All India J.D. Educational ... vs Union Of India & Anr.
2011 Latest Caselaw 837 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 11th February, 2011

+                           W.P.(C) 8355/2010

ALL INDIA J.D. EDUCATIONAL SOCIETY & ANR. ..... Petitioners
                     Through: Mr. Chandra Shekhar with Mr.
                              Rajeev Kumar Arya & Mr.Saurabh
                              Upadhyaya, Advocates

                                     Versus

UNION OF INDIA & ANR.                                        ..... Respondents
                    Through:                Mr. Arjun Pant, Advocate for R-1.
                                            Mr. T.K. Josep, Advocate for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioners in the year 2004 established an Ayurvedic Medical

College & Hospital. In accordance with the provisions of the Indian

Medicine Central Council (IMCC) Act, 1970, permission was

granted to the petitioners to start the Bachelor of Ayurvedic

Medicine and Surgery (BAMS) course with 50 seats, with effect

from the academic year 2004-05. The petitioners thereafter, year

after year, were granted conditional permission to make admissions

and permissions were so granted till the year 2009-10.

2. The respondent No.2 Central Council of Indian Medicines (CCIM)

on whose recommendations permission for admission of students is

granted or refused, made a suo moto visit to the College of the

petitioners on 8th February, 2010 to reassess the available facilities

of teaching and practical training as well as to verify the compliance

reports submitted by the petitioners from time to time. The

respondent No.2 CCIM pursuant to the said inspection, on 11 th June,

2010 made a recommendation to the respondent No.1 to, not grant

permission to the petitioners to admit students for the academic year

2010-11 on the ground of the College of the petitioners not having

the requisite faculty and the bed occupancy of the hospital attached

to the College being 56.72% i.e. less than the prescribed of 60%.

3. However, the Ministry of Health & Family Welfare of the

Government of India on 8 th July, 2010 revised the eligibility criteria

for grant of conditional permission for the academic year 2010-11

and the requisite bed occupancy was reduced from 60% to 40%.

4. Another surprise inspection of the College and hospital of the

petitioners including by the officials of the CBI was made on 2nd

August, 2010 and which found the College to be not having a

functional Internal Patients Department (IPD) and not having a

functional hospital with even 40% bed occupancy.

5. The respondent No.1 accordingly vide order dated 12 th October,

2010 denied permission to the College of the petitioners to admit

students for the BAMS course for the academic year 2010-11.

6. Aggrieved therefrom W.P.(C) No.733/2010 was preferred. Finding

that no opportunity of being heard had been granted to the

petitioners with respect to the deficiency in bed occupancy found in

the inspection on 2nd August, 2010, the said writ petition was

disposed of on 29th October, 2010 with a direction for the writ

petition to be treated as a representation of the petitioners qua

deficiency in bed occupancy and with a direction to the respondents

to consider the same.

7. In pursuance thereto, an order dated 9th November, 2010 came to be

made by the respondents, again denying permission. It was recorded

in the said order that the entries in the „In Patient Register‟ produced

by the petitioners did not depict the total number of patients

available in the ward on a given day; records only of new admitted

patients were shown and no record of the date when the patients

were relieved from the hospital or of the treatment meted out to the

patients, to verify the correctness of the „In Patient Register‟ were

shown and it was stated that the same were not available. It was

thus found by the respondent No.1 that the petitioners had failed to

prove the authenticity of the "In Patient Register". Other doubts

were also cast with respect to the records produced by the

petitioners.

8. The petitioners challenged the said order dated 9 th November, 2010

by preferring W.P.(C) No.8063/2010 in this Court. The said writ

petition came up before this Court first on 1 st December, 2010 when

the counsel for the petitioners after some arguments on merits

contended that the writ petition be held over, till the decision of a

representation which the petitioners had preferred to the respondent

No.1 against the order dated 9 th November, 2010. However, since

this Court had heard arguments to a considerable extent, need was

not felt to adjourn the petition. The petitioners having opted not to

press the petition awaiting the outcome of the representation, the

writ petition was dismissed as not pressed with liberty to the

petitioners to avail remedies available if remained aggrieved from

the order on the representation.

9. The representation of the petitioners was decided vide order dated

7th December, 2010. The petitioners this time around took the stand

that the records in support of the "In Patient Register" could not be

produced because the same had been destroyed in a fire. The

respondent No.1 did not believe the same, no such plea having been

taken earlier and no FIR of fire having been produced, the

representation was accordingly rejected.

10. Aggrieved therefrom, the present petition was filed. This petition

came up before this Court first on 20th December, 2010 when the

counsel for the petitioners urged only one ground; it was contended

that as per the order dated 7th December, 2010 the relevant period

for determining the bed occupancy was January to December of the

previous year i.e. of the year 2009; however the petitioners had been

refused permission on the assessment of bed occupancy from 1st

April, 2010 to 2nd August, 2010 as recorded in the order dated 9th

November, 2010, a copy whereof was handed over in Court. The

counsel for the respondent No.1 appearing on advance notice on that

date sought time to obtain instructions as to whether the bed

occupancy for January to December, 2009 had been assessed or not.

This Court owing to the urgency of the matter, while adjourning the

matter, granted another opportunity to the petitioners to produce the

record to assess the bed occupancy and for the respondents No.1 to

assess the bed occupancy for the period January to December, 2009.

The matter was adjourned to 24 th December, 2010.

11. On 24th December, 2010, the counsel for the respondent No.1

pointed out that the petitioners had on the previous date

misrepresented; that the order dated 7th December, 2010 read with

earlier order dated 9th November, 2010 had computed the bed

occupancy from 1 st April, 2010 to 31st October, 2010; copies of the

said orders were handed over showing that the bed occupancy was

computed from 1st April, 2009 to 30th October, 2010. Finding the

petitioners to have indulged in misrepresentation, the writ petition

was dismissed with costs of `50,000/-.

12. The petitioners preferred intra court appeal being L.P.A.

No.111/2011. The Division Bench while enhancing the costs from

`50,000/- to `1,00,000/-, permitted the petitioners to address

arguments on merits.

13. It is thereafter that the petition has now come up for consideration.

14. The counsel for the petitioners has relied heavily on the first

inspection by the respondent No.2 CCIM on 8 th February, 2010 in

which the bed occupancy was reported as 56.72% i.e. more than the

required of 40%. It is contended that the respondent No.2 CCIM is

the statutory body constituted under the IMCC Act and its report of

the contemporaneous time qua bed occupancy of the relevant year

cannot be ignored.

15. I have already in Acharya Gyan Ayurved College Vs. Department

of Ayush MANU/DE/3346/2010 held that the role of CCIM is only

recommendatory and the respondent No.1 is not bound therewith.

16. It is not in dispute that another inspection comprising also of CBI

officials was conducted on 2 nd August, 2010 and which did not find

a functional hospital which is a necessity before permission is

granted for the admission to students. The orders dated 9th

November, 2010 and 7th December, 2010 contain cogent reasons for

the respondent No.1 to have come to a conclusion that the

petitioners did not have the requisite functional hospital. This Court

is exercising only a power of judicial review. Judicial review is not

of the decision but of the decision making process. Having earlier

found opportunity of hearing to have been not granted to the

petitioners, the same was allowed not once but several times. The

Supreme Court in The Dental Council of India v. Subharti K.K.B.

Charitable Trust (2001) 5 SCC 486 held that it is the function of the

Central Government under Section 10A of the Dentists Act, 1948 to

accord approval for establishing Dental College and the jurisdiction

of the Court to interfere with the discretion exercised by expert

bodies is limited. The Division Bench of this Court in Dental

Council of India Vs. Integrated Education Development

Organization (2000) 56 DRJ 283 also held that the question whether

or not a technical College should be granted permission to admit

students and to start classes has to be left to the concerned authority

constituted for such purpose and the High Court sitting in

extraordinary jurisdiction under Article 226 of the Constitution

normally ought not to interfere as such a matter does not lie in the

province of the Court; the power to interfere exists only when the

decision suffers from mala fide and arbitrariness and is unjust, unfair

or unreasonable. No such case is made out in the present case.

Reliance in this regard can also be placed on the recent judgment in

Dr. Basavaiah Vs. Dr. HL Ramesh 2010 (7) SCALE 529 reiterating

that the Courts have a very limited role particularly when no

malafide has been alleged against the experts and that it would

normally be prudent, wholesome and safe for the Courts to leave the

decisions to the experts. It was further held that as a matter of

principle the Courts should never make an endeavour to sit in appeal

over the decision of the experts.

17. The respondent No.1 vide detailed order on each occasion has

reached the same conclusion. It is also not in dispute that the

petitioners have failed to produce the supportive documents to prove

the authenticity of the "In Patient Register". The stand of the

respondent No.1 that the petitioners are bound to have the records of

the treatment meted out to the patients, of tests done on them and

non production thereof raises a doubt about the authenticity of the

register cannot be found fault with. Not only so, the physical

inspection on 2nd August, 2010 also found so. Similarly, there is no

error in the reasoning of the plea taken by the petitioners of

destruction of the records in fire, being an afterthought. The

petitioners are deemed to have known that the said records are

required for the purpose of obtaining permission and ordinarily if the

same had been destroyed, report of the incident would have been

made. This Court cannot sit in appeal over the decision of the

experts who have found the petitioners not eligible to admit students

for the current year.

18. The counsel for the respondent No.1 has also argued that now nearly

half the prescribed time for the academic year 2010-11 is over and in

any case no purpose would be served.

19. The counsel for the petitioners has also produced before this Court

the memo of the hearing held on 21st December, 2010 pursuant to

the directions dated 20th December, 2010 in this writ petition.

During the said hearing also only the "In Patient Registers" showing

bed occupancy of 56.7% were produced. The respondent No.1 was

again of the view that in the absence of case sheet of IPD patients,

cash receipts of cash collected for investigations, bank documents of

depositing the daily cash collected from IPD patients, lab reports,

lab register, X-ray register, nursing register, dispensation of

medicine, duty roster of nursing staff, duty roster of doctors, diet

register etc., no credence could be given to the claim of the

petitioners of such occupancy. It was also observed that from the

IPD registers produced, they did not appear to have been subject

matter of any incident of fire as alleged.

20. The counsel for the petitioners in response to the arguments of the

respondent of half the academic year over has contended that the

petitioners have in fact admitted 35 students in the current academic

year also. It has been enquired from the counsel for the petitioners

as to how the students were admitted without permission. The

counsel then contends that in fact no permission is required.

Attention in this regard is invited to a letter dated 12th April, 2005 of

the Ministry of Health & Family Welfare to the petitioners.

21. The petitioners in none of the earlier rounds of litigation have

contended that no permission is required.

22. The petitions have been filed on the premise that permission is

required. The said argument clearly is an afterthought.

23. The counsel for the respondent No.2 clarifies that the letter dated

12th April, 2005 is only to the effect that no fresh permission every

year is required with respect to the students admitted in the first

year; else for fresh admissions in accordance with the IMCC Act

permission is required.

24. The conduct of the petitioners shows that the petitioners have no

regard for the Regulations and the petitioners have been taking

contradictory pleas from time to time. Caught in other violation of

admitting students without permission, an altogether new stand has

been taken. The same cannot be permitted. The Division Bench of

Madras High Court in The University of Madras Vs. Loordhu

Ammal Educational Trust MANU/TN/0474/2005 held that an

institution admitting students even before University accords

affiliation, is really committing a fraud and cheating those students

because those students will be left in lurch if ultimately affiliation is

denied.

25. There is no merit in the petition, the same is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 11, 2011 „gsr‟