Punjab-Haryana High Court
National College Of Ayurveda And ... vs Union Of India And Ors on 12 July, 2024
Bench: Anupinder Singh Grewal, Kirti Singh
Neutral Citation No:=2024:PHHC:087108-DB
CWP-23980-2023 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No. 313
CWP-23980-2023 (O&M)
Reserved on : 30.05.2024
Pronounced on: 12.07.2024
National College of Ayurveda & Hospital, Barwala, Haryana
..... Petitioner
VERSUS
Union of India and others .... Respondents
CORAM: HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. Arjun Partap Atma Ram, Advocate, for the petitioner.
Ms. Swatti Arora, Sr. Panel counsel, for respondent-UOI.
Mr. Angel Sharma, Advocate, for respondents No.2 and 3.
*****
KIRTI SINGH, J.
1. The petitioner-college is an educational institute established in the year 2013 and offers courses on Ayurveda including BAMS (Bachelor of Ayurveda Medicine and Surgery). The petitioner-college is approaching this Hon'ble High Court by way of instant civil writ petition under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the impugned order dated 21.08.2023 (Annexure P25) passed by respondent No.3 vide which it was held that 07 teachers were working only on paper, impugned letter dated 06.09.2023 (Annexure P45) vide which respondent No.3 granted conditional 1 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 2 permission to the petitioner-college for 60 seats instead of 100 in UG (BAMS) course for the academic session 2023-24 as well as impugned order dated 29.09.2023 (Annexure P49) passed by respondent No.2 vide which the appeal dated 31.08.2023 filed by the petitioner-college was rejected and impugned dismissal letter of second appeal dated 07.11.2023 (Annexure P68) passed by respondent No.1 dismissing the second appeal/representation dated 30.09.2023 filed by the petitioner-college against impugned order dated 29.09.2023 passed by respondent No.2. Factual matrix
2. The facts in brief are that respondent No.3 i.e. Medical Assessment and Rating Board for Indian System of Medicine (MARBISM) conducted a surprise inspection on 02.05.2023 and 03.05.2023 in the petitioner-college in respect of issuance of conditional permission with the intake capacity of 100 seats in UG (BAMS) course for the academic session 2023-24.
2.1 Respondent No.3 issued a letter dated 27.06.2023 to all the Principals/Deans/Directors of all colleges of Ayurveda, Unani, Siddha and Sowa-rigpa seeking the vacations schedule declared for the teaching and non-teaching staff.
2.2 In pursuance thereto, the petitioner-college which has about 41 teaching staff submitted its vacation schedule vide letter dated 30.06.2023. As per the vacation schedule, 21 teachers were on summer vacations for the first half i.e. from 27.05.2023 to 23.06.2023 whereas the 2 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 3 remaining 20 teachers were to be on the vacations for the second half i.e. from 24.06.2023 to 22.07.2023.
2.3 On 19.07.2023 and 20.07.2023, respondent No.3 again conducted a surprise inspection of the petitioner-college and on 01.08.2023 and 02.08.2023, it issued show cause notices to various teachers viz. Dr. Nisha, Dr. Neetu Singh, Dr. Poonam Rani, Dr. Sunita Gupta, Dr. M.S. Sonika, Dr. Christy Jose Cherian, Dr. Hemant Laxman Shinde, Dr. Ashok Kumar, Dr. Manoj Kumar Sharma, Mr. Surendar Singh, Dr. Rajeshvara Rao E and Dr. Nivil V Joseph alleging that it was suspected that they were working only on paper, as during the surprise inspection, they were not physically present and on cross verification from the students, it was found that they were not a full time faculty. Consequently, these teachers were asked to appear for hearing on 03.08.2023 and 04.08.2023.
2.4 Respondent No.3 also issued a notice dated 03.08.2023 to the petitioner-college informing that 12 teachers were suspected to be working only on paper and not physically present in the college. The petitioner-college on 05.08.2023 submitted a detailed reply refuting the allegations.
2.5 Thereafter, respondent No.3 issued the impugned order dated 21.08.2023 imposing a monetary penalty of Rs.1.75 crore on the petitioner-college in respect of allegedly appointing physically absent but present only on paper teachers.
3 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 4 2.6 Another show cause notice dated 30.08.2023 was issued to the petitioner-college to show cause as to why the conditional permission with the intake capacity of 100 seats in UG (BAMS) course be denied. 2.7 On 06.09.2023, it is alleged that respondent No.3 forced the petitioner-college into sending a letter requesting for conditional permission of 60 seats instead of 100 seats by threatening the petitioner-college with cancellation of recognition in case the request for 60 seats was not made. Resultantly, the petitioner-college was constrained to issue a letter seeking conditional permission for 60 seats instead of 100 seats and respondent No.3 granted conditional permission to the petitioner-college.
2.8 In respect to the impugned order dated 21.08.2023, the petitioner-college filed an appeal dated 31.08.2023 before respondent No.2. The said appeal was rejected by respondent No.2 vide the impugned order dated 29.09.2023 on the ground that all the 07 faculty members have the local address on their Aadhar cards which were not previously mentioned. Moreover, the committee also observed that the google timeline provided by the 07 faculty members showed no movement on majority of dates. Hence, the committee concluded that there may be a possibility of data fabrication by the petitioner-college and hence, it was suggested that the google timeline and CCTV footage of 06 months be submitted to IT experts.
2.9 Aggrieved by the impugned order dated 29.09.2023, the petitioner-college filed a representation to respondent No.1. Further, the 4 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 5 petitioner-college on 14.10.2023 sent a reminder to respondent No.1 for taking a decision on the representation dated 30.09.2023. 2.10 The petitioner-college approached this Court by way of filing Civil Writ Petition No.23980 of 2023, challenging the impugned order dated 21.08.2023, impugned letter dated 06.09.2023 as well as impugned order dated 29.09.2023. This Court vide orders dated 19.10.2023 and 03.11.2023 stayed the impugned orders and further allowed the petitioner-college to continue the provisional counselling for the remaining 40 seats as well, subject to final decision of the writ petition and on duly informing the students of the same. The petitioner-college provisionally admitted all conditional 40 students after duly taking the required undertakings from them.
2.11 Respondent No.1 on 07.11.2023 issued the impugned dismissal letter of second appeal and on 28.11.2023, respondent No.2 issued a letter directing the college authorities to upload the said fact on the college website/portal and also sought affidavits/undertakings in that regard.
2.12 The respondents approached the Hon'ble Supreme Court of India against the order dated 19.10.2023 by filing a Special Leave Petition bearing No.25638 of 2023. The Hon'ble Supreme Court vide order dated 28.11.2023 dismissed the said Special Leave Petition as the matter had been kept pending for 18.12.2023 before this Court. However, the Hon'ble Supreme Court clarified that in the event this Court does not decide the question with regard to the continuation of the interim order 5 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 6 prior to or by the end of December 2023, the interim order shall seize to operate.
Submissions made by learned counsel for the petitioner
3. In the support of the petition, Mr. Arjun Partap Atma Ram, learned counsel for the petitioner-college has made the following submissions:-
(i) At the outset, counsel appearing for the petitioner institute Mr. Arjun Atma Ram, submits that respondent No.3 wrongly and arbitrarily declared 07 out of 12 suspected teachers as working only on paper teachers and consequently, imposed a penalty of Rs.1.75 crore on the petitioner-college and further withheld the permission for conditional intake of a 100 students for the academic session 2023-24 vide the impugned order dated 21.08.2023 only on the basis of submission of google timeline without considering the fact that some of the faculty members were on summer vacations as per the schedule already submitted to respondent No.3 vide letter dated 30.06.2023 and hence, the teachers could not be present on the day of the inspection.
(ii) By drawing the attention of the Court to Annexures P33 to P39 and Annexures P77 & P78, he submits that demonstrating EPF, salary statements and Form-16 6 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 7 details (Annexure P77), evidencing the examination duties assigned by the university (Annexure P78) providing proof of examination duty has not been considered by the respondent-university.
(iii) That the evidence pertaining to the examination duties of Dr. Christy, Dr. Nivil and Dr. Rajeshvara Rao E has been appended to the writ petition as Annexure P77 and is on record. However, this evidence was not considered by the respondents.
(iv) That one of the 07 teachers, Dr. Rajeshvara Rao E was present on the day of inspection as well (as he was preparing for his entrance exam for Ph.D as a resident of the petitioner-college). However, he was asked not to accompany the inspection team as he was on vacation as per the schedule. It was also submitted that Dr. Neetu Singh had been rejected as a regular faculty, however, her husband Dr. Manoj was approved by the same inspection team as a regular faculty.
(v) That all the 07 alleged on paper teachers have been affiliated with the petitioner-college since the last couple of years and faced regular and consistent inspections. The inspection teams had approved these 07 teachers in the earlier years, however, respondent No.3 had declared them as on paper this year on the 7 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 8 alleged ground of deficiency in google timeline, ignoring all other cogent evidence on record. Moreover, 07 teachers had also performed various duties over the years, such as examination duties, medical camp duties etc. in the petitioner-college. However, the same has not been considered by the respondents.
(vi) That the respondent-authorities have completely ignored the relevant documents such as Form 16, EPF forms and salary statements etc. which were duly submitted by the petitioner-college time and again to show the regularity of 07 teachers. Moreover, the respondents have not dealt with the relevant photographs as well as verification performas since the last couple of years showing the presence of 07 teachers in the petitioner-college. The authorities have also not considered the picture of the first surprise inspection dated 02.05.2023 and 03.05.2023 which clearly proves that the 07 teachers were duly present on the date of the first surprise inspection.
(vii) He further submits that respondent No.1 disregarded the Aadhar cards of the 07 teachers only on the ground that the same were updated after hearing of the appeal and not previously mentioned. Further, respondent 8 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 9 No.1 while upholding the impugned order dated 29.09.2023 passed by respondent No.2 stated that the biometric attendance of the 07 teachers had not been placed on record. However, the biometric attendance was never sought by any of the respondent-authorities and hence, it cannot be a ground for passing the impugned order/letter dated 07.11.2023 and further, no opportunity of hearing was granted before dismissing the second appeal.
(viii) That as per the revised guidelines for appointment and relieving of teachers from recognized/approved Ayurveda, Siddha and Unani Colleges dated 09.01.2017, the institute is granted 90 days time to fill up the vacancy of teachers under intimation to CCIM. Thus, in any case, the petitioner-college was entitled to fill up the vacancy of teachers within 90 days, as per the guidelines dated 09.01.2017. However, the same was not provided.
(ix) While only 40 teachers are required for conditional permission for intake of a 100 students as per Schedule 5 of the MSR 2016, the petitioner-college had again undergone surprise inspection by the NCISM on 05.02.2024 and 06.02.2024 and a full complement of 44 teachers had been reflected as present.
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(x) That even the google timeline forming the basis of rejection of teachers has no reference/backing from MSR 2016 and is unreliable. Reliance has been placed upon Anil Kumar Singh Bhadoria Vs. Union of India 2021 SCC online Delhi 3807 in which the use of google timeline to verify the presence of Ayush teachers has been deprecated.
(xi) That the penalty of Rs.1.75 crore and intake of 60/100 seats is huge financial loss to the institute. Reliance has been placed upon the judgment rendered by the High Court of Madras in Writ Petitions No.21990 of 2023 and 23415 of 2023 titled as Maria Ayurveda Medical College & Hospital Vs. Ministry of Ayush and others that the imposition of a monetary penalty must comply with the standards and prescriptions established by the Commission; furthermore, in the absence of adherence to provisions of Section 28(1)(f) of the National Commission for the Indian System of Medicine Act, 2020, the MARB lacks the authority to impose financial penalties, resulting in the penalty being set aside in that case. No penalty contrary to rules can be imposed.
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4. Per contra, Ms. Swatti Arora, Advocate appearing for respondent No.1 and Mr. Angel Sharma, Advocate appearing for respondents No.2 & 3 vehemently oppose the petition and have made the following submissions:-
(i) That the inspection of the college was conducted on 02.05.2023 and 03.05.2023 and re-visited on 19.07.2023 and 20.07.2023. In view of the Indian Medicine Central Council (Requirements of Minimum Standards for undergraduate Ayurveda Colleges and attached Hospitals) Regulations, 2016 and NCISM Act, 2020 certain deficiencies were observed by the Medical Assessment and Rating Board for Indian System of Medicine. Out of 12 teaching faculties, 07 staff teachers were found to be working only on paper and hence, not considered as regular teachers and consequently, the college did not fulfil the basic eligibility criteria for grant of conditional permission with 100 seats in UG (BAMS) course for the academic session 2023-24.
(ii) That a hearing was given to the college and staff on 03.08.2023 and 04.08.2023 and it is submitted that out of 12 suspected faculty staff, 07 teachers were found to be ineligible and not considered as regular teachers as the staff had failed to prove the CCTV footage and google 11 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 12 timeline for the last 06 months and were found to be mostly edited on the randomly selected dates. The observations of the Hearing Committee were placed before the Medical Assessment and Rating Board held on 11.08.2023 which approved the same and thereafter vide order/letter dated 21.08.2023, Annexure P25, monetary penalty was imposed on the petitioner-college.
(iii) That 04 out of 11 teachers were considered as regular teachers who were on vacation from 24.06.2023 to 22.07.2023 and therefore, the submission of the petitioner-college that the inspection was conducted on 19.07.2023 during the vacations and therefore, the teachers have not been certified as regular faculty on this ground is as such not tenable.
(iv) The petitioner-college was not fulfilling the criteria for grant of conditional permission for 100 seats, and an opportunity of hearing was given to the petitioner-college on 01.09.2023 and thereafter, vide order dated 06.09.2023, the conditional permission was granted for 60 seats instead of 100 seats in view of Schedule V of the Indian Medicine Central Council (Requirements of Minimum Standards for undergraduate Ayurveda Colleges and attached Hospital) Regulations, 2016. Further, it is relevant to submit that the petitioner-college itself vide 12 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 13 letter dated 06.09.2023 has admitted that they did not fulfil the criteria for 100 seats and they may be considered for 60 seats and therefore, vide order dated 06.09.2023, conditional permission was granted for 60 seats.
(v) Reliance has been placed upon the judgment rendered by the Hon'ble Supreme Court in Medical Council of India Vs. Kalinga Institute of Medical Sciences and others AIR 2016 SC (Civil) 1858 where it has been observed that the High Court venturing into seriously disputed factual issues has exceeded its jurisdiction under Article
226. The Supreme Court observed that for the fault of KIMS, the students should not suffer nor should KIMS get away scot free. KIMS must pay its inability to introspect and venture into adventurist litigation and imposed a cost of Rs.5 crores on KIMS saying that the provisional permission granted by the Central Government shall not be disturbed.
(vi) Further reliance has been placed upon the judgment of Hon'ble Apex Court in case of Medical Council of India Vs. Vedantaa Institute of Academic Excellence Private Limited and others 2018 (7) SCC 225 where it was held that "on perusal of the material on record, we are of the opinion that the conclusion reached by the High Court regarding the manner in which inspection was conducted 13 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 14 is also not correct. Bed occupancy at 45.30 percent on random verification was the claim of respondents No.1 and 2. However, the inspection report shows that out of required minimum of 300 patients only 03 were available at 10.00 a.m. on 25.09.2017. This Court in Kalinga (supra) has held that medical education must be taken very seriously and when an expert body certifies that the facilities in a medical college are inadequate, it is not for the Courts to interfere with the assessment, except for very cogent jurisdiction reasons such as mala fides of the inspection team, ex facie perversity in the inspection, jurisdictional error on the part of the MCI etc. The submission relating to the cyclone being a reason for the number of patients being less is not acceptable. We are in agreement with the submission made on behalf of the appellant that the Resident Doctors are required to be in the hospital at all points of time.
In view of the large scale deficiencies found in the inspection report dated 25.09.2017 and 26.09.2017 and in view of Regulation 8 (3) (1) (a), the respondents No.1 and 2 are not entitled to claim another inspection.
For the aforementioned reasons, the judgment of the High Court is set aside and the appeal is allowed."
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5. Having hereinabove noted the rival contentions of the learned counsel for the parties, this Court shall now proceed to deal with the same and record the submissions and outcome thereof.
6. Learned counsel appearing for the petitioner-college vehemently argued that the vacation schedule of all 41 teachers had been duly submitted which were divided into two periods ranging from 27.05.2023 to 23.06.2023 for 21 teachers and 24.06.2023 to 22.07.2023 for remaining 20 teachers. The Notification dated 20.05.2023 issued by Shri Krishna Ayush University (respondent No.4) and vacation schedule dated 23.05.2023 as issued by the petitioner-college is reproduced as below:-
"Notification dated 20.05.2023 The Hon'ble Vice-Chancellor, Shri Krishna Ayush University, is pleased to declare summer vacation of the teaching staff w.e.f. 23.05.2023 to 22.07.2023 in two grounds (30 days each). The HODs would frame a roster of teachers to perform Teaching, Hospital and Administrative duties during vacations. The HODs would get roster approved from the Principal and the Principal would send the roster to the office of the undersigned.
Sd/-
Dean Academic Affairs"
15 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 16 "Office order dated 23.05.2023 For Summer Vacations The following staff will be on summer vacations as given under:-
Department First half Second half
From 27.05.2023 to From 24.06.2023 to
23.06.2023 22.07.2023
Samhita & Dr. Jyoti Sihag Dr. Sunita Gupta
Siddhanta Dr. Ramanand Mr. Surender Singh
Rachana Dr. Sandeep Kumar Dr. Hemant Laxman
Sharir Dr. Manjeet Singh Shinde
Kriya Sharir Dr. Mannu Rani Dr. Christy Jose Cherian
Dr. Sanjay Kumar
Rasashastra & Dr. Sunil Kumar Dalal Dr. Rajeshwara Rao E.
Bhaishajya
Kalpana
Rog Nidan & Dr. Bhagirath Singh Dr. Nivil V Joseph
Vikriti Vigyan
Dravyaguna Dr. Sahana VM Vats Dr. Preeti
Vigyan
Swasthavritta Dr. Preeti Dr. Bipin Anil Samant
& Yoga Dr. Jyoti Rani
Prasuti Tantra Dr. Pushpa Godara Dr. Neetu Singh
& Stree Roga Dr. Renu Bala Dr. Sonika
Agad Tantra & Dr. Sunil Kumar Dr. Poonam Rani
Vidhi Dr. Anjali Mahajan
Vaidyaka
Kaumarbhritya Dr. Ishita Swami Dr. Deepak
Dr. Nisha
Kayachikitsa Dr. Ashok Kumar Dr. Rohit Kumar Bansal
Dr. Vidhya Bharti Sharma Dr. Pavitra Malik Panchkarma Dr. Shiva Ram Prasad Dr. Ajay Singh Manjhu Kethamakka Dr. Parvesh Kumari Ohlan Shalakya Dr. Sonia Dr. Manoj Kumar Tantra Shalya Tantra Dr. Manoj Kumar Dr. Manoj Kumar Sharma Dr. Jyoti Saini Sd/-
Principal"
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7. Admittedly, the surprise inspection of the petitioner-college was conducted on 19/20.07.2023 after which the show cause notices dated 01/02.08.2023 were issued alleging that 12 teachers to be present on paper and not physically present and therefore, not being full-fledged teachers.
8. In response, a detailed reply was filed refuting the allegations. Subsequently, vide order dated 21.08.2023, a monetary penalty of Rs.1.75 crore was imposed on the ground that 07 physically absent teachers were appointed on paper. On 30.08.2023, another show cause notice was issued to the petitioner-college as to why not the conditional permission with the intake capacity of 100 seats in UG (BAMS) course be denied. An appeal was filed on 31.08.2023 which was rejected vide impugned order dated 29.09.2023 whereby the subsequent second appeal was also rejected vide impugned order dated 07.11.2023.
9. Heavy reliance has been placed by learned counsel for the petitioner on communication dated 15.12.2021 and 07.12.2022 whereby grant of approval was granted by NCISM and affiliation by Shri Krishna Ayush University (60 seats in 2021 and thereafter, 100 seats in 2022) for the academic session where these teachers were found present. It may at this stage be apposite to refer to the communication(s) and the same are reproduced below:-
"To The Principal, National College of Ayurveda and Hospital, Barwala (Hisar) E-mail Kundu [email protected] 17 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 18 Subject: Extension in Provisional Affiliation for B.A.M.S. (UG) Course with an intake of 60 seats for the Academic Session 2021-22.
Please refer to your letter No-NCA-10-04-141- dated-10.04.2021 and the subject cited above.
It is to inform that the Inspection Committee constituted by the Hon'ble Vice-Chancellor, visited your college on 24.08.2021 to verify the feasibility and infrastructure. After considering the inspection report, the University is pleased to grant extension in provisional affiliation under Section 22 of the Ordinance regarding "Conditions of affiliation of Colleges and Institutions to the Privileges of the University and the withdrawal of such privileges to the college for B.A.M.S. (UG) Course with intake of 60 seats for the academic session 2021-22.
This is in anticipation of approval of the Academic Council.
In case any of the information/documents furnished by your College is found false or misleading, in that event the University has a right to withdraw the permission for the session 2021-22 suo moto and further suitable action as per rules would be taken against the College/Institution.
Officer In-charge (Affiliation) for Registrar"
18 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 19 "Dated 07.12.2022 To The Principal, National College of Ayurveda and Hospital, Dhani Garan Road, Barwala Hisar-125121, Haryana Email ID- kundubalraj@ yahoo.in Subject: Grant of Conditional Permission for 60 seats in UG (BAMS) course for the academic session 2022-23 under section 28 of NCISM Act, 2020 and issuance Letter of Permission Application vide ref no. NCA-23-10-427 dated 23.10.2021 of The Principal, National College of Ayurveda Hospital, Dhani Garan Road, Barwala, Hisar- 125121, Haryana for increase of seats in existing Under Graduate course from 60 to 100 seats under Section 29 of NCISM ACT 2020 from the academic session 2022-23 and relevant regulation thereunder-regarding Sir/Madam With reference to the subject mentioned above, I am directed to inform you that in pursuance of the provision of National Commission for Indian System of Medicine Act, 2020 and the Indian Medicine Central Council Act, 1970 (48 of 1970) has been repealed with effect from the 11th day of June, 2021. With effect from the said date, the Central Council of Indian Medicine constituted under sub-section (1) of section 3 of the Indian Medicine Central Council Act, 1970 (48 of 1970) shall stand dissolved. Now, in exercise of the powers 19 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 20 conferred by sub-section (3) of section 1 of the said Act, the Central Government hereby notifies that all the provisions of the National Commission for the Indian System of Medicine Act 2020 has been come into force with effect from the of 11 day of June, 2021 and as per Regulation 59 (2) of the National Commission for Indian System of Medicine Act, 2020, Medical standards requirements and other provisions of the Indian Medicine Central Council Act, 1970 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder. Further, the provision of concerned regulations which are inconsistent with the provisions of NCISM Act, 2020 shall not be applicable.
1. I am to refer to your application vide ref. No. NCA-23-10-427 dated 23.10.2021 on the subject cited above and to verify the available facilities of teaching and practical training for increase of seats in Under Graduate (BAMS) Course from 60 to 100 seats under Section 29 of NCISM ACT 2020 from the academic session 2022-23, the college has been visited on 23.05.2022 & 24.11.2022 through hybrid mode for issuance of LOI by the visitation team of Medical 20 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 21 Assessment and Rating Board for Indian System of Medicine (NCISM) and as per direction of competent authority letter of the intent has been issued to your college vide letter of even number dated 24.09.2022 for Increase of seats in existing Under Graduate (BAMS) Court from 60 to 100 from the academic session 2022-23 under Section 29 of NCISM Act 2020 and relevant regulations thereunder.
2. The Medical Assessment and Rating Board for Indian System of Medicine (NCISM) had carried out an inspection of the institution again in Hybrid mode on 01.11.2022 and 02.11.2022 for Annual visitation with 60 seats in UG (BAMS) course and Letter of Permission (LOP) to assess the available facilities of teaching and practical training for opening of new or higher course of study or Training and Increase of Admission Capacity by a Medical College in the name of National College of Ayurveda & Hospital, Dhani Garan Road, Barwala, Hisar-125121, Haryana for increase of seats in Under Graduate course from 60 to 100 seats from the academic section 2022-23 under session 29 of NCISM Act 2020 and relevant regulations thereunder.
3. In view of above as per the direction of President, Medical Assessment and Rating Board for 21 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 22 Indian System of Medicine (NCISM), the assessment report and all other related documents were placed in the 21st Board Meeting of Medical Assessment and Rating Board for Indian System of Medicine (NCISM) dated 29.11.2022. Board discussed the same and recommended to issue letter of Permission for Increase of seats in existing Under Graduate (BAMS) course from 60 to 100 seats from academic session 2022-23 under section 29 of NCISM Act 2020 and Grant conditional Permission for 60 seats in UG (BAMS) course for the academic session 2022-23 under section 28 of NCISM Act, 2020.
4. In accordance of 6 (3) (j) (ii) of "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", Vide commission letter of even no. dated 30.11.2022 letter has been sent to college to furnish fixed security deposit worth Rs. 50 Lakhs (Fifty Lakhs) in favour of National Commission fund for Indian System of Medicine for the period of five years, in response of the same college has furnished the fixed security deposited in favour of the National Commission fund for the Indian system of Medicine trough UTR no. PUNBR52022120118950157 22 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 23 dated 01.12.2022 of Rs. 50 lakhs transferred by the State Bank (for a period of five years).
5. Therefore, it has been decided by the President, Medical Assessment and Rating Board for Indian System of Medicine (NCISM) Grant of conditional Permission for 60 seats in UG (BAMS) course for the academic session 2022-23 under section 28 of NCISM Act, 2020 and Issuance Letter of Permission (LOP) to the Principal, National College of Ayurveda & Hospital, Dhani Garan Road, Barwala, Hisar-125121, Haryana for increase of seats in existing Under Graduate (BAMS) course from 60 to 100 seats from academic session 2022- 23 under section 29 and relevant regulations thereunder, subject to the following conditions:-
(i) The college shall submit an undertaking in the form of affidavit duly notarized within one month explaining the details of providing EPF and ESI facilities to the teaching, non-teaching staff of the Colleges/Hospitals and regularly paying the same as ser the provisions of Employees Provident Funds and Miscellaneous Provisions Act, 1952 & ESI Act 1948 and relevant rules and regulations.
(ii) it is further informed that minimum 15% of the undergraduate seats of the permitted intake capacity 23 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 24 of 100 UG (BAMS) seats shall be treated as all India quota. The counseling for seats under all India quota shall be conducted by respective counseling authority as designated by Central Government for A.Y. 2022-23 and counseling for the remaining 85% seats or as the case may, shall be conducted by the concerned Counseling Authority of that State/U.T. The permission of the college stands withdrawn if the college fails to comply with the aforesaid direction of the Central Government/NCISM for all India quota or the students admitted thereunder.
(iii) It is also informed that determination of fee and all other charges in respect of 50% of seats in private Medical Institutions and deemed to be University should be as per the guidelines issued by NCISM vide ref no. BUSS/Fee/ASU/2022-23 dated 16.09.2022 Fees of the remaining 50% of seats are to be fixed as per the guidelines of Fee Fixation/Regulatory Committee (FRC) of respective State/UT/Deemed to be University.
6. Admissions made in violation of the above conditions will be treated as invalid and action will be initiated under NCISM Act & Regulations thereunder.
7 Discrepancies, if any, may be immediately brought to the notice of Medical Assessment and Rating Board for Indian System of Medicine, NCISM.
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8. The following requirements should be fulfilled by the college by 31st December, 2022 to get permission for the session 2023-24:-
(i) all the requirements of Minimum Standard of infrastructure and teaching & training facilities as specified in Regulation 3 of the "Indian Medicine Central Council (Requirements of Minimum Standard for under-
graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016.
(ii) all the requirements of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Amendment Regulations, 2016 (for Ayurveda);
(iii) all the requirements, under the provisions of the NCISM Act-2020 and relevant Regulations, made thereunder should be fulfilled in toto;
9. Please acknowledge the receipt of this letter.
Sd/-
Dr. Raghurama Bhatta U. President, NCISM"
10. From the bare perusal of the above communication(s), it is evident that in the year 2022, the seats intake was increased from 60 seats to 100 seats in the UG (BAMS) course. It is further observed from the record that 04 out of 07 teachers namely Dr. Christy Jose Cherian, Dr. Nivil V Joseph, Dr. Rajeshvara Rao E and Dr. Poonam Rani had also 25 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 26 performed examination duty of Superintendent (Examination), Deputy Superintendent (Examination) and Assistant Superintendent (Examination) for the university in the year 2023. The letters are reproduced as below:-
"Dated 28.07.2022 To Dr. Nivil V. Joseph, HOD, Reader National College of Ayurveda, Barwala Subject: Appointment as Deputy Superintendent for Annual/Re-appear Examination of BAMS 1st, 2nd, 3rd Prof. & BHMS-1st 2nd, 3rd & D. Pharmacy (Ayurveda)-1st, 2nd year & MD/MS- Preliminary re-appear examination July, 2022 scheduled from August 2, 2022.
Sir/Madam, It is hereby informed that you are appointed as Deputy Supdt. for conducting Annual/ Re-appear Examinations of BAMS-1st, 2nd, 3rd Prof. at National College of Ayurveda, Barwala for the Examinations which is scheduled from August 2, 2022 to September 5, 2022 at 1.00 PM to 4.00 PM as per date sheet.
The said assignment of examination duty is subject to the condition that none of your ward
26 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 27 (son/daughter/brother/sister/or any near relative) is appearing in the said examinations. Remuneration will be paid to you as per University rules.
-sd-
Controller of Examinations"
"Dated 03.02.2023 To Dr. Christry Jose Cherian, Asso. Prof., National College of Ayurveda, Barwala Subject: Appointment as Centre Superintendent for Supplementary/Annual Examination of Panchkrma Asstt. Training Certificate course and D. Pharmacy (Ayurveda) 1st, 2nd year and BHMS-1st 2nd, 3rd and 4th & BAMS-1st 2nd, 3rd and 4th Prof. examination December, 2022 scheduled from February 8, 2023.
Sir/Madam, It is hereby informed that you are appointed as Centre Supdt. for conducting Annual/Re-appear Examinations of BAMS-1st, 2nd, 3rd and 4th Prof. December 2022 which is scheduled from February 8, 2023 at National College of Ayurveda, Barwala. The examinations
27 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 28 timings will be from 1.00 PM to 4.00 PM as per date sheet.
The said assignment of examination duty is subject to the condition that none of your ward (son/daughter/brother/sister/or any near relative) is appearing in the said examinations. Remuneration will be paid to you as per University rules.
You are requested to conduct the examination as per University ordinance and guidelines issued vide letter No.SKAU/COE/2023/3883-3891 on dated 30.01.2023 to all colleges.
-sd-
Controller of Examinations"
"Dated 03.02.2023 To Dr. Nivil V. Joseph, Asso. Prof. National College of Ayurveda, Barwala Subject: Appointment as Deputy Superintendent for Supplementary/Annual Examination of Panchkrma Asstt. Training Certificate course and D. Pharmacy (Ayurveda) 1st, 2nd year and BHMS-1st 2nd, 3rd and 4th & BAMS-1st 2nd, 3rd and 28 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 29 4th Prof. examination December, 2022 scheduled from February 8, 2023.
Sir/Madam, It is hereby informed that you are appointed as Deputy Supdt. for conducting Annual/Re-appear Examinations of BAMS-1st, 2nd, 3rd and 4th Prof. December 2022 which is scheduled from February 8, 2023 at National College of Ayurveda, Barwala. The examinations timings will be from 1.00 PM to 4.00 PM as per date sheet.
The said assignment of examination duty is subject to the condition that none of your ward (son/daughter/brother/sister/or any near relative) is appearing in the said examinations. Remuneration will be paid to you as per University rules.
You are requested to conduct the examination as per University ordinance and guidelines issued vide letter No.SKAU/COE/2023/3883-3891 on dated 30.01.2023 to all colleges.
-sd-
Controller of Examinations"
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11. Interestingly, in the inspection that had been conducted earlier, all the 07 teachers were found present. In fact, even in the subsequent surprise inspection conducted on 05/06.02.2024 by the NCISM, all 44 teachers were reflected as present showing no deficiency in the staff.
12. The seat intake in the year 2022 was also increased from 60 to 100 in UG (BAMS) course after the institute was duly inspected. At that point of time, no deficiency was pointed out by the concerned authority.
13. A perusal of the impugned orders dated 29.09.2023 and 07.11.2023 clearly reveal that they are not well reasoned orders and have not dealt with the substantial material relied upon by the petitioner- college. The orders do not reveal that the material produced by the petitioner-college had been considered and even if has been considered, it has not been reflected. The petitioner-college in response to various notices issued, produced various voluminous documents pertaining to employment as full time teachers. However, the relevant information was not considered.
14. The petitioner-college in response to the afore-stated notices and to substantiate the claim had provided video recordings of the teachers from March 2023 till date along with google timeline. From a perusal of the record, it is evident that the teachers had applied for change of address in the relevant documents which were still pending. In fact, it is a matter of record that the teachers which were registered in different States also 30 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 31 notified the change of place of residence and teaching address under Section 26 (Code of Ethics) Regulation 1982 and Section 31 of the IMCC Act, 1970 to inter alia the President of Board of Ethics and Registration of respondent No.2. The said letters for effecting the change of address has been referred as Annexure P19.
15. We now deem it appropriate to refer to the notice of motion order passed by this court on the 19.10.23, which reproduced below:-
'The petitioner has challenged the order dated 29.09.2023 (Annexure P36) passed by respondent No.2 vide which the appeal dated 31.08.2023 (Annexure P25) filed by the petitioner college has been rejected and the intake capacity of UGC seats has not been increased from 60 to 100 seats. The reason for dismissing the appeal of the petitioner college was that the petitioner-college had failed to produce the documents with regard to the seven faculty members whether they were working in the college or not.
Learned senior counsel for the petitioner submits that during inspection of the petitioner-college, out of 12 faculty members, five were accepted as working members while the remaining seven were not accepted as faculty members. He further submits that in reply dated 31.08.2023 (Annexure P-27) submitted by the petitioner college, it has specifically been mentioned that the petitioner college had submitted all the relevant documents i.e. copy of personal file, form-16, EPF 31 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 32 form and salary statement, for the last six months of all the teachers as well as all the details of the seven faculty members with the respondents but the same have not been considered by the respondents while dismissing their appeal.
Learned senior counsel for the petitioner further states that after passing of the order dated 29.09.2023 (Annexure P36), the petitioner college has appointed six more faculty members. He further informed the Court that seven faculty members have joined after the impugned order dated 29.09.2023 (Annexure P36) and the details regarding appointment of seven faculty members in the college have been handed over to learned counsel for the respondents. While dismissing the appeal vide impugned order P36, the details given in the reply (Annexure P27) with respect to the salary paid to the seven faculty members has not been considered by the respondents as the same have been doubted by the respondents as per the inspection report.
Notice of motion.
Ms. Swati Arora, Senior panel counsel accepts notice on behalf of the respondent-Union of India whereas Mr. Angel Sharma, Advocate, accepts notice on behalf of respondent No.2. The respondents will file reply clarifying the position with respect to the seven faculty members mentioned in the reply Annexures P27 as well as P34 as to how the respondents have 32 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 33 examined the salary statements of all the teachers, who were working as faculty members. Meanwhile, the petitioner college can continue counseling provisionally for 40 seats subject to final decision of this writ petition and they will also inform the students that all the seats are being filled up provisionally subject to the outcome of the writ petition.
Adjourned to 18.12.2023.
A copy of this order be given dasti to learned counsel for the parties under the signatures of the Bench Secretary.' Interestingly, in response to the notice of motion order and the specific query put across to the respondents, there has been no forthcoming response.
16. However, in response to the notice of motion order dated 19.10.2023, there has been no forthcoming response from the respondents.
17. It is also observed that Ministry of Ayush (respondent No.1) while dismissing the second appeal dated 07.11.2023, no opportunity of hearing was provided. The objective is to provide a fair hearing to the person whose rights are going to be affected by the decision taken therein. Various stakeholders are at bay when talking about educational institutions and if a regulatory body were to arbitrarily reject, the impact would be adverse and would effect the society at large. Offering a chance for a hearing during the appeal stage in cases where recognition is denied, even if not explicitly required by law, is justified for several reasons, it ensures that all 33 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 34 facts, arguments and perspectives are considered, the institutions rights are protected through proper consideration, concerns are addressed and most importantly accountability and transparency are enhanced.
18. Learned counsel appearing on behalf of the respondents has laid emphasis on the verdict rendered by the Hon'ble Supreme Court in Medical Council of India Vs. Kalinga Institute of Medical Sciences AIR 2016 SC (Civil) 1858 and Medical Council of India Vs. Vedantaa Institute of Academic Excellence Private Limited and others 2018 (7) SCC 225 in which it was observed that the High Court venturing in the serious disputed factual issues had exceeded its jurisdiction under Article 226 of the Constitution of India.
19. It may be observed that in the case of Kalinga Institute of Medical Sciences (supra) and in Vedanta Institute of Academic Excellence (supra), it was held that courts can interfere in matters related to educational institutions on cogent grounds, if the actions of the authorities are found to be manifestly arbitrary, perverse, or borne out of malafide. Paragraph 24 of Kalinga Institute of Medical Sciences (supra) reads as under:
"24. Medical education must be taken very seriously and when an expert body certifies that the facilities in a medical college are inadequate, the courts are not equipped to take a different view in the matter except for very cogent jurisdictional reasons such as mala fides of the Inspection Team, ex facie perversity in the inspection report, jurisdictional error on the part of the MCI etc."
34 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 35 The judgments (supra) referred by the learned counsel for the respondents are distinguishable from the facts of the present case. In the abovesaid judgments, the Court had gone into the great details on issues relating to the number of teaching beds in the hospital, the limitations in the OPD department, the number of units available in the subjects of General Medicine, paediatrics etc., bed occupancy, number of Caesarean Sections, discrepancy in data of the major and minor operations, computerisation in the institution, number of patients in the ICU, number of static x-ray machines, deficiency of examination halls, lecture theatres, library, students hostel, interns hostel, playground etc. Surely, this was not within the domain of the High Court in exercise of its Jurisdiction under Article 226 of the Constitution of India. However, in the instant case, the issue is solely with regard to presence of 07 teachers on the date the inspection was conducted. This Court is mindful that the Courts should be slow to interfere with the opinion expressed by the experts. However, in cases where there is illegality and the principles of natural justice have not been followed, and where erroneous orders have been passed on account of non-consideration of material evidence, this Court deems it appropriate to exercise its jurisdiction under Article 226 of the Constitution of India.
20. It is the need of the hour to encourage colleges/institutions which possess the necessary infrastructure for running Ayurvedic Medical 35 of 37 ::: Downloaded on - 19-07-2024 20:47:43 ::: Neutral Citation No:=2024:PHHC:087108-DB CWP-23980-2023 (O&M) 36 College to contribute to the bigger goal of strengthening the infrastructure of the system of medicine in the country.
21. In view of the detailed discussion above, we hereby pass the following order:-
Order The present writ petition is allowed in the following terms:-
(i) The impugned order dated 21.08.2023 (Annexure P25) passed respondent No.3 vide which it was held that 07 teachers were working only on paper, impugned letter dated 06.09.2023 (Annexure P45) vide which respondent No.3 granted conditional permission to the petitioner- college for 60 seats instead of 100 in UG (BAMS) course for the academic session 2023-
24 as well as impugned order dated 29.09.2023 (Annexure P49) passed by respondent No.2 vide which the appeal dated 31.08.2023 filed by the petitioner-college was rejected and impugned dismissal letter of second appeal dated 07.11.2023 (Annexure P68) passed by respondent No.1 dismissing the second appeal/representation dated 30.09.2023 filed by the petitioner-college against the impugned order dated 29.09.2023 passed by respondent No.2 is hereby set aside.
(ii) The interim order dated 19.10.2023 is made absolute.
(iii) The respondents will be at liberty to inspect the premises of the petitioner-college as and when required.
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(iv) The petitioner-college is under obligation to remove all deficiencies.
(v) Pending miscellaneous application(s), if any, also stands disposed of and there shall be no order of cost.
(KIRTI SINGH) (ANUPINDER SINGH GREWAL)
JUDGE JUDGE
12.07.2024
Ramandeep Singh
Whether speaking / reasoned Yes
Whether Reportable Yes
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