Gujarat High Court
B.G. Garaiya Homoepathic Medical ... vs Saurashtra Univeristy on 5 December, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/18727/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18727 of 2018
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B.G. GARAIYA HOMOEPATHIC MEDICAL COLLEGE
Versus
SAURASHTRA UNIVERISTY
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Appearance:
MR UDAYAN P VYAS(1302) for the PETITIONER(s) No. 1
MR AVINASH THACKER for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/12/2018
ORAL ORDER
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicants have prayed for the following reliefs:
"21(A) That, this Hon'ble Court be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction declaring that a Communication dated 26th October, 2018 (Annexure "L") and a Communication dated 24th November, 2018 (Annexure "O") addressed on behalf of Respondent herein denying not only enrollment of the students of the Petitioner but also cancelling enrollment of students already granted earlier pursuing education in the disciple of Homeopathy at the level of graduation leading to the qualification of Page 1 of 15 C/SCA/18727/2018 ORDER BHMS for the academic year 2017-18 is null, void, illegal, arbitrary, unreasonable, non-est and in violation of fundamental rights guaranteed under Article.14 and Article.19(1)(g) of the Constitution of India thereupon be pleased to quash and set aside the same.
(B) That, this Hon'ble Court be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondent herein to enroll 100 students admitted by the Petitioner for education in the disciple of Homeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18;
(C) That, pending admission, hearing and final disposal of this Petition, this Hon'ble Court be pleased to stay implementation, execution and operation of a Communication dated 26th October, 2018 (Annexure "L") and a Communication dated 24th November, 2018 (Annexure "O") addressed on behalf of Respondent herein denying not only enrollment of the students of the Petitioner but also cancelling enrollment of students already granted earlier pursuing education in the disciple of Homeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18;
(D) That, pending admission, hearing and final Page 2 of 15 C/SCA/18727/2018 ORDER disposal of this Petition, this Hon'ble Court be pleased to direct the Respondent herein to enroll provisionally 100 students admitted by the Petitioner for education in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18 on such terms and conditions as the Hon'ble Court may deem fit and proper;
(E) That, this Hon'ble Court be pleased to grant such further and other relief as the nature and circumstances of the case may require;
(F) That, this Hon'ble Court be pleased to award the cost to this Petition."
2. I take notice of the fact that the writ-applicant in the first round of the litigation came before this Court by filing the Special Civil Application No. 17692/2017. This petition had to be preferred as the Ministry of Ayurved, Yoga & Naturopathy, Unani, Siddha and Homeopathy' (AYUSH), Government of India, declined to grant permission to the writ-applicant -
College to admit the students for the Academic Year 2017-18.
In the Special Civil Application No. 17692/2017, an interim order came to be passed dated 04.10.2017. The same reads thus:
Page 3 of 15 C/SCA/18727/2018 ORDER"1. Heard learned Senior Counsel Mr. D. C. Dave with learned advocate Mr. Udayan Vyas for the petitioner, learned advocate Mr. Siddharth Dave for learned ASG Mr. Devang Vyas for respondent No.1 and learned advocate Mr. Harsh N Parekh for respondent No.2.
2. Considering the total number of matters listed for admission when all the details are very much disclosed in the pleadings, I do not wants to reproduce the pleadings in detail except for recording the fact that, at present petitioner has challenged an order dated 11.09.2017 by the Ministry of Ayurved, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH) passed by one Banamalik Naik, Under Secretary, Government of India.
3. If we scrutinize this impugned order, it becomes clear that through the impugned order, the respondent has denied the permission to the petitioner for taking admission to BHMS course with 100 UG seats for the academic year 2017-18 relying upon the Regulation No. 3(2) read with 7(2) of Homeopathy Central Council (Minimum Standard requirement of Homeopathy College and attached hospital) Regulations, 2013 (for short Regulations). It is clear that dispute by the respondent, that such powers are vested pursuant to Homeopathy Central Council Act 1973. Therefore, there is reference to such Act, provisions and powers thereunder in para 5 Page 4 of 15 C/SCA/18727/2018 ORDER of the impugned order and, therefore, though learned advocate for the respondent has contended that the impugned order is not under Section 12(A) of the Act but it is under Regulations and other cited cases are not material, the fact remains that regulations are only because of provisions of the Act and, Rules and Regulations are only providing procedural part but it is to be followed in accordance with provisions of Act only.
4. So far as reason for non granting permission for admission of the course of UGBHMS is concerned, respondents are relying upon Regulation No.3 which is providing for fulfillment of minimum standard requirement. Whereas Regulation No.7 is providing for requirements of teaching hospital. Wherein, it is provided that college and hospital shall maintain the computerized central registration system for maintaining the records of patients in Outdoor Patient Department and Indoor Patient Department and shall also maintain the department wise Outdoor Patient Department and Indoor Patient Department record and case papers of Outdoor Patient Department and Indoor Patient Department, laboratory and radiological investigation reports, medicine dispensing register, diet register for Indoor Patient Department patients, duty roster of staff of the hospital, birth & death certificates etc. to substantiate the claim of genuine functional Homeopathic teaching hospital fulfilling the norms as specified in the Sub Regulation (2). Therefore, it Page 5 of 15 C/SCA/18727/2018 ORDER seems that, the respondents are under impression and thereby wants that the Homeopathic Hospital should have maternity ward and thereby Birth & Death Register is to be maintained and there should be report of radiology investigation even for homeopathic treatment and, therefore, prima facie it seems that respondent wants to blindly rely upon the words without application of mind.
5. Learned advocate for the respondent has pointed out that this issue has been taken care in care in the case of Dhanvantari Medical College & Research Centre vs. Union of India reported in 2016 SCC Online Del 6413, wherein the learned Single Judge of Delhi High Court has observed that till such regulations are in force, they are to be followed and, therefore, dismissed the petition of the petitioners before it when respondents have denied to continue such course by those petitioners. However, only because one Single Judge has so observed it cannot be said that Rule which is otherwise not proper should be followed, that too without considering other factual details which is not only in the favour of the petitioner but again disturbing.
6. If we check the deficiency in the impugned order it is only with reference to non-maintenance of details in computer and non availability of computer Central Registration System both for Indoor Patient Department and Outdoor Patient Department. However, such deficiency is not so material to deny Page 6 of 15 C/SCA/18727/2018 ORDER the permission to continue the educational work but if we scrutinize the record surprisingly such deficiency is not recorded by the Central Council of Homeopathy while inspecting the petitioner college, when such fact is not disclosed in their inspection report. Similar is the situation with reference to the objections regarding alleged manipulation in patient report because there is no such observations by the committee which has examined the entire institution and its record. But it is the presumption and apprehension of the respondents without having inspected the premises on their own. Petitioner has submitted that computerized Indoor Patient Department Register and bill are shown to the committee.
7. Probably those words are never disclosed by the committee in its report, which is at Annexure B. It is surprising that officer of the Central Government has recorded something in the name of the committee. Factually also such comment is unwarranted in as much as manner in which such observations are recorded goes to show that irrespective of necessity to keep patient in Indoor Patient Department, the college and hospital must admit the patient in the Indoor Patient Department.
8. So far as decisions referred by the petitioners are concerned, it is stated by the learned advocate for the respondents that all the following cases referred and cited by the petitioner do not support the case of Page 7 of 15 C/SCA/18727/2018 ORDER the petitioner and they are not having the same facts and, therefore, relying upon those judgments, interim relief cannot be granted.
9. At this admission stage when factually also there is reason to admit the petition, I do not wish to discuss all the cases referred by the petitioner. However, they are listed herein;
1. Judgment dated 03.02.2017 in Letters Patent Appeal No.1475 of 2016 between Parul University vs. Union of India.
2. Order dated 25.11.2016 in Special Civil Application No.17011 of 2016 and allied matters between Parul University vs. Union of India.
3. Order dated 08.12.2016 in Special Civil Application No.20190 of 2016 between Vadantben N. Vyas Homeopathic Medicine & Hospital vs. Union of India.
4. Order dated 09.08.2017 in Special Civil Application No.14193 of 2017 between Shantaben Manubhai Patel School of Studies vs. Council of Architecture.
5. Order dated 14.09.2017 in Special Civil Application No.16216 of 2017 between Govindbhai Jorabhai Patel Institute of Ayurvedic Studies & Research.
6. Order dated 28.06.2017 in Civil Writ Jurisdiction Case No.19681 of 2016 between Dr. R. B. Singh Gaya Homeopathic Medical Page 8 of 15 C/SCA/18727/2018 ORDER College & Hospital, Amwan, Bodhgaya vs. Union of India & Ors.
10. In view of above facts and circumstances, matter requires consideration. Hence, Rule returnable on 14.12.2017. Interim relief in terms of para 21(B).
11. In previous litigation between the parties, while issuing rule and granting interim relief, the co- ordinate bench has imposed certain conditions. Therefore, let there be relevant conditions so as to avoid any controversy.
(i) The petitioners/colleges shall be allowed to admit students in the graduation course/post-
graduation course, as the case may be, in the faculty of Homeopathy for the Year 2017-18 to the extent of their existing intake capacity already approved during the previous Academic Year;
(ii) The first respondent-Government of India, Ministry of AYUSH shall forward within 15 days from the date of receipt of this order, a letter of No-objection intimating the respective college that it is permitted to admit students as above. This No-objection shall remain provisional and shall be subject to the final orders which may be passed in the petitions;
(iii) The students who may be admitted to the Page 9 of 15 C/SCA/18727/2018 ORDER graduation/post-graduation course, as the case may be, shall be specifically intimated that their admission is treated as being subject to the final orders which may be passed in the Special Civil Application concerned. This is to make the students know about the factum of currency of controversy and the pendency of petitions;
(iv) In the first captioned petition, no formal order has been issued by the first respondent denying extension of approval for the current Academic Year. The aforesaid directions shall govern and the first respondent shall obey the same;
12. Petitioner is permitted to inform the admission committee by appropriate mode. Direct Service is permitted."
3. It appears that the interim order passed by the learned Single Judge referred to above came to be challenged in appeal by the Union of India by filing the Letters Patent Appeal No. 1799/2017. The Division Bench in appeal thought fit to call for the papers of the main matter and disposed of the entire matter itself. The judgment and order passed by the Division Bench dated 03.11.2017 reads as under:
Page 10 of 15 C/SCA/18727/2018 ORDER"1. This petition is filed by the petitioner -B.G.Garaiya Homeopathic College with the prayers which read as under:
"16(A) That, this Hon'ble Court be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondents herein to grant permission for admission with an intake of 100 seats to the Petitioner for imparting education in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18 after declaring an Order dated 11th September, 2017 (AnnexureE) passed by Respondent No.1 herein for denying permission to Petitioner to admit students with the intake of 100 seats for the Academic Year 2017-18 as null, void, arbitrary, discriminatory and non-est thereby violating Article 14 and Article 19(1)(g) of the Constitution of India.
(B) That, pending admission, hearing and final disposal of this Petition, this Hon'ble Court be pleased to allow the Petitioner to admit students with an intake of 100 seats to commence the academic sessions in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS for the academic year 2017-18 on such terms and conditions as the Hon'ble Court may deem fit and proper;
(C) That, this Hon'ble Court be pleased to grant such further and other relief as the nature and circumstances of the case may require;
(D)That, this Hon'ble Court be pleased to award the cost of this Petition;"
2. By the impugned order dated 11.9.2017, the petitioner-college is denied permission for taking admission to BHMS course for 100 undergraduate Page 11 of 15 C/SCA/18727/2018 ORDER seats as per the provisions of Homeopathic Central Council (MSR), 2013 for the academic session 2017-
18. Broadly in the order, three deficiencies were conveyed to the college but after hearing, the Hearing Committee has recorded a finding that petitioner- college has fulfilled the deficiencies nos.2 and 3 which were conveyed. There remains only deficiency conveyed to the college at serial no.1. It is stated that the remarks of the Ministry on the deficiency no.1 read as under:
"Hearing committee observed that the functioning of IPD cannot be authenticated with the submitted documents submitted by the college representatives as no Diet chart/register of IPD patients, IPD dispensing register, attendance register of all hospital staff, duty doctors are not submitted by them. Further, the data of IPD, OPD, lab register are not matching, hence, the data is doubtful. Hence, does not fulfill the norms as per HCC (MSR), 2013."
3. When this matter has come up for hearing yesterday, it is adjourned to enable the learned Assistant Solicitor General Shri Vyas to obtain instructions to consider to permit the college for taking admissions to BHMS if they come up with an undertaking to comply with the deficiency noticed at serial no.1. On instructions, learned counsel submits that the respondents shall provide the permission if the petitioner furnishes undertaking to comply with the deficiency at serial no.1 to the Union of India.
4. In view of such submission made by the learned Page 12 of 15 C/SCA/18727/2018 ORDER counsel appearing for the first respondent, it is not necessary to adjudicate the Special Civil Application on merits and we deem it appropriate to dispose off the matter by permitting the petitioner to give an undertaking of compliance of deficiency noticed at serial no.1 to the competent authority. In view of the same, immediate steps shall be taken to grant permission for admitting students without waiting for undertaking to be furnished by the petitioner. Such undertaking to be furnished within a period of two weeks from today. Learned Assistant Government Pleader Shri Antani appearing for the Admission Committee shall inform the Admission Committee for inclusion of the college for the purpose of granting admissions. In view of the same, the impugned order dated 11.9.2017 is hereby quashed. As the Special Civil Application is disposed off, Letters Patent Appeal and Civil Application are disposed off. Direct service is permitted."
4. Mr. Avinash Thacker, the learned counsel has appeared on behalf of the respondent on an advanced copy served upon him by the learned counsel appearing for the petitioner.
5. I have heard Mr. D. C. Dave, the learned senior counsel appearing for the writ-applicant and Mr. Avinash Thacker, the learned counsel appearing for the Saurashtra University.
Although the Union of India is not a party respondent, yet this Page 13 of 15 C/SCA/18727/2018 ORDER Court took the assistance of Mr. Siddharth Dave who ordinarily appears for the Union of India as one of its standing counsel.
The cause of action for filing the present petition is the decision of the University not to enroll the students for the purpose of the examination. I am of the view that this litigation could have been easily avoided. By virtue of the order passed by the Division Bench of this Court if the college was permitted to admit the students and accordingly the students came to be admitted then there cannot be any good reason to now decline enrollment of such students for the purpose of examination.
6. For the reasons assigned in the Special Civil Application Nos. 17968/2017, Special Civil Application No. 18411/2017 and Special Civil Application No.20150/2017, which are disposed of today and also having regard to the facts of the present case, this petition succeeds and is hereby allowed. The communication dated 26.10.2018 (Annexure 'L') to this petition as well as the communication dated 24.11.2018 (Annexure 'O') to this petition are hereby quashed and set aside. The University shall now permit the students to enroll for the purpose of examination.
7. Mr. Avinash Thacker, the learned counsel appearing for Page 14 of 15 C/SCA/18727/2018 ORDER the University is requested to communicate this order by today itself to his client so that the process for enrollment can be undertaken at the earliest.
(J.B.PARDIWALA, J) MAYA Page 15 of 15