Gujarat High Court
Pearl Education Charitable Trust vs Union Of India on 13 October, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/10913/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10913 of 2020
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PEARL EDUCATION CHARITABLE TRUST
Versus
UNION OF INDIA
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Appearance:
MR. RAHIL P JAIN(7305) for the Petitioner(s) No. 1
MR DEVANG VYAS(2794) for the Respondent(s) No. 1,2
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 1
MR. KM ANTANI(6547) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 13/10/2020
ORAL ORDER
1. This petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:-
"(A) That this Honourable Court be pleased to issue a writ of Mandamus and/or any other such appropriate writ, order by directing the respondents to grant the Gandhinagar Homeopathic College for extension of permission for academic year 2020-21 with intake capacity of 100 students in view of the letter dated 10th July, 2020and 20th July, 2020 passed by the Respondent no.2.
(B) That this Honourable Court be pleased to direct respondent no.1 and 2 to generate teachers code and password of the petitioner college and further open the portal for the petitioner to submit the form and further be allowed for extension of permission for admission for the academic year 2020-21 with intake capacity of 100 students till the final disposal of the present petition.
(C) That this Honourable Court be pleased to direct the Respondent no.1 and 2 to include the name of the petitioner college in the list of permitted colleges for the academic Year 2020-21 with intake capacity of 100 students.
(D) That this Honourable Court be pleased to direct the respondent no.3 to include the name of the petitioner college in the list of permitted colleges for the academic year 2020-21 with intake capacity of 100 students.
(E) ........................."Page 1 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER
2. The case of the petitioner is that the petitioner is a Charitable Trust registered under the provisions of the Bombay Public Trust Act, is imparting education by establishing Homeopathic Medical College. It is submitted that the first batch of the petitioner college started in the year 2018-19 in the name of Gandhinagar Homeopathy Medical College with intake capacity of 100 students.
On account of the circumstances prevailing then, the petitioner was required to file a petition, being Special Civil Application No.12768 of 2018 before the Hon'ble High Court and vide order dated 20.9.2018, the Court was pleased to grant permission for admission of the petitioner college. It is the case of the petitioner that a request was made to inspect the college premise and grant requisite permission to the petitioner college for next academic year, i.e. 2019-2020. But, according to the petitioner, on account of the careless attitude of the respondent No.1, who passed an order on 31.7.2019, indicating that since the petitioner college was denied permission for the academic year 2018-19, permission for academic year 2019-2020 cannot be granted though the permission for the year 2018-19 had already been granted by this Hon'ble Court. Hon'ble High Court, according to the petitioner, directed the respondent No.1 to pass a speaking order assigning the reasons, to which the respondent passed another order on 9.9.2019, reiterating the very same stand. This had led the petitioner to file another petition, being Special Civil Application No.14347 of 2019, wherein the Hon'ble Court by expressing displeasure passed an order directing the respondent No.1 to grant extension of permission to the college admitting the students for the academic year 2019- 2020. It has been the case of the petitioner that the petitioner college had successfully enrolled the students for the academic year 2019-2020 with intake capacity of 100 students. It is further submitted that the respondent authorities inspected the college and Page 2 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER according to the deficiency pointed out by the respondent, the petitioner had rectified, but then, the petitioner was constrained t file another petition, being Special Civil Application No.596 of 2020, for the academic year 2019-2020, which is stated to have been pending.
2.1. It is further submitted that on and about 16.11.2019, the petitioner college had sent two emails to the respondent No.2, i.e. Central Council of Homeopathy requesting to generate and send the teachers code and password for the petitioner college. But, despite earlier orders having been passed by the High Court granting permission for admitting the students, vide interim order dated 27.9.2019, the respondent No.2 in an autocratic and careless manner, replied to the mail on 18.1.12019 that, "Your college is not found in our list of college, hence we are unable to the shares the details". The said mail is dated 18.11.2019. On 29.1.2020, the petitioner college vide another email explained the entire situation and requested the respondents to generate institutional ID and password so that the Standard Information Form can be filled in and submitted by the petitioner college. According to the petitioner, it is a procedure that the respondent No.1 gives a list of names of the colleges for inspection to the respondent No.2 and in turn, the respondent No.2 sends email asking for Standard Information Form from each and every college in which the inspection team is to be sent. It is submitted that during last week of March 2020, the Nationwide Lock-down had been declared on account of Covid-19 pandemic along with restriction of pubic transport, which continued till the end of April 2020. The Central Council of Homeopathy decided to exempt all colleges from the physical verification for the academic year 2020-2021 considering the prevailing situation in the country. This prevailing situation on account of which the respondent No.2 extended the time to provide information by Page 3 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER 27.7.2020. Vide letter dated 10.7.2020, the respondent No.2 requested to provide information for institutional ID (log-in ID and password) for permission for academic year 2020-2021. But, the respondent No.2 did not provide the petitioner with any teacher's code, despite the Hon'ble Court gave permission for the academic year 2019-2020, thus, making them eligible for next academic year 2020-2021. It is submitted by the petitioner that the respondent No.2 had sent form No.I to all Homeopathic colleges in the country, but not to the petitioner, and this forms were to be filled in and submitted for extension of permission for the year 2020-2021. It has been the case of the petitioner that a letter was sent on 4.7.2020 but, the petitioner was then constrained to file the Special Civil Application under Article 226 of the Constitution of India challenging the legality, validity and propriety of not including the petitioner in the list of extension of permission for the academic year 2020-2021. It is submitted that in a similar situation in Special Civil Application No.8574 of 2020, vide order dated 27.7.2020, an order came to be passed to consider the case of the said petitioner college. Though the petitioner college is fulfilling all requisite requirements, still necessary particulars, like teachers code, password, etc. is not being provided in time for the academic year 2020-2021. Resultantly, it has not been possible for the petitioner college to admit the students and in this situation, left with no alternate, the petitioner is constrained to approach this Court byway of filing the present petition.
3. When the matter is taken up for hearing, on advance copy, learned advocate Mr. Siddharth Dave appeared for learned Assistant Solicitor General Mr. Devang Vyas for the respondent authority and after granting some time, both the sides have completed their respective pleadings and the matter is at the admission stage and consideration as to whether, in a situation like this, any interim Page 4 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER order as prayed for deserves to be passed or not.
4. In this situation, learned advocate Mr. Rahil P. Jain appearing on behalf of the petitioner college has vehemently contended that right from beginning, the respondent authorities are trying to harass the petitioner college and time and again, dragging the petitioner to the writ Court. It has been submitted that on previous occasion also, in a similar situation, the petitioner was placed by the respondent authority, which has constrained the petitioner to take shelter of this Court and by virtue of the permission having been granted, students could be admitted. Now, here, though time and again, request has been made to supply relevant particulars, like teacher's code and password, so as to enable the petitioner to make an appropriate application for renewal, but though repeatedly asked for, the respondent has chosen not to cooperate, which has again dragged the petitioner to approach this Court.
4.1. Learned advocate Mr. Jain has further submitted that in the previous year also, very same situation was created by the respondent authority for the petitioner and after taking note of every situation, on 27.9.2019 in Special Civil Application No.14347 of 2019, the Hon'ble Court was constrained to pass an order granting interim relief in terms of para 10(B) of the said petition, directing the respondent No.1 to grant extension of permission to the petitioner college run by the petitioner Trust for admitting the students for the academic year 2019-2020. Of-course, such admissions of students for the said academic year are subject to the decision taken by the respondent No.1. Operative part of the said order was brought to the notice of this Court.
4.2. It is further submitted by learned advocate Mr. Jain that on 14.11.2019, a specific request was made to the respondent Page 5 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER authority to send institutional ID and password to generate teacher's code, but the same has not been responded. Again on 16.11.2019, another email in the form of reminder was sent to the authority, but of no avail, and it is only after the said two reminders on 18.11.2019 on page 45, one line intimation is given that the petitioner college is not found in the list of colleges, hence unable to share the details. Mr. Jain has further submitted that on 29.1.2020, the petitioner was constrained to bring this fact to the notice of AYUSH Department and requested to allot institutional ID and password but the same has not been replied to at all. Mr. Jain has further submitted that on 10.7.2020, All Homeopathic Medical Colleges have been informed by the Central Council of Homeopathy for submitting Part-I Undertaking/ Affidavit and Indemnity Bond in respect of the permission matter for the academic year 2020-2021 and vide another communication dated 20.7.2020 also, a communication was sent that such time for furnishing material which was 27.7.2020 was extended and the same be sent by 7.8.2020. Having come to the knowledge that all these colleges similarly situated have been sent such communication, the petitioner on 4.7.2020, applied by submitting necessary information as per the prescribed format along with necessary documents and certificates for seeking regular inspection and for onward appropriate steps. But, according to Mr. Jain, these has not been replied. All the details have been attached with the said application, reflecting on page 50 onward.
4.3. Learned advocate Mr. Jain has further submitted that it is the consistent practice of the respondent authority just to apply dilatory tactics and constrained the college to approach the Court and to get permission. One of such incidents has also been pointed out to the Court reflecting on page 130 in the form of an order dated Page 6 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER 27.7.2020 passed in Special Civil Application No.8574 of 2020 and by submitting this, a contention is reiterated that it is absolutely arbitrary and capricious exercise of the discretion by the authority not to grant renewal and dragged the petitioner to the Court of law. It has been submitted that unless and until the teacher's code, passwords etc. is to be provided, it would not be practically possible to apply for renewal for the next academic year and if no interim protection is granted, as has been granted on earlier occasion in the previous order, there would be serious prejudice to the petitioner college, which would be irreversible in nature and in this view of the matter, Mr. Jain has submitted that since all the Homeopathy colleges which are placed in such a precarious position have been normally granted protection by passing the orders, as indicated above, the Court may consider the case of the petitioner and grant appropriate order till final hearing takes place in the present proceedings and has submitted that this matter may be heard along with all other cognate matters by granting appropriate protection.
4.4. Additionally, Mr. Jain has submitted that if interim relief is not granted, students will not be possible to be admitted for this year, so reiterated the request. No other submissions have been made.
5. As against the aforesaid submissions, learned advocate Mr.Siddharth Dave appearing for learned Assistant Solicitor General Mr.Devang Vyas for respondent Nos.1 and 2 has vehemently contended that the institution is not entitled for automatic renewal of permission in absence of making specific application along with all material as per the mandate of Regulations 2013 and later on, amended in 2019. It has been submitted that number of deficiencies is found for the past academic year in this very college which are enlisted in the detailed affidavit-in-reply filed in the present proceedings and from the record, it appears that the Page 7 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER petitioner institution has not made any application seeking renewal in the prescribed format as mandatorily required in view of HCC (Minimum Standard Requirement of Homeopathy College and Attached Hospitals) Regulations, 2019. By submitting written submissions, Mr. Dave has pointed out that Regulation No.3(1) of HCC (MSR) Regulation 2013 clearly goes to show that these Regulations are mandatory in nature, wherein minimum requirements are required to be fulfilled by the institutions, including the present petitioner. It is submitted that Regulation 11(2) clearly goes to show that it shall be the responsibility of the petitioner institution to apply seeking renewal six months prior to expiry of the renewal permission. By referring to this amended Regulation 2019, it has been pointed out that Regulation No.4 clearly goes to show that the existing college is required to submit an application seeking renewal of the permission in the prescribed format on or before 17th May to the Secretary, Government of India, Ministry of AYUSH and not to the Central Council of Homeopathy. The present institution according to Mr. Dave has never made any such application for renewal of the permission to the Ministry of AYUSH in the format and in consonance with the Regulations. Hence, in absence of any such application, according to Mr. Dave, there is no question of processing the case of the petitioner for granting renewal permission for the academic year 2020-2021. It is submitted that the petitioner is running Homeopathy College and is under an obligation to scrupulously observe the regulations and must be well aware about the process for running the institution. No fault can be found of the authority if the petitioner is not making any application. It has further been contended that Regulation 2019 indicates clearly that the petitioner was required to submit an application well before 17.5.2019 for granting permission for renewal for the next academic year, i.e. 2020-2021. The document Page 8 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER submitted by the petitioner on page 157 forwarded by Ministry of AYUSH dated 14.10.2019 also indicates that cut-off date i.e. 17.5.2019 came to be extended upto 31.12.2019 in view of the fact that the Regulation came to be amended in 2019, came into force with effect from 29.4.2019 and as such, cut-off date having not been maintained by the petitioner, by submitting an application before the competent authority, the case may not be considered. It is this petitioner college which is running Homeopathy medical college, must be acquainted with the procedure established by law in respect of extension or renewal, otherwise such ignorant institutions may not be allowed to play with the career of the students. It is submitted clearly that the present petitioner has chosen not to file any such application well before 31.12.2019 on or before extended date before the competent authority in the prescribed form and has not paid any fees of Rs.2 lac for renewal which is the mandate and knowing fully well, an attempt is made to find fault with the authority. The Central Council of Homeopathy is merely a recommendary authority and it is the Ministry of AYUSH which has ultimately to consider the case before whom, the application will have to be submitted. A question of granting or not granting the renewal permission by virtue of Section 12(C) of the Homeopathy Central Council Act, it is the Ministry of AYUSH which is the proper authority.
5.1. Learned advocate Mr. Dave for the respondent authority has submitted that when the Statute has provided a particular manner for doing a particular thing then said thing must be done in the prescribed manner only and not otherwise and by citing several decisions, a contention is raised that the petition being merit-less for this academic year, no indulgence be shown to the petitioner as has been shown in the previous year.
Page 9 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER5.2. Following are the decisions relied by learned advocate Mr. Dave:-
(1) In the case of J & K Housing Board and Another Vs. Kunwar Sanjay Krishan Kaul and others reported (2011)10 SCC 714 [Para 32, 33 and 34] (2) In the case of Manohar Lal Sharma Vs. Medical Council of India and others reported in (2013)10 SCC 60 [Para 26] (3) In the case of Medical Council of India Vs. N.C. Medical College and Hospital reported in 2018 SCC Online (SC) 664 [Para 8,9,12,13,15 & 16 to 19] (4) In the case of Medical Council of India Vs. JSS Medical College and Another reported in (2012)5 SCC 628 [Para
6 to 9 & 11 to 14] (5) In the case of Dental Council of India Vs. Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli and others reported in (2017)13 SCC 115 [Para 13, 14, 19, 22 to 28 & 30] (6) In the case of Medical Council of India Vs. Rama Medical College Hospital and Research Center, Kanpur and Another reported in (2012)8 SCC 80 [Para 11 to 13, 54 & 60 to 63] By referring to the aforesaid decisions, a contention is reiterated specifically that a plea which has been raised that the petitioner was not provided with ID code and password for teachers' code for teachers, the respondent No.2 has specifically filed affidavit that the said process has nothing to do with the renewal permission and even if the said ID is not provided to any institution, it does not mean that renewal permission is required to be granted to an institution which has not applied for seeking renewal in the prescribed form within the prescribed time with requisite fee and before appropriate authority and as such, by contending this, a submission is made not to entertain the petition.
Page 10 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER5.3. Learned advocate Mr. Dave has submitted that if the petition is not entertained, the entire college is not to stop functioning. It is only for this academic year, the College will require not to admit fresh students. Hence, Mr. Dave has requested that the case can be considered now later, moment application be supplied in proper format before appropriate authority and then process will have to be undertaken. Hence, it is absolutely not open for the petitioner to contend that the respondent authority has done something which led the petitioner to approach this Court. It is self invited injury which has been caused by the petitioner itself. Hence, has requested not to pass any equitable order in the present proceedings.
6. At the outset, learned advocate for the petitioner since has submitted that regarding this very college, one petition is very much pending before this Court, being Special Civil Application No.596 of 2020, and as such, has requested that the submission may be considered for the purpose of grant of interim relief and the main matter be placed along with another cognate matter, as stated above. So, in such a situation, the submissions made by both learned advocates for the respective sides are being considered with regard to grant or refusal of the interim relief.
7. In this context, before examining the submissions, few relevant provisions applicable to the petitioner institution deserve to be taken into consideration.
(1) For dealing with the affairs of the Homeopathic colleges, the Act has been enacted, which is known as Homeopathy Central Council Act, 1973, which extends to whole of India. Along with the other provisions of the Act, the most relevant provision is to be Page 11 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER considered for the central issue involved in the present proceedings. Chapter-IIA contains the permission for establishment of the new medical institution, new course study, etc. which prescribes methodology of setting up of Homeopathy college. Section 12A deals with the permission for establishment of the new medical institution, new course of study, etc., which reads as under:-
12A. (1) Notwithstanding anything contained in this Act or any other law for the time being in force:-
(a) no person shall establish a Homoeopathic Medical College; or
(b) no Homoeopathic Medical College shall -
(i) open a new or higher course of study or training (including post-graduate course of
(ii) study or training) which would enable students of each course or training to qualify himself for the award of any recognized medical qualification; or increase its admission capacity in any course of study or training (including the post- graduate course of study or training.), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1. - For the purposes of this section, "person" includes any University or trust, but does not include the Central Government.
Explanation 2. - For the purposes of this section, "admission capacity", in relation to any course of study or training (including post-graduate course of study or training) in a medical institution, means the maximum number of students as may be decided by the Central Council from time to time for being admitted to such course or training.
(2) (a) Every person or medical institution shall, for the purpose of obtaining permission under sub- section (1) submit to the Central Government a scheme in accordance with the provisions of the clause (b) and the Central Government shall refer the scheme to the Central Council for its recommendations.
(b) the scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme from the Central Government under sub-section (2), the Central Council may obtain such other particulars as may be considered necessary by it from the Page 12 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER person or the medical institution concerned, and thereafter, it may-
(a) if the scheme is defective and does not contain any necessary particulars, give reasonable opportunity to the person or the medical institution concerned for making a written representation and it shall be open to such a person or medical institution to rectify the defects, if any, specified by the Central Council.
(b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit it to the Central Government together with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government.
(4) The Central Government may, after considering the scheme and the recommendations of the Central Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or medical institution concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme & any such approval shall constitute as a permission under sub-section (1) :
Provided that no scheme shall be disapproved by the Central Government except after giving the person or medical institution concerned a reasonable opportunity of being heard;
Provided further that nothing in this sub-section shall prevent any person or medical institution whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme had been submitted for the first time under sub- section (2).
(5) Where, within a period of one year from the date of submission of the scheme to the Central Government under the sub-section (2), no order is communicated by the Central Government to the person or medical institution submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted, and, accordingly, the permission of the Central Government required under the sub-section (1) shall also be deemed to have been granted.
(6) In computing the time-limit specified in sub-section (5), the time taken by the person or medical institution concerned in submitting the scheme, in furnishing any particulars called for by the Central Council, or by the Central Government shall be excluded.Page 13 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER
(7) The Central Council, while making its recommendations under clause (b) sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely: -
(a) whether the proposed medical institution or the existing medical institute seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Central Council under Section 20;
(b) whether the person seeking to establish a medical institution or the existing medical institution seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment, accomodation, training, hospital and other facilities to ensure proper functioning of the medical institution or conducting the new course of study or training or accomodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical institution or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical institution or the course of study or training by the persons having the recognised medical qualifications;
(f) the requirement of manpower in the field of practice of homoeopathic medicine in the medical institution; and
(g) any other factors as may be prescribed.
(8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or medical institution concerned.
Section 12B deals with non-recognition of the medical qualifications in certain cases, which deserves to be quoted hereinbelow:-
Non-recognition of medical qualifications in certain cases.Page 14 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER
12B. (1) Where any medical institution is established without the previous permission of the Central Government in accordance with the provisions of section 12A, medical qualification granted to any student of such medical institution shall not be deemed to be a recognised medical qualification for the purposes of the Act.
(2) Where any medical institution opens a new or higher course of study or training (including a post- graduate course of study or training) without the previous permission of the Central Government in accordance with the provisions of section 12A, medical qualification granted to any student of such institution on the basis of such study or training shall not be deemed to be recognized medical qualification for the purposes of this Act.
(3) Where any medical institution increases its admission capacity in any course of study or training without the previous permission of the Central Government in accordance with the provisions of section 12A, medical qualification granted to any student of such medical institution on the basis of increase in its admission capacity shall not be deemed to be recognized medical qualification for the purposes of this Act.
Chapter III of the Act deals with recognition of the medical qualifications and a provision contained under Section 19 deals with withdrawal of recognition. Chapter IV deals with Central Register of Homeopathy.
In exercise of the powers conferred by the clauses-J of Section 33 of the Homeopathy Central Council Act,1973 and in super-session of Homeopathy (Minimum Standard of Education) Regulation, 1983 with previous sanction of the Central Government has framed Regulation. The said Regulations framed vide notification dated 8.3.2013 which are amended from time to time but the basic requirement stipulated is contained in regulation (3) and 11. The most relevant regulation 3, which deals with fulfillment of the minimum standard requirements, reads as under:-
3. Fulfillment of minimum standard requirements.-
(1) The college and attached hospital(s) shall fulfill the minimum standards requirements of infrastructure and teaching and Page 15 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER training facilities referred to in the regulations 4 to 13.
(2) For exposure of the students in the clinical field and to understand the depth of operative surgery and operative Gynecology or Obstetrics as well as management in critical illnesses, a college shall have a Memorandum of Understanding with a reputed nearby located super-specialty hospital (of modern medicine) with all required facilities of operation theatre, labor room, Intensive Care Unit and other required facilities for the management of critical patients.
(3) Age of superannuation of teachers: The age of superannuation of teachers shall be as per the Central Government or State Government or University Grants Commission norms as applicable to that particular college, and the retired teachers fulfilling the eligibility norms or teachers can be re-employed upto the age of sixty five years as full time teacher.
(4) Requirement of technical and other staff: The technical and other staff in various units and departments of the college shall be as per the details given in Schedule-VI.
Regulation No.11 deals with phase-wise specific requirement of new colleges which also deserves to be quoted hereunder:-
11. Phase wise specific requirement of new colleges.-
(1) A medical college or institution seeking permission for starting Bachelor of Homoeopathic Medicine and Surgery Course under the provisions of section 12A of the Act, shall have the requisite infrastructure, teaching staff, laboratory facility for the concerned subjects as specified in the Schedule-IB, Schedule-
III, Schedule-IV, Schedule-V, and Schedule-VI at the time of inspection for granting permission.
(2) The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of fulfillment of year-wise requirements as mentioned under sub- regulation (1), and it shall be the responsibility of the college to apply to the Central Council of Homoeopathy for purpose of renewal six months prior to the expiry of the initial permission, which process will continue till such time the establishment of the medical college is completed for passing-out of the first batch.
Page 16 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDERA conjoint effect of these provisions of the Act and the Regulations leads to a situation where the ultimate control lies with the Central Government which is to take decision upon recommendation of the Central Council for Homeopathy.
8. Now, in the aforesaid situation, the main grievance which has been raised in the petition is that the respondent authorities have arbitrarily not adhered to the request of the petitioner for grant of extension of permission to the petitioner college for admitting the students for the academic year 2019-20, which has led the petitioner to approach this Court by way of filing Special Civil Application No.596 of 2020 for academic year 2019-20 and the said petition is pending, wherein, after taking note of the arbitrariness of the respondent authorities, the Court was constrained to grant an interim order by staying the order under challenge dated 10.10.2019 and the said petition is pending. According to the petitioner, for this next academic year as well, the respondent authority has not informed the petitioner college and supplied form No.( as has been sent to all Homeopathy colleges in the country for extension of permission for the academic year 2020-2021. The petitioner appears to have asserted that vide their communication, a request was made to generate institutional ID and password so that the standard information form may be filled by the petitioner as part of procedure for seeking extension of the next academic year. Few correspondences have been brought to the notice of this Court, but ultimately, out of them, a situation is boiled down to the effect that it is only on 4.7.2020, the petitioner filled in form No.I and send it to the authorities. Despite not being intimated by way of rejoinder, the petitioner had placed on record few communications to point out that the petitioner college was never intimated or emailed for applying for extension of permission as required under Page 17 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER Section 12(c) of the Act, but from correspondence, it is clearly intimated to the petitioner college that the name of the petitioner college was not finding place in the list of colleges. Now, in this context, the stand which has been taken by the respondent is clearly borne out out from the affidavit-in-reply filed by the Central Council of Homeopathy, which has clearly indicated that the petitioner college was under an obligation to submit an application for seeking renewal of the permission before six months or expiry of the permission granted for the academic year. Now, this undisputedly appears to have not been made by the petitioner and as such, a clear stand is taken that in absence of any application, question of consideration or processing of the case for renewal for the academic year 2020-2021 does not arise. By pointing out a further fact, a stand is taken that institutional ID and password for generating teacher's code has nothing to do with the renewal permission application and the said process is followed only with a view to get accurate detail of the teachers appointed by the concerned institution in view of the requirement of the regulation and as such, a baseless plea is taken out by the petitioner that since institutional ID and password is not supplied, the same has prevented the petitioner from applying for extension of permission for next academic year.
9. A further fact is not possible to be unnoticed by this Court at this stage that the correspondence through email which has been attached to the petition compilation on page Nos.43, 44 and 45, which indicate that what has been demanded is institutional ID and password to generate teacher's code for the institution and as stated by the counsel that, this has nothing to do with the request for extension or renewal of the college for next academic year, and therefore, this issue is not only debatable but disputed inter-se and Page 18 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER as such, since the main matter is pending, the Court would not like to clearly opine on this issue since the Court is considering the issue only with respect to the interim relief. From page 45, a communication appears to have been sent to the college that the college is not found in the list of colleges of council, so that detail has not been supplied and from the overall material, it appears that the petitioner college is well aware about the detailed procedure with respect to the application to be made and though has burnt fingers for the previous academic year, is expected to know that it is under an obligation to fulfill the requirement of the Act and regulations. Despite the aforesaid situation, when the last extension was indicated by the council to all colleges, it is only on 4.7.2020 before two days only, Form No.I is filled in with whatever particulars available. So, this circumstance is indicating of the fact as to how the petitioner college which is undertaking the course of Homeopathy is dealing with its affairs. On page 160 of the petition compilation, vide communication dated 26.6.2020, the Central Council of Homeopathy indicated to all colleges and gave a last chance upto 6.7.2020 and in that communication dated 26.6.2020, it appears that last opportunity was given, else the name of the college shall be removed from the list. This appears to be a third reminder which was expected to be tracked on by the petitioner since this very petitioner had also filed a petition with respect to the previous academic year, if the petitioner college is still dealing with the rules and regulations, like this, and not obeying or properly tracking the process for seeking extension for next academic year, cannot find fault with the respondent authority. As stated earlier, these regulations and the Rules of procedure are mandatory in nature and it is an obligation of the respective colleges to fulfill the same, prima facie, it appears, of-course not finally concluded, that the petitioner college has not properly dealt with the issue when it Page 19 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER was very much aware about the fact that ensuing next academic year, the college is required to follow the procedure well within the time as per the regulations. That appears to have not been observed. Specific time limit, postulated to be observed by the petitioner institution appears to have not been observed and just lame excuse with a view to create a prejudice, tried to be projected as if non-supply of institutional ID and passwords has prevented the college from fulfilling the procedure for seeking extension of the next academic year. This in reality appears to be not correct in view of pleadings on record.
10. Overall observation of the record further indicates that if at a first point of time, when all colleges have been informed to comply the procedure, what prevented the petitioner from keeping track on the said issue, especially when it was under an obligation to maintain time limit for seeking extension and furthermore, when this very college is under litigation and as such, expected to have a vigilant approach. To approach the Court at a last movement, as if in a routine manner, this time also, the interim relief will be provided by making lame excuses upon the authorities inaction, is an attempt in futility and the Court would not like to encourage such approach of the petitioner institution, especially when the institution is dealing with future of the students, cannot be expected to be casual in such a manner. Such kind of colleges cannot be allowed to play with the career of the students and as such, these circumstances are very relevant in the considered opinion of this Court when the Court is confronted with the relief, which is basically equitable in nature.
11. At this juncture, from the written submissions filed on behalf of the respondent authorities, it has been borne out clearly that Page 20 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER number of deficiencies were found in the previous academic year of this very institution and a categorical stand is taken that this petitioner institution has not made any application seeking renewal in the prescribed for as mandatorily required under the relevant regulations. Regulations, 2013 as well as 2019 which are narrated in the written submissions clearly indicate that the procedural requirement deserves to be mandatorily observed by the petitioner and it is the petitioner institution which is under an obligation and has responsibility to apply six months prior to expiry of the permission. A further fact is also eye-catching that the existing colleges are required to apply to the Secretary to the Government of India, Ministry of AYUSH , which is relevant authority to consider the case of renewal and not the Central Council of Homeopathy and what has been seen from the record is that the petitioner institution went on making request for institutional ID and password to the Central Council and mere copy appears to have been forwarded to the Ministry of AYUSH. Hence, it appears that the petitioner has never approached well within the time before the cut-off date for seeking extension for the next academic year by applying before the competent authority and further a categorical submission is made that not only the application has not been submitted within the time before the competent authority, even the renewal fee which has been prescribed has also not been paid and as such, even otherwise also, there is a clear inaction on the part of the petitioner institution in maintaining the time limit and mandatory procedure. The Statute is prescribing when a particular thing to be done in a manner, same will have to be done in very same manner and looking to the provisions and the regulation, the manner in which the petitioner has approached the authority prima facie reveals that there is a non-observance on the part of the petitioner institution about the mandatory procedure and the process of regulation.
Page 21 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDERWhen that be so, it is very difficult for this Court to consider the case of the petitioner for grant of equitable relief.
12. This Court has considered the request of the petitioner and since for previous year, a petition is already pending, the present petition also be heard along with the said petition with broad consensus. But, then insisting of interim relief to allow the petitioner to admit the students for the academic year 2020-2021 with intake capacity of 100 students till final disposal of the present petition would be granting a substantive relief in the present proceedings, which in the background of the aforesaid facts situation, the Court would not like to consider.
13. At this juncture, the Court has an assistance of few of the propositions of law laid down, precisely by the Apex Court in this kind of situation, when a petition is pending, whether order can be passed for admitting the students or not and for this purpose, some of the observations relevant to the issue, the Court would like to reproduce hereunder.
(1) In the case of Dental Council of India Vs. Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli and others (Supra), after considering series of decisions, it has been clearly opined by the Apex Court that it is not proper to grant any interim relief in the matters of admission when approval of the institution is at stake. Since such kind of orders allowing the students to be admitted are likely to cause chaos, anarchy and uncertainty and as such, on the contrary the Apex Court has not recognized such type of practice allowing the students to be admitted pending proceedings. Relevant observations contained in para 11 to 17, 19 to 20, and 22 to 30 are since relevant, reproduced hereunder:-
Page 22 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER11. True it is, the High Court has qualified its order by stating that the admission process shall be at the risk of the college and the students shall be intimated, but the heart of the matter is, whether the High Court should have stayed the order with such conditions. Basically, the order amounts to granting permission for the admission of students in certain courses in a college which had not received approval. There may be a case where the court may ultimately come to the conclusion that the recommendation is unacceptable and eventually the decision of disapproval by the Government of India is unsustainable. But the issue is whether before arriving at such conclusions, should the High Court, by way of interim measure, pass such an order.
12. Such a controversy has not arisen for the first time. A two-
Judge Bench in Union of India v. Era Educational Trust and another, 2000 5 SCC 57 stated that normally this Court would hesitate to interfere with an interlocutory order, but was compelled to do so where prima facie it appeared that the said order could not be justified by any judicial standard, the ends of justice and the need to maintain judicial discipline required the Court to do so and to indicate the reasons for such interference. The Court, adverting to the aspects of passing of orders relating to provisional admission, quoted a passage from Krishna Priya Ganguly v. University of Lucknow, 1984 1 SCC 307 which reads thus:-
"8.......[T]hat whenever a writ petition is filed provisional admission should not be given as a matter of course on the petition being admitted unless the court is fully satisfied that the petitioner has a cast-iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible.
The Court also thought it appropriate to reproduce further observations from Krishna Priya Ganguly :-
"3........Unless the institutions can provide complete and full facilities for the training of each candidate who is admitted in the various disciplines, the medical education will be incomplete and the universities would be turning out doctors not fully qualified which would adversely affect the health of the people in general."
13. Adverting to the facts in the case before it, the Court held:-
"9. In the present case, this type of situation has arisen because of the interim order passed by the High Court without taking into consideration various judgments rendered by this Court for exercise of jurisdiction under Article 226. It is apparent that even at the final stage the High Court normally could not have Page 23 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER granted such a mandatory order. Unfortunately, mystery has no place in judicial process. Hence, the impugned order cannot be justified by any judicial standards and requires to be quashed and set aside."
The aforesaid passage is quite vivid and reflects the surprise expressed by the learned Judges.
14. In Medical Council of India v. Rajiv Gandhi University of Health Sciences and others, 2004 6 SCC 76 the three-Judge Bench referred to the authority in Era Educational Trust and emphatically reiterated the law declared therein. The reiteration is as follows:-
"4. We once again emphasise that the law declared by this Court in Union of India v. Era Educational Trust that interim order should not be granted as a matter of course, particularly in relation to matter where standards of institutions are involved and the permission to be granted to such institutions is subject to certain provisions of law and regulations applicable to the same, unless the same are complied with. Even if the High Court gives certain directions in relation to consideration of the applications filed by educational institutions concerned for grant of permission or manner in which the same should be processed should not form a basis to direct the admission of students in these institutions which are yet to get approval from the authorities concerned or permission has not been granted by the Council."
The aforesaid pronouncement, as is manifest, rules that issue of an interim order in respect of an institution which has not received the approval is not countenanced in law.
15. Medical Council of India v. JSS Medical College and another, 2012 5 SCC 628 the issue had arisen with regard to passing of interim orders by the High Court relating to permission for increase of seats. The anguish expressed by the Court is reflectible from the following passage:-
"12. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by an interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. The High Court ought to realise that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in a very awkward and difficult situation. If on Page 24 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER ultimate analysis it is found that the College's claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the Court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis."
16. In Priya Gupta v. State of Chhattisgarh and others, 2012 7 SCC 433 dealing with various aspects, the Court was in pain and thought it appropriate to request the High Courts with humility. The lucid statement is extracted below:-
"78.4. With all the humility at our command, we request the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and to the rule of merit. We reiterate what has been stated by this Court earlier, that except in very exceptional cases, the High Court may consider it appropriate to decline interim orders and hear the main petitions finally, subject to the convenience of the Court. "
17. In Medical Council of India v. M.G.R. Educational & Research Institute University & another, 2015 4 SCC 580 treating the admission as unauthorized as there had been no approval by the MCI, the Court imposed costs of Rs. 5 crores on the respondent institution therein, for it had created a complete mess insofar as the students were admitted to the second batch of MBBS course in the college. There has been a further direction that the amount of costs that was directed to be deposited before the Registry of this Court was not to be recovered in any manner from any student or adjusted against the fees or provision for facilities for students of subsequent batches.
19. The question of tenability of an interim order passed by the High Court in matters of admission came for consideration in a recent decision in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and others, 2016 11 SCC 530. The Court found that after the MCI and the Central Government having twice considered the inspection report, the matter ought to have been given a quietus by the High Court for the academic year 2015-2016. It has been further observed that the High Court ought to have been more circumspect in directing the admission of students and there was no need for the High Court to rush into an area that MCI feared to tread. It was further observed that:-
"27. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved what would a student do if his admission is found to be illegal or is quashed? Is it not a huge Page 25 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty."
We respectfully concur with the said observations
20. It is worthy to note that the Court thought it appropriate to observe that for the fault of the institution, the students should not suffer nor should the institution get away scot-free. It issued certain directions to the institution that it should not have entered into adventurist litigation and costs of Rs. 5 crores were imposed for playing with the future of the students and the mess that the institution had created for them. Certain other directions were issued in this case which we need not advert to.
21. In Ashish Ranjan , the Court after hearing the Union of India, MCI and all the States, had fixed a time schedule and directed as follows:-
"3. Regard being had to the prayer in the writ petition, nothing remains to be adjudicated. The order passed today be sent to the Chief Secretaries of all the States so that they shall see to it that all the stakeholders follow the schedule in letter and spirit and not make any deviation whatsoever. Needless to say AIIMS and PGI (for the examination held in July) shall also follow the schedule in letter and spirit."
22. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the court grants approval in a way which is the subject matter of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the Page 26 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations.
23. The High Court has to realize the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young. One may say, " life is a foreign language; all mis-pronounce it", but it has to be borne in mind that artificial or contrived accident is not the goal of life.
24. There is no reason to invite a disaster by way of an interim order. A Judge has to constantly remind himself about the precedents in the field and not to be swayed away by his own convictions. In this context, the oft-quoted passage from Felix Frankfurter 1 would be apt to remember:
"For the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which we are all guardians ? those impersonal convictions that make a society a civilized community, and not the victims of personal rule."
25. That leads us to say something about following the precedents. The purpose is to have consistency. A three-Judge Bench in Government of Andhra Pradesh and others v. A.P. Jaiswal and others, 2001 1 SCC 748 observed:-
"24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy .
26. In Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited, 2013 15 SCC 414 dealing with the matter that related to the field of arbitration, the Court emphatically observed that it is an "endeavour to clear the maze, so that certainty remains "A Definite" and finality is "Final"".
27. In this regard, we may travel a decade and a half back. In Chandra Prakash and others v. State of U.P. and another, 2002 Page 27 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER 4 SCC 234 it has been held:-
"22. The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court."
28. In the instant case, the precedents are clear and luculent. It does not allow any space for any kind of equivocation. In Priya Gupta , the Court had requested the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and role of merit and except in very exceptional cases, to decline interim orders. The Court had added the words "humility at our command". The "grammar of humility in law" in the hierarchical system basically means to abide by the precedents unless distinguishable but not to ignore them and pass orders because of an individual notion or perception. Adjudication in accordance with precedents is cultivation of humility. As long as a precedent is binding under the constitutional scheme, it has to be respected by all. It has been said by Simone Weil :-
"In the intellectual order, the virtue of humility is nothing more nor less than the power of attention"
29. We reiterate the concept of humility as stated in Priya Gupta . However, we intend to add that the meaning behind the words, namely, "humility", and "request" as used by this Court, has to be appositely understood by the High Courts. It requires attention. And attention in the context is disciplined and concerned awareness. Nothing more need be said.
30. In view of the aforesaid analysis, we cannot but hold that the impugned order passed by the learned Single Judge of the High Court is absolutely unsustainable. But the controversy does not end there. It is the admitted position that the respondent- college has been granted approval for the academic session 2017-2018. By virtue of the interim order passed by the High Court, three students had been admitted and they are prosecuting their studies. We intend to strike a balance. The students who have been admitted shall be allowed to continue their courses, but their seats shall be adjusted from the academic session 2017-2018. The respondent-college cannot be allowed to get a premium. The grant of bounty is likely to allow such institutions to develop an attitude of serendipity. Such a culture is inconceivable. Therefore, apart from the adjustment of seats for the next academic session, we also direct the respondent-college to deposit a sum of Rs. 30 Lakhs before the Registry of this Court within eight weeks hence and to ensure such compliance, the matter shall be listed in the third week of Page 28 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER July, 2017 for further directions. After the amount is deposited, it shall be determined how to deal with the sum. The costs that has been directed to be deposited before the Registry of this Court shall in no manner be recovered from the students who had been admitted nor shall it be collected from the students who will be admitted to the course in the next year. That apart, the respondent-college shall not think of any kind of adjustment.
(2) Yet in another decision of recent time as well, i.e. in the case of Medical Council of India Vs. N.C. Medical College and Hospital (Supra), the Apex Court has clearly propounded on consideration of several decisions, High Court was not justified in passing the interim direction permitting the respondent college to go ahead with the provisional admission for the academic year. Since the issue is very relevant, the Court would like to reproduce para 13 to 19 of the said decision in the present order, which read as under:-
13. In the face of repeated failures on part of the Respondent College to remove the deficiencies, no permission to make admissions for the current academic session could have been granted unless and until on physical verification everything was found to be in order. A condition such as making students aware about the pendency of the matter and stating that their admissions would be subject to the result of pending litigation, is not a sufficient insulation. We have repeatedly seen cases where after making such provisional admissions the Colleges have been denied permission upon physical verification.
Questions then come up as to what is the status of such students and how best their interest can be protected. Theoretically, in terms of conditions of Essentiality Certificate the concerned State Government is obliged to take care of interest of such students. But the harsh reality is such students cannot be accommodated because in normal circumstances all the seats in every Medical College are filled up. It then becomes a case of impossibility of accommodating such students in any existing College. The entire exercise may thus result in great hardship and wastage of academic years of the concerned students. It is for this reason that while granting any interim relief very cautious approach needs to be adopted. It may be possible to expedite the process of physical verification in a given case but to allow provisional admissions and make them subject to the result of the petition may entail tremendous adverse consequences and prejudice to students.
Page 29 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER14. At this juncture we may advert to certain decisions of this Court where the issues regarding propriety and correctness of similar such interim order were put in question.
15.A.In Medical Council of India v. Rajiv Gandhi University of Health Sciences and others, it was observed:
"14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim orders students who have been admitted in (2004) 6 SCC 76 11 such institutions would be put to serious jeopardy, apart from the fact whether such institutions could run the medical college without following the law. Therefore, we make it clear that the High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of Section 10-A of the Medical Council Act. If interim orders are granted to those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutions."
16.B. In Medical Council of India v. JSS Medical College, this Court stated:
".....12. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by an interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. The High Court ought to realise that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in a very awkward and difficult situation. If on ultimate analysis it is found that the College's claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the Court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis.
13. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase the (2012) 5 SCC 628. 12 seats, a task entrusted to the Board of Governors and that too by interim order Page 30 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER
17.C.The observations in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and others3 were "27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated 25-9-20154. There was no need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved -- what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty.
28. Whichever way the matter is looked at, we find no justification for the orders passed by the High Court, particularly the order dated 25-9-2015 and order dated 4-3-20165."
18.D. Further, in Dental Council of India v. Dr Hedgewar Smruti Rugna Seva Mandal Hingoli and Others, it was observed:
"22. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the Court grants approval in a way which is the subject-matter of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is Page 31 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations.
23. The High Court has to realise the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young peoples. One may say, "... life is a reign language; all mispronounce it", but it has to be borne in mind that artificial or contrived accident is not the goal of life. ......."
19. In the backdrop of the law laid down by this Court, the High Court was not justified in passing interim directions and permitting the Respondent College to go ahead with provisional admissions for the Academic Session 2018-19. We, therefore, allow this appeal and set aside the order dated 29.05.2018 passed by the High Court.
(3) This Court has also an advantage of another decision of the Apex Court in the case of Medical Council of India Vs. JSS Medical College and Another (Supra), in which also, in para 12,13 and 14, it has been clearly observed that interim order passed by the High Court was not justified and accordingly set asie. The said relevant observations contained in para 12, 13 and 14 are reproduced hereinbelow:-
12. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by interim order.
In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. High Court ought to realize that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in very awkward and difficult situation. If on ultimate analysis it is found that the College's claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the court to allow continuance of such students, whose admissions is Page 32 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER found illegal in the ultimate analysis.
13. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase the seats, a task entrusted to the Board of Governors and that too by interim order. In a matter like the present one, decisions on issues have to be addressed at the interlocutory stage and they can not be deferred or dictated later when serious complications might ensue from the interim order itself. There are large number of authorities which take this view and instead of burdening this judgment with all those authorities it would be sufficient to refer to a three Judge Bench decision of this Court in the case of Medical Council of India v. Rajiv Gandhi University of Health Sciences, 2004 6 SCC 76, in which it has been held as follows:
"14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim orders students who have been admitted in such institutions would be put to serious jeopardy, apart from the fact whether such institutions could run the medical college without following the law. Therefore, we make it clear that the High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of Section 10-A of the Medical Council Act. If interim orders are granted to those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutions."
14. For all these reasons we are of the opinion that the interim order passed by the High Court is unsustainable. Any observation made by us in this judgment is for disposal of the present appeal and shall have no bearing on the merits of the case. Further, as the matter pertains to increase in seats in educational institution, we deem it expedient that the High Court considers and disposes of the case on merit expeditiously.
(4) Yet Another decision in the case of of Medical Council of India Vs. Rama Medical College Hospital and Research Center, Kanpur and Another (supra), is also dealing with the issue related to grant of recognition, wherein it has been stated that the Central Government is empowered to grant recognition and the Council, i.e. Medical College has no power to deal with the same and here also, under the provisions of the Homeopathic Act, Page 33 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER ultimate authority lies with the respondent No.1 and respondent No.2 council has merely a recommendary role to be played. Since this is not in dispute, the Court would not like to overburden the present order by quoting the relevant observation hereunder.
(5) The Court has also considered one of the decisions of the Apex Court in the case of J & K Housing Board and Another Vs. Kunwar Sanjay Krishan Kaul and others (supra)which clearly prescribes the method and manner which is prescribed under the Act and/or the regulations, same will have to be observed and the act must be done in accordance with the manner prescribed thereunder. Since this is also not in dispute, the Court would not like the quote the relevant observations but has certainly taken into consideration since this principle has not been observed prima facie by the present institution looking to the procedure set up under the Act and the regulations.
14. From the aforesaid analysis of the factual matrix of the case on hand and the relevant propositions laid down by series of decisions, this Court is of the opinion that no interim relief, as prayed for, deserves to be granted and if the same is granted, same would put the future of several students at stake. Hence, in no circumstance, in such background of facts, the Court would like to exercise extraordinary equitable jurisdiction. From the record, it further appears that this institution from beginning appears to be running under protective umbrella of interim relief, still however has chosen not to act vigilantly. This conduct is also very relevant when the Court is dealing with equitable relief as prayed for.
15. Since the Court has dealt with the issue of interim relief only, these observations are to be treated as prima facie and tentative, Page 34 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020 C/SCA/10913/2020 ORDER which would not be influenced at the time of final disposal of the petition. With this clarification, since no case is made out for seeking interim relief, the same is refused hereby.
16. Since the request at this stage is made that this High Court is seized with the petition which relates to the previous academic year as well, the present petition is also ordered to be placed with the petition for hearing i.e. Special Civil Application No.596 of 2020. Request having been found reasonable, not stoutly objected, same is granted.
(ASHUTOSH J. SHASTRI, J) NAIR SMITA V. Page 35 of 35 Downloaded on : Thu Oct 15 20:40:48 IST 2020