J.P. Institute Of Ayurveda And ... vs The State Of Bihar
2023 Latest Caselaw 1192 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.10149 of 2022
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J.P. Institute of Ayurveda and Medical Science Sattar Panchmuhani, Sattar (Sarai), P.O.- Sarai, P.S. - Maner, Dist.- Patna, Bihar - 801113 through its Director Kumar Vivek, male, aged about 30 years, S/o Jitendra Prasad Singh, R/O Main Road, Machhua Toli, Thana More, Danapur Cantt, Babakkarpur, Patna, Bihar - 801503.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Bihar, Patna.

2. The Principal Secretary, Health Department, Bihar, Patna.

3. The Special Secretary, Health Department, Bihar, Patna.

4. The Joint Secretary, Health Department, Bihar, Patna.

5. The OSD, Health Department, Bihar, Patna.

6. The Secretary to Government of India, Ministry of AYUSH, Ayush Bhawan, B Block, A.P.O. Complex, INA, New Delhi- 110023.

7. The President, Medical Assessment and Rating Board for Indian System of Medicine, New Delhi - 110058.

8. The Secretary, National Commission for Indian System of Medicine, 61- 65, Institutional Area - Janakpuri, D Block, New Delhi - 110058.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :       Mr.Suman Kumar
     For Respondent Nos.2-5 :       Mr. Aditya Nath Jha, AC to SC 18
     For Respondent Nos.6-8 :       Mr. Janardan Prasad Singh, Sr. Adv.
                                    Mr. Dipak Kumar

====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER ORAL

Date : 27-03-2023

The petitioner, a newly established Ayurvedic College,

being represented through its Director, Kumar Vivek, has filed the

present writ application for grant of No Objection Certificate by

the State Health Department to enable the petitioner to start a new Patna High Court CWJC No.10149 of 2022 dt.27-03-2023

Ayurvedic College for the academic session 2023-2024 in the

name of J. P. Institute of Ayurveda and Medical Sciences.

2. According to the petitioner, necessary infrastructure

for establishment of the College has been created and accordingly

it submitted the application before the State authority on

30.09.2021 in the required proforma for grant of 'No Objection

Certificate' for the purpose of opening the Ayurvedic College and

Hospital.

3. Learned Counsel for the petitioner submits that the

writ application was filed on 07.07.2022 for a direction to the State

authorities to grant No Objection Certificate. As per the Schedule

for receipt and processing of the applications under Regulation 5

of the Establishment of New Medical College, Opening of New or

Higher Course of Study or Training and Increase of Admission

capacity by a Medical College Regulations, 2019 (hereinafter

referred to as 'Regulations, 2019'), the date for receipt of the

application by the Central Government for grant of recognition of

Ayurvedic College has been fixed. The date for receipt of

applications by the Central Government has been fixed between 1 st

July to 31st August of any year. The date of forwarding of

applications by Central Government to Central Council of Indian

Medicine for technical scrutiny has been fixed as 30th September. Patna High Court CWJC No.10149 of 2022 dt.27-03-2023

The date of recommendation of Central Council of Indian

Medicine to Central Government for issuing letter of

permission/denial order is 31st March of the following year and the

date of issuance of letter of permission by the Central Government

has been fixed by 31st May of the following year. He, thus submits

that the Ayurvedic College starts after grant of permission/

recognition by the Central Government, which shall be after 31 st

May, 2023.

4. Since the request of the petitioner for grant of No

Objection Certificate was pending before the State Health

Department, accordingly, this Court, vide order, dated 30.11.2022,

granted permission to the petitioner to submit his application

before the Central Government holding that the last date fixed for

accepting the application would not come in the way of the

petitioner and the same would be subject to the orders passed in

the present case.

5. Learned Counsel, however, submits that the last date

for submission of application form, as per Schedule, was extended

by the National Council for Indian System of Medicine (in short,

the 'NCISM'), by its letter, dated 31.10.2022, i.e. up to

30.11.2022. The petitioner has applied in the requisite form for

grant of recognition on 30.11.2022, without the copy of the No Patna High Court CWJC No.10149 of 2022 dt.27-03-2023

Objection Certificate granted by the State Government, since the

same was not available to the petitioner at that point of time.

6. The NCISM, vide its letter, dated 25.01.2023,

informed the petitioner that the matter of grant of recognition to

the petitioner College was discussed by the Medical Assessment

and Rating Board, in its 27th meeting, held on 03.01.2023, and the

application of the petitioner was rejected by the Medical

Assessment and Rating Board on the ground of non-availability of

the No Objection Certificate from the concerned State Government

to start a new Ayurvedic College.

7. The petitioner has challenged the letter, dated

25.01.2023, by filing I. A. No. 01 of 2023.

8. The submission of learned Counsel for the petitioner

is that the proposal of the petitioner for opening a new Ayurvedic

College has arbitrarily been rejected by the Medical Assessment

and Rating Board on the ground that the proposal/application form

of the petitioner was not accompanied with the No Objection

Certificate. He, however, submits that this Court has granted him

protection, vide order, dated 30.11.2022, that the last date fixed for

accepting the application would not come in the way of the

petitioner, as such, the rejection of the proposal/application form

of the petitioner on the ground that the No Objection Certificate Patna High Court CWJC No.10149 of 2022 dt.27-03-2023

was not submitted by the petitioner along with the proposal/

application form is contumacious. He further submits that the last

date of receipt of the application fixed in the Schedule, as per

Regulation 5 of the Regulations, 2019, has been extended by the

NCISM from 31st August to 30th November, 2022. Since the

petitioner was not at fault and the issue of No Objection Certificate

was subjudice before this Court, as such, the rejection of the

proposal/application form of the petitioner on the ground of non-

submission of the No Objection Certificate, along with the

application form, is palpably unreasonable and smacks of

colourable exercise of power.

9. Learned Senior Counsel appearing on behalf of the

NCISM submits that the No Objection Certificate was not

available with the petitioner as such the copy of the same was not

filed along with the proposal/application form before the

assessment done by the Medical Assessment and Rating Board on

03.01.2023. Accordingly, the proposal/application form of the

petitioner was rejected by the Medical Assessment and Rating

Board in its 27th Meeting. He next submits that the No Objection

Certificate was granted by the State Government to the petitioner

on 14.02.2023, i.e. after the 27th Meeting of the Medical

Assessment and Rating Board held on 03.01.2023. Accordingly, Patna High Court CWJC No.10149 of 2022 dt.27-03-2023

his submission is that the action of the respondent authorities is not

arbitrary inasmuch as along with the application form, the No

Objection Certificate granted by the concerned State Government

ought to have been filed. He further submits that if the proposal/

application form is disapproved by the Medical Assessment and

Rating Board of the NCISM, the aggrieved person can prefer an

appeal before the NCISM within fifteen days of the disapproval or

as the case may be, after lapse of three months, in such manner as

may be specified by regulations in view of the provision

mentioned in Section 29 (5) of the NCISM Act, 2020. He also

submits that as per Section 29 (6) of the 2020 Act, the provision of

second appeal is also there.

10. I have heard learned Counsel for the parties

concerned.

11. It appears that last date of receipt of the application

form/proposal, as per Schedule for receipt and processing of ther

applications, was extended by the NCISM from 31 st August to 30th

November, 2022. The issue regarding grant of the No Objection

Certificate by the concerned State Government was subjudice

before this Court, and this Court, vide its order, dated 30.11.2022,

directed that the last date fixed for accepting the application would Patna High Court CWJC No.10149 of 2022 dt.27-03-2023

not come in the way of the petitioner and the same would be

subject to the orders passed in the present case.

12. This Court has been given to understand that the

academic sessions starts, as per the Schedule, after 31 st May.

Admittedly, the No Objection Certificate was granted by the State

Government to the petitioner during the pendency of this writ

application, on 14.02.2023, i.e. after the meeting of the Medical

Assessment and Rating Board held on 03.01.2023.

13. Taking into consideration the totality of the fact and

the fact that the academic session has not yet commenced and is

likely to be started after 31st May, accordingly, the proposal of the

petitioner for grant of recognition along with the No Objection

Certificate granted by the State Government be remitted back to

the Medical Assessment and Rating Board of the NCISM for its

fresh consideration in accordance with law.

14. It has been informed by learned Senior Counsel for

the NCISM that the application form of the petitioner has been

returned to him and the petitioner may be directed to produce the

same before the NCISM. The petitioner is accordingly directed to

produce the application form/proposal, along with the No

objection Certificate granted by the State Government, before the

NCISM positively within a period of ten days from today.

Patna High Court CWJC No.10149 of 2022 dt.27-03-2023

15. Accordingly, the order, dated 25.01.2023, is set aside

and the Medical Assessment and Rating Board of the NCISM is

directed to reconsider the proposal/application form of the

petitioner within a period of thirty days from the date of

submission/ production of the proposal/application form by the

petitioner.

16. In the result, this application is allowed.

17. I. A. No. 01 of 2023 also stands disposed.

(Anil Kumar Sinha, J.) Prabhakar Anand/-

AFR/NAFR                        AFR
CAV DATE                        N/A
Uploading Date               28-03-2023
Transmission Date               N/A