Gujarat High Court

Rishiraj Education Foundation vs Union Of India on 20 February, 2021

Bench: Biren Vaishnav

              C/SCA/1292/2021                           CAVORDER




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
                 R/SPECIALCIVILAPPLICATIONNO. 1292of 2021
==========================================================

RISHIRAJEDUCATIONFOUNDATION Versus UNIONOF INDIA ========================================================== Appearance:

MR. DHAVALDAVE,SENIORCOUNSELWITHUDITN VYAS(9255)for the Petitioner(s)No.

MR. SIDDHARTHDAVE,ADVOCATEFORMRDEVANGVYAS(2794)for the Respondent(s) No. 1,2

========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date: 20/02/2021 CAVORDER 1 By way of this petition under Article 226 of the Constitution

of India, the petitioner has prayed for quashing and setting aside

the order dated 11.01.2021 by which the AaryaVeer Homeopathic

Medical College at Kuvadva, Rajkot, has been denied permission for

taking admission in B.H.M.S Course with intake capacity of 100

seats for A.Y 20202021.

2. The facts in brief are as under:

* The Petitioner is a public trust. It inter alia runs a college in the

name of AryaVeer Homoeopathic Medical 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 201718 with the intake capacity of 100 seats.

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* 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.

* Thereafter, the College received from Respondent No. 1 the

hearing notice dated 28th 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 11th January, 2021 passed by Respondent No. 1. Vide this

order the College was denied extension of permission for the

academic year 202021.

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3    Mr.Dhaval Dave, learned Senior Advocate with Mr.Udit Vyas,

learned advocate for the petitioner submits that the impugned

order passed by Respondent No. 1 is wholly unsustainable and

would make the following submissions:

* 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 upon appreciation of the observations of the

Designated Hearing Committee of Respondent No.1 which heard

the College. Needless to mention that if the observations of the

Designated Hearing Committee were to be again assessed by

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

Designated Hearing Committee for coming to the final conclusion,

hearing accorded to the College became an empty formality. This

completely vitiates the impugned order. Reliance is placed on a

decision of the Apex Court in the case of Parul University V/s

Union of India & Anr. 2017 SCC Online Guj 77 -Paragraphs 30

& 31, SLP (C) 13901391 preferred against the same rejected

C/SCA/1292/2021 CAVORDER

vide order dated 5th February, 2018.

* The impugned order is a nonspeaking order in true sense.

Because no reasons are assigned in the impugned order for not

subscribing to the observations of the Designated Hearing

Committee which accepted the explanation submitted by the

College in respect of the alleged deficiencies.

* 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. Reliance is

placed on a decision of the Apex Court in the case of Hindustan

Petroleum Corporation V/s Darus Shapur Chenai & Ors. (2005)

7 SCC 627 - Paragraphs 24 to 27.

* 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.


*     The first deficiency alleged against the College is with regard






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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.

* The second deficiency alleged against the College is with

regard to in all eleven 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 eleven

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

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Designated Hearing Committee did not find it necessary. Needless

to mention that once the person whose signature is doubted

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

matching demands expertise to reach any conclusion thereon.

Reliance is placed on a decision of the Apex Court in the case of

Thiruvengadam Pillai V/s Navaneethammal & Anr. (2008) 4

SCC 530 - Paragraph 16.

* Further, barring two new appointees, the rest nine from the

aforesaid eleven teachers were with the College in the previous

academic year 202920. Accordingly, during the inspection for the

academic year 201920 they were confirmed as teachers working in

the College.

* 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

Homoeopathy Central Council Act, 1973.

* 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

C/SCA/1292/2021 CAVORDER

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 a decision of the Apex

Court in the case of Royal Medical Trust V/s Union of India

(2015) 10 SCC 19 - Paragraph 29.

* 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 a decision

of the Apex Court in the cases of 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.

* 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

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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.

* 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 a decision of the Apex Court in

the case of Deoraj V/s State of Maharashtra (2004) 4 SCC 697 -

Paragraph 12.

3 Mr.Siddharth Dave, learned advocate would support the

order denying the permission and make 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

C/SCA/1292/2021 CAVORDER

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 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 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

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respond and the authority found them to be insufficient

compliance. The order 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.

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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 The following deficiencies are made out in the impugned

order which reads as under:

"

1. Details of IPD/OPD and other details are available on the college website: www.avhmch.org at the time of hearing.

2. College has submitted declaration vide Ref. No. AVHMC/202021/158 dated 07/11/2020 duly signed by the Principal of the institution mentioning there is no employee in the Institution who is under the minimum limit of salary covered under the EPFO Act.

3. Notarized affidavits obtained from the individual teachers declaring signatures on the different documents are their only have been submitted by the college in respect of mismatching of the signatures in different documents.

4. List of 18 Part time teachers was submitted by the college.

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Ministry's observations as recorded in the impugned order dated 11th January, 2021 for passing the impugned order.

1. Notarized affidavit submitted by the aforesaid Teaching Faculties/ College stating that the signature on affidavit in presence of notary and on the documents uploaded on the teachers code are mine only. However, CCH has observed discrepancies in their affidavit and other documents, thus considered 'teachers on paper' only, hence, in this connection, on the basis of observation of the CCH, it appears that the teaching faculty are not regular at college and some proxy has been signing on their behalf at the College. Since the teachers are direct beneficiary of this proxy signature arrangement, therefore they have given affidavit that different signatures on different are their only.

2. Therefore, Ministry stands with the recommendation and observation of the CCH, which is the Regulator and has NOT considered these teachers as eligible regular teacher in the college."

5.1 With regard to the first deficiency, it has been rightly pointed

out that the college does not come under the compulsory EPF

criteria at all as the employees draws salary much above

Rs.15,000/. Aa far as ESI Act is concerned, that is not applicable to

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

authorities that the institution has been held by the competent

authorities under the Act for a breach thereof.

5.2 with regard to the second deficiency, reading of the

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impugned order would indicate that 11 teachers were found to be

ineligible due to discrepancies in their affidavits and signatures.

What is evident from the explanation given by the college before