Punjab-Haryana High Court
Shri Dhanwantry Educational Society vs The Union Of India And Others on 3 December, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
LPA No.1959 of 2012 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA No.1959 of 2012 (O&M)
Date of Decision: 03.12.2012
Shri Dhanwantry Educational Society,
Ayurvedic College and Dabur Dhanwantry
Ayurvedic Hospital ..... Appellant
Versus
The Union of India and others
..... Respondents
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Gurminder Singh, Advocate and
Mr. Amar Vivek, Advocate,
for the appellant.
Mr. S.S. Sandhu, Sr. Standing Counsel with
Mr. Amandeep Singh Gill, Advocate,
for respondent No.1 - UOI.
Mr. Ashok Tyagi, Advocate,
for respondent No.2.
Mr. Sanjay Kaushal, Advocate and
Mr. A.P. Setia, Advocate,
for respondent No.3.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
This intra Court appeal under Clause X of the Letters Patent is directed against the order dated 20.11.2012 passed by the learned Single Judge of this Court in CWP No.16219 of 2012. The writ petition filed on 22.08.2012 against the show cause notice dated 20.04.2012 (P-13) and the impugned order passed by the Government of India in the Department of Ayush dated 16.07.2012 (P-17) declining permission to admit fresh students LPA No.1959 of 2012 (O&M) -2- to the appellant Ayurvedic College for the academic session 2012-13 has been dismissed. The course in question is the Bachelor of Ayurvedic and Medical Sciences (BAMS) first year course.
The Central Council of Indian Medicine (for short "CCIM") had by its report dated 11.04.2012 after inspecting the appellant-Institution through its Visitors on 10th and 11th of February, 2012 to assess the available facilities of teaching and practical training for conducting the Under Graduate and Post Graduate courses and to verify the compliance of shortcomings informed by the Government of India had recommended to the Government of India that conditional permission may be granted for Under Graduate studies with an intake capacity of 50 seats for the session 2012-13. The shortcomings were found remediable. The CCIM in the report (P-12) in favour of the appellant had pointed out five remediable shortcomings open to curative action by the college in the following words:-
"Shortcomings
1. Biometric machine should be made functional and attendance of all staff should be recorded through Biometric machine. (part II pg.no.01)
2. Number of specimen should be increased in the department of Agad Tantra. (part II pg.no.03)
3. Hostel facility is not available for boys. (part II pg.no.05)
4. Other shortcomings mentioned by visitors is enclosed.
5. Though the college is having excess higherr faculty in the department of Rognidana and Lecturers in the department of Rachana Sharir, Roganidan, Swasthavritta, Prasuti & Striroga, Kaumarbhritya, Shalya, Shalakya and Panchakarma; but deficit of higher faculty in the department of Rachana Sharir, Dravyaguna, Prasuti & Striroga, Kaumarbhritya, Shalya and Panchakarma and Lecturer in the department of Shalakya has been observed.
The permission is recommended subject to the fulfillment of teaching/non teaching, paramedical and other required staff as per norms of CCIM and shortcomings pointed out by visitors 31st December, 2012 as well as other LPA No.1959 of 2012 (O&M) -3- required infrastructure should also be completed by 31st December, 2012. Further, it may be informed to the college that attendance of teaching and other staff should be recorded through Biometric Machine, without Biometric attendance, the staff will not be taken into consideration. Moreover, if any teachers will be found in duplicity or information furnished in Affidavit (teaching experience and other related information etc.) is found fake/false, the permission to the college to admit students will not be considered in future.
If compliance is not received before 31st December, 2012, the college will not be visited by CCIM for the next academic session."
Together with the recommendations dated 11.04.2012, the Visitation Report and the Assessment Sheet were attached. These show that the total number of patients attended in OPD from 1st January to 31st December 2011 were 50932 after calculation from the college data supplied which was of 60201. The average attendance of patients in OPD was calculated at 169.77 and the bed occupancy was found at 53.75%. This was above the 40% norm prescribed.
While considering the recommendations made by the CCIM, the Government of India in the Department of Ayush issued a show cause notice to the Principal of the appellant-College that on observation of the report, Government felt that the college was not fulfilling the basic eligibility conditions for obtaining permission for BAMS course for the following reasons:-
"(i) In Kayachikitsa department in the month of February, 11 patients generated 519 days and in the month of April, 16 patients generated 677 days.
(ii) In department of Shalya, in the month of July, 5 patients generated 278 bed days.
(iii) In the department of Panchakarma, in the month of February, 14 patients generated 652 bed days, 20 patients generated 669 bed days & 11 patients generated 807 bed days, shows that data regarding bed occupancy is LPA No.1959 of 2012 (O&M) -4- suspicious and fabricated.
Aforesaid, figure in respect of bed occupancy in Kayachikitsa, Shalya and Panchakarma are very unusual. Thus the data regarding bed occupancy seems to be fabricated and exaggerated."
In the above premises, it was surmised that the college did not appear to be a genuinely functional Ayurvedic hospital having genuine patient load of 40% IPD bed occupancy during the currency of the calendar year 2011, the period under consideration. In view of the deficiencies pointed out, the college was offered an opportunity of hearing in terms of provisions of the first proviso to sub-Section 5 of Section 13C/A of the Indian Medical Council Central Act, 1970. It was informed that the Hearing Committee would meet at 11 AM on 03.05.2012 and the college would have opportunity to present its case before it and to show cause why permission should not be denied for admitting fresh students during the session 2012-
13. The reference point for the consideration was fixed under Para 4 as it prevailed on the date of inspection/visitation in terms of letter dated 21.03.2011.
The college appeared at the hearing and submitted a detailed reply dated 03.05.2012 (P-14) to the show cause notice. Since the only issue which had been raised on suspicion was with respect to the bed occupancy, it was stated that the show cause notice was based on inherent defects in the Visitation Proforma which did not separately reflect both categories of patients namely, new admissions and old continuing patients in the respective months due to which the total number of patients continuing in the respective departments jumbled with the new admitted patients, in the respective months and, therefore, the CCIM Visitors had rightly calculated LPA No.1959 of 2012 (O&M) -5- the Details of Total Bed Days Occupied, in Column VI. Therefore, by simple logic, if the old and new patients are added for the respective month, the figure of Bed Days Occupied in the proforma, would stand tallied automatically. With respect to the show cause notice, it was clarified as follows:-
"(i) In February 2011, in Kayachikitsa department total 11 new patients did not generate all the 519 days of bed occupancy. There were another 27 old patients continuing from previous months, (who have not been shown due to sheer discrepancy or lack of clarification in the proforma. As such, 38 total patients, including 11 new patients, have rightly generated 519 days of bed occupancy at a rate of 13.65 days per patient. As you may be aware of, most of the IPD patients coming to Ayurvedic hospital will be suffering from chronic conditions and needs longer stay for treatment.
Similarly, in April 2011 also, total 16 new patients did not generate all the 677 days of bed occupancy. There were another 28 old continuing patients and as such, 44 patients in all, both old and new admission, have rightly generated 677 days of bed occupancy at a rate of 15.38 days per patient.
(ii) Likewise, in July 2011, in Shalya department total 5 new patients did not generate all the 278 days of bed occupancy. There were another 6 old continuing patients (11 in total), who have generated 278 days of bed occupancy at a rate of 25.27 days per patient. As you may be aware of, most of the IPD patients coming to Shalya department of Ayurvedic hospital will be suffering from conditions of Bhagandhara, Arsas, Sandhigatavata etc. needs longer stay."
On the basis of information supplied by the appellant at the time of personal hearing, the impugned order dated 16.07.2012 was passed declining the permission. In coming to the conclusion, it was observed as follows:-
"(i) In Kayachikitsa department in the month of February, 11 patients generated 519 days and in the month of April, 16 patients generated 677 days.
(ii) In department of Shalya, in the month of July, 5 patients generated 278 bed days.LPA No.1959 of 2012 (O&M) -6-
(iii) In the department of Panchakarma, in the month of February, 14 patients generated 652 bed days, 20 patients generated 669 bed days, 11 patients generated 807 bed days, shows that data regarding bed occupancy is suspicious and fabricated."
On consideration of the matter on hearing on 03.05.2012, the observations of the Hearing Committee as communicated to the appellant, it was observed as follows:-
"As per the reply of the representative of the college, the bed days were generated for not only for new patients but also for old existing patients in IPD. To verify the hospital data like IPD case sheets, OPD and IPD Register, Medicine Register, the representative was asked to produce all documents. The following are the observation of hearing committee.
The Hearing Committee has examined the case sheets of 5 new patients in Shalya Department. On examination of case of Shalya Department the Hearing Committee asked the representative for showing the OPD and IPD Register for cross verification. On Examining the Central IPD Register it has been observed that there is no OPD Registration number in case sheets. The representative stated that they were not aware about this matter.
Hearing Committee asked the representative to show the Laboratory Register to cross check the Laboratory investigation prescribed in the case sheet. The Representative produced the Lab Register, but no where in the laboratory Register OPD no. IPD No. Bed No. of the patient is not mentioned. For this point also the representative stated that they were not aware about this matter.
In some case sheets occupation of the patients are not mentioned. While Examining the IPD Register, it has been observed that OPD Registration no., date of admission, date of discharge, diagnosis, name of the Department and remarks are not mentioned, in the Register. On cross question the representative stated that they were not aware about the proforma.
On asking the representative it has been observed that Departmental IPD Register not maintained by the college. On cross examination they replied that they are agreeing that they were not maintaining the Departmental IPD Register.
Doctors name mentioned in IPD Register does not match with doctors of concerned Department, Like in the Shalya Department in IPD LPA No.1959 of 2012 (O&M) -7- Register it has been mentioned the name of some other doctor, who is not from Shalya Department. On cross question the representative stated that in this instant case, at the time of admission of the patient, the patients are to admitted under the doctors on duty in Hospital. That is why the name of the doctors of concerned department does not match with the name of the doctor written in case history sheet.
During the examination of case sheet of Shalya Department it has been observed that the lab Register for the month of July for the patients of Shalya Department do not match the tests prescribed in the case sheet. The organization replied that they are running the laboratory, which is open to all public as well as for IPD, OPD patients. Every patient of the hospital and for other public, at first they have to pay for all the tests which is to be conducted for them. It is shown under the column RASHID (amount) and a receipt is issued to the patients. The receipt number is reflected in Register. However, we are agreeing that in Lab Register OPD/IPD, bed no. is not mentioned.
Such type of reply is not acceptable.
It seems that the college is not maintaining the Laboratory Register properly and also case sheets are not maintaining properly.
While verifying the case sheets, it has been observed that, for the patient Kusum Gupta in Shalya Department for the month of July, it has been mentioned that Hb%, FBS, PPBS done. But in lab Register it has not been found any record for the patient. It appears that the neither the case sheets are genuine nor the Lab Register is genuinely maintained.
Patient Mr. A.K. Panigrahi, age 25 years, Male, admitted on 8.1.2011 an discharged on 8.1.11, Patient, Mrs. Anjana, Age - 35 years, admitted in IPD on 31.12.11 and discharged on same day, patient Mrs. Nirmala Devi, age - 40 years, admitted on 31.12.11 and discharged on same date and same thing has been repeated in page - 254 of submitted documents.
No paper of investigation is attached in case sheet either done from their own laboratory as well as from outside, and no OPD slip/receipt is attached in each IPD case sheet, There is no documents is attached in case sheet where it is written "advise for admission". On cross examination.
No discharge slip is attached in each case sheets.
On cross examination, the representative replied that they were not aware about this proforma.
It seems that case sheets are not properly and it has been manipulated.LPA No.1959 of 2012 (O&M) -8-
In TRP (Temperature, Pulse, Respiration) chart, nobody has been signed in case sheets. On cross examination the representative stated that, this may be recorded by internee. Which is a very vague answer and could not be accepted. It seems that the case sheets are very casually filled.
While counting the total number of bed days the college representative has counted total number days in the month of discharge, e.g. One patient has discharged on 25.7.2011, they have calculated total number bed days in July 25 days, while as per the rules, it will be one day less, i.e. 24 days. The mistake has been done in every Department. On cross examination, the representative agreed with this point and mentioned that IPD bed occupancy has been calculated wrongly.
In the Department of Shalya, for the month of July, patient Anil Kumar, admitted on 4.7.2011 and discharged on 10.8.2011, it has been mentioned in the case sheet, that it was a case of abscess. Hearing Committee asked to the representative that how can a simple abscess patient stay in IPD for more than 1 month of submitted documents) The representative replied that this is a complete technical question, only the concerned technical person, i.e. expert Shalya can give the suitable reply on this. It seems that the case sheets are not genuine.
While examining the case sheet of the SHALYA Department, it has been observed that for the patient MR. MANOJ, it has mentioned in the bed, that GMW-79, which is not matching the concerned department under which the patient has admitted. The representative stated that in this month, i.e. July, there were 11 patients in SHALYA Department. Whereas the total number of bed allotted in the Shalya Department is less than this. So the patients was accommodated in private ward, room no.79. For which the representative has submitted the Department wise bed distribution.
Patient, in SHALYA Department, name Anil Kumar, in the follow up sheet, it has not been mentioned any Ayurvedic medicine prescription. On cross examination, here also the representative stated that this also completely a technical question. Only the concerned physician can reply on this. Which seems that in IPD cases proper follow up has not been done.
Dalbir Kar, Department of Panchkarma, it is written in the column of Lab Investigation that, "Advice for TFT" The Hearing Committee asked the representative to show the concerned page of Pathology Lab Register for verifying and cross checking. The representative replied that it is not found in Lab Register as we are not conducting this test in our Laboratory. But they were not able to tell LPA No.1959 of 2012 (O&M) -9- anything about the investigation, that whether it has done form outside, whether the report has been attached later on with IPD sheet or not? Whether the test has been at all or not? It seems that the IPD case sheets are not properly maintained and no follow up has been done.
On examining the case sheet of Panchakarma department, it has been seen in most of the follow up sheet, it is mentioned, that "Patient is conscious, oriented". On cross question the representative replied that although the concerned doctor can reply. But, it seems that it has been recorded to avoid any consumer court litigation. As the institute is already suffering in one court case. Which may be accepted.
On Examination of OPD Register, it has been observed that OPD number is not reflected in IPD sheets. On cross examination, the representative stated that they were not aware of that. Such type of vague reply is not acceptable at all. It creates doubt about the functionality of the Hospital.
In follow up sheet, no where it has been mentioned about the repeat of medicine or any new medicine prescribed. On cross question, the representative replied that it is a technical matter, but it seems that the medicine prescribed either continuing till recorded.
The Hearing Committee asked the representative to furnish the Register for Radiology, but they could not produce it.
Signature is not available in most of follow sheet in IPD cases. On examining the case sheets of Anil Kumar, in the Department Shalya, on examining the diet Register, there is no record found for Anil Kumar. (page May be the patient taken the diet from out side the hospital.
Patient name Gurupreet Singh, IPD no. 14563, date of admission 18.6.11, and date of discharge 19.6.11 but on page 502 of Annexure - 1 it has been written that the patient has been discharged on 6.7.2011 as per patients request. On the other hand it has also been noticed that on the day of admission, ligation of pile was done by KsharSutra Therapy and was discharged on 6.7.2011 as per patients request. After that follow up sheet is filled up even after 6.7.2011 to 19.7.2011 which proofs that the IPD case sheets has been manipulated.
Patient name Kulbir Singh, Age - 26, Male, admitted in IPD on 16.6.11 and discharged on 23.7.11 as per the Front page of case sheet. But on examination of case sheet, it has been observed that, in the follow up sheet, it was written that "patient is discharged with same medicine".
On 8.7.2011. Again, on the next page it was written that, "patient readmitted on 9.7.2011". Which should be as a new admission and new LPA No.1959 of 2012 (O&M) -10- IPD number should be given. It should not be continued in the same follow up sheet. Which proofs that IPD case sheets are not properly maintaining and it has been manipulated.
The similar cases found in another case sheet name Mr. Gaurav Sharma.
OPD and IPD Dispensing medicine register is not available. On cross examination they stated that they are not dispensing any medicine in OPD. The prescribed medicine is generally procured from the chemist shop. For IPD patients, medicines only dispensed to the patients in free of cost, which are produced in the Pharmacy of the college. But the representative could not produce even medicine IPD Register also.
In laboratory Register, sl. No., receipt no. is there, but no OPD no., IPD no., bed no. are not available.
On examination of Central OPD Register for the month of March 2011, it has been observed that the total number of patient in OPD is 7696, which has been obtained by deducting the serial no. of Registration no. i.e. 752189 to 759885. But on cross examination of the patients, for the Month of March, as submitted by the college to CCIM, it was calculated and obtained that total number of patients in all Department for the month of March, is 4866 (Kayachikitsa - 1134 + Shalya 670 + Shalakya 754 + Prasuti & Stri Roga 715 + Bal Roga - 235 + Panchakarma 918 + Swasthyarakshan 440 = 4866 Which seems that OPD documents are manipulated and fabricated."
The overall observations of the Hearing Committee on observation of hospital data was that the irregularities/inconsistencies would make it appear that the teaching hospital of the college does not appear to be a genuinely functional Ayurvedic hospital having genuine patient load of 100 patients per day in the OPD and 40% plus IPD bed occupancy during the period 01.01.2011 to 31.12.2011. The crux of the reason for refusal was that the appellant was not a genuinely functional hospital with genuine patient load of 40% IPD bed occupancy and 100% patients per day in OPD. On these premises, permission was denied.
We have heard the learned counsel for the parties at length. Mr. Gurminder Singh, learned counsel appearing for the appellant LPA No.1959 of 2012 (O&M) -11- submits that the CCIM in its comprehensive report dated 11.04.2012 made recommendations in favour of the appellant college and found remediable deficiencies not sufficient to withhold permission. The CCIM being a statutory authority was the expert body under the Act to make recommendations to the Government of India. On its part, the Government of India by its impugned orders neither discussed nor disregarded nor disagreed with the findings of the CCIM in its report and chose to deny permission on conjectures and surmises on a fallacious ground with respect to bed occupancy which itself was an incorrect deduction from quantifiable data of the hospital furnished to the assessors/visitation team of the CCIM and when its college was duly inspected by it. The discrepancies pointed out in the impugned order were superficial and more or less clerical in nature which do not go to the root of the matter specially, when there is no prescribed format, statutory or otherwise, upon which hospital records are to be maintained or tested in assessment. He would submit that even by excluding the disputed number of beds, suspected by the Hearing Committee, from the calculation of average annual bed days, the appellant would still meet the prescribed norms of 40% occupancy to justify permission for fresh admissions. It is the CCIM which is charged with the duty as an expert body to regulate standards of higher education in Ayurveda and the Government of India can only deny permission on legal and valid grounds and not on the basis of conjectures and surmises as reflected in the impugned order (P-17).
Mr. Gurminder Singh, would continue the thread of his argument by submitting that the material forming the part of the order was not a part LPA No.1959 of 2012 (O&M) -12- of the show cause notice, therefore, the basic requirements of the principles of natural justice were not met in this case. This input of natural justice is so vital and indispensable part of the decision making process that any breach would render the decision bad and unsustainable. His frontal attack is that the decision making process is so faulty and the author of the order representing the Government of India so apparently obsessed and acting with pre-meditation to deny permission anyhow, that the impugned order deserves to be set aside. Afterall the discrepancies pointed out in the impugned order pertain to the calculation of bed days alone and the same has resulted due to non-inclusion of old patients from the previous month owing to non-providing of any clear column for the same in the format supplied. In any case, the appellant had furnished complete justification with emperical data available with it to show that the appellant was a manifestly functional hospital where students are already studying and pursuing the BAMS courses.
It is noticeable that the show cause notice specified only three discrepancies. Apart from these three discrepancies, no other ground was raised to differ with the conclusions recorded by the CCIM. However, while passing the impugned order, the AYUSH has relied on random clerical mistakes in the of maintainance of record by the hospital which are at best minor discrepancies, which in any case, are not prescribed under any regulation. AYUSH clearly went overboard in throwing out the case of the appellant without due application of mind.
Mr. Sukhdip Singh Sandhu, learned counsel appearing for the 1st respondent has supported the order passed by the Government of India in LPA No.1959 of 2012 (O&M) -13- the Department of Ayush. He submits that the data at the command of the appellant and produced by it is fudged to give a false impression that the college has a functional hospital and if there is lack of patients in the hospital it will not be possible to train BAMS doctors with practical hands on training. He has delved upon previous litigation pending involving the appellant and certain objections raised by the Panjab University, Chandigarh with respect to the recruitment of Lecturers and the failure on the part of the college to take remediable action for which reason as well permission has been rightly declined.
On the other hand it is pointed by Mr. Gurminder Singh, that the Panjab University had raised an objection in 2009 about functionality of the appellant-College as it had erroneously found shortage of Lecturers whereas the CCIM had found the college compliant of the rules. The Panjab University had contended that the Lecturers recruited through placement method though outside the State could not be termed as regular staff which was in mistaken belief but those grounds were entirely different from the grounds on which they have been non-suited for the current session.
Mr. Sandhu has, however, not been able to show us that the 40% norm prescribed for bed days has not been met with in this case. He would urge that even in case this Court is inclined to allow the appeal, no permission can be granted to the college beyond the cut off date i.e. 31.10.2012. He would rely on the judgments of the Supreme Court in Medical Council of India vs. Madhu Singh & others; (2002) 7 SCC 258, Mridul Dhar (Minor) and another vs. Union of India & others; (2005) 2 SCC 65 and Priya Gupta vs. State of Chhattisgarh and others, (2012) 7 LPA No.1959 of 2012 (O&M) -14- SCC 433 to contend that cut off dates are sacrosanct and have to be adhered to.
Mr. Gurminder Singh, learned counsel for the appellant, on the other hand, would submit that the appellant-College is a private unaided college which runs on its own financial resources and the impugned order being totally arbitrary and perverse cannot operate against it to deny a fresh batch of students. He would point out to an order dated 01.12.2006 extending the cut off date for admissions inter alia to Ayurveda colleges from 30.11.2006 to 31.12.2006 subject to fulfillment of teaching and practical training of students as prescribed by the CCIM before appearing in First Profession (Final) examination. He has also drawn our attention to a similar order dated 16.11.2010 issued by the CCIM extending the cut off date to 30.11.2010 as a one time measure to save Ayurved/Unani and Siddha Colleges from suffering irreparable loss for the academic session 2010-11. He has also relied on a recent decision of the Division Bench of this Court in Sri Satya Sai Murlidhar Ayurvedic College and Hospital, G.T. Road, Moga vs. The Union of India and others, LPA No.1711 of 2012 decided on 15.11.2012 to show that in that case as well the Government of India in the Ayush Department had denied permission on the same issue of bed occupancy and the order of Ayush had been set aside. Therein also it was found that in that college as well admission of patients to its hospital was centrally controlled with a central admission numbe and therefore, the details of patients were available and could be verified from the central admission records available in the college. Learned counsel has also pointed out to the orders dated 01.11.2011 passed by this Court in LPA No.1959 of 2012 (O&M) -15- CWP No.18034 of 2011 filed by the appellant by which interim admissions were allowed and the petition disposed of directing a joint inspection to be conducted by AYUSH & CCIM, which was never obeyed.
On examining the file with care and caution we have no doubt that the appellant is a functioning hospital with students pursuing their BAMS courses and minor discrepancies in maintainance records should not be allowed to throttle institutions imparting education in Indian Medicine. The indigenous system of medicine in the country should in fact be encouraged with a guiding hand and not with an iron glove on minor issues.
We have examined the report of the CCIM and the impugned order and are convinced that there is no finding in the impugned order that the bed occupancy at the college-hospital of the appellant was below the 40% norm. We have, therefore, no reason to disbelieve the bed occupancy ratio of 53.75% certified correct by the CCIM in its visitation report at Page 226 of the paper book.
We are not unmindful of the fact that it has been clearly pleaded and not denied that the appellant was set up as a college and hospital for imparting Ayurvedic education at Chandigarh in 1978. The first admissions were made in 1979 when the Government of Punjab allowed them. The Panjab University, Chandigarh granted affiliation to the appellant in 1990 for award of degrees and in 1991 the CCIM granted recognition to the appellant. The Government of India amended the 1970 Act and incorporated Section 13-C on 06.11.2003 prescribing fresh norms to be followed by all Ayurvedic colleges in the country and that they should seek fresh approval within three years of the new regime. The appellant had applied under the LPA No.1959 of 2012 (O&M) -16- new dispensation in the prescribed proforma on 04.11.2006. It is not disputed that the application was received within time prescribed and that no orders have been passed thereon. The Government of India had granted conditional permission to the appellant to admit students on the strength of recommendations of the CCIM for the Session 2009-2010. It has been pointed out that the Government of India had issued revised norms on 18/21.03.2011 clearly stating that only in cases where the CCIM makes unfavourable report would the Government of India afford hearing to enable the college to rectify defects, if any, but there is no illustration in the guidelines of 2011 that where the CCIM makes a favourable report, the Government of India would still constitute a Hearing Committee and reverse the recommendations of the CCIM and that too without deliberating effectively on the findings recorded or the shortcomings pointed out by the CCIM.
It is well settled that the Writ Court is not concerned with the decision but with the decision making process. In the present case, after having carefully examined by juxtaposing the recommendations of the CCIM in its report in favour of the appellant for grant of permission; the three discrepancies pointed out by the Government of India in the Department of Ayush in its show cause notice; the reply of the appellant submitted at the hearing on 03.05.2012 and the final rejection order we are left with little doubt that there has been a serious fault in the decision making process due to either non application of mind or lack of probity in the consideration of the favourable recommendations of CCIM at the hands of Ayush with an apparently closed mind that the impugned order cannot be LPA No.1959 of 2012 (O&M) -17- legally or factually sustained. Minor technicalities which the CCIM has itself said to be remediable, cannot be seen to sustain the impugned order passed by the Government of India. We find there was no delay on the part of the appellant in approaching this Court against the impugned order and claiming relief against dislocation of its functioning. The appellant being a private unaided college survives on its own resources, as emphasised by the learned counsel for the appellant; and the fee paid by students and thus in case it is left out of the counselling process on permission having been declined by a perverse order passed by the Department of Ayush, in the Central Government in colourable exercise of power, the appellant cannot be faulted or blamed and put to irreparable loss which cannot be compensated in any manner. If the resouces at the command of the appellant at its hospital are good enough for training the ongoing students on its rolls we see little merit in why fresh students would not stand benefitted with the existing infrastructure and bed occupancy above the prescribed norm of 40%. The impugned order does not say that the hospital is not functioning. The appellant is a pioneer college in Chandigarh imparting Ayurveda education for the last 33 years.
As a consequence, the present appeal is allowed; the order dated 16.07.2012 (P-17) passed by the Government of India in the Department of Ayush is quashed and the judgment and order passed by the learned Single Judge of this Court dated 20.11.2012 is set aside. The Central Government would remain at liberty to pass a fresh order in the light of the observations made above on the issue of bed occupancy operative for the next session after following due procedure as warranted by law. However, for the current LPA No.1959 of 2012 (O&M) -18- session we deem it appropriate to mould the relief granted by this order so as not to make it illusiory, and accordingly direct the respondents to grant permission to the appellant to admit fresh batch of students according to its sanctioned intake of entry level for the Session 2012-13 in the BAMS course in accordance with the recommendations of the CCIM in its report dated 11.04.2012 (P-12) and subject to the curable and remediable deficiencies albeit minor in nature pointed out therein which the appellant would remove immediately. The admissions that will follow would, needless to add, be routed exclusively through the process of counselling conducted by the respondent University and based purely on the prescribed rule of merit with a view to allocate a fresh batch of students to the appellant-College without loss of further precious time.
(HEMANT GUPTA) (RAJIV NARAIN RAINA)
JUDGE JUDGE
03.12.2012
manju