Gujarat High Court

Shree Mahatma Gandhi Education ... vs Union Of India on 20 February, 2021

Bench: Biren Vaishnav

             C/SCA/2013/2021                            CAVORDER



               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                 R/SPECIALCIVILAPPLICATIONNO. 2013of 2021
==========================================================

SHREEMAHATMAGANDHIEDUCATIONTRUST 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 NOTICESERVEDBY DS(5)for the Respondent(s)No. 3 ==========================================================

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

19.01.2021, by which, the renewal of permission in respect of

H.N. Shukla Homeopathic Medical College and Hospital for

the academic year 202021 for the BHMS course with intake

of 100 seats has been refused.

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 H. N. Shukla Homeopathic Medical

College & Hospital ("College" for short). The College is engaged

in imparting education in the discipline of Homeopathy at the

C/SCA/2013/2021 CAVORDER

level of graduation leading to the qualification of B.H.M.S. The

College was established in the academic year 201617 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 11th November, 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

before the Designated Hearing Committee of Respondent No. 1.

          C/SCA/2013/2021                                 CAVORDER



2.5      Thereafter, the College was served with the impugned

order dated 19th January, 2021 passed by Respondent No. 1.

Vide this order the College was denied extension of permission

for the academic year 202021.

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 signed by the Director of

Respondent No.1. It is recorded therein that it was passed

with the approval of the Competent Authority. However,

neither of them was part of the Designated Hearing

Committee. This assumes significance as the impugned order

is based upon findings independently recorded by

Respondent No.1. Needless to mention that if the

observations of the Designated Hearing Committee along

with the written submissions the College were to be sent back

to the Central Council of Homeopathy (CCH) for its

recommendations and thereupon, if the recommendations of

C/SCA/2013/2021 CAVORDER

CCH were to be accepted for passing the impugned order by

someone in the set up Respondent No.1 who was not part of

the Designated Hearing Committee, the hearing accorded to

the College became an empty formality. This completely

vitiates the impugned order. Reliance is placed on the

decision in case of Parul University V/s Union of India &

Anr. reported in 2017 SCC Online Guj 77, particularly

Paragraphs 30 & 31 thereof. SLP (C) 13901391 preferred

against the same is rejected vide order dated 5 th February,

2018.

3.2 Further to the aforesaid, if the observations of the

Designated Hearing Committee along with the written

submissions of the College were to be sent back to the CCH

for its recommendations thereon, the College was required to

be accorded further opportunity of hearing by Respondent

No.1 before taking any decision on such recommendations of

CCH. Thus, the impugned order is in true sense without

according hearing to the College.

3.3 The impugned order is a nonspeaking order in true

sense. Because no reasons are assigned in the impugned

C/SCA/2013/2021 CAVORDER

order in support thereof.

3.4 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. Mr.Dave would rely on the decision in the case of

Hindustan Petroleum Corporation V/s Darus Shapur

Chenai & Ors. reported in (2005) 7 SCC 627, particularly

Paragraphs 24 to 27 thereof.

3.5 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.

3.6 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

C/SCA/2013/2021 CAVORDER

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.

3.7 The second deficiency alleged against the College is

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

ineligible as their signature was allegedly found to be

mismatching in various documents referable to their

appointment in the College and their affidavit for allotment

of Teacher Code. However, all these nine teachers filed their

affidavit before the Designated Hearing Committee

confirming their signature on all the documents in question.

In fact, the College also pointed out during hearing that all of

them were willing to appear in person before the Designated

Hearing Committee confirming their affidavit. However, the

Designated Hearing Committee did not find it necessary.

Needless to mention that once the person whose signature is

C/SCA/2013/2021 CAVORDER

doubted confirms the same, the doubt has to end. Further,

the signature matching demands expertise to reach any

conclusion thereon. Mr.Dave would rely on the decision in

the case of Thiruvengadam Pillai V/s Navaneethammal &

Anr. reported in (2008) 4 SCC 530, particularly paragraph

16 thereof.

3.8 Further, barring two new appointees, the rest seven

from the aforesaid nine teachers were with the College in the

previous academic year 201920. Accordingly, during the

inspection for the academic year 201920 they were

confirmed as teachers working in the College.

3.9 The third deficiency alleged against the College is with

regard to in all two 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

C/SCA/2013/2021 CAVORDER

the College for extension of permission for the earlier

academic years.

3.10 The fourth deficiency alleged against the College is with

regard to the nonsubmissions of documents concerning the

experience of in all two teachers. As such, these documents

were part of SIF. Nonetheless they were submitted before the

Designated Hearing Committee.

3.11 The fifth deficiency alleged against the College is with

regard to the salary proof of in all two nonteaching

employees. However, necessary proof in this regard was

submitted before the Designated Hearing Committee.

3.12 The sixth deficiency alleged against the College is with

regard to the availability of in all eight part time teachers of

Modern Medicine against the requirement of eighteen.

However, this was clarified before the Designated Hearing

Committee with requisite proof that the College has in

eighteen part time teachers of Modern Medicine and the

mention of figure 8 in SIF was by mistake for figure 18.

3.13 Without prejudice to the aforesaid, even if the

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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.

3.14 As such, while dealing with the orders more or less

identical to the impugned order, the Honourable Delhi High

Court passed interim orders dated 4th February, 2021 (LPA

49/2021), 8th February, 2021 (W.P. (C) 1539/2021 & others)

and 10th February, 2021 (W.P.(C) 1794/2021) in batch of

matters granting extension of permissions to the concerned

Colleges for the academic year 202021. Even Honourable

Bombay High Court has also passed similar interim order

dated 27th January, 2021 (W.P. (Stamp) 1760/2021).

3.15 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,

C/SCA/2013/2021 CAVORDER

warranted time to the College to rectify rather than the

impugned order. He would rely on the decision in case of

Royal Medical Trust and Another v. Union of India and

Another reported in [(2017) 16 SCC 605].

3.16 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.

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.

3.17 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

C/SCA/2013/2021 CAVORDER

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.

3.18 In the last, the contention of Respondent No.1 that

grant of interim relief in the present petition is as good as

final relief has no potential to deny interim relief to the

Petitioner. When the facts are such that nongrant of interim

relief would tantamount to dismissal of the petition, the

interim relief, though akin to final relief, needs to be granted.

Reliance is placed on the decision in case of Deoraj V/s State

of Maharashtra reported in (2004) 4 SCC 697, particularly

Paragraph 12 thereof.

3.19 Even Honourable Delhi High Court has recorded in the

aforesaid orders that, apart from strong prima facie case, the

balance of convenience also leaned in favour of colleges

C/SCA/2013/2021 CAVORDER

warranting interim orders.

4. Mr.Siddharth Dave appeared 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 denying renewal of permission is

just and proper. He would invite the attention of the Court to

the regulations known as the Homeopathy (Minimum

Standards of Education) Regulation, 2013 ('the Regulations'

for short). He would submit that Regulation 3(1) requires

the college to fulfill the minimum standards in context of

teaching facilities referred to in Regulation 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. Only full time faculty is

required at all levels. As per ScheduleVII which requires

C/SCA/2013/2021 CAVORDER

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

under the Rules. Nothing was produced by the institution on

C/SCA/2013/2021 CAVORDER

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 Mr.Siddharth Dave 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, what 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 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 listed out in shortcomings

and the petitioner was invited to respond and the authority

C/SCA/2013/2021 CAVORDER

found them to be insufficient compliance. The order

therefore cannot be said to be an unreasoned order.

4.4 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 submit that the order was not bad as institutional

hearing as 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 reiterate that Kanachur (supra) was

considered in Royal Medical (supra), where it was held that

the judgment applies in the facts of the case. He would rely

on paras 26 to 33 thereof. Mr.Siddharth 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

C/SCA/2013/2021 CAVORDER

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.

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 (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

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order is that the authority found the following deficiencies:

The reasons for recommendation for not granting permission to the Applicant College and Hospital are as under:

1. Details of IPD/OPD data, Hospital staff & Teaching staff

not available on college website: www.hnshmc.org.

2. The college has not complied with the provisions of Employee's Provident Funds & Miscellaneous Provident Act 1952 & ESI Act. 1948 and relevant Rules and Regulations.

3. Supportive documents of salary through bank not provided.

4. College is having only 20 eligible teachers against the requirement of 28 for conducting BHMS Course with 100 seats. College has provided a list of 31 teachers but 11 teachers considered ineligible due to discrepancies in their documents & seems to be on papers only. Details of ineligible teachers are as under:

a. Dr Priyanka Shroff, MD (Hom), Lecturer Organon: Joined on 01.08.2017, signature is not matching in the joining letter & documents for teacher's code and affidavit.

C/SCA/2013/2021 CAVORDER

b. Dr. Geeta Sawaliya, MD (Hom), Reader Organon: Joined on 01.06.2016, signature is not matching in the joining letter & documents for teacher's code and affidavit.

c. Dr Sanjay Manubhai Shah, MD (Hom), Lecturer Horn. Materia Medica: Age exceeded 40 years (DOB2521963) while joining (DOJ 372006) as Lecturer in Homoeopathic Materia Medica, No previous experience provided.

d. Dr Darshan Doshi, MBBS, MD(Pathology), Joined on 01.02.2019 as Reader, Pathology, signature is not matching in the joining letter & documents for teacher's code and affidavit.

e. Dr Jayadeepsingh Chavda, MD(Hom), Lect. Pathology: Age exceeded 40 years (DOB 25.04.1973) while joining (DOJ03.07.2006) as Lecturer Pathology. No previous experience provided.

f. Dr. Jayeshbhai Vitubhai Vaidya, DMS, Professor, Practice of Medicine: Joined on 10.09.2018, signature is not matching in the joining letter & documents for teacher's code and affidavit.

g. Dr Rajeev Mishra, MBBS, MD (Medicine), Joined on 02.03.2020 as Prof. Practice of Medicine: signature is not matching in the joining letter & documents for teacher's code and affidavit.

C/SCA/2013/2021 CAVORDER

h. Dr Arti K. Alwani, MD (Hom), Lecturer, Practice of Medicine: Joined on 01.03.2019, signature is not matching in the joining letter & documents for teacher's code and affidavit.

i. Dr Meera Sumesh, MD (Hom) Lecturer Community of Medicine: Joined on 17.10.2018, signature is not matching in the joining letter & documents for teacher's code and affidavit.

j. Dr. Soma Bose, MD (Hom), Reader Community of Medicine: Joined on 01.07.2020, signature is not matching in the joining letter & documents for teacher's code and affidavit.

k. Dr. Ashwini Gopinath Pawar MD (Hom), Reader Practice of Medicine: Joined 01.02.2019, signature is not matching in the joining letter documents for teacher's code and affidavit.

6.2 Further, hospital staffs namely, Hetal Fichadiya Sunil

(Lab Technician) & Girishbhai Mehta are not getting any

salary as per acquittance roll, thus not considered available.

6.3 Eight Part Time tenchers of Modern Medicine available

against the requirement of nine.

C/SCA/2013/2021 CAVORDER

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

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