Delhi High Court
Kisan Dnyanoday Mandals ... vs Union Of India & Ors. on 11 October, 2023
$~46 to 49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 11.10.2023
+ W.P.(C) 4239/2021 & CM APPLs. 12880/2021, 20166/2021
NAIMINATH HOMEOPATHIC MEDICAL COLLEGE
HOSPITAL AND RESEARCH CENTRE ..... Petitioner
Versus
UNION OF INDIA & ORS. ..... Respondents
+ W.P.(C) 4299/2021 & CM APPLs. 13096/2021, 46493/2021
KISAN DNYANODAY MANDALS HOMEOPATHIC
MEDICAL COLLEGE AND HOSPITAL ..... Petitioner
Versus
UNION OF INDIA & ORS. ..... Respondents
+ W.P.(C) 4323/2021 & CM APPL. 13210/2021
SAYALI CHARITABLE TRUSTS
COLLEGE OF HOMEOPATHY ..... Petitioner
Versus
UNION OF INDIA MINISTRY
OF AYUSH & ORS. ..... Respondents
+ W.P.(C) 4411/2021 & CM APPL. 13500/2021
JAMKHED HOMEOPATHIC
MEDICAL COLLEGE ..... Petitioner
versus
UNION OF INDIA & ORS. ..... Respondents
Appearance:- Mr. Animesh Kumar, Mr. Nishant Kumar & Ms.
Harshita Sinha, Advocates for Petitioners in Item Nos. 46
to 49.
Mr. Shashank Bajpai, Special Counsel for Ministry of
Ayush with Mr. Shubhankar Singh, Advocate in Item
Nos. 46 & 47.
Mr. Apoorv Kurup, CGSC with Mr. Akhil Hasija & Mr.
Shivansu Dwivedi, Advocates for UOI in Item No. 48.
Mr. Anurag Ahluwalia, CGSC for R-1/UOI in Item No.
49.
Signature Not Verified
Digitally Signed W.P.(C) 4239/2021 & Connected Matters Page 1 of 8
By:SHITU NAGPAL
Signing Date:14.10.2023
18:42:29
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
1. The challenge in these writ petitions is to orders passed by the Union
of India [hereinafter, "UOI"], by which the petitioners' applications for
permission to admit students in their Homeopathic Colleges for the
academic session 2020-2021, have been fully or partially declined.
Factual Background
2. This is the second round of litigation in each of these cases. After the
first round of orders by UOI denying petitioners' applications for
permission, a large batch of petitions was filed by various AYUSH Medical
Colleges. Several petitions were disposed of by order dated 04.03.20211, on
the basis of a "Status Note" dated 01.03.2021 [hereinafter, "the Status
Note"], submitted by UOI. In the peculiar circumstances of the COVID-19
pandemic, the Status Note contemplated setting aside of the denial orders
and fresh consideration on the basis of the conditions mentioned therein.
3. In the present batch of cases, the matters have been reconsidered by
UOI pursuant to the Status Note, and the impugned denial orders have been
passed. 2
4. During the first round of litigation in this Court, following an order
Order dated 04.03.2021 in WP(C) 514/2021 and connected [Pt. Shivshaktilal Sharma Ayurved Medical
College and Hospital vs UOI & Ors. and connected].
In WP(C) 4239/2021, WP(C) 4299/2021 and WP(C) 4323/2021, the matters were reconsidered pursuant to
orders passed by this Court. In W.P.(C) 4411/2021, UOI rejected the petitioner's application for 100
undergraduate seats. This was challenged before the Bombay High Court in Writ Petition No. 2296 of
2021. The High Court by an order dated 17.02.2021, permitted the petitioner to admit 30 students. The
petitioner carried the matter to the Supreme Court in SLP(Civil) 3688/2021, which was disposed of on
08.03.2021, permitting the petitioner to file a representation with the UOI in terms of the Status
Note/policy dated 01.03.2021.
Signature Not Verified
By:SHITU NAGPAL
Signing Date:14.10.2023
18:42:29
dated 04.02.2021, passed by the Division Bench in LPA 49/20213, this Court
passed interim orders in favour of some of the medical colleges permitting
them to participate in counselling and admit students subject to the result of
the writ petitions. In the present batch of petitions, the petitioners in WP(C)
4239/2021, 4299/2021 and 4323/2021 are covered by such orders and have
admitted students pursuant thereto. Similarly, the petitioner in WP(C)
4411/2021 has admitted students pursuant to order of the Bombay High
Court dated 17.02.2021 in Writ Petition No. 2296 of 2021.
5. The factual situation is depicted in the following table:-
Writ Number of Date of Whether First writ Interim No. of Date of Denial Whether
Petition students original permissi petition order students disposal order the denial
for which denial on was filed admitted pursuant to was
the partially pursuant remand partial or
application granted, to the full
was made if so, for interim denial
how order
many
students
WP(C) 100 seats 11.02.2021 Full WP(C) 17.02.2021 12 (PG) 04.03.2021 31.03.2021/ Granted
4239/2021 (UG) denial 2164/2021 01.04.2021 100 UG
36 seats seats
(PG) Denied 36
PG seats.
WP(C) 75 seats 10.02.2021 Full WP(C) 12.02.2021 53 04.03.2021 26.03.2021 Denied
4299/2021 (UG) denial 1941/2021 for 75
seats
WP(C) 100 seats 03.12.2020 Permissi WP(C) 11.02.2021 91 04.03.2021 26.03.2021 Denied
4323/2021 (UG) on was 1700/2021 for 50
granted seats.
for 50
seats and
50 seats
were
denied
WP(C) 100 seats 12.02.2021 Full Writ 17.02.2021 13 17.02.2021 31.03.2021 Full
4411/2021 (UG) denial Petition - granted denial
No. 2296 30 seats
of 2021-
Bombay
High Court
Shivang Homeopathic College vs Union of India & Ors.
Signature Not Verified
By:SHITU NAGPAL
Signing Date:14.10.2023
18:42:29
Analysis
A. W.P.(C) 4239/2021 and W.P.(C) 4299/2021
6. The principal ground urged by UOI in the denial orders is that the
signatures of some of the faculty members in the affidavits submitted in
support of the applications did not match with the signatures of the said
faculty members in the Teachers Code Data, available with UOI. The
contention of UOI is that, treating the said faculty members as ineligible, the
petitioner-colleges lack the minimum number of faculty required for
permission to be granted. The petitioners responded to the show cause notice
issued by UOI and submitted further affidavits of the concerned faculty
members acknowledging their signatures on the affidavits filed in support of
the applications.
7. As far as this ground is concerned, Mr. Animesh Kumar, learned
counsel for the petitioners, relies upon Section 12A(3) of the Homeopathy
Central Council Act, 1973 ["the Act"], which held the field at the relevant
time. The said provision reads as follows:-
"12A. Permission for establishment of new medical institution, new
course of study, etc.-
**** ****
****
(3) On receipt of a scheme from the Central Government under sub-
section (2), the Central Council may obtain such other particulars as
may be considered necessary by it from the person or the medical
institution concerned, and thereafter, it may-
(a) if the scheme is defective and does not contain any necessary
particulars, give a reasonable opportunity to the person or medical
institution concerned for making a written representation and it shall be
open to such person or medical institution to rectify the defects, if any,
specified by the Central Council;
(b) consider the scheme, having regard to the factors referred to in sub-
section (7), and submit it to the Central Government together with its
Signature Not Verified
By:SHITU NAGPAL
Signing Date:14.10.2023
18:42:29
recommendations thereon within period not exceeding six months from
the date of receipt of the reference from the Central Government."
Mr. Kumar submits that the statutory scheme requires an opportunity to be
given to the applicants for rectification of defects, which was not given in
these cases.
8. In the alternative, Mr. Kumar submits that concerned teachers had, in
fact, filed further affidavits accepting that the affidavits filed in support of
the applications for permission were, in fact, their own affidavits. The said
affidavits have not been considered by UOI. Mr. Kumar submits that, while
noting the observations of the Hearing Committee, to the effect that the
signatures could not be verified by it, UOI in the denial order has gone on a
speculative basis that the concerned faculty are not regular in the college and
some proxy has been signing on their behalf.
9. As far as this aspect of mismatch of signatures is concerned, I am of
the view that the petitioners ought to have been granted an opportunity to
rectify the defects in terms of Section 12A(3) of the Act. The teachers in
question having filed further affidavits, stating that the earlier affidavits
were, in fact, signed by them, the impugned orders have been passed without
due regard to Section 12A(3) of the Act.
10. In these two petitions [W.P.(C) 4239/2021 and 4299/2021], if the
disputed cases are taken in favour of the petitioners, it is undisputed that the
petitioners would have adequate faculty for permission to be granted.
B. W.P.(C) 4323/2021
11. In this case, UOI found two teachers [Dr. Manisha Y. Joglekar and
Dr. Ashwini R. Chavan] to be ineligible on the ground of being overage.
Signature Not Verified
By:SHITU NAGPAL
Signing Date:14.10.2023
18:42:29
The concerned regulation4 requires an Assistant Professor or Lecturer to be
not more than 40 years of age as on the last date of receipt of application for
the post, which is relaxable by a maximum of 5 years, with prior approval
of the affiliating university.
12. Mr. Kumar submits that, in case of Dr. Joglekar, the affiliating
university granted approval by an order dated 18.02.2020, which was also
submitted to the respondent. In case of Dr. Chavan, the contention of the
petitioner is that his date of birth was wrongly mentioned as 12.06.1974 in
the show cause notice and the impugned order. His date of birth, in fact, is
12.12.1987, as evident from various documents [including his Aadhar Card,
transfer certificate, Pan Card etc.] submitted to the respondent.
13. The permission of the affiliating university having been obtained in
the case of Dr. Joglekar, and the date of birth wrongly noted in the
impugned order in case of Dr. Chavan being ex facie erroneous, as evident
from the documents submitted to the respondent, the finding in respect of
the aforesaid two teachers is unsustainable. Upon consideration of these
teachers as eligible, it is the admitted position that the faculty strength of the
petitioner was sufficient to grant conditional permission for 100 seats.
C. W.P.(C) 4411/2021
14. The petitioner's case, in this writ, is covered by the reasoning with
regard to mismatch of signatures in paragraphs 6 to 10 above. Additionally,
the order of the Bombay High Court5, granted the petitioner admission for
30 seats. The High Court observed that even while passing the impugned
order, UOI was conscious of the fact that the petitioner-college had
Clause 6 of Schedule VII of Homeopathy Central Council (Minimum Standards Requirement of
Homeopathic Colleges and attached Hospitals) Regulations 2013.
Signature Not Verified
By:SHITU NAGPAL
Signing Date:14.10.2023
18:42:29
necessary infrastructure and faculty for 30 seats. This was not challenged by
the respondent at all. It is on the petitioner's challenge that the Supreme
Court remanded the matter to UOI in terms of the Status Note.6 The
respondent's action of denying permission altogether is, therefore,
unjustified. The petitioner has, in fact, admitted only 13 students and does
not seek to admit any more at this stage.
Conclusion and relief
15. Having regard to the aforesaid factual and legal position in each of
these cases, the writ petitions are allowed, and the impugned denial orders
are set aside.
16. However, I am of the view that the appropriate course is to dispose of
these writ petitions by moulding the relief, permitting the petitioners to
continue with the number of students admitted pursuant to interim orders,
and not to grant any further relief. The aforesaid relief is granted having
regard to the fact that considerable time has lapsed during which the
petitions have remained pending in this Court. The judgments of the
Supreme Court inter alia in Pasupuleti Venkateswarlu v. Motor and General
Traders7 and Gaiv Dinshaw Irani v. Tehmtan Irani8 require the Court to
mould the relief in accordance with changed circumstances for shortening
litigation and doing complete justice. The principles have been followed in
the context of admission to educational institutions also inter alia in
Rajendra Prasad Mathur v. Karnataka University9 and State of Punjab v.
Order dated 17.02.2021 in Writ Petition No. 2296 of 2021.
Order dated 08.03.2021 in SLP(C) 3688/2021.
(1975) 1 SCC 770.
(2014) 8 SCC 294.
1986 Supp SCC 740.
Signature Not Verified
By:SHITU NAGPAL
Signing Date:14.10.2023
18:42:29
Anshika Goyal10.
17. Having regard to the entire conceptus of fact, I am of the view that
grant of any further relief to petitioners at this stage is impossible and Mr.
Kumar rightly does not press for the same. Equally, it would be a travesty of
justice to unseat the students who have already been admitted by virtue of
interim orders, particularly when the denial orders are unsustainable for the
reasons stated above.
18. The writ petitions, alongwith pending applications, are therefore
disposed of by setting aside the denial orders for the year 2020-21 and
permitting the petitioners to continue the admission of those students who
were admitted pursuant to the interim orders granted in their favour, but not
permitting any further admission at this stage for the said academic year.
19. This order is passed in view of the peculiar facts and circumstances of
the cases, which arose during the COVID-19 pandemic, and the regulatory
regime that prevailed in the given academic year.
PRATEEK JALAN, J
OCTOBER 11, 2023
/'pv'/ananya/
(2022) 3 SCC 633.
Signature Not Verified
By:SHITU NAGPAL
Signing Date:14.10.2023
18:42:29
