Chandravatiben Dhansukhlal ... vs Union Of India
2021 Latest Caselaw 2943 Guj

             C/SCA/1723/2021                                   CAVORDER




               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
                R/SPECIALCIVILAPPLICATIONNO. 1723of 2021
==============================================================================

CHANDRAVATIBENDHANSUKHLALPACHCHIGARCOLLEGEOF HOMEOPATHIC MEDICINEANDHOSPITAL Versus UNIONOF INDIA ============================================================================== Appearance:

MR DHAVALDAVE, SR COUNSELwith MR UDAYANP VYAS(1302)for the Petitioner(s) No.

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

4.12.2020 by which the respondent has granted

extension of permission to the institution

restricting the intake capacity to 75 seats

instead of 100 seats for admission of students

to the B.H.M.S. Course for academic year 2020­

21.

2. The facts need not detain us.

3. Since in the year 2017­18, the petitioner was

C/SCA/1723/2021 CAVORDER

refused intake to 100 seats and was restricted

to 75 seats, the petitioner was constrained to

approach this Court by filing Special Civil

Application No.19230 of 2017. This Court by an

order dated 20.11.2017 quashed the said order

and by way of interim relief held as under:

"6.7 Not only that the facts of the present case make out a strong prima facie case as above, also the principle regarding test of reasonableness applied in Shantaben Manubhai Patel (supra) would apply and the decision of the respondent No.1 to reduce the intake capacity from 100 to 75 on the same set of infrastructure, prima facie, could hardly be treated or accepted as rational and reasonable. Prima facie, the reduction ordered in the intake capacity is an arbitrary decision.

7. Therefore, by way of interim relief, the petitioner is permitted to have the intake capacity of 100 seats in the B.H.M.S. Course for the academic year 2017­18. It is, however, provided that it will be open for the respondent No.2 Central Council of Homeopathy to carry out inspection of the institute during the academic year. Since learned senior counsel for the petitioner has stated that deficiencies about X­Ray and USG machines would be attempted to so as to make them functional before 31st December, 2017, let there be an undertaking on oath caused to be filed by the authorised person of the petitioner within a period of one week from today.

          C/SCA/1723/2021                          CAVORDER



       The   respondents    shall    allow    the

petitioner to admit the students of the intake of 100 seats in its college in B.H.M.S. Course and shall further allow to complete the formalities in that regard, which shall be completed immediately. "

4. For the academic year 2018­19, once again the

petitioner was constrained to file Special Civil

Application No.16491 of 2018. This Court by an

order dated 19.11.2018 held as under:

"6. Having heard the learned counsel appearing for the parties and having considered the materials on record, more particularly, the two orders referred to above, I am of the view that the writ applicant has been able to make out a strong prima facie case to have an interim order in terms of para­ 30(B).

I would like to adopt the same line of reasoning as assigned in the two orders referred to above of the Coordinate Bench. I, accordingly, grant such relief. "

5. This Court while issuing notice had passed the

following order on 28.1.2021 wherein this Court

granted interim relief making it clear that the

students admitted to the additional 25 seats

will not be entitled to claim equities.

"1. Heard Mr.Dhaval Dave, learned Senior Counsel appearing with Mr.U.P.

 C/SCA/1723/2021                  CAVORDER



Vyas,   learned    advocate   for   the

petitioners through Video Conferencing.

2. In this petition, under Article 226 of the Constitution of India, the prayer of the petitioner ­ College is that the order dated 4.12.2020 reducing the intake of the College to 75 students for the academic year 2020­ 2021 is bad in law.

3. Mr.Dhaval Dave, learned Senior Counsel for the petitioners would invite the attention of the Court to the Oral Judgment dated 9.9.2019 passed by the coordinate bench of this Court in a group of petitions being Special Civil Application Nos.20139/2016, 19230/2017, 16491/2018 and 10851/2019. Perusal of the oral judgment would indicate that for 4 consecutive orders, the respondent did not grant extension of permission to the petitioner for intake of 100 students in support of the same being granted by this Court for three earlier years. The petitioner had to come repeatedly before this Court for extension of permission assailing the action of the respondents for limiting the intake capacity to 75. It was under these circumstances that the Court allowed the petitions and observed in paras 14 and 15 which read as under:

"14. In view of the aforesaid submissions made on behalf of the respondent no.1 and in view of fact that there is no deficiency found by the respondent no.2 for intake of 100 students for B.H.M.S Course run by the petitioner College, all the petitions are allowed in terms of the interim order passed by this Court in respective petitions being Special

C/SCA/1723/2021 CAVORDER

Civil Application No.20139 of 2016, 19230 of 2017 and Special Civil Application No.10851 of 2019 is also allowed as the respondent no.1 has failed to consider the case of the petitioner for intake of 100 students and has considered the case of the petitioner for intake of 75 students ignoring the fact that since last three years petitioner is imparting education to 100 students and for the year 2019­20 respondent no.2 has not pointed out any deficiency pursuant to inspection carried on 25.03.2019.

15. The respondent no.1 is therefore directed to issue letter of permission for intake of 100 seats from the academic year 20162017 and letter of extension of permission for academic years 2017­18, 2018­ 2019 and 2019­ 2020. The respondents are accordingly directed to permit the petitioner­ College to have intake of 100 students for the academic year 2019­2020 forthwith."

It appears that despite these clear directions, once again the respondent no.1 by the impugned communication has maintained its status of restricting the College intake capacity of 75 despite repeatedly having succeeded before this Court.

4. Perusal of the impugned order would indicate that there is no deficiency indicated in the impugned order so as to justify reduction of intake for the academic year 2020­2021.

5. Issue NOTICE, returnable on 10.2.2021.

              C/SCA/1723/2021                             CAVORDER




             6.   There shall be ad­interim                     relief

in terms of paragraph No.39(B).

7. The College shall clarify in the admission granted to the additional 25 seats and the students so admitted on these seats that their admission is purely conditional and subject to further orders that may be passed by this Court. It is made clear that the students admitted in the additional 25 seats will not be entitled to any equities in favour of them due to this interim order.

8. The Registry is requested to communicate this order through E­mail and / or Fax."

6. It is apparent that but for repeated necessities

of approaching this Court, the respondents are

victimizing the institution. Even in order no

deficiencies and shortfalls are pointed out to

sustain the order. Hence, the order dated

4.12.2020 is quashed and set aside. The petition

is allowed in terms of paragraph No.39(A).

7. The Registry to communicate this order through

Email.

(BIRENVAISHNAV,J) *** VATSAL