Shree Bachubhai Alabhai Dangar ... vs Union Of India
2021 Latest Caselaw 2948 Guj

              C/SCA/2526/2021                           CAVORDER




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                  R/SPECIALCIVILAPPLICATIONNO. 2526of 2021

==========================================================

SHREEBACHUBHAIALABHAIDANGARHOMEOPATHICMEDICALCOLLEGE Versus UNIONOF INDIA ========================================================== Appearance:

MRDHAVALDAVE,SENIORCOUNSELWITHMRUDAYANP VYAS(1302)for the Petitioner(s)No. 1,2,3

MRSIDDHARTHDAVEFORMRDEVANGVYAS(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 prayer of the petitioner is to quash and set aside the order dated 18.01.2021 passed by the respondent no. 1 by which petitioner college has been denied extension of permission for the academic year 2020-21.

2. Facts in brief are as under:

2.1 The Petitioner No.2 is a public trust. It inter alia runs a college in the name of Shree Bachubhai Alabhai Dangar 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 2002-03 with the intake capacity of 100 seats.

C/SCA/2526/2021 CAVORDER

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 2020-21. This is not in dispute. 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.

2.3 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 18th January, 2021 passed by Respondent No. 1 (Page: 178). Vide this order the College was denied extension of permission for the academic year 2020-21.

3. Mr. Dhaval Dave, learned Senior Counsel appearing with Mr. Udayan Vyas, learned advocate for the petitioner made the following submissions:

a. 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

C/SCA/2526/2021 CAVORDER

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. In this regard, he has relied upon 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) 1390-1391 preferred against the same rejected vide order dated 5th February, 2018.

b. Without prejudice to the aforesaid, even if the deficiencies which are referred to in the impugned order as also in the affidavit-in- reply 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.

c. The first deficiency alleged against the College is with regard to in all eight 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 eight teachers filed their affidavit before the Designated Hearing Committee confirming their signature on all the documents in question. 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

C/SCA/2526/2021 CAVORDER

thereon. In support of this submission, he has relied on the decision in the case of Thiruvengadam Pillai V/s Navaneethammal & Anr. (2008) 4 SCC 530 - Paragraph 16)

d. Further, all aforesaid eight teachers were with the College in the previous academic years including the last academic year 2019-20. Accordingly, during the inspection for the academic year 2019-20 they were confirmed as teachers working in the College. Even in the earlier academic years no objection was raised qua their engagement with the College as Teachers.

e. The second deficiency alleged against the College is with regard to the shortfall in the strength of guest faculty. According to Respondent No.1 the College is having in all nine guest faculties as against the requirement of twelve. As such, the College appointed nine guest faculties under the bonafide impression that as per the notification issued in the year 2017 by the Central Council of Homeopathy, the requirement of guest faculty is reduced to eight. However, even if the said notification is not to be applied as it has not been brought into existence; the College is within the permissible limit even with the guest faculty strength at nine. Because, the College is having 32 full time faculties (teachers) and 9 guest faculties. Thus, the total faculty strength of the College is 41 against the requirement of 32 (28 full time and 12 guest) as per Schedule IV of MSR 2013. Further, as per Schedule IV of MSR 2013 deficiency in the faculty strength to the extent of 10% is permissible. Thus, even with the shortfall in the guest faculty, the college is within the permissible limit.

C/SCA/2526/2021 CAVORDER

f. The third deficiency alleged against the College is in respect of non-availability of part-time teacher of Modern Medicine. Since in the hearing notice it was mentioned that the College has no part- time teacher of Modern Medicine, the College prescribed details of part-time teachers of Modern Medicine in its written submission. However, their appointment was not accepted on the flimsy ground that payments were made to them on call basis on few occasions and not on all calls. Besides this, it was ignored that these part-time teachers were there even in the earlier academic year 2019-20 and they were accordingly accepted as part-time teachers while granting permission for the academic year 2019-20.

g. 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.

h. 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 the case of Royal Medical Trust V/s Union of India [(2015) 10 SCC 19] Paragraph 29.

i. The impugned order, if viewed in totality, is cryptic, mechanical,

C/SCA/2526/2021 CAVORDER

without considering the submissions of the College and suffering from the vice of total non-application of mind warranting interception in the present petition. In this regard he has relied on the decisions 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.

j. The judgments relied upon by Respondent No.1 in its affidavit-in-

reply are in respect of the cases where multiple deficiencies of grave and non-rectifiable 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.

4. Mr. Siddharth Dave, learned advocate appeared for Mr. Devang Vyas, learned ASG for the respondents and made the following submissions:

4.1 The order impugned in the petition denying renewal of permission

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

C/SCA/2526/2021 CAVORDER

regulations known as the Homeopathy (Minimum Standards of

Education) Regulation, 2013. 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 Schedule-IV for the course. Only full time faculty

is required at all levels.

4.2 Relying on the amended regulations of 2019 he submitted 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

C/SCA/2526/2021 CAVORDER

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 Countering 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 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

C/SCA/2526/2021 CAVORDER

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 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 non-speaking order.

5. Having considered the submissions of the respective advocates, perusal of the impugned order would indicate the following overall observations of the Designated Hearing Committee of Respondent as

C/SCA/2526/2021 CAVORDER

recorded in the impugned order dated 18th January, 2021:

"

1. The college has updated the IPD and OPD data in their website.

2. The college is following the norms of Employee's Provident funds Miscellaneous Provident Act 1952 & ESI Act 1948 and relevant Rules and Regulations and has given details of 06 (six) employees.

3. a. In the absence of supporting documents like attendance register, aquittance roll, Form 16A as above, the full-time availability of the said 07 teachers could not be ascertained.

b. Dr. Amitabh Sinha has been appointed to the post of Lecturer in the department of Surgery on 13/11/2020.

4. Copy of CCH Notification is provided.

5. The college has provided the details of 06 (six) staff of Modern Medicine, against the requirement of 09. Further, due to mismatch & discrepancies found in attendance register and pay vouchers against 06 teachers of Modern Medicine individuals. Hence, it seems that the college is not having Part Time teachers of Modern Medicine.

The Ministry's observations as recorded in the impugned order dated 18h January, 2021 for passing the impugned order are as follows:

(a) Hearing committee commented that full time availability of 07 teachers could not be ascertained. It is also stated that, Affidavit submitted by the aforesaid Teaching Faculties / College for signature mismatches wherein it has been claimed that signature made by them in the affidavit for teacher's code and joining letter is their signature only. However, CCH has observed discrepancies in their documents and considered them ineligible as signature in the affidavit is not matching with the sample signatures for teacher code and joining letter and seems to be on papers only. On the basis of observation of the CCH, it appears that the teaching faculties are NOT regular at college and some

C/SCA/2526/2021 CAVORDER

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 documents are their only. 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 this college.

(b) On the basis of the CCH observation and Observation of the Hearing Committee, it has been observed that required number of Guest Faculties and Part Time teacher of Modern Medicine NOT available in the college."

6. As far as the first deficiency is concerned, the impugned order suggests that there were discrepancies in documents in context of eight teachers. The only reason is that there was a mismatch in their signatures. It is pointed out and evident from the memo of the petition and from the contentions raised before the designated hearing committee that all these teachers had filed their affidavits before the designated hearing committee identifying their signatures. In this context, the decision cited by Mr. Dhaval Dave in the case of Thiruvengadam Pillai (supra), para 16 thereof, squarely applies. Even otherwise, these 8 teachers were in the college in the previous academic year 2019-20 and during the inspection,they were confirmed as teachers working in the college.

7. With regard to the second deficiency, with regard to the shortfall in the guest faculty, against the requirement of 12 the college had 9 guest faculties. It was under a bonafide impression that the college was unaware of the minimum figure of 12. However, it was a shortfall within permissible limit inasmuch as the college had 32 full-time teachers. In all, there was 41 faculty strength and came within the extent of 10%

C/SCA/2526/2021 CAVORDER

deficient strength.

8. With regard to the third deficiency regarding non-availability of part-time teachers in modern medicine, details were submitted of 9 part- time teachers which were available but that was not accepted as the case of the authority was that the payments were made to them on a call basis. This was not a omission or a deficiency which was serious enough to warrant denying extension of permission to the petitioner.

9. Having found therefore that the deficiencies are not serious enough to warrant restrictions of intake, the petition is allowed. Prayer in terms of para 25(A) is granted. The petitioner college is permitted to admit students with an intake of 100 seats to commence the academic sessions in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2020-21 through the centralized process of admission undertaken by Admission Committee of the State and the Saurashtra University is directed to enroll students so admitted. Direct service is permitted.

(BIRENVAISHNAV,J) DIVYA