Gujarat High Court
Vasantben N. Vyas Homoeopathy Medical ... vs Union Of India on 5 December, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17968/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17968 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VASANTBEN N. VYAS HOMOEOPATHY MEDICAL COLLEGE AND
HOSPITAL
Versus
UNION OF INDIA
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Appearance:
MR UDAYAN P VYAS(1302) for the PETITIONER(s) No. 1
MR AR THACKER(888) for the RESPONDENT(s) No. 3
MR SIDDHARTH DAVE for MR DEVANG VYAS(2794) for the
RESPONDENT(s) No. 1,2
MR HARSH N PAREKH(6951) for the RESPONDENT(s) No. 2
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/12/2018
ORAL JUDGMENT
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a Medical College and Page 1 of 37 C/SCA/17968/2017 JUDGMENT Hospital through one of its trustees has prayed for the following reliefs:
"21(A) That, this Hon'ble Court be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction declaring that an Order dated 19th September, 2017 (Annexure "E") issued by Respondent No.1 herein denying the permission to the Petitioner for undertaking admission of students for imparting education in the discipline of Homoeopathy at the level of graduation leading to the qualification of BHMS for the intake of 100 seats for the academic year 2017-18 is null, void, illegal, arbitrary, unreasonable, non-est and in violation of fundamental rights guaranteed under Article.14 and Article.19(1)(g) of the Constitution of India thereupon be pleased to quash and set aside the same.
(B) That, this Hon'ble Court be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondents herein to grant permission for admission to the Petitioner for imparting education in the discipline of Homoeopathy at the level of graduation leading to the qualification of BHMS for the intake of 100 seats for the academic year 2017-18;Page 2 of 37
C/SCA/17968/2017 JUDGMENT (BB) That, this Hon'ble Court be pleased to direct Saurashtra University to enroll students admitted by the Petitioner for education in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18.
(C) That, pending admission, hearing and final disposal of this Petition, this Hon'ble Court be pleased to stay implementation, execution and operation of an Order dated 19th September, 2017 (Annexure "E") issued by Respondent No.1 herein denying the permission to the Petitioner for undertaking admission of students for imparting education in the discipline of Homoeopathy at the level of graduation leading to the qualification of BHMS for the intake of 100 seats for the academic year 2017-18;
(D) That, pending admission, hearing and final disposal of this Petition, this Hon'ble Court be pleased to allow the Petitioner to admit students to commence the academic sessions in the discipline of Homoeopathy at the level of graduation leading to the qualification of BHMS for the intake of 100 seats for the academic year 2017-18 on such terms and conditions as the Hon'ble Court may deem fit and proper;
(DD) That, pending admission, hearing and final Page 3 of 37 C/SCA/17968/2017 JUDGMENT disposal of this Petition, this Hon'ble Court be pleased to direct the Saurashtra University to enroll provisionally students admitted by the Petitioner for education in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18 on such terms and conditions as the Hon'ble Court may deem fit and proper.
(E) That, this Hon'ble Court be pleased to grant such further and other relief as the nature and circumstances of the case may require;
(F) That, this Hon'ble Court be pleased to award the cost to this Petition."
2. The case of the writ-applicant in their own words as pleaded in the writ-application is as under:
"2. Petitioner is a Homoeopathic Medical College and Hospital run and managed by Shri Swaminarayana Gurukul Trust registered as Public Trust on 4th April, 1988 bearing registration No.E/464/Amreli under the provisions of Bombay Public Trusts Act, 1950. Petitioner craves leave to refer to and rely upon the Certificate of Registration as a Public Trust issued the provisions of Bombay Public Trusts Act,1950 as and when produced.Page 4 of 37
C/SCA/17968/2017 JUDGMENT
3. Under the aegis of this parent Public Trust, Petitioner was came to be established and commenced its activity on and from the year 2015 of imparting education in the discipline of Homoeopathy at the level of Graduation leading to the qualification of BHMS from the academic year 2015-16 with an approved intake of 100 seats having affiliation with Saurashtra University on self finance basis. As on date, Petitioner is having intake of 100 seats for BHMS on self finance basis approved and sanctioned by Government of Gujarat, Saurashtra University and Central Council of Homoeopathy, New Delhi.
4. The Union of India, Respondent No.1 herein, acting through its Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH), is the authority under Section 12 A of the Homoeopathy Central Council Act, 1973 empowered to grant permission for establishment of any new college in the discipline of Homoeopathy as also for commencement of any new course or programme in an existing Homeopathy college as also for increase in intake of an existing Homoeopathy College. The procedure to be followed by the Union of India for grant of such permission is prescribed by Section 12 A the Homoeopathy Central Council Act, 1973.
5. The Central Council of Homoeopathy, Respondent No. 2 herein, is the expert body in the discipline of Homoeopathy established under Section Page 5 of 37 C/SCA/17968/2017 JUDGMENT
3 of the Homoeopathy Central Council Act, 1973.
6. In response to an application in the form of a scheme submitted by the Petitioner to the Central Government under Section 12 A of the Homoeopathy Central Council Act,1973 inter alia seeking permission to open a new Homoeopathic Medical College for imparting education at the level of graduation leading to the qualification of BHMS with an intake of 100 seats, a Letter of Intent was issued on 27th July, 2015 and thereafter on the basis of recommendations of Central Council of Homoeopathy, New Delhi, in terms of the provisions of the Homoeopathy Central Council Act,1973 and Regulations framed there under, a Letter of Permission dated 23rd October, 2015 was issued by the Central Government in favour of Petitioner inter alia according permission to start new Homoeopathic Medical College with an intake of 100 seats at the level of graduation leading to the qualification of BHMS for the academic year 2015-2016. Petitioner craves leave to refer to and rely upon the same as and when produced.
7. For the Academic Year 2016-17, an inspection was carried out on 19th May, 2016 by the representatives of Central Council of Homoeopathy, New Delhi and submitted its report to the Central Government for further course of action in accordance with the provisions of the Act and Regulations framed there under. It appears that the Page 6 of 37 C/SCA/17968/2017 JUDGMENT Executive Committee has recommended for grant of permission for making admission in I-BHMS and II- BHMS course subject to certain deficiencies being cleared by the Petitioner. By letter dated 28th September, 2016, the Registrar, Central Council of Homoeopathy, New Delhi delivered a copy of inspection report to the Petitioner which will be referred to and relied upon by the Petitioner as and when produced.
8. However, to the utmost shock and surprise, Petitioner simultaneously also received a letter dated 1st August, 2016 addressed by the Central Government to the Petitioner inter alia stating therein that a team comprising of three members lead by Dr.vipin Sharma, Research Officer, Ayurved, Ministry of AYUSH has been directed to make a surprise inspection in the month August, 2016 of the set up of Petitioner to ascertain the actual status/ functioning of the college and attached hospital and therefore the Petitioner was requested to provide full co-operation to the visiting team in discharge of their duties and also furnish necessary information and documents to help them ascertain the position visually under the provisions of the Homoeopathy Central Council Act,1973 and Regulations framed there under. Accordingly, an inspection team of Central Government carried out an inspection on 2nd September, 2016 in the set up of Petitioner and noted in brief factual position existing in the set up of Petitioner at the time of inspection.
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9. On the basis of Inspection Report of the representatives of Central Council of Homoeopathy, New Delhi and on the basis of inspection report submitted by a team of surprise inspection carried out on behalf of the Central Government, a Notice of Hearing dated 26th October, 2016 was came to be issued to the Petitioner by the Central Government inter alia calling upon the Petitioner to show cause as to why the admission should not be stopped for the academic year 2016-17 in view of the deficiencies pointed out in the Report of Central Council of Homoeopathy and in the inspection report of an inspection team on behalf of Central Government. The said Notice accordingly reported and directed that with a view to accord an opportunity of hearing in terms of the provisions of the first proviso to sub- section 4 of Section 12 A of the Homoeopathy Central Council Act, 1973, the Petitioner shall remain present on 31/10/2016 before the designated Hearing Committee in the Ministry of AYUSH together with all possible submissions and documents to substantiate the claims against all deficiencies or shortcomings. Petitioner craves leave to refer to and rely upon the same as and when produced.
10. On 31st October, 2016, the Principal of the Petitioner and the President of the parent Trust of the Petitioner appeared before the Hearing Committee and explained in detail as to why the permission for admission should not be denied to the Petitioner and substantiated the claims for having Page 8 of 37 C/SCA/17968/2017 JUDGMENT fulfilled the requirements of HCC (MSR) Regulations, 2013 in respect of deficiencies enumerated in the Notice of Hearing. During hearing, the written explanations of each of the queries raised in the Show Cause Notice were also furnished to the Hearing Committee. All the explanations furnished on behalf of Petitioner were reduced into writing by the Hearing Committee.
11. However, to the utmost shock and surprise, Petitioner received an Order dated 21st November, 2016 issued by Respondent No.1 herein inter alia denying the permission to the Petitioner for undertaking admission of students for imparting education in the discipline of Homoeopathy at the level of graduation leading to the qualification of BHMS in respect of intake of 100 seats for the academic year 2016-17. Being aggrieved by and dissatisfied with the Order dated 21st November, 2016 issued by Central Government denying the permission to the Petitioner for undertaking admission of students for imparting education in the discipline of Homoeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2016-17, Petitioner preferred a Petition being Special Civil Application No.20190 of 2016 under Article.226 of the Constitution of India before this Hon'ble Court. While admitting the said Petition, this Hon'ble Court by an Order dated 8th December,2016 granted interim relief inter alia permitting Petitioner, together with other Institutions having similar issue Page 9 of 37 C/SCA/17968/2017 JUDGMENT for adjudication, to admit students in the graduation course in the faculty of Homeopathy for the Year 2016-17 to the extent of their existing intake capacity already approved during the previous Academic Year. Hereto annexed and marked ANNEXURE "A" is the copy of an Order dated 8th December, 2016 passed by this Hon'ble Court in Special Civil Application No. 20190 of 2016.
12. Pending hearing and final disposal of the above referred Petition, a team of inspectors on behalf of Central Council of Homoeopathy, New Delhi carried out an inspection on 13th July, 2017 in respect of teaching staff, hospital staff, equipments, accommodations, training homoeopathic hospital and other facilities in the context of Homoeopathy Central Council (Minimum Standard Requirements of Homoeopathic Colleges and attached Hospitals ) Regulations, 2013 for the purpose of recommending to the Central Government about extension of permission for admission of the students for the academic year 2017-18. By letter dated 5th September, 2017, the Registrar, Central Council of Homoeopathy, New Delhi forwarded the copy of inspection report to the Principal of Petitioner inter alia requesting the Petitioner to submit within 30 days the explanations in response to the remarks, if any, on the insufficiencies pointed out in the said report. Hereto annexed and marked ANNEXURE "B" is the copy of a letter dated 5th September, 2017 addressed by the Registrar, Central Council of Page 10 of 37 C/SCA/17968/2017 JUDGMENT Homoeopathy, New Delhi to Petitioner together with the copy of an Inspection Report dated 13th July,2017.
13. However, before Petitioner could actually receive the Inspection Report dated 13th July, 2017 of the Central Council of Homoeopathy, New Delhi, a Notice of Hearing dated 3rd August, 2017 was came to be received by Petitioner from Central Government to show cause as to why the admission should not be stopped in BHMS course for the academic year 2017-18 as per the provisions of HCC (MSR) Regulations, 2013 in view of certain deficiencies pointed out therein. The said hearing notice states that the Petitioner is hereby given an opportunity of hearing as a natural justice of being heard in terms of provisions of the first proviso to sub-section 4 of Section 12A of HCC Act, 1973 on 19th August, 2017 before the designated Hearing Committee to present the case. Hereto annexed and marked ANNEXURE "C" is the copy of Hearing Notice dated 3rd August, 2017 issued by Central Government to Petitioner herein.
14. On 19th August, 2017, Petitioner appeared before the Designated Hearing Committee appointed by the Central Government and presented the case by making oral as well as written submissions together with supporting documents explaining in detail as to why the permission for admission of students in BHMS course should not be denied to the Page 11 of 37 C/SCA/17968/2017 JUDGMENT Petitioner for the academic year 2017-18. The deficiencies which exist in the set up of Petitioner in the opinion of Central Government enumerated in Hearing Notice for which the hearing was conducted before the designated Hearing Committee were (i) functionality of IPD with registers of hospitals and colleges (ii) No register is maintained for medicine dispensing (iii) College is not having required Dietician in Hospital staff as per schedule-II of the HCC (MSR) 2013 (iv) clinical training is not available, MOU with Super Specialty Hospital of Modern Medicine is not available, (v) non-functioning of USG
(vi) required number of equipment as per Schedule- III of the HCC (MSR), 2013 in the department specified is insufficient and (vii) Central Registration Section for OPD and IPD is manual. In response to the aforesaid deficiencies, Petitioner explained inter alia that Petitioner is maintaining manual Central OPD register and Departmental IPD register. However, Petitioner is not maintaining manual registers for Central IPD, Department wise OPD and OPD medicine dispensing registers as these records are maintained in the computer for which hard copies in the form of prints out have been during hearing. Further, Petitioner has also produced case papers of IPD patients, laboratory and radiological investigation reports register, IPD medicine dispensing registers, IPD diet register and duty rosters of hospital staff. These documents in relation to OPD/IPD were submitted before the hearing committee for a period from November, 2016 upto Page 12 of 37 C/SCA/17968/2017 JUDGMENT 16th August, 2017. Further, Petitioner submitted that on the day of CCH visit, there was no dietician available. However, Petitioner has appointed dietician with effect from 1/8/2017. Moreover, Petitioner submitted that it has made MOU with Arana Super Specialty Hospital regarding clinical training and the copy of the said MOU was also produced before the Hearing Committee. Besides above, Petitioner further submitted that it is having USG machine which is functional in addition to MOU for USG facility with Navjivan General Hospital, the copy whereof was also produced before the Hearing Committee. Further in response to the deficiency regarding non availability of required number of equipments in Anatomy and Physio & Bio Chemistry, Petitioner submitted that cadaver and mummification process is going on in the set up of Petitioner and upper and lower extremities have been mummified completely. However, mummification of remaining potion of body will be completed soon. Further, facilities for animal experimentation are done by audio-video aids for which Petitioner is having audio visual equipments and required CD in Physiology Department. Lastly, it was submitted by the Petitioner that it is maintaining the record of Central OPD and IPD on computer but the linking of the central computer with different sections of OPD and IPD is still under process and it will be completed very soon as and when software will be installed. Hereto annexed and marked ANNEXURE "D" is the copy of Minutes of the Page 13 of 37 C/SCA/17968/2017 JUDGMENT hearing reduced in to writing on 19th August, 2017 before Hearing Committee of the Central Government.
15. However, to the utter shock and surprise, the Undersecretary, Central Government communicated an Order dated 19th September, 2017 to the Petitioner inter alia denying to the Petitioner the permission for taking admission to BHMS course with 100 UG seats as per the provisions of HCC (MSR) Regulations, 2013 for the academic session 2017-18 inter alia on the ground that college IPD of the Hospital is not genuinely functional and manual Central Registration Section for OPD and IPD is not as per the requirement of HCC (MSR) Regulations, 2013 for granting conditional permission. However, it is stated in the said Order that the Petitioner is provided the period up to 31st December, 2017 to fulfill the shortcoming observed during this year as stated in the Order so that Central Council of Homoeopathy may carry out inspection of the Petitioner for consideration of grant of permission for admission for the academic year 2018-19. Hereto annexed and marked ANNEXURE "E" is the copy of an Order dated 19th September, 2017 passed by the Central Government denying permission to the Petitioner to admit students for the academic year 2017-18."
3. Thus it appears from the above that the respondent No.1 Page 14 of 37 C/SCA/17968/2017 JUDGMENT declined to grant permission to the college for admission at the level of graduation in the discipline of Homeopathy in the academic year 2017-2018. The grounds of challenge as regards the decision of the respondent No.1 are as under:
"(B) That, the impugned order passed by the Respondent No.1 herein under Section 12 A of the Homoeopathy Central Council Act, 1973 is null, void, non-est and lacking in jurisdiction in as much as Section 12 A of the Act,1973 is applicable to (i) a new college seeking permission to start the course in the discipline of homoeopathy or (ii) to an existing institution proposing to start new course in the discipline of homoeopathy or (iii) to an existing institution seeking permission to enhance intake of seats and therefore the case of the Petitioner is not falling in either of the category, the impugned order is deserved to be set aside.
(C) That, assuming without admitting that there are deficiencies in the set up of Petitioner which warrant withdrawal of permission for admission to admit the students in the discipline of homoeopathy, such a course of action could be undertaken by the Central Government under Section 19 of the Homoeopathy Central Council Act, 1973 which requires recommendation from Central Council of Homoeopathy coupled with the concurrence of State Government and therefore the impugned order Page 15 of 37 C/SCA/17968/2017 JUDGMENT passed by the Central Government is deserved to be quashed and set aside as the same has been passed overreaching the procedure contemplated under Section 19 of the Homoeopathy Central Council Act, 1973.
(D) That, at this juncture, it would not be out place to mention that though the Petitioner has fully cooperated in the procedure adopted by the Respondents under Section 12 A of the Homoeopathy Central Council Act, 1973 for issuing a letter granting permission for admission, there is nothing in the said Section which permits such a course of action. As such, this was noticed by the Parliamentary Committee while submitting a report on the need to amend the Homoeopathy Central Council Act, 1973.
As a matter of fact, this was so noticed by the Parliamentary Committee based on the judicial pronouncement and the opinion thereon taken by the Central Government. It was also noticed and observed by the Central Government inter alia that the Homoeopathy Central Council Act,1973 was amended in the year 2002 incorporating therein the provisions to seek prior permission of the Central Government to open a new college or increase the admission capacity or to introduce a new course. However, despite those provisions, the Act does not provide for the power of the Central Government to permit the colleges to provide annual admissions to new students in any course of study including post graduate course and therefore Act has been Page 16 of 37 C/SCA/17968/2017 JUDGMENT proposed to be amended so as to make provision for the Central Government's permission for admitting new batch of students in any course of study or training including post graduate course in college so as to ensure quality education. Accordingly, the Homoeopathy Central Council (Amendment) Bill, 2015 was introduced in Rajya Sabha on 6th May,2015 which was referred on 8th May,2015 to the Department related Parliamentary Standing Committee on Health and Family Welfare for examination and report. Hereto annexed and marked ANNEXURE "F" is the copy of the Homoeopathy Central Council (Amendment) Bill, 2015 as introduced in Rajya Sabha. The said Parliamentary Committee submitted its 86th Report to the Parliament recommending the amendments on line stated hereinabove. Hereto annexed and marked ANNEXURE "G" is the copy of the Report of Parliamentary Committee. The said Report of the Parliamentary Committee was sent by the Parliament to the Ministry, Respondent No.1 herein for consideration of amendments recommended which were considered by the concerned Ministry of Central Government and proposed draft amendments in the Bill accordingly. Hereto annexed and marked ANNEXURE "H" is the copy of an Office Memoranda dated 26th February, 2016 together with Explanatory Notes and draft amendments in the Bill, 2015 submitted by Central Government. Thus, in substance, the grant of permission for admission is not at all falling within the purview of Section 12 A of Page 17 of 37 C/SCA/17968/2017 JUDGMENT the Homoeopathy Central Council Act, 1973.
(E) That, without prejudice to whatever stated hereinabove, the impugned order passed by Respondent NO.1 is in violation of principles of natural justice in as much as two members of the committee who heard the representatives of the Petitioner did not pass the impugned order and the Under Secretary to the Government of India who passed the impugned order has not heard the representatives of the Petitioner.
(F) That, without prejudice to whatever stated hereinabove, Respondent No.1 failed to take into consideration that Petitioner is maintaining manual Central OPD register and Departmental IPD register. However, Petitioner is not maintaining manual registers for Central IPD, Department wise OPD and OPD medicine dispensing registers as these records are maintained in the computer for which hard copies in the form of prints out have been produced during hearing. Further, Petitioner has also produced case papers of IPD patients, laboratory and radiological investigation reports register, IPD medicine dispensing registers, IPD diet register and duty rosters of hospital staff. These documents in relation to OPD/IPD were submitted before the hearing committee for a period from November, 2016 upto 16th August, 2017. Further, Petitioner submitted that on the day of CCH visit, there was no dietician available. However, Petitioner has appointed dietician Page 18 of 37 C/SCA/17968/2017 JUDGMENT with effect from 1/8/2017 in respect of which a copy of an appointment letter was produced before the Hearing Committee and therefore conclusion drawn by the Central Government that the college IPD of hospital is not genuinely functional is unwarranted, devoid of merits and barren of truth and consequently the impugned order passed by the Central Government is deserved to be quashed and set aside.
(G) That, Respondent NO.1 failed to appreciate that Petitioner has made MOU with Arana Super Specialty Hospital regarding clinical training, the copy of the said MOU was also produced before the Hearing Committee besides the fact that it is having USG machine which is functional in addition to MOU for USG facility with Navjivan General Hospital, the copy whereof was also produced before the Hearing Committee and therefore also the impugned order is deserved to be quashed and set aside.
(H) That, the Respondent No.1 failed to appreciate that the cadaver and mummification process is going on in the set up of Petitioner and upper and lower extremities have been mummified completely. However, mummification of remaining potion of body will be completed soon. Further, facilities for animal experimentation are done by audio-video aids for which Petitioner is having audio visual equipments and required CD in Physiology Department and therefore this deficiency is not such that it disentitles Page 19 of 37 C/SCA/17968/2017 JUDGMENT the Petitioner from having even conditional permission to admit the students for the academic year 2017-18 and therefore the impugned order being arbitrary and disproportionate is deserved to be quashed and set aside.
(I) That, the Respondent No.1 failed to appreciate that Petitioner is maintaining the record of Central OPD and IPD on computer but the linking of the central computer with different sections of OPD and IPD is still under process and it will be completed very soon as and when software will be installed and therefore this is not a ground so grave as to disentitle the Petitioner from having even a conditional permission for admission to the students for the academic year 2017-18 and therefore also the impugned order being arbitrary and disproportionate is deserved to be quashed and set aside."
4. On 05.10.2017, a coordinate bench of this court passed the following order:
"1. Heard learned Senior Counsel Mr. D. C. Dave with learned advocate Mr. Udayan Vyas for the petitioner, learned advocate Mr. Siddharth Dave for learned ASG Mr. Devang Vyas for respondent No.1 and learned advocate Mr. Harsh N Parekh for respondent No.2.Page 20 of 37
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2. Considering the total number of matters listed for admission when all the details are very much disclosed in the pleadings, I do not wants to reproduce the pleadings in detail except for recording the fact that, at present petitioner has challenged an order dated 19.09.2017 by the Ministry of Ayurved, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH) passed by one Banamalik Naik, Under Secretary, Government of India.
3. If we scrutinize this impugned order, it becomes clear that through the impugned order, the respondent has denied the permission to the petitioner for taking admission to BHMS course with 100 UG seats for the academic year 2017-18 relying upon the Regulation No. 3(2) read with 7(2) of Homeopathy Central Council (Minimum Standard requirement of Homeopathy College and attached hospital) Regulations, 2013 (for short Regulations). It is clear that dispute by the respondent, that such powers are vested pursuant to Homeopathy Central Council Act 1973. Therefore, there is reference to such Act, provisions and powers thereunder in para
5 of the impugned order and, therefore, though learned advocate for the respondent has contended that the impugned order is not under Section 12(A) of the Act but it is under Regulations and other cited cases are not material, the fact remains that regulations are only because of provisions of the Act and, Rules and Regulations are only providing Page 21 of 37 C/SCA/17968/2017 JUDGMENT procedural part but it is to be followed in accordance with provisions of Act only.
4. So far as reason for non granting permission for admission of the course of UGBHMS is concerned, respondents are relying upon Regulation No.3 which is providing for fulfillment of minimum standard requirement. Whereas Regulation No.7 is providing for requirements of teaching hospital. Wherein, it is provided that college and hospital shall maintain the computerized central registration system for maintaining the records of patients in Outdoor Patient Department and Indoor Patient Department and shall also maintain the department wise Outdoor Patient Department and Indoor Patient Department record and case papers of Outdoor Patient Department and Indoor Patient Department, laboratory and radiological investigation reports, medicine dispensing register, diet register for Indoor Patient Department patients, duty roster of staff of the hospital, birth & death certificates etc. to substantiate the claim of genuine functional Homeopathic teaching hospital fulfilling the norms as specified in the Sub Regulation (2). Therefore, it seems that, the respondents are under impression and thereby wants that the Homeopathic Hospital should have maternity ward and thereby Birth & Death Register is to be maintained and there should be report of radiology investigation even for homeopathic treatment and, therefore, prima facie it seems that respondent Page 22 of 37 C/SCA/17968/2017 JUDGMENT wants to blindly rely upon the words without application of mind.
5. Learned advocate for the respondent has pointed out that this issue has been taken care in care in the case of Dhanvantari Medical College & Research Centre vs. Union of India reported in 2016 SCC Online Del 6413, wherein the learned Single Judge of Delhi High Court has observed that till such regulations are in force, they are to be followed and, therefore, dismissed the petition of the petitioners before it when respondents have denied to continue such course by those petitioners. However, only because one Single Judge has so observed it cannot be said that Rule which is otherwise not proper should be followed, that too without considering other factual details which is not only in the favour of the petitioner but again disturbing.
6. If we check the deficiency in the impugned order it is only with reference to non-maintenance of details in computer and non availability of computer Central Registration System both for Indoor Patient Department and Outdoor Patient Department. However, such deficiency is not so material to deny the permission to continue the educational work but if we scrutinize the record surprisingly such deficiency is not recorded by the Central Council of Homeopathy while inspecting the petitioner college, when such fact is not disclosed in Page 23 of 37 C/SCA/17968/2017 JUDGMENT their inspection report. Similar is the situation with reference to the objections regarding alleged manipulation in patient report because there is no such observations by the committee which has examined the entire institution and its record. But it is the presumption and apprehension of the respondents without having inspected the premises on their own.
7. Probably those words are never disclosed by the committee in its report, which is at Annexure C. It is surprising that officer of the Central Government has recorded something in the name of the committee. Factually also such comment is unwarranted in as much as manner in which such observations are recorded goes to show that irrespective of necessity to keep patient in Indoor Patient Department, the college and hospital must admit the patient in the Indoor Patient Department.
8. So far as decisions referred by the petitioners are concerned, it is stated by the learned advocate for the respondents that all the following cases referred and cited by the petitioner do not support the case of the petitioner and they are not having the same facts and, therefore, relying upon those judgments, interim relief cannot be granted.
9. At this admission stage when factually also there is reason to admit the petition, I do not wish to discuss all the cases referred by the petitioner.
Page 24 of 37C/SCA/17968/2017 JUDGMENT However, they are listed herein;
1. Judgment dated 03.02.2017 in Letters Patent Appeal No.1475 of 2016 between Parul University vs. Union of India.
2. Order dated 25.11.2016 in Special Civil Application No.17011 of 2016 and allied matters between Parul University vs. Union of India.
3. Order dated 08.12.2016 in Special Civil Application No.20190 of 2016 between Vadantben N. Vyas Homeopathic Medicine & Hospital vs. Union of India.
4. Order dated 09.08.2017 in Special Civil Application No.14193 of 2017 between Shantaben Manubhai Patel School of Studies vs. Council of Architecture.
5. Order dated 14.09.2017 in Special Civil Application No.16216 of 2017 between Govindbhai Jorabhai Patel Institute of Ayurvedic Studies & Research.
6. Order dated 28.06.2017 in Civil Writ Jurisdiction Case No.19681 of 2016 between Dr. R. B. Singh Gaya Homeopathic Medical College & Hospital, Amwan, Bodhgaya vs. Union of India & Ors.
10. In view of above facts and circumstances, matter requires consideration. Hence, Rule returnable on 14.12.2017. Interim relief in terms of para 21(B).
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11. In previous litigation between the parties, while issuing rule and granting interim relief, the co-ordinate bench has imposed certain conditions. Therefore, let there be relevant conditions so as to avoid any controversy.
(i) The petitioners/colleges shall be allowed to admit students in the graduation course/post-graduation course, as the case may be, in the faculty of Homeopathy for the Year 2017-18 to the extent of their existing intake capacity already approved during the previous Academic Year;
(ii) The first respondent-Government of India, Ministry of AYUSH shall forward within 15 days from the date of receipt of this order, a letter of No-objection intimating the respective college that it is permitted to admit students as above. This No-objection shall remain provisional and shall be subject to the final orders which may be passed in the petitions;
(iii) The students who may be admitted to the graduation/post-graduation course, as the case may be, shall be specifically intimated that their admission is treated as being subject to the final orders which may be passed in the Special Civil Application concerned. This is to make the students Page 26 of 37 C/SCA/17968/2017 JUDGMENT know about the factum of currency of controversy and the pendency of petitions;
(iv) In the first captioned petition, no formal order has been issued by the first respondent denying extension of approval for the current Academic Year. The aforesaid directions shall govern and the first respondent shall obey the same;
12. Petitioner is permitted to inform the admission committee by appropriate mode. Direct Service is permitted."
5. Thus by way of an interim order passed by this court dated 05.10.2017, the college was permitted to admit the students.
6. It is not in dispute that the order passed by the co-
ordinate bench dated 05.10.2017 referred to above came to be accepted by the respondents Nos. 1 and 2. The students who came to be admitted by the college are now ready to appear for the examination. At this stage, the University, i.e. the respondent No.3, has created the trouble. The University has declined to enroll the students for the purpose of examination.
Mr. Avinash Thacker, the learned counsel appearing for the Page 27 of 37 C/SCA/17968/2017 JUDGMENT respondent No.3, would submit that the University as such has no objection provided the respondent No.1 - Union of India (AYUSH) makes it clear that there is no problem or any other legal impediment in enrolling the students for the purpose of exam. In short, according to Mr. Thacker, a simple communication in this regard would have solved the problem.
According to Mr. Thacker as they have not heard anything at the end of the respondent No.1, the University is reluctant to permit the students to appear in the exam.
7. Having regard to the confusion created, the petition had to be amended. An amendment came to be carried out vide order passed by this Court dated 29.11.2018. The writ-
applicant has pointed out the following by way of the amendment :
"17(A). While admitting this Petition, this Hon'ble Court by an Order dated 5th October, 2017, pleased to grant interim relief inter alia permitting the Petitioner to admit students in graduation/ post graduation course in the faculty of Homoeopathy for the year 2017-18 to the extent of the existing intake capacity already approved during the previous academic year with a further direction that Central Government shall forward within 15 days from the date of the receipt of Page 28 of 37 C/SCA/17968/2017 JUDGMENT this order a letter of No-Objection intimating the respective college that it is permitted to admit students as directed above and this No-Objection shall remain provisional subject to the final orders which may be passed in the Petition. Accordingly, Petitioner admitted students for the first year of degree course of Homoeopathy leading to the qualification of BHMS by publishing advertisement for the academic year 2017-18 and paid 'Students Development Fees', 'Enrolment Fees' and 'Sports Development Fees' on 29th December, 2017 to the Saurashtra University in accordance with the norms and regulations for the purpose of affiliation and recognition of students so admitted for the academic year 2017-18. In response to the said Notice, the Controller of Examinations, Saurashtra University addressed a communication dated 12th April, 2018 to the Petitioner inter alia referring to the letter dated 19/3/2018 addressed by Affiliation Department of the University and stating therein that due to denial of enrollment of students to the Petitioner in the letter dated 11th September, 2017 (19th September, 2017) addressed by Department of AYUSH, Government of India, no further action is required to be undertaken by the University for enrollment of the students of the Petitioner for the academic year 2017-18. Upon perusal of enclosures to the said communication, it transpires that the Deputy Registrar, Saurashtra University has addressed a letter dated 19th March, 2018 to the Controller of Examinations inter alia stating therein that though report of the Local Page 29 of 37 C/SCA/17968/2017 JUDGMENT Inspection Committee for the academic year 2017-18 is affirmative in respect of the Petitioner herein but Ministry of AYUSH and Central Council of Homoeopathy have addressed a letter to the University inter alia informing denial of permission to the Petitioner to admit students and thereafter further instruction in this regard has not been received by the University from Central Council of Homoeopathy. The said letter bears as an enclosure an Order dated 19th September, 2017 passed by the Central Government denying permission to admit student to the Petitioner herein. In view of the aforesaid facts, the action of the Saurashtra University in denying permission to the Petitioner for enrollment of students is arbitrary, unreasonable and in flagrant violation of fundamental rights guaranteed under Article.14 and Article 19(1)(g) of the Constitution of India in as much as once an Order is passed by the Hon'ble High Court and admissions are made in accordance with the same with specific authority from the Admission Committee, the University is under an obligation to enroll the students so admitted and therefore the stand of the University in denying the enrollment of the students is impliedly frustrating and defying the order of the Hon'ble High Court making the permission to admit students pale into insignificance. Moreover, insistence on the part of the University that it would like to enroll the students admitted pursuant to the order of the Hon'ble High Court only upon communication in this regard from the Central Government through Page 30 of 37 C/SCA/17968/2017 JUDGMENT Ministry of AYUSH is having the virtual effect of placing the Central Government on higher pedestal from that of the Hon'ble High Court and therefore the action of the University is arbitrary and obnoxious violating the fundamental rights guaranteed under Article.14 and Article 19(1)(g) of the Constitution of India. Further, non issuance of NOC by the Central Government through Ministry of AYUSH is in defiance of the directions of the Hon'ble High Court but the same is a matter in issue as between Petitioner and the Central Government for which the Petitioner may be pursuing appropriate legal proceedings.
17(B) After this Hon'ble Court by an Order dated 5 th October, 2017 granted interim relief inter alia permitting the Petitioner to admit students in graduation/ post graduation course in the faculty of Homoeopathy for the year 2017-18 to the extent of the existing intake capacity already approved during the previous academic year subject to certain conditions, the Admission Committee for Professional Under Graduate Medical Educational Courses ( hereinafter for the sake of brevity and convenience referred to as "Admission Committee" ) permitted the Petitioner to admit students on its own by issuing a specific advertisement in accordance with the order passed by this Hon'ble Court and made a specific remark about the same against the name of the Petitioner in the list of Institutions and Colleges published and put up on the website of the Admission Committee. Hereto annexed and marked ANNEXURE Page 31 of 37 C/SCA/17968/2017 JUDGMENT "I" is the copy of list of Institutions and Colleges including Petitioner put up by the Admission Committee on its website recognized for the purpose of admitting students in the discipline of Homoeopathy for the academic year 2017-18. Accordingly, Petitioner admitted students for the first year of degree course of Homoeopathy leading to the qualification of BHMS by publishing advertisement for the academic year 2017-18 and paid 'Students Development Fees', 'Enrolment Fees' and 'Sports Development Fees' on 29th December, 2017 to the Saurashtra University in accordance with the norms and regulations for the purpose of affiliation and recognition of students so admitted for the academic year 2017-18. Hereto annexed and marked ANNEXURE "J" is the copy of Enrollment/Enlistment College Memo together with the Enrollment Form Check list of students issued by Saurashtra University acknowledging Fees received in respect of 50 students of the Petitioner herein for the academic year 2017-18. Since noting was heard from the office of the University about grant of affiliation or enrollment of students of the Petitioner in respect of first year of BHMS course though all the procedural formalities including payment of requisite fees have been complied with, Petitioner addressed a letter in the form of Notice dated 4th April, 2018 to the Registrar, Saurashtra University inter alia calling upon the University to enroll forthwith the eligible students admitted in BHMS course in terms of the Order passed by the Hon'ble High Court failing which Page 32 of 37 C/SCA/17968/2017 JUDGMENT Petitioner shall be constrained to initiate appropriate proceedings against the University for acting in defiance of the order of the Hon'ble High Court. Hereto annexed and marked ANNEXURE "K" is the copy of a letter in the form of a Notice dated 4 th April, 2018 addressed by Petitioner to the Registrar, Saurashtra University. In response to the said Notice, the Controller of Examinations, Saurashtra University addressed a communication dated 12th April, 2018 to the Petitioner inter alia referring to the letter dated 19/3/2018 addressed by Affiliation Department of the University and stating therein that due to denial of enrollment of students to the Petitioner in the letter dated 11th September, 2017 (19th September, 2017) addressed by Department of AYUSH, Government of India, no further action is required to be undertaken by the University for enrollment of the students of the Petitioner for the academic year 2017-18. Upon perusal of enclosures to the said communication, it transpires that the Deputy Registrar, Saurashtra University has addressed a letter dated 19th March, 2018 to the Controller of Examinations inter alia stating therein that though report of the Local Inspection Committee for the academic year 2017-18 is affirmative in respect of the Petitioner herein but Ministry of AYUSH and Central Council of Homoeopathy have addressed a letter to the University inter alia informing denial of permission to the Petitioner to admit students and thereafter further instruction in this regard has not been received by the University from Central Council of Page 33 of 37 C/SCA/17968/2017 JUDGMENT Homoeopathy. The said letter bears as an enclosure an Order dated 19th September, 2017 passed by the Central Government denying permission to admit student to the Petitioner herein. Hereto annexed and marked ANNEXURE "L" is the copy of a communication dated 12th April, 2018 addressed by the Controller of Examinations, Saurashtra University to the Petitioner together with its enclosures. Being aggrieved by and dissatisfied with the communication dated 12th April, 2018 addressed by the Controller of Examinations, Saurashtra University to the Petitioner inter alia denying permission to enroll and affiliate the students of the Petitioner of the first year of BHMS for the academic year 2017-18, Petitioner preferred a Petition being Special Civil Application No. 7890 of 2018 under Article 226 of the Constitution of India before this Hon'ble Court inter alia seeking writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction declaring that a Communication dated 12th April, 2018 addressed on behalf of Saurashtra University denying enrollment of the students of the Petitioner pursuing education in the discipline of Homoeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18 is null, void, illegal, arbitrary, unreasonable, non-est and in violation of fundamental rights guaranteed under Article.14 and Article.19(1)(g) of the Constitution of India and thereupon be pleased to quash and set aside the same and command Saurashtra University to enroll students admitted by the Petitioner for Page 34 of 37 C/SCA/17968/2017 JUDGMENT education in the discipline of Homoeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18. Pursuant to the Notice issued by the Hon'ble Court in the said Petition, Saurashtra University being a Respondent therein appeared and filed its Affidavit in Reply. Hereto annexed and marked ANNEXURE "M" is the copy of an Affidavit in Reply filed by Saurashtra University in the said Petition. However, with a view to appreciate the principal controversy in its true prespective, it was found necessary to prefer an Application in the present Petition as Central Government and Central Council of Homoeopathy were not parties respondents in the above referred Petition against Saurashtra University and therefore Petitioner withdrew the said Petition with a liberty to file an Application in the present Petition. Hereto annexed and marked ANNEXURE "N" is the copy of an Order dated 3rd August, 2018 passed in Special Civil Application No. 7890 of 2018. Hereto annexed and marked ANNEXURE "O" is the copy of the list of the students admitted and enrolled by the Saurashtra University for the academic year 2016-17."
8. Having regard to the confusion that has been created, Mr. Siddharth Dave, the learned counsel appearing for the respondent No.1, was called upon to make his stance clear.
According to Mr. Dave, the insistence on the part of the University for 'No-Objection Certificate' or for an order of Page 35 of 37 C/SCA/17968/2017 JUDGMENT permission from the respondent No.1 is not at all justified.
Mr. Dave clarifies the fact that they have accepted the interim order which itself would suggest that the respondent No.1 has no objection with regard to admitting the students. Mr. Dave would submit that once the students are admitted then there is no question of not permitting them to appear in the exam.
9. Having regard to the stance of the respondent No.1, Mr. Thacker, the learned counsel appearing for the University, submitted that if that be so, then there should not be any difficulty for the University to enroll the students for the purpose of the examination.
10. This litigation has reached to a level or stage by which there is no other option but to permit the students to appear in the examination. The interim order passed by this Court dated 05.10.2017 makes the picture explicitly clear.
11. I do not see any good reason now to adjudicate the petition further on merits. For the foregoing reasons, this petition succeeds and is hereby allowed. The impugned order dated 19.09.2017 (Annexure 'E') to this petition passed by the respondent No.1 is hereby quashed and set aside. The Page 36 of 37 C/SCA/17968/2017 JUDGMENT University shall now enroll the students admitted by the college for the purpose of examination. Rule is made absolute to the aforesaid extent.
12. Mr. Avinash Thacker, the learned counsel appearing for the University is requested to communicate this order by today itself to his client so that the process for enrollment can be undertaken at the earliest.
(J.B.PARDIWALA, J) MAYA Page 37 of 37