Shree Gyanjyot Education Trust vs Union Of India
2021 Latest Caselaw 2930 Guj

             C/SCA/1898/2021                                       CAVORDER




               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
                R/SPECIALCIVILAPPLICATIONNO. 1898of 2021
==============================================================================

SHREEGYANJYOTEDUCATIONTRUST Versus UNIONOF INDIA ============================================================================== Appearance:

MRDHAVALDAVE,SR COUNSELwith UDITN VYAS(9255)for the Petitioner(s)No. 1 MRSIDDHARTHDAVE,ADVOCATEfor MRDEVANGVYAS(2794)for the Respondent(s)No. 1,2 MR. KMANTANI(6547)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 prayed for quashing and setting aside the order dated 12.1.2021 which has the effect of reducing the sanctioned intake of the institute of the petitioner namely; B.G. Garaiya Homeopathy College from 100 seats to 50 seats.

2. The facts in brief are as under:

* The Petitioner is a public trust. It inter alia runs a college in the name of B. G. Garaiya Homoeopathy College ("College" for short). The College is engaged in imparting education in the discipline of Homoeopathy at the level of graduation leading to the qualification of B.H.M.S. The College was established in the academic year 2012­13 with the intake capacity of 100 seats.

      *      The College submitted the requisite details





             C/SCA/1898/2021                                        CAVORDER



     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.

* Thereafter, the College received from Respondent No. 1 the hearing notice dated 19th 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.

* 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.

* Thereafter, the College was served with the impugned order dated 12th January, 2021 passed by Respondent No.1. Vide this order the intake of the College for the academic year 2020­21 was reduced to 50 seats from 100 seats.

3. Mr. Dhaval Dave, learned seniour counsel appearing with Mr. Udit Vyas states that the impugned order passed by Respondent No.1 is wholly unsustainable. He submits as under:

C/SCA/1898/2021 CAVORDER

a. The impugned order is a non­speaking order.

No reasons are assigned for reducing the intake of the College from 100 seats to 60 seats.

b. 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. (Hindustan Petroleum Corporation V/s Darus Shapur Chenai & Ors. (2005) 7 SCC 627 - Paragraphs 24 to 27.)

c. Without prejudice to the aforesaid, even if the deficiencies which are referred to in

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.

d. The first deficiency alleged against the College is with regard to the non­ compliance of Employees Provident Funds and Miscellaneous Provisions Act, 1952 and ESI Act, 1942. However, the former Act is applicable provided there are employees

C/SCA/1898/2021 CAVORDER

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.

e. The second deficiency alleged against the College is with regard to in all one teacher named Dr. Mahesh Rathod who was found to be ineligible as he was above the age limit of 40 years on the date of his appointment. However, this teacher was not declared ineligible on this ground in the academic years 2014­15 to 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. (Pages 30 to 32 read with

71)

f. Be that as it may, the College is having additional teacher (Professor) named De.

      C/SCA/1898/2021                                              CAVORDER



     Vikrant            Garg       within          the        permissible                age
     limit         on        the       date        of        his      appointment.

Hence, even if said Dr. Mahesh Rathod is excluded, there will not be shortfall. This aspect was brought to the notice of the Designated Hearing Committee of Respondent No. 1. (Page 31 read with 71)

g. The third deficiency alleged against the College is with regard to in all five teachers (Higher Faculty) who were found to be ineligible for want of relevant documents to prove their experience. However, all relevant documents evidencing their requisite experience were submitted in SIF. Further, all these five teachers are with the College since last more than three years. In all these earlier years they were never found to be ineligible due to lack of requisite experience. Even otherwise, each one of them has the requisite experience to hold the position to which they were appointed in the College. (Pages: 25 to 29 read with 68)

h. The fourth deficiency alleged against the College is with regard to non­availability of a teacher (Reader) each in the departments of HMM and Repertory. To this it was pointed out to the Designated Hearing Committee that at the time when SIF

C/SCA/1898/2021 CAVORDER

for extension of permission for the academic year 2020­21 was filled in, the said two positions were vacant. However, the same were thereafter filled in. The details of these two newly appointed teachers were also furnished to the

read with 68)

i. 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.

j. 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).

k. Further, the grant of extension (renewal) of permission to an existing college stands

C/SCA/1898/2021 CAVORDER

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. (Royal Medical Trust V/s Union of India (2015) 10 SCC 19 - Paragraph 29)

l. The impugned order, if viewed in totality, is cryptic, mechanical, without considering the submissions of the College and suffering from the vice of total non­ application of mind warranting interception in the present petition. (Jagat Narain Subharti Charitable Trust & Anr. V/s Union of India & Ors. (2017) 16 SCC 666) - Paragraph 16 & Kanachur Islamic Education Trust V/s. Union of India (2017) 15 SCC 702

- Paragraphs 18 to 20)

m. 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

C/SCA/1898/2021 CAVORDER

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.

n. 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. (Deoraj V/s State of Maharashtra (2004) 4 SCC 697 - Paragraph 12)

o. 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

C/SCA/1898/2021 CAVORDER

favour of colleges warranting interim orders.

4. Mr. Siddharth Dave appeared for Mr. Devang Vyas learned Additional Solicitor General for the respondent nos.1 and 2 made the following submissions:

* 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. Only full time faculty is required at all levels. As per Schedule­VII which requires essential

C/SCA/1898/2021 CAVORDER

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.

* 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 Form­ I 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 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

C/SCA/1898/2021 CAVORDER

therefore cannot be said to be an unreasoned order.

* 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 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

C/SCA/1898/2021 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.

6. Having considered the submissions made by the learned advocates for the respective parties, perusal of the impugned order would indicate the following deficiencies.

Recommended for allowing admission in I­BHMS Course for the session 2020­21 with the intake capacity of only 50 seats in existing UG (BHMS) course, due to shortage of full time teaching faculties (17.5% deficiencies of FT and Guest Faculty), hospital equipments and other deficiencies:

* The Committee also recommended to apprise the Ministry about ineligible teachers and that 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. Details of ineligible teachers are as under:

   C/SCA/1898/2021                                           CAVORDER



1. Dr.     Mohesh          Bhoraniya,            DHMS(2001).              He      has

joined as Professor in Anatomy on 17/5/16. No previous experience provided. Not considered eligible for Professor.

2. Dr Saunil Malvinya, MD (Organon 2007) joined as Professor in Organon on 15/7/15. He has previous experience in Organon in BA Dangar HMC from 1/11/02 to 14/7/14 as a part time Professor. As there is no previous experience of full time teaching of 7 years, he has not been considered eligible for Professor.

3. Dr. Vipul Doshi, MBBS, MD (1996) has joined as Lecturer on 16/6/2014 and promoted to Reader on 18/6/17. No previous experience before 2014 provided.

4. Dr. Mahesh Rathod, MBBS, MD (1993) has joined as lecturer on 16/6/14 and promoted to reader on 18/6/17. No previous experience before 2014 provided. His date of birth is 23.09.1965. Not considered eligible.

5. Dr. Jignesh Bhimani, MS (2009) has joined as Reader in Surgery on 16/06/14 and promoted Professor on 17/06/17. No previous experience of Lecturer. Not considered

C/SCA/1898/2021 CAVORDER

eligible as Professor as 7 years of teaching experience is not completed."

6. As far as the first deficiency is concerned it is alleged against the College 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.

7. The second deficiency alleged against the college is that Dr. Mahesh Rathod was found to be ineligible as he was above 40 years of age. Perusal of the petition, and appreciating the submissions of the learned advocate Shri Dhaval Dave, it is evident that Shri Rathod was working with the institute and was not declared ineligible in the academic years 2014­15 to 2019­20. The designated hearing committee was informed that one Dr. Vikrant Garg was appointed as professor (Department of practice of medicine) as an additional higher faculty and supporting documents were on record. The order does not

C/SCA/1898/2021 CAVORDER

indicate any consideration of this aspect.

8. As far as the third deficiency is concerned due to ineligibility of five teachers, the impugned order would indicate that there was no consideration of the documents which were produced with the standard information format. Even in the past years, they were not found to be ineligible. It is evident that sufficient explanation was given with regard to Dr. Saunil Malvinya, inasmuch as, he had previous experience since November, 2002 to 2014 as a part time professor when the regulations of 2013 were not in force. Dr. Vipul Doshi had been working with the institute for the past six and half years and so was Dr. Jignesh Bhimani.

9. With regard to the 4th deficiency is concerned, it was pointed out to the designated hearing committee that when the standard information form for extension of permission was filled in the two positions were vacant. Details of newly appointed teachers were furnished to the committee.

10. These explanations make it evident that the order dated 12.1.2021 is bereft of any merit. Accordingly the petition is allowed in terms of para 30(a).

11. The Registry to communicate this order through E­mail.

(BIRENVAISHNAV,J) *** VATSAL