Kamdar Homeopathic Medical ... vs Union Of India
2021 Latest Caselaw 2464 Guj

          C/SCA/848/2021                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 848 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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KAMDAR HOMEOPATHIC MEDICAL COLLEGE AND RESEARCH CENTRE
                        Versus
                    UNION OF INDIA
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
MR AR THACKER(888) for the Respondent(s) No. 3
MR DEVANG VYAS(2794) for the Respondent(s) No. 1,2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 4
SHIVANG A THACKER(7424) for the Respondent(s) No. 3
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    CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 17/02/2021

                               ORAL JUDGMENT

1. Heard learned advocate Mr. Bharat Rao for the petitioner, learned advocate Mr. A.R. Thacker

C/SCA/848/2021 JUDGMENT

for the respondent no.3, learned Additional Solicitor General Mr. Devang Vyas for respondent nos. 1 and 2 and learned Assistant Government Pleader Mr. K. M. Antani for the respondent­ State through video conference.

2. Rule returnable forthwith. Learned advocate Ms. Nupur Parikh on behalf of learned Additional Solicitor General Mr.Devang Vyas wavies service of notice of rule for respondent nos.1 and 2, learned advocate Mr. A.R. Thacker waives service of notice of rule for respondent no.3 and learned AGP Mr. K.M. Antani waives service of notice of rule for respondent­State.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :

"(A) To admit and allow this petition;

(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the recommendation of the respondent no.2­ Central Council of Homeopathy being letter No. 15­8/2020­CCH (Visitation matter) 2805 dated 30.09.2020 for the academic year 2020­21 and further be pleased to quash and set aside the order dated 04.01.2020 passed by the respondent no.1­Director, Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH), for the reasons stated in the memo of the petition and in the interest of justice and to direct ministry of AYUSH to issue new permission order with the intake capacity of 100 seats for the academic year 2020­21

C/SCA/848/2021 JUDGMENT

(C) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent no.4 ­Admission Committee for the Professional Under Graduate Medical Courses(ACPUGMEC), Gandhinagar to allot the students for I­BHMS for the academic year 2020­ 21 from the list prepared by them, and / or if the respondent no.4 does not have students, then petitioner may be permitted to give admission by issuing public advertisement as per the rules and regulations prescribed by the respondent authorities, for the reasons stated in the memo of the petition and in the interest of justice;

(D) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent no.3 - Saurashtra University to grant / renew / continue the affiliation with the present petitioner college for B.H.M.S. course, for the reasons stated in the memo of the petition and in the interest of justice;

(E) Pending admission, hearing and final disposal of the present petition, Your Lordships be pleased to stay the impugned order dated 04.01.2021 passed by the respondent no.1 and further be pleased to direct the respondent no.4 to allot the students in I­B.H.M.S. course for the academic year 2020­21, as there is no deficiency and further be pleased to direct the respondent no.3­Saurashtra University to grant / continue the affiliation to the petitioner college for the B.H.M.S. course and to also do the enrollment of the students of the year 2020­ 21 of 1st year BHMS student , for the reasons stated in the memo of the petition and in the interest of justice;

(F) YOUR LORDSHIPS may Grant ad­interim relief in terms of prayer clause (E);

(G) YOUR LORDSHIPS may pass such other and further orders as this Honourable Court may deem

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fit and proper in favour of the petitioner in the interest of justice and circumstances of the case."

4. The brief facts of the case are as under :

4.1) The petitioner­Kamdar Education trust has been established by Kamdar family for the purpose of imparting education in the City of Rajkot and surrounding area of Saurashtra region. The Trust decided to start/set­up new homeopathic college in the name of Kamdar Homeopathic Medical College and Research Centre.

4.2) The petitioner­ Kamdar Education trust applied for No Objection Certificate (N.O.C.) to establish Homeopathic college at Rajkot to the Government of Gujarat, Health and Family Welfare Department. Pursuant to the said application, the State Government issued No Objection Certificate for setting up of new homeopathic college at Rajkot with intact capacity of 100 seats, on 02.02.2017, which is a self finance college and there is no grant­in­aid from the Government of Gujarat.

4.3) It is the case of the petitioner that after getting the N.O.C. from the Government of Gujarat, the petitioner­Kamdar Education Trust applied for permission to set­up Homeopathic College to the respondent no.1 - Ministry of AYUSH through

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respondent no.2 - Central Council of Homeopathy. The respondent no.2 forwarded the recommendation to the respondent no.1 along with the inspection report and the respondent no.1 on 25.10.2017 granted permission to start a new Homeopathic College for 100 seats in the course of B.H.M.S. (UG) course from the academic session 2017­2018 under Section 12A of the Homoeopathy Central Council Act, 1973 (for short 'the Council Act, 1973').

4.4) According to the petitioner, the petitioner­trust fulfilled all the criterias as per the Homeopathy (Minimum Standards of Education) Regulations, 1983 (for short "the Regulations") as amended from time to time and even as per the Amendment of 2013. It is the case of the petitioner­trust that in spite of following all the regulations, first time the permission was granted only for one year. The Saurashtra University granted affiliation on 16.10.2017 for the academic year 2017­2018.

4.5) It is the case of the petitioner that thereafter, the petitioner College applied for renewal to the respondent authorities under the provisions of the HCC (MSR) Regulations and inspection was carried out by the respondent no.2 on 18.06.2018 and recommended for intact capacity of 100 seats for the academic year 2018­19.

Thereafter,            the        respondent           no.2     forwarded            the





      C/SCA/848/2021                                                    JUDGMENT

recommendation to the respondent no.1­ Ministry of AYUSH and the respondent no.1 vide an order dated 04.09.2018 granted permission for intake capacity of 100 seats, subject to the condition that college should fulfill the conditions mentioned in the said letter by 31.12.2018. Respondent no.3 ­ Saurashtra University also granted affiliation for the year 2018­2019 on 08.09.2018.

4.6) It is the case of the petitioner that the petitioner­college applied for renewal for the academic year 2019­2020 but the respondent no.2 did not recommend for allowing the admission of the students in I­BHMS course, and the authorities after receipt of the report of the respondent no.2, heard the petitioner and after examining the merits, the authorities found that the recommendation of the respondent no.2 is not just and proper and college was allowed intake of 100 seats during the academic year 2019­20, on certain conditions as specified in the permission letter dated 28.05.2019. It is the case of the petitioner that before granting permission, the respondent no.1 also perused the report dated 25.03.2019 wherein the visiting team has observed that all the departments are as per the Regulations, separate HOD Departments and rooms are available and Hospital IPD, OPD Records are maintained properly and Staffs are also available.

4.7)          Pursuant           to     the      amendment          made        in     the





       C/SCA/848/2021                                              JUDGMENT

Council Act, 1973 by inserting Section 12­C, the Homeopathy Central Council (Minimum Standards Requirement of Homeopathic Colleges and attached Hospitals) Amendment Regulations, 2019 (for short "the Regulations, 2019") came into force w.e.f. 29.04.2019.

4.8) In view of this amendment, the respondent no.2 wrote a letter to the petitioner on 22.10.2019 calling upon the petitioner­College to fill­up the application form attached with the letter as all colleges were requested to apply in the prescribed format with the fees to the Central Government latest by 30th November, 2019 and seek permission or else the provisions of Section 12B of the Act shall apply to the Homeopathic Medical Colleges.

4.9) It is the case of the petitioner that pursuant thereto, the petitioner applied and forwarded the Form­1 to the respondent no.2 with all details.

4.10) It is the case of the petitioner that on 10.07.2020 the respondent no.2 called for the submission of Part­1, Undertaking / Affidavit and Indemnity Bond in respect of permission matter for the academic year 2020­21.

4.11)      Therefore,          on     20.07.2020,           the     time       limit
was     fixed          and   the     petitioner            was    directed           to





    C/SCA/848/2021                                                  JUDGMENT

provide the information in attached on­line link by 27.07.2020 and send the same along with duly notarized undertaking/affidavit and indemnity bond in hard copy by 07.08.2020.

4.12) On 27.07.2020, it was intimated to all colleges that competent authority of the respondent no.2 has decided not to extend the last date for submission of Form­1 in hard copy. However, considering the problems faced by the colleges, they were requested to submit the on­ line Form­1, latest by 30.07.2020. The petitioner therefore, filled­up the Form­I on­line on 20.07.2020 within the time limit and the hard copy of the form filled­up by the petitioner along with all the necessary supporting documents was sent by speed post on 20.07.2020 and respondent no.2 received the same on 27.07.2020.

4.13) It is the case of the petitioner that the petitioner received e­mail on 29.07.2020 calling upon the petitioner to submit 3 months acquaintance roll / salary statement (i.e. April till June 2020) on or before 30.07.2020. The petitioner College has forwarded the same on 31.07.2020 with teacher salary statement from April to June 2020.

4.14)         The         respondent                no.2      forwarded             its
recommendation            on    30.09.2020            bearing        letter         No.
15­8/2020­CCH         (Visitation                  matter)    2805          stating





       C/SCA/848/2021                                            JUDGMENT

that "recommended for allowing admission in I­BHMS Course with intake capacity of only 60 seats in existing UG (BHMS) course during 2020­21 due to insufficient number of teaching faculties."

4.15) It is the case of the petitioner that the petitioner was not agreeable to the said recommendation because there was no deficiency in the college. A show cause notice came to be issued pointing out the deficiency, whereby, hearing was fixed on 16.10.2020 by the respondent no.1.

4.16) The hearing took place on 16.10.2020 and during the hearing, all the queries raised by the respondent authorities were explained, replied and it was stated that there is no deficiency at all.

4.17) It is the case of the petitioner that during the hearing before the respondent no.1, the petitioner­college has produced all the necessary documents.

4.18) On 04.01.2021, the respondent no.1 passed the impugned order denying the permission for taking admission in 1­BHMS course with intake capacity of 100 UG seats for the academic session 2020­21 and confirmed the order/recommendation of respondent no.2 for intake of 60 students.

4.19) Being aggrieved and dissatisfied with the said impugned order, the petitioner has preferred

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this petition with the aforesaid prayers.

5. Learned advocate Mr. Bharat Rao for the petitioner submitted that the petitioner­college is already having the permission to run the Homeopathic college for the academic year 2019­ 2020 for admission of 100 students in BHMS course. The application made by the petitioner for renewal of the permission for the academic year 2020­2021 is rejected by respondent no.1 on the grounds contrary to Rules and only permission is granted for intake capacity of 60 seats, instead of 100 seats, mainly on two grounds, one with regard to not fulfilling the minimum criteria of 30% of Average Bed Occupancy per day and other ground is with regard to having less number of professors required for intake capacity of 100 students.

6. Learned advocate Mr. Rao submitted that with regard to the ground of less Average Bed Occupancy per day, the formula applied by respondent nos.1 and 2 is contrary to the formula to calculate the Average Bed Occupancy prescribed in application Form No.1 as per the Regulations, 2019. According to learned advocate Mr. Rao, Average Bed Occupancy per day (percentage) is required to be calculated by multiplying total number of inpatient days (Total of daily inpatients of beds) during the last calendar year x 100/ total number of beds

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in IPD x 365. It was submitted that inspite of above formula, respondent nos. 1 and 2 calculated Average Bed Occupancy per day (percentage) by calculating the same as total Average number of inpatient days (bed days occupied) for a calendar year x 100/ number of beds x 365. Thus for calculating the Average Bed Occupancy, according to the petitioner, total number of inpatients during the calendar year was 3451 and Average Bed Occupancy is calculated as 3451 x 100/ 365 x 25 which comes to 37.81%. Whereas the authority has considered the Average number of inpatient days (bed days occupied) for a calendar year as 112.75 and calculated the same as 112.75 x 100/365 x 25 and thus Average Bed Occupancy is worked out at 1.235%. According to learned advocate Mr. Rao therefore, the formula applied by the authority is contrary to the prescribed formula as per the Regulations, 2019.

7. According to learned advocate Mr. Rao, Average number of bed days are not required to be considered but total number of inpatient days during the calendar year was required to be considered and therefore, the average worked out by the authority is false.

8. With regard to the second ground for rejection that the petitioner is not having sufficient number of professors for intake of 100 students,

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it was submitted that the petitioner college has 30 professors and Dr. Shivamuni Maree is required to be considered as part of the team of professors as he is having teaching experience from August, 1993 to August, 2019 in subject of Practise of Medicine at Dr.A.R. Govt. Homeo Medical College, Andhra Pardesh. It was submitted that authority has discarded the appointment of Dr. Maree on the ground that his birth year is of 1954 and is therefore, overage and has crossed the age limit of 65 years and therefore, he is not considered as eligible.

9. According to learned advocate Mr. Rao, there are 30 professors with the petitioner­college and even if Dr. Maree is considered to be not eligible, the petitioner college is having 29 teaching staff as against requirement of 28 teaching staff for intake of 100 students. It was therefore, submitted that with regard to both these grounds which have weighed with the authority for permitting the petitioner college for intake capacity of only 60 students as recommended by respondent no.2 are contrary to the facts and the Regulations, 2019

10. On the other hand, respondent nos. 1 and 2 have filed affidavit in reply opposing the petition raising the preliminary objection with regard to the maintainability of the petition on the ground that the petitioner was provided with

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an opportunity of hearing by the hearing committee and as the petitioner has failed to satisfy the hearing committee with regard to minimum standard requirement for intake of 100 seats, hearing committee has rightly permitted the petitioner college for intake of 60 seats. In the reply, reliance was placed on the following observations made by Ministry of AYUSH:

"1. The Respondent no.1 Ministry of AYUSH has found Dr. Pintu Shrivastava, Dr. Shweta pathak, Dr. Kalpesh Kumar Rathod, Dr.Nikita Dongaokar, Dr. Trupti Garg as eligible

2. Dr. Shivamunee Maree was found to be ineligible as he is 65 years of age.

3. The petitioner college has appointed Dr. Kajal Joshi in Dept. of Organon.

4. Dr. Karunakar Desai was appointed in the Dept. of Repertory in place of Dr. Jignesh Parmar.

5. The petitioner College has itself agreed that at the time of filing Part­I for the Academic Session 2020­2021, the petitioner college has failed to provide recent salary statement.

6. The petitioner college has failed to comply with the provisions of Employees' Provident Funds & Misc. Provident Act, 1952 and ESI Act, 1948 and relevant regulations.

7. As per the submissions of the college representative and exact calculation, the average bed occupancy is 1.23% only."

       C/SCA/848/2021                                                  JUDGMENT




11.        The          deponent             of         the     affidavit              Mr.

Jaiprakash Ram, son of Bholanath Ram, working as Research Officer further states that Ministry of AYUSH after overall observations came to the conclusion that the petitioner college is not even eligible for getting permission with intake capacity of 50 seats and therefore, granting permission with intake capacity of 100 seats for the academic session 2020­2021 is out of question.

12. In the affidavit filed on behalf of respondent no.1, there is no explanation tendered with regard to the grounds raised by the petitioner of fulfillment of criteria of enough capacity of teaching staff and erroneous calculation of Average Bed Occupancy contrary to the Regulations, 2019. There is no explanation in the affidavit with regard to the erroneous application of the formula for calculating the percentage of Average Bed Occupancy.

13. On perusal of the affidavit in reply, it is also clear that respondent nos. 1 and 2 have not considered the Regulations, 2019 for calculating the percentage of Average Bed Capacity which is one of the two grounds for rejecting the permission of intake of 100 seats by the petitioner college.

14. Reliance placed on the various decisions of

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the Apex Court in the affidavit in reply are not applicable in facts of the case. Therefore, the eligibility criteria considered by the respondents for rejecting the intake of 100 seats by the petitioner college is apparently contrary to the Regulations, 2019 and facts on record, as admittedly there is no denial to the effect that there are 29 teaching staffs available even if eligibility of Dr. Maree is not considered and further on correct application of the formula as prescribed in the Regulations, 2019, the Average Bed Occupancy calculated by the petitioner at 37.81% is correct as against the erroneous calculation of Average Bed Capacity calculated in the impugned order at 1.235%.

15. It emerges that the application for renewal made by the petitioner is rejected mainly on two grounds that Average Bed Occupancy is less than 30% as per the Regulations 2019 and that teaching staff is less than prescribed number of 28 required teaching staff. So far as aspect of Average Bed Occupancy is raised by the petitioner, on perusal of the impugned order, it appears that respondent nos. 1 and 2 have applied the formula of Average Bed Occupancy contrary to the formula prescribed in Form No.1 of Regulations 2019. Respondent nos.1 and 2 have taken Average Bed Occupancy and again divided it by 365 days which does not commensurate with the

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formula prescribed in Form No.1 of the Regulations 2019. In my opinion, the formula would work by multiplying the number of indoor patients during the calendar year divided by 365 multiplied by 100 divided by number of beds. Therefore, considering the total number of indoor patients during the calendar year being 3451 divided by 365 days and multiplied by 4 would come to 37.81% which is more than 30% required Average Bed Occupancy. Therefore, the ground on which the intake of students is refused is not tenable.

16. Similarly with regard to the ground of not having enough teaching staff is also not made out in the impugned order in view of the fact that even if it is considered that two members of the teaching staff are not to be added in total number of teaching staff as against the requirement of 28 teaching staff for the petitioner college, there are enough number of teaching staff which is not disputed in the affidavit in reply filed on behalf of the respondent nos. 1 and 2.

17. In view of above fact situation, the impugned orders passed by the respondent no.1 and 2 are hereby quashed and set aside and the petitioner college is permitted to take intake of 100 students for the academic year 2020­2021 which is yet to be started due to covid­19

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pandemic situation. The respondents are directed to give effect to this order forthwith as the last date of admission is 28.2.2021.

18. Rule is made absolute to the aforesaid extent. No order as to costs.

Registry is directed to provide a copy of writ of this order to learned advocate for the petitioner through email so as to enable him to serve the same upon the respondent through Email/ Registered Post AD.

Direct service is permitted.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR