Shri Vivek Bharti Trust Through ... vs Union Of India
2021 Latest Caselaw 2926 Guj

               C/SCA/982/2021                           CAVORDER



                 IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                   R/SPECIALCIVILAPPLICATIONNO. 982 of 2021
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SHRIVIVEKBHARTITRUSTTHROUGHMANAGINGTRUSTEEVISHWANATHPITAMBAR TRIVEDI Versus UNIONOF INDIA ========================================================== Appearance:

MR.DHAVALDAVE,LD. SENIORADVOCATEwith UDITN VYAS(9255)for the Petitioner(s)

MR.SIDDHARTHDAVE,ADVOCATEfor MRDEVANGVYAS,LD. ADDITIONALSOLICITOR GENERAL(2794)for the Respondent(s)No. 1,2

========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date: 20/02/2021 CAVORDER

1. In this petition under Article 226 of the Constitution of India,

the petitioner has challenged the impugned order dated

08.01.2021, by which, it has the effect of reducing the

sanctioned intake of the institute viz. Nobel Homeopathic

Medical College and Research Institute from 100 seats to 60

seats. The further prayer is to direct the respondents to

permit the institute to impart education at the level of

graduation in B.H.M.S. with intake of 100 seats for the

academic year 2020­21.

2. The facts in brief are as under:

2.1 The Petitioner is a public trust. It inter alia runs a

college in the name of Nobel Homeopathic Medical College

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and Research Institute ("College" for short). The College is

engaged in imparting education in the discipline of

Homeopathy at the level of graduation leading to the

qualification of B.H.M.S. The College was established in the

academic year 2017­18 with the intake capacity of 100 seats.

2.2 The College submitted the requisite details in the

manner and within the time frame prescribed by the

Respondent Nos. 1 & 2 for extension of permission for the

academic year 2020­21. This is not in dispute.

2.3 Thereafter, the College received from Respondent No. 1

the hearing notice dated 28 th October, 2020. Vide this notice

the College was called upon to render its explanation in

writing in respect of the deficiencies alleged therein against

the College and avail the opportunity of hearing before the

Designated Hearing Committee of Respondent No. 1 on the

date stipulated therein.

2.4 The College, thereupon, submitted its written

submission supported by the documents dealing with the

deficiencies alleged against it and also made oral submissions

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before the Designated Hearing Committee of Respondent No.

1.

2.5 Thereafter, the College was served with the impugned

order dated 7th January, 2021 passed by Respondent No. 1.

Vide this order the intake of the College for the academic

year 2020­21 was reduced to 60 seats from 100 seats.

3. Mr.Dhaval Dave learned Senior Advocate appearing with

Mr.Udit Vyas states that the impugned order passed by

Respondent No. 1 is wholly unsustainable. In support of this

contention, he made the following submissions:

3.1 The impugned order is a non­speaking order. No

reasons are assigned for reducing the intake of the College

from 100 seats to 60 seats.

3.2 Realizing the aforesaid fatal lacuna in the impugned

order, Respondent No. 1 attempted to supply reasons to the

impugned order by filing an affidavit in reply. However, it is

impermissible to supply reasons to the order for sustaining

the order. He relied on the decision in case of Hindustan

Petroleum Corporation V/s Darus Shapur Chenai & Ors.

C/SCA/982/2021 CAVORDER

reported in (2005) 7 SCC 627 - particularly paragraphs 24

to 27 thereof.

3.3 Without prejudice to the aforesaid, even if the

deficiencies which are referred to in the affidavit­in­reply of

Respondent No. 1 as the reasons to support the impugned

order are read as part of the impugned order, it is not

possible to sustain the impugned order. This is evident from

the following.

3.4 The first deficiency alleged against the College is with

regard to the non­compliance of Employees Provident Funds

and Miscellaneous Provisions Act, 1952 and ESI Act, 1942.

However, the former Act is applicable provided there are

employees having salary less than Rs. 15,000/­. The College

has no such employee. The later Act is not applicable in

Gujarat to the educational institutions. Besides this, the

concerned authorities under both the Acts have never found

the College in breach. This apart, this deficiency, even if

exists, is of rectifiable nature, hence, does not warrant denial

of extension of permission partially by way of reduction of

intake.

C/SCA/982/2021 CAVORDER

3.5 The second deficiency alleged against the College is

with regard to in all four teachers who were found to be

ineligible as they were above the age limit of 40 years on the

date of their appointments. However, these teachers were not

declared ineligible on this ground in the academic years

2018­19 and 2019­20. The age limit of 40 years at the time

of initial appointment prescribed vide Schedule VII of MSR

2013 appears to be directory in nature. Else, these

appointments would have been objected to while considering

the College for extension of permission for the earlier

academic years.

3.6 Be that as it may, the College is having additional

teachers (lecturers) within the permissible age limit on the

date of their respective appointments. Hence, even if said

four teachers are excluded, there will not be shortfall. This

aspect was brought to the notice of the Designated Hearing

Committee of Respondent No.1.

3.7 The third deficiency alleged against the College is with

regard to non­consideration of Dr. Mateen Ahmed as teacher

(professor) for non­submission of his affidavit. However, it

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was pointed out to the Designated Hearing Committee of

Respondent No. 1 that as Dr. Mateen Ahmed did not join

after his appointment, Dr. Krishna Kawadker was appointed

and the relevant documents supporting her appointment

were submitted along with the written submissions.

3.8 The fourth deficiency alleged against the College is with

regard to non­availability of six teachers (also referred to as

consultants in MSR 2013) of Modern Medicine. However, the

College is having MOU with the multispecialty hospital for

availing the services of teachers (consultants) of Modern

Medicine. These teachers (consultants) are the practicing

doctors of Modern Medicine. As per regulation 3 (2) of MSR

2013, such MOU is permissible. Accordingly, this was never

objected to in earlier academic years.

3.9 The fifth deficiency alleged against the College is with

regard to the absentees of higher faculties in the concerned

department. However, theses absentees were on account of

leave granted to them. Otherwise, the College is having the

requisite higher faculty. The details thereof were furnished

along with the written submission.

C/SCA/982/2021 CAVORDER

3.10 Without prejudice to the aforesaid, even if the

impugned order was warranted, the impugned order would

fail to hold the field for not following the procedure

mandated by section 19 of the Homeopathy Central Council

Act, 1973.

3.11 Further, the grant of extension (renewal) of permission

to an existing college stands on a different footing as

compared to the grant of new permission to start the college.

In case of former, even if some deficiencies are noticed, time

needs to be granted to rectify rather than denying extension

of permission. Hence, the alleged deficiencies, though not in

existence as aforesaid, even if presumed to be there,

warranted time to the College to rectify rather than the

impugned order. Reliance is placed on the decision in case of

Royal Medical Trust V/s Union of India reported in (2015)

10 SCC 19, particularly Paragraph 29 thereof.

3.12 The impugned order, if viewed in totality, is cryptic,

mechanical, without considering the submissions of the

College and suffering from the vice of total non­application of

mind warranting interception in the present petition.

C/SCA/982/2021 CAVORDER

Reliance is placed on the decision in case of Jagat Narain

Subharti Charitable Trust & Anr. V/s Union of India &

Ors. reported in (2017) 16 SCC 666, particularly Paragraph

16 thereof & also on the decision in case of Kanachur

Islamic Education Trust V/s. Union of India reported in

(2017) 15 SCC 702 - particularly Paragraphs 18 to 20.

3.14 The judgments relied upon by Respondent No.1 in its

affidavit­in­reply are in respect of the cases where multiple

deficiencies of grave and non­rectifiable nature were noticed

to which the concerned colleges were having no cogent

answer in defence. Hence, the same have no application to

the impugned order. Here, it deserves to be mentioned that

the said judgments can never be construed as laying down an

absolute proposition of law that, regardless of the nature of

order, no interference is possible once the permission is

denied to the college. Needless to mention that the

proposition sought to be propounded by Respondent No.1 in

this regard, if accepted, would mean immunizing the

impugned order from the purview of judicial review under

Article 226 of the Constitution of India.

C/SCA/982/2021 CAVORDER

4. Mr.Siddharth Dave appeared for Mr.Devang Vyas learned

Additional Solicitor General for the respondent nos.1 and 2

made the following submissions:

4.1 Mr.Siddharth Dave would submit that the order

impugned in the petition is just and proper. He would invite

the attention of the Court to the regulations i.e. MSR, 2013.

He would submit that Regulation 3(1) requires the college to

fulfill the minimum standards in context of teaching facilities

referred to in Regulations No.4 to 13. Regulation No.7

prescribes requirement of teaching hospital. Regulation no.9

provides for requirements of college which prescribes that

there shall be a minimum teaching faculty as per Schedule­IV

for the course. He would submit that the contention of Shri

Dhaval Dave that the memorandum of understanding would

save the college from the deficit is misconceived as the

memorandum of understanding viz. for purposes other than

teaching. He would invite the attention of the Court to

schedule­IV and V of the Regulations together with

Regulation No.12 to submit that for intake upto 60, the

minimum teaching staff required for the degree course is 24.

       C/SCA/982/2021                           CAVORDER



Only full time faculty is required at all levels.               As per

Schedule­VII which requires essential qualifications for the

teaching staff, the age has to be not more than 40 years as on

the last date of receipt of the application.

4.2 Justifying the impugned order, Mr.Dave would submit

that admittedly the teaching faculty had members more than

40 years of age . He would rely on the amended regulations

of 2019 to submit that it was incumbent upon an existing

college to make an application in Form­I which was

mandatory providing details which the college had not

provided which was prerequisite for getting affiliation. He

would counter the submission of Shri Dhaval Dave in context

of Section 19 of the Homeopathy Central Council Act and

submit that the impugned order is not in context of

withdrawal of recognition, but is in compliance of Section

12C of the Act, by which, permission for certain existing

medical college is to be made. He would invite the attention

of the Court to the impugned order and submit that the

deficiencies listed therein were material enough and ought to

have been complied with. It was a mandatory requirement

C/SCA/982/2021 CAVORDER

under the Rules. Nothing was produced by the institution on

record to show that in the previous years there was

compliance. There was no prejudice inasmuch to the show

cause notice listing out shortcomings the petitioner was

invited to respond and the authority found them to be

insufficient compliance. The order therefore cannot be said

to be an unreasoned order.

4.3 With regard to the submissions cited by Shri Dhaval

Dave in case of Kanachur (supra), Shri Siddharth Dave relied

on the decision in case of Kalinga Mining Corporation v.

Union of India and others reported in [(2013) 5 SCC 252]

and submitted that the order was not bad as institutional

hearing is a recognized principle. He would also rely on the

decision of the Delhi High Court in the case of Buddhi

Vidhatajan Kalyan Samiti v. Union of India and Anr.

reported in LAWS (DLH) 2016 12 182, particularly para 26

thereof. He would submit that the decision of Parul

University v. Union of India reported in 2017 SCC OnLine

Guj 77, was not applicable. He would reiterate that

Kanachur (supra) was considered in Royal Medical Trust

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and Another v. Union of India and Another reported in

[(2017) 16 SCC 605], where it was held that the judgment

applies in the facts of the case. He would rely on paras 26 to

33 thereof. Mr.Dave would rely on the decision in the case of

J&K Housing Board and another v. Kunwar Sanjay

Krishan Kaul and others reported in (2011) 10 SCC 714 to

submit that things have to be done in a particular manner.

Reliance was also placed on the decision in case of

Manoharlal Sharma v. Medical Council of India and

others reported in (2013) 10 SCC 60. Reliance was also

placed on the decision in case of Karpagam Faculty of

Medical Sciences and Research v. Union of India and

others reported in (2017) 16 SCC 568, particularly para 17

to 22 to submit that compliance with the regulations was a

prerequisite and therefore the order impugned in the petition

would not suffer from any effect of either non application of

mind and/or being a non­speaking order.

5. In rejoinder, Shri Dhaval Dave learned Senior Advocate

would submit that the college gave the details in the

prescribed form. Relying on Regulation 3(2) read with

Regulation 9(2) of the Regulations, Shri Dave would submit

C/SCA/982/2021 CAVORDER

that the MOU was valid as even Rule 9(2) gave permission to

engage consultants as teaching faculty.

6. Having considered the submissions of the learned counsel for

the respective parties, rather than deciding the petition on the

preliminary issue of the order being defective on the ground

of violation of principles of natural justice in context of the

submissions made relying on the decisions in the case of

Kanachur Islamic Education Trust (supra) and its

applicability, it is in the fitness of things to consider the issue

on merits.

6.1 What is evident from the reading of the impugned

order is that the authority found the following deficiencies:

"Recommended for allowing admission in I - BHMS Course for the session 2020­21 with the intake capacity of only 60 seats in existing UG (BHMS) course, due to insufficient Part time teachers of Modern Medicine (03 against 09), absence of fulltime faculty/ guest faculty of Prof. Cadre in the Dept. of Pathalogy, FMT, Obs & Gynae. and the discrepancy in appointment of faculties.

Further, the Committee also recommended to apprise the Ministry that teachers are getting salary of 1.15 lakhs without EPF/PF deduction, thus not complying with the

C/SCA/982/2021 CAVORDER

provisions of Employee's Provident Funds & Miscellaneous Provident Act, 1952 & ESI Act, 1948 and relevant Rules and Regulations. Details of ineligible teachers are as under:

1. Dr. Mahesh Kumar Mohanbhai Bharawala (Lecturer - Anatomy) - not considered eligible as exceeding 40 years (DOB - 12­01­1976) at the time of joining (DOJ - 17­11­ 2018) as Lecturer, MD done in 2006.

2. Dr. Smita Nabulal Lakhani (Lecturer - FMT) - Not considered eligible as age exceeding 40 years (DOB - 10­05­ 1969) at the time of joining (DOJ - 01­02­2018) as Lecturer, MD done in 2010.

3. Dr. Chunilal Devjibhai Patel (Lecturer - Practice of Medicine) - Not considered eligible as age exceeding 40 years (DOB - 14­03­1969) at the time of joining (DOJ - 01­01­2019) as Lecturer, MD done in 2012.

4. Dr. Ketankumar Popatlal Gadhvi (Lecturer - Obs. & Gynae.) ­ Not considered eligible as age exceeding 40 years (DOB - 01­12­1974) at the time of joining (DOJ - 01­01­ 20198) as Lecturer, MD done in 2003.

5. Dr. Mateen Ahmed Hafizulla Khan (Professor - Repertory) - Not considered eligible as affidavit not provided."

6.2 Apparently, as far as the first deficiency is concerned, it

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has been rightly pointed out that the college does not come

under the compulsory EPF criteria at all as the employees

draw salary much above Rs.15,000/­. As far as ESI Act is

concerned, the Act is not applicable to educational

institutions in Gujarat. Even it is not the case of the

authorities that the institution has been held liable by the

competent authorities under the Act for a breach thereof.

6.3 The second deficiency is that there were three part time

teachers against the available requirement of nine. What has

been pointed out by the institution is that as per the MOU

with a multi­speciality hospital the teaching can be carried

out by consultants of the hospital. Moreover, they have on

call faculties in the subject of anesthesia, radiology etc.

Reading Regulation 3(2) with Regulation 9(2) of the

Regulations, it is evident that there can be a faculty

comprising of consultants who may be appointed on contract

basis on part time or on call basis. There is therefore

sufficient compliance. Even as far as the deficiency of the six

teaching staff being above the age of 40, it is rightly

submitted by Shri Dhaval Dave that there has never been an

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objection in the academic years 2018­19 and 2019­20. Even

reading the submissions made at the Hearing Committee

would indicate that apart from these objections on the age of

the four faculties, in addition thereto, there was already one

Assistant Professor each in the relevant department, details of

which were uploaded on the CCH portal. The omissions as

far as not possessing three stretchers and the data of ECG not

found, are not serious enough to warrant restriction on the

intake capacity.

6.4 Even when the institution came earlier by filing SCA

No.14151 of 2018, this Court by an order of 04.10.2018, in

context of a prayer for permitting the institution to grant

intake of 100 seats, allowed the petition.

7. For the aforesaid reasons, the petition is allowed. Prayer in

terms of paras 32(a) is granted. Direct service is permitted.

(BIRENVAISHNAV,J) ANKITSHAH