P. K. Vasisth and Dr. Rajiv Kumar Agrawal. This was initiated vide letter dated 5.1.2016 before
the permission had been granted by the Central Government on 26.1.2016. The information appears
to have been received by the Medical Council by 19.1.2016 but it is on 29/30.1.2016 that the PostGraduate Medical Education Committee of the MCI proceeded to make a recommendation for
withdrawal of the same. The Medical Council accordingly communicated the decision on
31.1.2016 to the Central Government after the permission had been finally granted five days ago.

17. Admittedly, no opportunity was given to the petitioner at this stage by the Medical Council
of India or the Post-Graduate Medical Education Committee intending to withdraw the
recommendations on the alleged grounds.

18. After having received the said communication, the Central Government constituted a
Hearing Committee which called upon the petitioner to show cause by filling-up the forms
pertaining to the information sought that was tendered by the petitioner, and the matter was
considered and heard on 25.2.2016. Vide order dated 29.2.2016, the permission was withdrawn by
the Central Government on the aforesaid stated hearing conducted by it.

19. At this stage, it is appropriate to refer to the proceedings of the Hearing Committee that
have been filed by the petitioner through a supplementary affidavit dated 11.3.2016. The said
proceedings were followed by a note sheet and it records the legal opinion of Shri Tushar Mehta
that was made the basis of withdrawal of recommendation by the Medical Council of India. The
Post-Graduate Medical Education Committee is said to have accepted this opinion in view of
Regulation 8 (3) (1) (d) of the Establishment of Medical Regulations, 1999. While proceeding with
the noting, the Central Government has recorded as follows:-

"4. In this regard, it is stated that the Institute was granted personal hearing on
25.2.2016 by the PG Hearing Committee. The college representative appeared before the
Committee and furnished a written explanation regarding irregularity in experience certificates of
3 faculty members of Deptt. of Orthopaedics and Surgery on which basis the MCI had
recommended this Ministry to withdraw the letter of permission imposing clause 8(3)(1)(d) of
Establishment of Medical College Regulations, 1999. The college representative informed the
Committee that the college has terminated services of 3 faculty members under reference and has
informed that even after termination of services of these faculty members the faculty staff
component is complete. Further, the Committee has opined that Ministry may like to take decision
regarding application of provisions of Regulation Clause 8(3)(1)(d) of the Establishment of
Medical College Regulations, 1999 with retrospective effect. The minutes of the Committee are at
F/Q."

20. The same note sheet in paragraph - 5 mentions as follows:-
312 INDIAN LAW REPORTS ALLAHABAD SERIES

"5. Submitted for taking a decision on withdrawal of Letter of Permission for starting of
MS (Ophthalmology) with 1 (One) seat and MD (Radio Diagnosis) with 4 seats at Hind Institute of
Medical Sciences, Barabanki, Uttar Pradesh from the academic session 2016-17."

21. The proceedings of the hearing that was conducted on 25.2.2016 is recorded as follows:-

"Hearing Committee Meeting

Medical - 2015

Dated 25.2.2016

Name of College: Hind Institute of Medical Sciences,

Barabanki, Uttar Pradesh

Subject (Course):

 Starting:

 1. MS Ophthalmology

 2. MD Radio Diagnosis

(1) The College representatives appeared before the Hearing Committee on 25.2.2016.

(2) The College representative informed the Hearing Committee that the college had
applied for starting/increase of seats in 12 PG subjects. Out of these 12 subjects, MCI vide their
letter of October, 2015 recommended for issue of LoP in 2 subjects namely MS (Ophthalmology) &
MD (Radio Diagnosis). MCI recommended to disapprove scheme in respect of 10 subjects. The
college submitted the compliance in respect of these 10 subjects. The MCI carried out compliance
in respect of these 10 subjects. During the compliance verification assessment, MCI noted
irregularity in experience certificates of 3 faculty members of Deptt. Of Orthopaedics and Surgery.
Based on this observation, the MCI had recommended to Central Govt. to apply provision of
Regulation 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999. The MCI in their
letter dated 31.1.2016 has recommended to debar the college for starting/increase of seats in
respect of any postgraduate courses for 2 academic years i.e. 2016-17 and 2017-18 as mandated in
clause 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. Further, the MCI had
recommended to withdraw their earlier recommendation (furnished vide letter dated 27.10.2015)
for issue of Letter of Permission for starting of MS (Ophthalmology) and MD (Radio Diagnosis)
for the academic year 2016-17.

(3) The college representative submitted written explanation and has informed the
hearing committee that the college has terminated services of 3 faculty members under reference
and has informed that even after termination of services of these faculty members the faculty staff
component is complete. The College representative has submitted written submission to the
Hearing Committee. The Hearing Committee observations have been recorded on the compliance
report on the basis of the submission made by the College representatives.
5 All. Hind Institute Of Medical Science Vs Union Of India

313

(4) In view of the above, the Ministry may like to take decision regarding application of
provisions of Regulation clause 8(3)(1)(d) of the Establishment of Medical College Regulations,
1999 with retrospective effect especially when Central Govt. has already issued letter of permission
for starting of PG course in MS (Ophthalmology) and MD (Radio Diagnosis) for the academic year
2016-17. This permission was issued by the Central Govt. on the basis of MCI recommendation
letter dated 27.10.2015. On perusal of MCI letter dated 31.1.2016, the date of compliance
verification assessment is not clear. However, according to college representative it was done
after submission of compliance by college after October, 2015.

(5) In view of the above, the Hearing Committee recommends that Ministry to take a
policy decision in this matter."

22. The Hearing Committee had made a recommendation with the Central Government may
like to take a policy decision regarding application of the provisions of clause 8 (3) (1) (d) with
retrospective effect. However, the note sheet of the Central Government had recommended for
withdrawing of the letter of permission as suggested in paragraph - 5 of the note sheet extracted
here-in-above.

23. Surprisingly, the decision as endorsed by the concerned official of the Central Government
on the note sheet is worded as follows:-

"We may agree but this kind of about turn does not convey a healthy practice about the
functioning of MCI. This may also be conveyed to them."

24. The aforesaid is the decision dated 29.2.2016 which has been communicated by a letter of
the same date filed with the supplementary affidavit as Annexure - 1.

25. The noting does indicate the reply of the petitioner but it does not indicate as to why it is
not acceptable. To the contrary, the endorsement on 29.2.2016 states that the Central Government
may agree but the kind of 'U' turn as reflected in the proceedings of the Medical Council does not
convey a healthy practice about its functioning.

26. It is thus clear from the aforesaid facts that even the Central Government was completely
unsure about the fairness of the procedure and the applicability of the rules that was considered by
the Medical Council for withdrawing the recommendation. The Central Government does not
appear to have partly approved of the action of the Medical Council of India. The recommendation
of the Hearing Committee as extracted here-in-above for the Ministry to take a policy decision in
the matter about the applicability of Regulation 8 (3) (1 (d) has not been elaborated but a peculiar
observation has been made as extracted here-in-above. In our opinion, this does not amount to
taking a decision on the said recommendations and the doubt expressed by the Central Government
itself ought to have been cleared by a decision one way or the other on the said issue. The decision
dated 29.2.2016 as extracted above does not indicate as to why the explanation as given by the
314 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner and also noted by the hearing committee was not acceptable. No reasons are reflected
therein.

27. So far as the withdrawal of the recommendation and the power of the Medical Council of
India to do so while referring to the General Clauses Act is concerned, once the recommendation
has been made after carrying out a particular process in favour of the institute and crystallized into
a permission of the Central Government, then its withdrawal will also have to follow the same
route. In that event, if any discrepancy tantamounting to fraud has been located, then an
opportunity to either explain or rectify the same as may be permissible has to be granted by the
recommending body which exercises a separate expert authority of making recommendations. The
central government comes into the picture at a subsequent stage and is not a substitute for assessing
the status of experience or its certificate by the expert recommending Post-Graduate Committee
and the Medical Council of India. The principles of natural justice therefore cannot be dispensed
with by the Council and on that issue, we find ourselves in full agreement with the principle culled
out in the ratio of the Full Bench decision of the Delhi High Court in the case of Malla Reddy
(supra). Paragraph - 27 of the said decision is extracted hereunder for reference:-

"27. It is no doubt true that in Swamy Devi Dayal (supra) and Royal Medical Trust
(supra), the Supreme Court was not concerned with any provision relatable to Regulation 8 (3) (1)
of the Regulations. However, the law is well settled that the Rules or Regulations made on matters
permitted by the statute cannot override either the provisions of the statute or the object and
scheme of the same. Therefore, the requirement of adherence to the principles of natural justice
under Section 10-A(3) and 10-A(4) of the Medical Council Act cannot limited or excluded on any
ground whatsoever and no exception can be carved out even with regard to the institutions in
respect of which the provisos (a) to (d) of Regulation 8 (3) (1) are invoked. Hence, the distinction
sought to be drawn by Sh. Vikas Singh on the ground that in Swamy Devi Dayal (supra), the
Supreme Court was not concerned with Regulation 8 (3) (1) cannot be accepted."

28. Learned Counsel for the respondents has invited the attention of the Court to the decisions
that have been placed on record, particularly the decision in the case of Rohil Khand Medical
College and Hospital, Bareilly v. Medical Council of India [2013 (15) SCC 516]. In that case, the
investigation had been carried out by the Central Bureau of Investigation that had filed a charge
sheet revealing that the College had used fake and forged material to get sanction of seats for the
intake of 2008-09. In these circumstances, it was found that the Medical Council of India was not
required to wait till the culmination of trial and the Court found it not necessary to entertain the
claim of the institute therein.

29. In the instant case, here the allegation was of incorrect periods of experience mentioned in
the certificates. This was sought to be explained by the petitioner through the information given
which has also been alleged in the writ petition but the fact remains that the verification was carried
out by the Medical Council of India and not by the Central Government. It is in this context that an
opportunity by the Medical Council of India was necessary to be given for confronting the
petitioner with the material that was to be used in this regard to withdraw the recommendation. The
5 All. Hind Institute Of Medical Science Vs Union Of India

315
authority to recommend in our opinion also inherently, in a matter of alleged misrepresentation or
fraud, possesses the power to withdraw the same. Such power deserves to be read to uphold the
object and purpose of the function assigned to an expert body to recommend, namely the Medical
Council of India. We cannot be oblivious of the general principles of administrative law in an
allegation of fraud or misrepresentation so as to denude the expert body of its power to withdraw
recommendations or treat it to have become functus officio even if such fraud and
misrepresentation has been detected. If after such opportunity a finding would have been arrived at,
then in that event, the endorsement on the declaration given by the petitioner-College as extracted
in paragraph - 60 of the counter affidavit could have been pressed into service for withdrawal of
recommendations. The endorsement ipso facto without any opportunity to the petitioner by the
Medical Council of India would not operate adverse to the petitioner unless the said exercise is
carried out. The petitioner no doubt had an obligation to make a correct declaration but the
petitioner should also have the opportunity to explain as to under what circumstances the
certificates of the faculties had been tendered believing it to be true. Collusion and fraud are not
terms of ornament. They entail serious consequences and in such matters, where the penalty is
harsh, then the observance of the principles of natural justice becomes more necessary. It is for this
additional reason as well that we endorse the ratio of the view taken by the Full Bench of the Delhi
High Court to be attracted herein. An opportunity should be provided to the Institute in such a case
where the subsequent permission is also being withdrawn on the strength of the recommendation of
the Medical Council of India.

30. To us, it appears that the Central Government also overlooked this aspect of the matter
while proceeding to communicate the decision impugned herein dated 29.2.2016.

31. Consequently, for all the reasons given here-in-above, we find that an opportunity ought to
have been given to the petitioner by the Medical Council of India before proceeding to withdraw
the recommendation. That having not been done, the recommendation was withdrawn in violation
of principles of natural justice and accordingly, the said decision of the Medical Council of India
date 31.1.2016 deserves to be set aside.,

32. Since the very foundation of the withdrawal of permission of the Central Government rests
on the withdrawal of the recommendation, consequently the order dated 29.2.2016 passed by the
Central Government cannot be sustained. Both the orders are hereby quashed.

33. The writ petition is allowed to the aforesaid extent with a clarification that quashing of the
said orders would however automatically not amount to granting permission to the petitionerinstitute to take admissions in the concerned courses for which the orders have been passed. Even
otherwise, the schedule of the time for taking admissions and pursuing of courses cannot now be
permitted in view of the Apex Court decisions cited on behalf of the respondents. In the event the
petitioner succeeds, it may be entitled to claim a fresh permission for running the courses in future
and in order to avoid debarment.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

34. For the reasons aforesaid, the writ petition is allowed only to the aforesaid extent leaving it
open to the Medical Council of India to grant a hearing to the petitioner-institute and pass fresh
orders relating to the recommendations which it had proposed to withdraw. In the event, such an
exercise is undertaken and any decision adverse to the petitioner is given, then the Central
Government would also before withdrawing the permission grant an opportunity to the petitioner
and then pass appropriate orders. The aforesaid exercise may be concluded preferably within a
period of two months by the Medical Council of India and the Central Government from the date of
receipt of a certified copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2016

BEFORE

THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J.

Misc. Single No.- 6148 Of 2015

Kanwalijeet Sachdev ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for Petitioner:
Pankaj Tiwari, Pal Singh Yadav, Prathama Singh

Counsel for Respondents:
Govt. Advocate, Harjot Singh, Vivek Kumar Rai

Present petition arises from an order dated 24.08.2015, passed by the Additional Principal Judge, Family
Court, Lucknow whereby the application made by the petitioner under Section 126 (2) of Cr.P.C.for setting
aside the alleged ex parte interim maintenance order passed under Section 125 Cr.P.C., has been rejected not
on the merits of the application but on the ground of maintainability for the reason that this application was
not presented by the petitioner himself; rather it was presented by his father in whose favour power of
attorney was executed by the petitioner.

The question which fall for consideration of this Court is as to whether this Court can direct the court below to
entertain a petition under Section 13-B of Hindu Marriage Act for grant of divorce by mutual consent.

Court held that after considering the precedents, the Full Bench has held that the proceedings of a petition
under Article 226 of the Constitution of India can be instituted by a person through his power of attorney
holder. However, while holding so, the Full Bench has observed and emphasized necessity of taking adequate
safeguards in case some proceedings are permitted to be filed or carried on through the holder of a power of
attorney. The safeguards as pointed out by Full Bench of this Court in the case of Syed Wasif Husain Rizvi
vs Hasan Raza Khan and six others in Writ Petition No.534 (Consolidation) of 2002.

The petition shall stand disposed of.