Union Of India vs Nitishwar Ayurved Medical ...
2015 Latest Caselaw 1906 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 4th March, 2015

+                               LPA No.123/2015

       UNION OF INDIA                                   ..... Appellant
                    Through:           Mr. Sanjeev Narula with Mr. Ajay
                                       Kalra, Advs.

                                   Versus

    NITISHWAR AYURVED MEDICAL
    COLLEGE & HOSPITAL & ORS.                ..... Respondents
                  Through: Mr. Rudro Chatterjee, Adv. for R-3.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

CMs No.3945-46/2015 (both for exemptions)

Allowed, subject to just exceptions.

The applications are disposed of.

LPA No.123/2015, CMs No.3944/2015 (for condonation of 72 days delay in filing the appeal), 3948/2015 (for condonation of 63 days delay in re-filing the appeal & 3947/2015 (for stay)

1. This intra-court appeal impugns the order dated 1st September, 2014 of

the learned Single Judge of this Court in W.P.(C) No.363/2012 filed by the

respondents No.1&2. Though the appeal is accompanied with applications for

condonation of 72 days delay in filing and 63 days delay in re-filing the appeal

and considering the nature of the controversy, there was no reason for the delay

after which this appeal has been filed and we are also not satisfied with the

sufficiency of the reasons given for the delay but having also gone through the

memorandum of appeal and having prima facie not found any merit in the

appeal, we have without concerning ourselves with the aspect of delay, heard

the counsel for the appellant on merits of the appeal. Only for this reason, the

delays in filing and re-filing the appeal are condoned.

2. The respondent No.1 Nitishwar Ayurved Medical College and of which

the respondent No.2 is the Principal, was established in or about the year 1979

for imparting education in indigenous medicine (Ayurveda) and was admitting

50 students each year. Upon amendment of the Indian Medicine Central

Council Act, 1970 with effect from 7th November, 2003, requiring prior

permission for establishing / setting up of medical colleges or increasing

admission capacity therefor and also requiring the existing Medical Colleges to

seek such permission within three years i.e. by 7th November, 2006, the

respondent No.1 College sought permission and was vide letter dated 1 st May,

2007 granted permission to admit students for the academic session 2007-08.

Thereafter also permission to admit students were given for the academic

sessions 2008-09, 2009-10, 2010-11. However there was a delay on the part of

the respondent No.3 Central Council of Indian Medicine (CCIM) (respondent

No.4 is Baba Saheb Bhimrao Ambedkar University, Bihar to which the

respondent No.1 Medical College is affiliated) in processing the case of the

respondent No.1 Medical College for grant of permission for the year 2011-12

and which resulted in the respondent No.1 Medical College filing W.P.(C)

No.7713/2011 in this Court. The said writ petition was entertained and since

the time for admitting students was expiring on 31 st October, 2011 and finding

that the delay was on the part of the respondent No.3 CCIM, vide interim order

dated 24th October, 2011 in the said writ petition, the respondent No.1 Medical

College was granted permission to admit 50 students in the Bachelor of

Ayurvedic Medicine and Surgery (B.A.M.S.) course for the year 2011-12 on

the condition to inform the students that their admission shall be subject to

further orders in the writ petition. In pursuance to the said interim order, the

respondent No.1 Medical College admitted 50 students to the said course.

However the appellant vide order dated 25th October, 2011 found the

respondent No.1 Medical College ineligible for grant of permission for the year

2011-12 on the ground that the respondent No.1 Medical College had been

unable to show the Hospital attached to it to be having sufficient number of

patients in the Out-patient and In-patient Departments. In view thereof,

W.P.(C) No. 7713/2011 was disposed of with liberty to the respondent No.1

Medical College to challenge the said order dated 25th October, 2011 by a

separate petition and further clarifying that the fate of the students admitted

under the interim order in the said petition would be dependent upon the orders

in a proceeding to be filed by the respondent No.1 Medical College challenging

the order dated 25th October, 2011 of denial of permission for the year 2011-12.

3. The respondent Nos.1&2 then filed W.P.(C) No.363/2012 from which

the appeal arises, impugning the order dated 25 th October, 2011 of refusal of

permission for the year 2011-2012. Vide interim order in the said petition, the

students admitted for the said academic year under interim order in the earlier

writ petition were continued subject to the outcome of the said petition.

W.P.(C) No.363/2012 remained pending till its disposal vide the order

impugned herein i.e. the order dated 1st September, 2014. The learned Single

Judge has allowed the writ petition i.e. by setting aside the order dated 25 th

October, 2011 of the appellant of denial of permission to admit students for the

year 2011-12 in the peculiar facts and circumstances of the case and for the

reason, i) that the respondent No.1 Medical College had been granted the

requisite permission to admit students for the subsequent academic year 2012-

13 also meaning that the deficiency on account of which permission was denied

for the year 2011-12 stood rectified, ii) the High Court of Karnatka (in W.P.(C)

No.39573/2010) also, finding that the students had already been admitted and

the deficiencies stood rectified and that the students so admitted had already

appeared in the examinations in pursuance to the permission granted by the

Court by way of interim order had considered it inappropriate to deny approval

/ permission for one year in between, iii) that the said order of the Karnataka

High court had been implemented by the appellant, iv) that it would be unfair

and not prudent to cancel the admission of the students who had already been

admitted and given their theory exam.

4. In the aforesaid scenario, the main contention of the counsel for the

appellant of course is that the learned Single Judge, without holding that the

reasons given by the appellant in the order dated 25 th October, 2011 denying

permission to admit students for the academic year 2011-12 were bad, could

not have set aside the said order. It has also been contended that the reliance

placed on the order of the Karnataka High Court is wrong inasmuch as in that

case there was a categorical finding that the deficiency, for the reason whereof

permission to admit students was denied, had been cured. It is contended that

there is no such finding in the present case. It is yet further argued that since

the students were permitted to be admitted vide interim order dated 24th

October, 2011 (supra), after intimating them that their admission was subject to

the outcome of the petition, the petition could not have thereafter been allowed

only for the reason of the students having been so admitted.

5. We have considered the said contentions.

6. The only reason for which the respondent No.1 Medical College was

found not eligible to admit students to the academic year 2011-12 was that in

the inspection carried out for considering the request for grant of such

permission, hospital attached to the respondent No.1 Medical College was not

found to have the requisite traffic of patients in the Out-patients as well as In-

patients departments. We have thus enquired from the counsel for the appellant

that since the appellant / CCIM for the grant of permission to admit students for

the ensuing academic year considers the traffic of patients in the attached

hospital for the previous year, whether not the grant of permission to admit

students for the academic year 2012-13 and for the subsequent academic years

is indicative of the said hospital during the inspections carried out for the said

subsequent years having been found to have the requisite traffic of patients in

the attached hospital.

7. The counsel for the appellant agrees.

8. We have next enquired from the counsel for the appellant as to how the

deficiency if any in the traffic of patients in the hospital attached to the

respondent No.1 Medical College for the academic year 2010-11 affects the

students so admitted for the year 2011-12. We have yet further enquired that

whether not grant of permission to admit students for the academic years

subsequent to 2011-12 also indicates that ever since the students for the

academic year 2011-12 were admitted, the respondent No.1 Medical College

and the hospital attached thereto has been found to be compliant.

9. The counsel for the appellant agrees but contends that the deficiency in

the traffic of patients to the attached hospital for the academic year 2010-11

would however still remain, making the respondent No.1 Medical College

ineligible for admitting students in the academic year 2011-12.

10. Undoubtedly so, under the existing state of law / regulations. However

the same highlights an error in the procedure followed by the appellant / CCIM

for grant of permission to admit students. Instead of being concerned with the

readiness to impart education for the ensuing academic year for which

permission to admit students is under consideration, the appellant / CCIM

concern themselves with the state of affairs prevailing in the previous year.

The students admitted in the ensuing year are unaffected by the deficiencies

even if any in traffic of patients in the attached hospital in the previous year.

The said factor does not affect their curriculum or experience. The students

affected by the said deficiency would be the students already admitted to the

respondent No.1 Medical College. We are thus of the prima facie opinion that

the impact of such deficiencies, instead of on admission for the ensuing year,

should be on the students who have suffered owing to the said deficiency. The

appellant / CCIM need to consider whether the students so affected by the

deficiencies in the Medical College should be allowed to take examination or

the concerned Medical College should be required to, by holding special

sessions, make up the said deficiency vis-à-vis the said students. Else, the

respondent No.1 Medical College should be penalized for, after admitting

students, not maintaining the infrastructure on the condition of maintaining

which they were granted permission to admit students.

11. When we see the matter in this light, we do not find any reason

whatsoever to at this stage go into the question whether the reasoning given by

the appellant in the order dated 25th October, 2011 (i.e. of deficiency in traffic

of patients in the attached hospital in the year 2010-11) is correct or not. The

students who would have suffered from the said deficiency in traffic would by

now, in all probability, have already been conferred the requisite Degree.

Similarly, we find no justification to, for the said reason even if we were to

uphold the same, deprive the 50 students admitted under interim order of the

learned Single Judge and who have already completed nearly four out of the

five years of their course, of the benefit of their labour and to leave them in

lurch. We cannot be unmindful of the fact that we are exercising discretionary

jurisdiction and qua which jurisdiction, it is the settled principle of law (see

Chandra Singh Vs. State of Rajasthan (2003) 6 SCC 545, ONGC Ltd. Vs.

Sendhabhai Vastram Patel (2005) 6 SCC 454, Teherakhatoon Vs. Salambin

Mohammad (1999) 2 SCC 635, Filmistan Exhibitors Ltd. Vs. NCT 131 (2006)

DLT 648 and Babu Ram Sagar Vs. Presiding Officer MANU/DE/9235/2006)

that relief can be given even when no case in law has been made out and can be

denied even when case in law is made out. Article 226 grants an extraordinary

remedy which is essentially discretionary, although founded on legal injury. It

is perfectly open to the Court to, while exercising this flexible power, pass such

order as public interest dictates and equity projects (see Shiv Shankar Dal

Mills Vs. State of Haryana (1980) 2 SCC 437).

12. We therefore see no reason for interfering with the discretion exercised

by the learned Single Judge and with which we for the reason aforesaid fully

concur. Resultantly, the appeal is dismissed. A copy of this order be however

sent to the Secretary, Ministry of Health and Family Welfare, Government of

India and to the respondent No.3 CCIM to consider the change in law /

regulations / approach if any required in the light of our observations in para

no.10 hereinabove.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE MARCH 04, 2015 'gsr'