Gujarat High Court
Pearl Education Charitable Trust vs Union Of India on 10 February, 2021
Bench: Biren Vaishnav
C/SCA/596/2020 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 596 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10913 of 2020
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 10913 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PEARL EDUCATION CHARITABLE TRUST
Versus
UNION OF INDIA
==========================================================================
Appearance:
MR DHAVAL DAVE, SENIOR COUNSEL WITH MR. RAHIL P JAIN(7305)
MR DEVANG VYAS(2794) for the Respondent(s) No. 1
MR YASH N NANAVATY(5626) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date: 10/02/2021
COMMONCAVJUDGMENT
1. Rule returnable forthwith. Mr. Devang
Vyas, learned ASG waives service of notice of
rule for the respondent Nos.1 and 2.
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2. With the consent of the learned advocates
appearing for the respective parties, the
matters were taken up for final hearing. The
arguments were concluded and the judgment was
reserved on 22.1.2021.
3. Prayers in SCA No.10913 of 2020 read as
under:
"9(A) That this Honourable Court be pleased
to issue a writ of Mandamus and/or any other
such appropriate writ, order by directing the
respondents to grant the Gandhinagar
Homeopathic College for extension of
permission for academic year 202021 with
intake capacity of 100 students in view of
the letter dated 10th July, 2020 and 20th
July, 2020 passed by the Respondent No.2.
(B) That this Honourable Court be pleased to
direct respondent No.1 and 2 to generate
teachers code and password of the petitioner
college and further open the portal for the
petitioner to submit the form and further be
allowed for extension of permission for
admission for the academic year 202021 with
intake capacity of 100 students till the
final disposal of the present petition.
(C) That this Honourable Court be pleased to
direct the Respondent No.1 and 2 to include
the name of the petitioner college in the
list of permitted colleges for the academic
Year 202021 with intake capacity of 100
students. "
C/SCA/596/2020 CAVJUDGMENT
4. Prayers in SCA No.596 of 2020 filed
prior in point of time by the petitioner
read as under:
"9(A) That this Honourable Court be pleased
to issue a writ of Mandamus and/or any other
such appropriate writ, order by directing and
setting aside the order dated 1st November,
2019 passed by the respondent No.1 and be
further direct the respondents to grant the
Gandhinagar Homeopathic College for extension
of permission for academic year 201920 with
intake capacity of 100 students. "
5. Facts in brief are as under:
* Several rounds of litigation have
preceded the filing of these petitions.
* The petitioner is a charitable Trust
registered under the provisions of the
Bombay Public Trust Act, 1950. An
application in the form of a scheme under
section 12(A) of the Homeopathy Central
Council Act, 1973 (for short 'the HCC Act')
was made to the Central Government seeking
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permission to start a new homeopathy
medical college in the name and style of
Gandhinagar Homeopathic Medical College for
the course and qualification of BHMS with
an intake capacity of 100 students. The
application was made under the Pearl
Education Charitable Trust, Ahmedabad for
the academic year 201819.
* The petitioner's application was
considered in the Ministry and was
forwarded to the Council of Homeopathy on
24.5.2017 for conducting inspection of the
college and a report was called for with
regard to the infrastructure and staffing
position in accordance with the provisions
of HCC Act.
* On 22.9.2017, a surprise inspection was
carried out by the Central Council of
Homeopathy. On 29.11.2017, the Central
Council of Homeopathy issued a letter of
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intent to the petitioner to start a new
college.
* Certain deficiencies were brought to
the notice of the petitioner by
communication dated 6.7.2018 on the basis
of a surprise inspection carried out on
11.6.2018. The petitioner was called upon
to explain such deficiencies within a
period of ten days. On appearing before the
hearing committee of 16.7.2018, the
respondent - Central Council of Homeopathy
denied the letter of permission vide order
dated 10.8.2018.
* Aggrieved by the said order, the
petitioner filed SCA No.12768/2018. On
20.9.2018, the petition was allowed and the
Court allowed the petition in terms of
paragraph No.10(A) thereof inasmuch as, the
order refusing letter of permission dated
10.8.2018 was quashed and set aside and the
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petitioner was granted permission to start
the Homeopathic Medical College from the
academic year 201819.
* For the purposes of renewal of
permission for the academic year 201920
the petitioner requested that the college
be inspected. To this request made by the
petitioner on 2.7.2019, the respondent No.1
- Ministry of AYUSH found that it will not
be feasible for the authorities to consider
their request for inspection of the college
for the academic year 201920, as the
application for starting a new homeopathic
college for the academic year 201819 had
already been denied by order dated
10.8.2018. Since the order dated 31.7.2018
was a non speaking order, the petitioner
was constrained to move SCA No.14347/2019
before this Court. By an order dated
3.9.2019, the Court directed the respondent
to pass a reasoned order.
C/SCA/596/2020 CAVJUDGMENT
* Accordingly on 9.9.2019, the Ministry
passed an order referring to the earlier
application of 2017 for setting up a new
college and referring to the rejection of
the application of 10.8.2018 and the orders
passed by this Court in SCA No. 12768/2018
and SCA No. 11139/2019, opined and
reiterated that it will not be feasible to
consider the request for inspection for the
academic year 201920 as for the academic
year 201819, the application to start a
new Homeopathic College had already been
denied.
* SCA No.14347/2019, came up for hearing
before this Court on 27.9.2019 wherein the
Court considered the decision of 9.9.2019
and granted interim relief in terms of para
10(B) directing the respondent No.1 to
grant extension of permission to the
College run by the petitioner - trust for
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admitting students for the academic year
201920. The Court clarified however that
the admission to the academic year 201920
is subject to the inspection that may be
carried out by the respondent No.2 and the
academic year admissions will be subject to
the decisions taken by the respondent No.1.
* Pursuant to the orders so passed, it
appears that inspection was carried out by
the authorities and by an order dated
1.11.2019, it was communicated to the
petitioner that taking note of the order of
the Court of 27.9.2019, it was found that
there were deficiencies in the hospital as
well as college pursuant to the inspection
report dated 12.10.2019. Several
deficiencies were pointed out in the order
dated 1.11.2019 and again it was ordered
that the petitioner - college is denied
permission for taking admission in the BHMS
course for the academic year 201920. That
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order is the subject matter of challenge in
SCA No.596/2020.
* On 9.1.2020, the Court by an order
stayed the operation of the order dated
1.11.2019. In view of this operation of
interim relief wherein the denial of
permission on the basis of deficiencies was
stayed by this Court, the petitioner
institution on 14.11.2019 requested the
respondent No.1 to generate an
institutional ID and password so as to
generate teachers' code in order to enable
the college for renewal of permission for
the academic year 202021. On 18.11.2019, a
communication by an email was addressed to
the respondent No.2 college stating that
the college is not found in the list of
colleges and, therefore, it will not be
able to share details such as institutional
ID and password.
C/SCA/596/2020 CAVJUDGMENT
* On 29th January, 2020, the petitioner
wrote to the Ministry that in view of the
order passed by this Court in SCA
No.596/2020, the order of 1.11.2019
refusing permission is stayed and,
therefore, there was no reason for not
allotting institutional ID and password
generating teachers' code so as to enable
considering the request for extension for
the academic year 202021.
* It appears that due to the pandemic,
policy decision was taken on 10.7.2020 by
the Central Council of Homeopathic that for
the academic year 202021, the colleges
would be exempted from physical
verification and it was therefore pointed
out to the colleges that they may provide
information in the attached online link
using the teachers' code for processing
their case for permission / denial for the
academic year 202021. The time limit
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stipulated was 27.7.2020, which was however
subsequently extended to 7.8.2020. The
petitioner was not provided the
institutional ID or login code so as to
enable them to apply for extension of
permission for the academic year 202021.
However, the petitioner sent the necessary
details by an email to the Central Council
of Homeopathic on 4.7.2020.
* It is in this context that the prayer
of the present petitioner in SCA No. 10913
of 2020 is to grant permission for the
academic year 202021 for admission of
students with intake capacity of 100 and to
include the name of the petitioner -
college in the list of permitted colleges
for the academic year 202021.
6. It is borne out from the facts that
preceding this petition, the petition
challenging refusal of permission by a
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communication dated 1.11.2019 for the
academic year 201920 is SCA No.596/2020
wherein the order of 1.11.2019 refusing
permission for the academic year 201920
has been stayed.
7. Mr. Dhaval Dave, learned Senior Counsel
appearing with Mr. Rahil P. Jain, learned
advocate for the petitioner would make the
following submissions:
* Mr. Dhaval Dave, learned Senior Counsel
for the petitioner would submit that the
stand of the respondents in the
communication dated 31.7.2019 and 9.9.2019,
inasmuch as to state that the college's
request for permission for the academic
year 201920 cannot be considered as
permission for the year 201819 has been
denied is contemptuous. He would invite
the attention of the Court to the order
passed by this in SCA No.12768/2018 and
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submit that once the order denying
permission for the academic session 2018
19, dated 10.8.2018 was quashed, it was not
open for the respondents to deny permission
for the year 201920 on the basis of an
order which was already quashed. He would
submit that such action or communication
was contemptuous and the petitioner cannot
be put on a lower pedestal as compared to
the permissions that are normally granted
by the respondent No.1. He would submit
that this was not a valid ground to deny
institutional ID and password for extension
of permission for the academic year 2020
21.
* He would even otherwise submit by
relying on the documents of SCA No.596/2020
that the order dated 1.11.2019 by which the
permission for the academic year 201920
was rejected and which is stayed would
indicate that the objections or
C/SCA/596/2020 CAVJUDGMENT
deficiencies pointed out by the respondent
not only were not existent, but also, order
refusing permission suffered from violation
of principles of natural justice, inasmuch
as, the petitioner was not given a show
cause notice of the deficiencies that were
pointed out in the order dated 1.11.2019.
* Mr. Dave, learned Senior Counsel also
assailed the stand of the respondent in
opining that the justification of the
respondent that the application was not
made u/s. 12(C) of the Homeopathic Council
Act is also incorrect, inasmuch as, section
12(C) was amended on 18.5.2018 and would
apply to colleges which came to be
established prior to 18.5.2018 which was
not the present case. He would submit that
the present college was given permission to
start only post the order dated 20.9.2018.
* Mr. Dave would further submit that
C/SCA/596/2020 CAVJUDGMENT
admittedly extension permission was applied
for within the stipulated time, inasmuch
as, on 14.11.2019 and 16.11.2019, the
petitioner had requested the extension of
permission for the academic session 2020
21. Even by virtue of the circular dated
10.7.2020, since colleges were exempted
from physical verification and they were
asked to send information in accordance
with the pamphlet or the booklet which the
petitioner had sent, the same could have
been processed for the academic year 2020
21 had the petitioner been given access by
providing login ID. Shri Dave would
therefore submit that though this Court had
specifically quashed the order refusing
permission for the academic year 201819
and that as far as denial of permission for
the academic year 201920 was stayed, the
respondent was bent upon seeing that the
college of the petitioner is prevented from
submitting information for seeking
C/SCA/596/2020 CAVJUDGMENT
extension of permission for the academic
year 202021. It was in this context, it
was prayed that a direction be issued to
furnish login ID and password and a
teachers' code to the petitioner so that
the college of the petitioner could submit
a requisite information for extension of
permission for the academic year 202021
since the admission process for such
academic year 202021 is scheduled to end
on 22.2.2021.
* As far as the legality of the order
dated 1.11.2019 by which the permission for
the academic year 201920, Shri Dave would
submit that the order dated 1.11.2019
deserves to be quashed and set aside
without entering into the merits because it
was passed without giving an opportunity of
hearing to the college, inasmuch as, no
show cause notice to point out the
deficiencies that was made apparent in the
C/SCA/596/2020 CAVJUDGMENT
impugned order were communicated to the
petitioner. Even otherwise, Mr. Dave would
invite the attention to the averments made
in the petition in para 5.14 to submit that
each and every deficiency had a justifiable
explanation which ought to have satisfied
the respondent No.1 i.e. deficiencies no
longer exist.
8. Mr. Devang Vyas, learned ASG would take
the court through the affidavit in reply
filed on behalf of the respondent No.1. He
would invite the Court's attention to the
chequered history and submit that even as
early as in June, 2017, certain
deficiencies were pointed out which however
this Court quashed. As far as the challenge
in the petition to deny inspection to the
petitioner - college, Mr. Vyas would submit
that the order of this Court categorically
stated that the permission for the academic
year 201920 and the admission was subject
C/SCA/596/2020 CAVJUDGMENT
to the inspection that may be carried out
by the respondent No.2. It was in this
context that the inspection was carried out
and deficiencies were expressed in the
order dated 1.11.2019. He would extensively
deal with the efficiencies which have been
set out in the order dated 1.11.2019 and
submit that the order passed on the basis
of valid inspection report had denied
permission for the academic year 201920
and since the permission for the 201819
was also refused, the petitioner cannot be
inspected for the academic year 202021.
* Mr. Vyas, learned ASG would further
submit that it was incumbent upon the
petitioner to submit a fresh application
u/s.12(A) of the HCC Act for getting
permission of the Central Government. He
would also submit that even otherwise
permission u/s.12(C) also was not asked
for.
C/SCA/596/2020 CAVJUDGMENT
* Mr. Vyas would invite the attention of
the Court to the provisions of the
Homeopathy (Minimum Standard of Education)
Regulations, 1983 and submit that the
college is required to fulfill the minimum
to 13 and in absence of such compliance as
was evident from the order dated 1.11.2019,
petitioner was not entitled to be
considered as an existing college and no
login ID or institutional password be
given.
9. Mr.Vyas, learned ASG would also rely on
Regulation 11(2) to submit that it shall be
the responsibility of the petitioner
institution to apply seeking renewal six
months prior to the expiry of the
permission. Such application has to be made
to the Ministry and not the Central Council
of Homeopathy as was done in the present
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case. He submitted that as per the amended
Regulations of 2019, the petitioner was
required to submit an application for
renewal before 17.5.2019, for the academic
year 202021 and the petitioner forwarded
the document to the Ministry of AAYUSH only
on 14.10.2019 after the cut off date. He
would, therefore, submit that such an
application for renewal cannot be
considered.
* Mr. Vyas would submit that it was
mandatory for the institution to submit an
application with requisite fees in the
prescribed format. He would submit that
when a Statute provides a manner of doing
particular thing must be done in the manner
prescribed. In support of this submissions,
he relied on the decision the case of J&K
Housing Board v. Kuvar Sanjay Krishnan Kaur
reported in 2011(10) SCC 714 . He would also
C/SCA/596/2020 CAVJUDGMENT
rely on the decision in the case of
Manoharlal Sharma v. Medical Council of
India reported in 2013(10) SCC 60 in
support of his submission that when there
are minimum requirements prescribed under
the regulations, no deviation therefrom is
permitted. He would submit that permission
for renewal were to be made before
31.12.2019 and the same was not extended
and the petitioner had not filled in the
form for renewal before 31.12.2019 and
therefore no extension of renewal for the
academic year 202021 deserves to be
granted. Reliance was placed on the
decision in the case of Medical Council of
India v. N. C. Medical College reported in
2018 SCC Online 664 . He also placed
reliance on the decision in the case of
Medical Council of India v. J.S.S. Medical
College and others reported in 2012(5) SCC
638 . He would submit that the requirement
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of the institution to fulfill the minimum
was mandatory and Court ought not to
interfere. He relied on another decision in
the case of Dental Council of India v. Dr.
Dr. Hedgewar Smruti Rugna Seva Mandal
reported in 2017 (13) SCC 115 . In short, he
would submit that in absence of an express
permission sought for renewal for the
academic session 202021 and when
permission by a detailed order dated
1.11.2019 was denied, though stayed and SCA
No.596/2020 is pending, the petitioner -
college has not deserved extension of
permission for the academic session 2020
21.
10. Having considered the submissions of
the learned advocates of the respective
parties, what is evident is that this
petitioner had to come before this Court on
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several occasions. Initially, when the
petitioner had applied for the academic
session 201819, by a communication dated
10.8.2018, the same was denied. That was a
subject matter of challenge before this
Court in SCA No.12768/2018. This Court
considering the order dated 10.8.2018 and
noting the deficiencies set out in the
order observed that such deficiencies
merited no consideration. The Court in the
order dated 20.9.2018 passed in SCA
No.12768 of 2018 observed in paras from 4
to 10 which are reproduced hereunder:
"4. Before the petition is taken up on
merits, it is necessary to note here that
deficiency Nos.(i) to (iii) were in existence
at the time of inspection by CCH but, it is a
matter of fact that the professor and
librarian were appointed and the posts were
filled up in the month of July, 2018 i.e.
prior to hearing before the Committee. The
hearing committee has specifically observed
that the said staff was not appointed at the
time of CCH inspection but, the posts were
filled up in the month of July, 2018. It
appears that the said posts were filled up
prior to hearing took place before the
hearing committee. At this stage, it is
necessary to note here that minimum standard
requirement of HCC Schedule IV(5) says that
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the deficiency of teachers shall not exceed
10 percent of the total requirement with
availability of at least one teacher in each
department for seeking conditional permission
to undertake admission. The major grievance
of the respondent No.2 is such that the
petitioner has not appointed full time
professor in the department of Materia
medica, one librarian and two posts of
physicians. In Court's opinion, such
deficiency, though in existence at the time
of CCH inspection, was not in existence at
the time of hearing took place before the
hearing committee and the same is noted by
the hearing committee in the impugned order.
So, the said ground/reason to refuse the
Letter of Permission is not legal and proper,
more particularly, in light of minimum
standard requirement of HCC Schedule IV(5).
5. At this stage, learned advocate
Mr.Siddharth Dave appearing for learned
Assistant Solicitor General Mr.Devang Vyas
for respondent No.1 pressed into service the
decisions of the Hon'ble Apex Court rendered
in the case of IQ City Foundation and another
V/s. Union of India and others reported in
(2018)2 SCC 593, Varunarjun Trust and another
V/s. Union of India and others reported in
(2017)16 SCC 588, Karpagam Faculty of Medical
Sciences and Research V/s. Union of India and
others reported in (2017)16 SCC 568 and in
the case of Manohar Lal Sharma V/s. Medical
Council of India and others reported in
(2013)10 SCC 60, with a view to contend that
the aforementioned deficiencies, though were
removed before the hearing took place before
the hearing committee, cannot entitle the
petitioner for issuance of Letter of
Permission. As such, the decisions cited at
bar are not helpful to respondent No.1 and
require no further discussion as the said
decisions were rendered on peculiar facts of
the said cases before the Hon'ble Apex Court.
6. So far as deficiency Nos.(iv) and (v)
are concerned, the State Government has
already clarified the situation as to
availability of dead body and, therefore,
this issue requires no further discussion.
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Unless and until the college starts, there is
no question of making provision of
availability of dead body. Therefore, such
deficiencies pointed out in the impugned
order are baseless and not the ground to
refuse the Letter of Permission. So far as
deficiency No.(vi) is concerned, the hearing
committee has observed that the college is
having requisite No. of
stethograph/pneumograph in the department of
physiology. So far as deficiency Nos.(vii)
and (viii) are concerned, the petitioner has
already procured license for alcohol from the
State Government and also purchased vehicle
(Alcohol).
7. In nutshell, it appears that the
petitioner has removed all the major
deficiencies prior to hearing took place
before the hearing committee and the same is
observed and noted by the hearing committee
and despite such situation, refusal of Letter
of Permission on the part of respondent No.2
is unjustified and illegal action.
8. Lastly, it requires to be noted here
that the petitioner has applied for
establishment of a new college under Section
12A of the HCC Act on 28.04.2017. It is a
matter of fact that no decision nor any
communication was addressed to the
petitioner till expiry of the period of one
year from the date of receipt of the scheme
under Section 12A of the HCC Act. There is
nothing on record to indicate that the
respondent - authority was prevented from
taking any decision under Section 12A(4) of
the HCC Act nor any time is consumed by the
petitioner in providing the
details/particulars to the respondent
authority.
9. Under these circumstances, the ratio
laiddown by the Division Bench of this Court
in the case of Parul University V/s. Union of
India and other rendered in Letters Patent
Appeal No.1475 of 2016 and allied matters
would come into play and, therefore, the
provisions contained in Section 12A(4) of the
HCC Act would be attracted. Since respondent
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No.1 has not passed any order either
approving or disapproving the scheme under
subsection (4) within a period of one year,
the petitioner is right in contending that on
completion of period of one year, deeming
provisions contained in subsection (4) of
Section 12A of the HCC Act would be attracted
and the scheme submitted by the petitioner
shall be deemed to have been approved by the
Central Government and the same shall be
deemed to have been granted.
10. Thus, the present petition requires
to be allowed, both on merits and on deeming
provisions contained in Section 12A of the
HCC Act and accordingly, the petition is
allowed and relief in terms of para 10(A)
is granted. Direct service is permitted."
11. Apparently therefore in light of the ratio
laid down by the Division Bench in the case of
Parul University v. Union of India rendered in
LPA 1475/2016, the Court observed that the
provisions contained in Section 12A(4) of the
HCC Act would be attracted. Accordingly, the
order dated 10.8.2019 was quashed and set
aside and the petitioner was deemed to have
been granted permission for the academic
session 201819.
12. One fails to understand as to what,
despite a judicial order which had attained
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finality, did the authorities consider in
passing the communication dated 9.9.2019
denying permission for the academic year
201920 on the ground that the college has
been denied permission in the year 201819.
Once, a detailed order was passed by this
Court in SCA No.12768/2018 against which,
no appeal was filed by the authorities, it
was clearly not open for the respondents to
deny permission for the academic year 2019
20 on the ground that permission for the
academic year 201819 had already been
denied. I would agree with the submission
of Shri Dhaval Dave, learned senior counsel
that such a tendency to deny permission for
a subsequent academic year on the basis of
a communication of the previous year which
was already quashed and set aside amounted
to overreaching the process of Court
ordering on a contemptuous attitude.
13. The authorities did not stop at that.
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When the petitioner's application for
renewal of permission for the academic year
201920 was not being processed, though
such details were furnished for permission
for the academic year 201920 on 18.1.2019
and by a reminder of 9.4.2019, the
authorities sat over the requests
compelling the petitioner once again to
file SCA No. 11139/2019. From the order
passed by this Court on 1.7.2019 in SCA
No.11139/2019, it will be evident that
because of such pendency of permission, the
Court directed to consider and decide the
request as expeditiously as possible,
preferably within two weeks from the date
of receipt of the order. The order dated
1.7.2019 passed by this Court in SCA
11139/2019 reads as under:
"1. The only submission made by
learned Advocate Mr.Rahil P. Jain for
the petitioner is that despite the
petitioner having furnished all the requisite
particulars alongwith standard
information form vide email dated
18.01.2019 (AnnexureB) and despite the
subsequent reminder dated 09.04.2019 sent by
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the petitionerTrust to the respondent
Ministry of Ayush (AnnexureC), the same
has neither been responded nor any
inspection of the college has been carried
out.
2. In view of the above, without
going into the merits of the matter,
the respondent No.1 is directed to
consider and decide the request contained
in the emlaim AnnexureB and the
representation dated 09.04.2019
(AnnexureC) of the petitioner as
expeditiously as possible and preferably
within two weeks from the date of
receipt of this order in accordance with law.
3. Subject to the said direction, the
petition is disposed of. It is needless to
say that in case the directions are not
carried out, the petitioner shall be at
liberty to revive this petition.
Direct service is permitted today."
13.1 It was on the basis of this
direction that the communication dated
31.7.2019 was hurriedly issued denying
permission on the basis of denial of the
past year losing sight of the fact that the
denial of the permission for the past year
was quashed and set aside. The
communication dated 31.7.2019 compelled the
petitioner to file a third petition being
SCA No.14347/2019 wherein this Court on
3.9.2019 directed the respondents to
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reconsider and pass a reasoned order. The
order dated 3.9.2019 in SCA No.14347/2019
reads as under:
"1. Heard Mr.D.C.Dave, learned
Senior Counsel with Mr.Rahil Jain,
learned advocate for the petitioner.
2. Mr.Siddharth Dave, learned
advocate for the respondent No.1 is
requested to request the respondent
No.1 to pass reasoned order on or before 10th
September, 2019, as the order dated
31st July, 2018 (which should be
2019, wrongly typed as 2018) produced at
Page No.127 of the petition is
without any reason.
3. Learned advocate for the
respondent No.1 submitted that the
order dated 20th September, 2018 passed
by this Court in Special Civil
Application No.12768 of 2018 was communicated
on same date to the respondent No.1.
4. However, it appears that the
order passed by this Court on 20th
September, 2018, whereby order dated
10th August, 2018 passed under Section
12A of the HCC Act, 1973 is quashed
and set aside is not read by the
respondent No.1 while passing the
impugned order.
5. Learned Senior Counsel for
the petitioner submitted that, if
respondent No.1, on reconsideration of
the matter for giving reasons,
decides to inspect the petitioner
institute, it may direct so to the
respondent No.2, irrespective of the pendecy
of this petition. Stand over to 12th
September, 2019, to be listed on top of
the board. "
C/SCA/596/2020 CAVJUDGMENT
14. Reiterating the order of 31.7.2019, the
respondents passed an order on 9.9.2019
refusing permission only on the ground that
for the academic year 201819 it was
refused therefore, for the academic year
201920 there was no possibility of an
inspection of the college.
15. It is in the background of these facts
that the order that was passed by this
Court on 27.9.2019 needs to be appreciated.
The order dated 27.9.2019, was an interim
order, by which the respondents were
directed to grant extension of permission
for the academic year 201920. The order
dated 27.9.2019 passed in SCA 14347/2019
reads as under:
"1. Rule.
2. The stand of the respondents in this
petition is nothing but a classic case by
which the respondent No.1 has tried to
frustrate the petitioner's cause, which in no
uncertain term would amount to abuse of the
process of the Court.
3. By an order dated 10.08.2018 the
C/SCA/596/2020 CAVJUDGMENT
petitioner Trust was denied permission to
start a new Homeopathic Medical College for
the Session 201819. Aggrieved by that order,
the petitioner - Trust approached this Court
by filing a Special Civil Application
No.12768 of 2018. This Court allowed the
petition on merits holding that the order was
bad and both on merits and on deeming
provisions contained in Section 12A of the
Homeopathy Central Council Act, 1973 (for
short "the HCC Act"), the order dated
10.08.2018 was quashed and set aside and the
respondents were directed to grant permission
with regard to starting of the Homeopathic
Medical College for the academic year 2018
19.
3.1 That order was however, not
challenged by the respondents and therefore,
attained finality. The petitioner's -
Trust/College therefore, granted admissions
and the Homeopathic course is in progress. A
standard information form for permission for
the academic year 201920 was filed within
time on 18.01.2019. Pages 19 to 120 of the
paperbook indicate that such a form was
filed. Page 19 of the paperbook would
indicate that it was sent by an email.
3.2 For more than three months since the
petitioner did not hear anything from the
respondents, by communications dated 9th
April, 2019 and 10th April, 2019 reminders
were sent drawing attention of the Ministry
that they had already got permission from the
High Court for the academic year 2018 19 and
therefore, pursuant to the standard
application form, the inspection needed to be
carried out so that extension for the
academic year 201920 can be considered. No
response was again received from the
authorities for a further period of three
months.
4. The petitioner was constrained to
approach this Court by Special Civil
Application No.11139 of 2019. An innocuous
prayer was made that the respondents be
directed to decide the request and the
representation was made on 9 th April, 2019.
C/SCA/596/2020 CAVJUDGMENT
The Court disposed of the petition with a
direction that the respondents should
consider the petitioner's request preferably
within two weeks.
5. By a communication dated 31st July,
2019, the respondent No.1 informed the
President of the Trust that it is not
feasible to consider the request for
inspection of the college for the academic
year 201920 on the ground that the Ministry
has already denied the permission for the
year 2018 19 vide order dated 10.08.2018.
5.1 The petitioner therefore, filed an
application for recalling and restoring the
petition. This court by an order dated
21.08.2019 opined that the petitioner should
file a fresh petition. Hence, this petition.
6. This Court on 23.08.2019 issued
notice to the respondents making it
returnable on 29.08.2019. By an order dated
03.09.2019, the Court requested the learned
counsel appearing for the respondent No.1
that the respondent No.1 shall pass a
reasoned order on or before 10.09.2019 and
the petition was adjourned to 12.09.2019. On
20.09.2019, the petition was adjourned for
hearing on 27.09.2019 i.e. today.
7. Mr. Dhaval Dave, learned senior
counsel appearing with Mr. Rahil P. Jain has
placed on record an order of the Ministry
dated 09.09.2019. The order, unfortunately,
reiterates that it is not feasible to
consider the request for inspection for the
academic year 201920 as the college has been
denied permission for the year 201819.
8. The recording of the decision
hereinabove would indicate that despite an
application being made in January, 2019,
which though Mr. Siddharth Dave would
dispute, and to which I do not agree, because
it is on record at page 20 that an
application was so made, an email so sent,
the respondents did not act on the
application and sat over it for three months.
The petitioner - Trust requested in April,
C/SCA/596/2020 CAVJUDGMENT
2019 that their college ought to be inspected
so that consequential formalities of
inspection be granted for the year 201920.
Again the Ministry sat over the communication
and did not act. After having reasonably
waited, the petitioner was constrained to
move this Court on 1st July, 2019. On 1st
July, 2019, the court directed the respondent
No.1 to decide the representation as
expeditiously as possible within two weeks.
9. The respondents on 31st July, 2019,
expressed that it was not feasible to
consider inspection of the college on the
ground that by an order dated 10.08.2018 the
permission for the year 201819 had been
declined. In this petition too, pursuant to
the orders directing them to take decision,
once again the Ministry has come forth with
the same decision that it is not feasible to
hold the inspection since the permission for
the academic year 201819 has already been
denied. The stand of the respondents that it
is not feasible to hold the inspection as
permission for the year 201819 has been
denied vide communication dated 10.08.2018,
is blatant, disobedience of the order of this
Court dated 20.09.2018 which attained
finality. Despite being nudged into deciding
the issue, the respondent No.1 has on the
face of it refused to carry out the
inspection under the pretext that the order
dated 10.08.2018 denied such permission when
the petition was allowed and the order was
quashed and set aside.
10. It is in the background of such
circumstances that I am constrained to pass
an interim order granting interim relief in
terms of paragraph 10(B) directing the
respondent No.1 to grant extension of
permission to the college run by the
petitioner - Trust for admitting students for
the academic year 201920. However, the
admission to the academic year 2019 20 is
subject to the inspection that may be carried
out by the respondent No.2. On such
inspection being carried out by the
respondent No.2 and on such recommendation
being furnished to the respondent No.1, the
C/SCA/596/2020 CAVJUDGMENT
respondent No.1 shall pass an appropriate
order and it will be open for the petitioner
to take appropriate steps in case the order
is adverse to the petitioner.
11. It is clarified that the admissions
for the academic year 201920 therefore, will
be subject to the decision taken by the
respondent No.1.
12. The admission committee shall act on
the order passed by this Court and comply
with the interim order.
13. With the above observations and
directions, the petition is disposed of.
Direct service today is permitted. "
16. Albeit the order suggested that the
admission of the students for the academic
session 201920 would be subject to the
inspection being carried out by the
respondent No.2. Pursuant to the order,
inspection was carried out as is evident
from the impugned order of 1.11.2019,
challenged in SCA No.596/2019. That the
permission was refused as several
deficiencies were found in the college.
17. Taking into consideration the order
dated 1.11.2019 which is a subject matter
C/SCA/596/2020 CAVJUDGMENT
of challenge in SCA No.596/2020, the order
of 1.11.2019 indicates as many as 21
deficiencies pointed out by the respondent
No.1 prompting it to deny permission for
the academic session 201920. In brief, the
deficiencies are as under:
Sr Deficiency as per the order dated 1st Page
no November, 2019 No.
1 No Guest Faculty available of Professor / 41
2. On the day of inspection, visitors 105
absent during the department round
whereas, attendance f the day have
signature of 11 teachers.
3 College authority has neither 119
teacher nor acquaintance roll to verify
their eligibility and thus suitability
for appointment.
4 Joining letters of teachers have same
dates as their respective appointment
letters.
5 Dr. Hetal Mehta, Dept of material Medica 144
provided by college authority, the
experience as Lecturer is from 3.5.2017
to 31.12.2018 only which makes her
ineligible as Reader.
6 Dr Sunil Sathwara, Deptt of Organon 150
he has not enough experience od Reader to
become professor.
but as per provided annexure there are 21
FT teachers( 6 Professors, 7 Readers,
Lecturer) the appointment/joining letter,
C/SCA/596/2020 CAVJUDGMENT
For example Dr Jimit Acharya's
appointment is for Homeopathic Pharmacy
but as per list he is shown in FMT Dept.
8 Dr Mausam Bhavsar, MBBS & MD in Pathology
is registered in Homeopathic Council
which is inappropriate and creates doubt.
9 Visitor reported that Computer 157
the day of inspection.
1) During OPD visit only six patients
were present in OPD. No record is 159
medicines of OPD pt.
2) No pt. was found admitted in any of
the IPD EXCEPT ON Pediatrics ward.
3) On the day of inspection 12 Fulltime 161
Round.
4) Hospital pathology lab very poorly
equipped. 164
available for IPD Pf's.
166
10 Physician, Surgeon, Ophthalmologist, 168
11 Radiologist appointment letter mentions 174
as on call basis.
12 Facilities for Central Registration, 176
Separate Clinical Laboratory for
Hospital. Xray machine available but
nonfunctional in Hospital.
13 Stretcher with trolley, Oxygen cylinder
Hospital.
14 Dressing room & Dispensary for IPD not
15 MoU only available for providing the 181
16 Xray attendant, Secretarial Staff, 183
room attendant, Hospital Reception staff,
not available.
17 ECG machine, Films, Audio Visual ads, 205
C/SCA/596/2020 CAVJUDGMENT
help of audio visual ads, Albuminometers
& wire gouge with asbestos, Centre hot
plate and Stove not available as required
in Dept. of Physiology.
18 Glass ware Stains and Chemical Reagents 209
preparation of Media or Stain &
Pathological Specimens not available as
required in dept. pf pathology.
19 Models & Specimens (Organics, Inorganic, 211
required in FMT Dept.
20 Equipment's for identification not
Obstetrics & Gynecology.
dept. of Pharmacy.
18. Perusal of para 5.14 of the petition
would indicate together with the documents
accompanied thereto that each deficiency of
the college has been well explained as not
to exist. For example, as per the
deficiency of 'No Guest Faculty available
for Professor / Reader Cadre', the
documents have been annexed from pages
No.41 to 104 suggesting several guests
lecturers who are imparting education in
the college. Appointment orders of these
guest lecturers have been produced on
C/SCA/596/2020 CAVJUDGMENT
record together with their qualifications.
Attendance registers in various subjects
where such guest lecturers have carried out
lectures are also on record.
* As far as the second omission that on
the day of inspection, visitors observed
that 12 full time faculties were absent,
pages 105 to 118 indicate the attendance
registers with signatures of the faculty.
There are letters of some of the faculty
members who have requested for leave and /
or early vacation in October, 2019. In
some cases, there are medical certificates
on record to suggest that the faculty was
on leave as a result of medical condition.
* As far as the other objections that the
college authority had neither provided any
experience certificate for teachers in
order to verify their eligibility,
experience certificates are on record from
C/SCA/596/2020 CAVJUDGMENT
pages no. 119 to 143 of the compilation.
Objections with regard to the inexperience
of Dr. Hetal Mehta and Dr. Sunil Sathwara
have been explicitly explained by producing
documents on record suggesting their
experience so as to also the objections as
to the visitors where five professors in
context of Dr. Jimit Acharya, Dr. Mausam
Bhavsar etc. are produced.
* As far as the objection to the report
of the visitor that computer registration
and the OPD is not working and that only
the six patients were present in the OPD,
that no patient was found admitted in the
pediatric ward and that on the day of
inspection, 12 faculty members were found
absent and their hospital pathology lab was
poorly equipped, extensive documents have
been produced with photographs to show that
the equipments do exist. There is no reply
to this petition denying the satisfaction
C/SCA/596/2020 CAVJUDGMENT
that the Court has been made to undertake
as far as the objections are concerned.
19. Be that as it may, if viewed in the
context of the stand of the respondents in
denying permission only on the basis of the
fact that the permission for the previous
year was denied ignoring that by a judicial
order, that communication was quashed and
set aside shows that somehow the
respondents want to rake up issues so as to
see that the college does not function. It
was under these circumstances the Court had
to come down heavily by observing the
tendency of the respondents as is evident
from reading the order dated 27.9.2019.
20. Even in SCA No. 596/2020, the Court
while issuing notice on 9.1.2020 had to
pass a common order in SCA No. 596/2020
with SCA No.498/2020 and the order reads as
C/SCA/596/2020 CAVJUDGMENT
under, which reflects the recalcitrance of
the respondents.
"1. At request of petitioner, both matters
are taken up together. NOTICE returnable on
06022020.
2. Even while issuing Notice, the Court
cannot help, but to reproduce the order dated
10102019 passed in MISC. CIVIL APPLICATION
No.2 of 2019 In LETTERS PATENT APPEAL No.
1607 of 2019 and allied matters, which is as
under:
"15. From the aforesaid proposition of
law and in the background of these facts
and circumstances, while allowing
present Misc. Civil Application and
while recalling the order dated
19.9.2019, we may further constrain to
observe that since the deadline is
extended only upto 15.10.2019, if the
students are not permitted to be
enrolled / admitted, again the academic
year 201920 would lapse. Resultantly, we
may also constrain to consider the
reliefs to be granted in terms Present
Order is modified vide Order dtd.
15/01/2020 in R/SCA/498/2020 of
Para.9(B) and (C). This we are inclined
to grant in view of the peculiar
circumstance that while disposing the
Letter Patent Appeal by the Division
Bench of this court, it was clearly
observed in a decision delivered in
Letters Patent Appeal No.1338 of 2019
that admittedly, when the college had
staff and deficiency was cured after the
inspection, the authority is not
permitted to raise any objections and
clearance of deficiency is noted by the
Division Bench of this Court in an order
dated 3.7.2019 which is recorded as an
admitted position. Para.5 is indicative
of this fact. We also took a note of
circumstance that respondent authority
from the beginning in the present
proceedings has adopted a peculiar
C/SCA/596/2020 CAVJUDGMENT
stand; firstly that the order was passed
unilaterally without affording
opportunity of hearing. But then, the
direction given by this Court to pass
afresh order and denial stand was again
reiterated and the learned Single Judge
on 8.8.2018 found that it is not the
case of the authority that there were
existing any deficiencies at the time of
hearing before the Designated Committee.
This has been clearly observed in
Para.13 of the order passed by the
learned Single Judge. Now despite the
direction having been issued to grant
Letter of Approval to the college for
the academic year 201819, time was
whiled away by this very Council which
led a contempt proceedings to be
initiated. In contempt proceedings also,
the stand of the authority that the
order of the leaned Single Judge is in
contemplation to challenge and
ultimately, led the Division Bench to
pass a specific order of grant of
admission to college for the academic
year 201819 and then, at a much later
stage, the appeal came to be preferred,
disposed of in July,2019 wherein the
aforesaid admitted stand was noticed by
the Division Bench and still, Present
Order is modified vide Order dtd.
15/01/2020 in R/SCA/498/2020 however,
the authority has bent upon not to obey
the orders of the Court and on account
of time lapse, a fresh petition was
required to be moved i.e. Special Civil
Application No.13547 of 2019, wherein
despite the direction to take the
decision within a period of 10 days from
7.8.2019, till date we have
unfortunately noticed that no decision
is taken yet. This conduct, in our
considered opinion, is not permitted to
be encouraged in any form. As a result
of this, the relief prayed for by the
applicant deserves to be granted.
16. We also notice that this respondent
- Council has rather developed a
tendency to conduct the proceedings in
C/SCA/596/2020 CAVJUDGMENT
this very manner and in case of one
another institute in Special Civil
Application No.14347 of 2019, the
learned Single Judge was also
constrained to issue direction to admit
the students for the current academic
year, even subject to the inspection and
as such, we have noticed that not only
in the present proceedings but, in
another petition also, rather the Courts
are compelled by this respondent -
Council to pass the orders. We also
incline to direct the authorities to
consider the request and by granting
extension of permission to the college
for the academic year 201920, direct the
Admission Committee first to allot the
students to the present applicant -
college on or before the extended last
cutoff date i.e. 15.10.2019 and the
respondent No.4 authority is also to
grant extension of affiliation to the
applicant - college for the academic
year 201920.
17. While parting with this order, we
are constrained to observe that we have
seriously noticed the incorrigible and
defiant attitude of respondent authority
in not observing the court's Present
Order is modified vide Order dtd.
15/01/2020 in R/SCA/498/2020 directions.
This order be placed before the
appropriate authority for taking
specific note of this conduct for
appropriate steps.
18. With above observations, we allow
present Misc. Civil Application in terms
of relief sought and also dispose of the
Letters Patent Appeal No.1607 of 2019
along with connected civil application.
19. Direct service permitted."
3. Despite this, the order impugned dated 10
102019 has been passed, which prima facie is
not in the spirit of observations reproduced
herein above.
4. In view of the matter, the impugned Order
C/SCA/596/2020 CAVJUDGMENT
dated 10102019 is ordered to be stayed.
5. On the returnable date, the respondent
No.1 and 2 shall file affidavit without fail.
Direct service is permitted."
21. As far as the Regulations 11(2) and (3)
that have been pressed into service by
Learned ASG Shri Vyas to submit that
renewal permissions were not sought for or
if they were, they were beyond time, that
objection also appears to be misconceived.
If the litigation's chequered history is
perused, initially when this court was
constrained to pass an order dated 1.7.2019
in SCA 11139/2019, which is quoted
hereinabove, it is evident that it was not
disputed by the other side that requisite
particulars alongwith standard information
forms were furnished to the respondents
vide emails dated 18.1.2019 and a reminder
was sent on 9.4.2019 to the respondent
Ministry which was not acted upon for
granting permission or deciding on the
C/SCA/596/2020 CAVJUDGMENT
issue. When the direction was so issued, a
prompt order of 31.7.2019 and the order of
9.9.2019 reiterating denial of permission
for the past year which was quashed and set
aside was the only ground on which the
authorities refused to carry out
inspection. When it was only 27.9.2019 that
a direction was issued to carry out
inspection and report to this Court that an
order of 1.11.2019 based on an inspection
report which was not supplied to the
petitioner, was passed. In this context,
the Court agrees with the submission of
Shri Dave that even without going into the
merits of the order of 1.11.2019, the order
deserves to be quashed and set aside on the
fact that it violates the principles of
natural justice.
22. This Court in a decision rendered in
LPA No.1475/2016 in the case of Parul
University vs. Union of India has held that
C/SCA/596/2020 CAVJUDGMENT
if an inspection report is not provided and
no hearing is given prior to passing of the
order, the same would violate the
principles of natural justice. However,
even otherwise on merits, on the basis of
material placed before this Court in SCA
No. 596/2020, the order dated 1.11.2019
denying permission for the academic year
201920 does not stand the test of scrutiny
and it fails that test.
23. The contention of Shri Vyas, learned
ASG that the college was required to file
an application for renewal of permission
u/S.12(C) also does not deserve
consideration. Reading Section 12(C) makes
it very clear that the section applies to
colleges which were established prior to
18.5.2018. In the case of the college of
the petitioner, it was only after the order
passed by this Court on 20.9.2018 that the
college became functional. Sec.12(C)
C/SCA/596/2020 CAVJUDGMENT
therefore had no application. As far as
pressing regulation 11(4) into service for
asking for permission, extensions prior to
six months of the end of the academic year,
reading of the order passed in SCA No.
11139/2019 would indicate that the
petitioner had already moved the
authorities on 18.1.2019 with a reminder on
9.4.2019 for renewal of permission for the
academic year 201920.
24. As far as permission for the academic
year 202021 is concerned, perusal of the
communication would indicate preceding the
communication dated 18.11.2019 that the
only ground on which the login ID and
teachers' Code and the Institutional ID was
not been provided to the petitioner as
the stand of the Ministry was that the
petitioner cannot be considered as an
existing college. This submission of Shri
Vyas, learned ASG flies on the face of the
C/SCA/596/2020 CAVJUDGMENT
orders passed by this Court especially the
order dated 20.9.2018 by which the order
denying permission for the academic year
201819 was quashed and set aside. Even
otherwise from the perusal of the dates, as
far as the academic year 202021 is
concerned, it was on 14.11.2019 and
16.11.2019 post the denial of permission
for 201920 that the petitioner requested
the Ministry for a login ID, Institutional
ID and password so as to apply for
extension of permission for the academic
year 202021. The stand of the respondent
that the college was not an existing
college and, therefore could not be
supplied such a login ID and password,
therefore, is an affront to the orders
passed by this Court.
25. A submission was made by learned
counsel Shri Devang Vyas that by a detailed
interim order passed by this Court, interim
C/SCA/596/2020 CAVJUDGMENT
relief was refused and, therefore, there
was no merit in the contentions raised now.
The efficacy of the interim orders pale
into insignificance once the Court takes up
the matter for final hearing. Perusal of
the facts would indicate that the attempts
of the petitioner for extension of
permission for the academic year 202021,
which the petitioner had initiated as back
as on 14th and 16th November, 2019 are
sought to be frustrated. It was for the
first time on 27.9.2019 that the college by
an interim order of this Court was granted
extension for the academic year 201920
when it was again constrained to file the
present petition. Therefore to say that
permission was not applied for in the
preceding six months before ending up of
the academic session 202021 is
misconceived.
26. Even the policy circular of 10.7.2020
C/SCA/596/2020 CAVJUDGMENT
would indicate that even assuming that the
stand of the respondent that Sec.12(C) of
the Act would apply, in such cases, the
Central Government had extended the date
for permissions without physical
inspections to August 2020. In these
circumstances, there is no reason why the
petitioner ought not to be given permission
for extension to carry out academic session
for the academic year 202021.
27. Accordingly SCA No.596 of 2020 is
allowed and the order dated 1.11.2019
refusing permission for the academic year
201920 is quashed and set aside. As far as
SCA 10913 of 2020 is concerned, the
petition is allowed. The respondents are
directed to grant the Gandhinagar
Homeopathic College extension of permission
for the academic year 202021 with intake
capacity of 100 students.
C/SCA/596/2020 CAVJUDGMENT
28. It is further directed that the
respondents shall include the name of the
petitioner's college in the list of
permitted colleges for the academic year
202021 with intake capacity of 100
students and also permit the petitioner to
undertake the process of admission for the
academic year 202021 as if extension
permission for the academic year 202021
has been granted.
29. Rule is made absolute accordingly with
no order as to costs.
30. In view of allowing of main matters,
connected Civil Application will not
survive and the same stands disposed of
accordingly.
31. Direct Service is permitted. In
addition thereto, the Registry is requested
C/SCA/596/2020 CAVJUDGMENT
to communicate this common CAV Judgment
through Email.
[ BIREN VAISHNAV, J. ]
*** VATSAL
