Allahabad High Court
Wtm Ayuredic Medical College & Hosital ... vs U.O.I. Ministry Of Ayush New Delhi & Ors. on 16 November, 2019
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 6 Case :- MISC. SINGLE No. - 25397 of 2019 Petitioner :- Wtm Ayuredic Medical College & Hosital Thru. Chairman Qasim Respondent :- U.O.I. Ministry Of Ayush New Delhi & Ors. Counsel for Petitioner :- Badrish Kumar Tripathi Counsel for Respondent :- C.S.C.,A.S.G.,K.D.Nag,Shree Prakash Singh & Case :- MISC. SINGLE No. - 22965 of 2019 Petitioner :- Wtm Ayuredic Medical College & Hospital Thru. Chairman Qasim Respondent :- U.O.I.Ministry Of Ayush New Delhi Thru. Secy. & Ors. Counsel for Petitioner :- Badrish Kumar Tripathi Counsel for Respondent :- C.S.C.,A.S.G.,K.D.Nag,Shree Prakash Singh Hon'ble Jaspreet Singh,J.
1. Heard Sri Badrish Kumar Tripathi, learned counsel for the petitioner and Sri Savitra Vardhan Singh for respondent no. 1 and Sri Shree Prakash Singh, learned counsel for the respondent no. 2.
2. The petitioner-institution namely WTM Ayurvedic Medical College and Hospital is an Ayurvedi Medical College and is being run by a Trust namely Tasadduque Hussain Muslim Educational Society.
3. The petitioner-institution was granted a No Objection Certificate by means of letter dated 17.03.2016 for conducting a BAMS Course with 100 seats. In furtherance thereof, the petitioner started its first Academic Session in the year 2017-18 and later vide letter dated 05.10.2018 it was granted the permission for conducting the second professional year for the Academic Session 2018-19.
4. It is the case of the petitioner that the aforesaid permissions were granted to the petitioner-institution after rigourous inspections and verification of infrastructural facilities. The petitioner-instittuion has a provisional affiliation with Jyotibe Phule, Ruhelkhand University, Bareilly. The copy of the affiliation letter has been brought on record as Annexure No. 5. The petitioner-institution in terms of Regulation 3 (1) (c) of The Indian Medicine Central Council (Minimum standards, requirements of Ayurveda Colleges and attached Hospitals) Regulations, hereinafter referred to as, Regulations of 2016 had filled in on-line proforma for inspection and verification of its infrastructure facilities. A team appointed by the Central Council of Indian Medicine on 15/16.03.2019 inspected the College of the petitioner and after making its assessment found that on the day of its visit 34 teachers were on the attendance register out of which 6 teachers were on leave and 28 teachers were present, 38 non-teaching staff was available on the attendance register. 98 of hospital staff was available in the attendance register out of which 16 were on leave.
5. Similarly, the other details regarding the enrollment of 215 patients, the availability of 9 OPD in functional state, OT Labour Room, Clinical Pathology Lab, X-ray, ECG, Panchkarma and other facilities including College Museaum, Library, Herbal Gardens, Labs etc were found to be available. The true copy of the visitors' report has been brought on record as Annexure No. 6. Later upon some complaint, another inspection was made of the petitioner-institution on 19.06.2019 while the institution was observing the summer vacations for the period 20.05.2019 to 04.07.2019 and on the basis of the aforesaid second inspection, minutes of the meeting were drawn and 17 deficiencies were pointed out and in furtherenace thereof a notice was issued by the opposite party no. 1 to the petitioner dated 27.06.2019 informing the details of 17 deficiencies. The petitioner in pursuance of the notice dated 27.06.2019 submitted its written reply before the designated Hearing Committee on 03.07.2019. The petitioner despite giving a detailed reply and indicating that the deficiencies as noted were frivious and that the petitioner-institution complied with all its requirements which were necessary for running the Medical College for the stream of Ayurved in terms of Regulations of 2016, however, no decision was taken by the opposite party no. 1, in the meantime, the counselling for the Academic Year 2019-20 had commenced.
6. It is in this backdrop that the petitioner-institution approached this Court by means of W.P. No. 22965 (MS) of 2019 praying for the following reliefs:-
(a) To issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 05.07.2019 passed by the Opp-Party No. 4 so far it relates with Petitioner Institution, the true copy of which is contained as Annexure No. 1 to this writ petitoin.
(b) To issue a writ, order or direction in the nature of Mandamus commanding and directing the Opp. Party No. 1 to allow the petitioner-Institution, i.e. WTM Ayurvedi Medical College and Hospital, Village- Fatehpur Mafi, Post- Palaula Jpya Sambhal Road, District Amroha-244222 U.P. in the tentative time schedule for online counselling (allotment process) for NEET 15 % AIQ private Institutions BAMS Seats, 2019-20.
(c) To issue a writ, order or direction in the nature of mandamus commanding the Opp-Parties No. 3 & 4 to allow the Petitioner-Institution to participate in the counselling process for admission against 100 UG BAMS Course for the academic session 2019-20.
7. This Court by means of the order dated 28.08.2019 passed in W.P. No. 22965 (MS) of 2019 directed the opposite party no. 1 to take an appropriate decision in respect of the petitioner-institution in pursuance of the notice issued by it dated 27.06.2019. The Court further directed that the final decision shall be taken by 07.09.2019 and the same be communicated to the petitioner positively. The order dated 28.08.2019 reads as under:-
1. Heard Sri Badrish Kumar Tripathi, learned counsel for petitioner's institution, Sri Savitra Vardhan Singh, learned counsel for the respondent no.1,Union of India, learned Standing Counsel for the respondent nos. 3 & 4, Sri S.P.Singh, learned counsel for the respondent no. 2 and Sri K.D. Nag, learned counsel for respondent no.5.
2. Present writ petition is filed by the petitioner for issuance of a writ of Mandamus commanding the respondents to permit the petitioner's institution to participate in the counselling to be held for admission in UG B.A.M.S. Course of Session 2019-2020.
3. Submission of petitioner is that an inspection of the petitioner's college was made and the C.C.I.M. by its letter dated 24.05.2019 recommended for granting permission on 100 seats. Thereafter, it appears that certain oral complaints were made to C.C.I.M. with regard to petitioner's institution. Thus, it is claimed that a surprise visit team was sent which submitted its report. The said report was sent by C.C.I.M. alongwith letter dated 26.06.2019 to the respondent no. 1 but no final order is passed by respondent no.1.
4. Whatever the situation may be. It was incumbent upon the Ministry of Ayush, Government of India to take appropriate decision in the matter after hearing the parties concerned. Ministry of Ayush issued notice dated 27.06.2019 to the petitioner calling upon them to file their reply. Reply has been submitted on 03.07.2019. However, it did not take any action on report dated 15/16.03.2019 or the letter dated 26.06.2019.
5. Petitioner submits that the counselling has started from 22.08.2019.
6. Let a final decision be taken in the matter by the authority concerned by 07.09.2019 and it be communicated to the petitioner positively by 07.09.2019 only.
7. While passing a fresh order, the authority concerned shall give detailed reasons in the order.
8. List/put up this case on 12.09.2019.
9. Meanwhile, the petitioner shall be permitted provisionally to register on the portal and participate in the counselling. The fact of provisional permission shall be displayed on the counselling portal.
10. Let a copy of this order be provided to learned counsels for the parties on payment of usual charges by today itself.
8. It is in furtherance of the order passed by this Court as reproduced hereinabove, the opposite parties passed an order 02.09.2019 denying the permission to the petitioner-institution for taking admissions to UG (BAMS) for 100 seats of the Academic Session 2019-20 passed in purported exercise of the powers contained under Section 13 A / 13 C of the Indian Medicine Central Council Act, hereinafter referred to as "IMCC Act of 1970. It is being agrrived against the aforesaid order by which the petitioner-institution has been denied the right to take admissions for the Academic Year 2019-20 which has been assailed in the W.P. No. 25397 (MS) of 2019.
9. It is in this fashion that both the writ petitions i.e. W.P. No. No. 22965 of 2019 and 25397 (MS) of 2019 were clubbed together and heard.
10. In the instant petition i.e. W.P. No. 25397 (MS) of 2019, the Union of India brought on record the observations of the Hearing Committe, a copy of which was also provided to the learned counsel for the petitioner. This was recorded in the order passed by this Court dated 20.09.2019. The order dated 20.09.2019 reads as under:-
"Though, observations of Hearing Committee are submitted by Sri Savitra Vardhan Singh, learned counsel for Union of India today before the Court and the copy of the same is given to the learned counsel for petitioner today.
Learned counsel for petitioner prays for and is granted short adjournment to study the same.
In view thereof, put up on 24.9.2019."
11. It is in view thereof that the petitioner has submitted a supplementary affidavit dated 15.10.2019 which has been taken on record and it has tried to substantiate that the opposite parties are taking a pick and choose method, inasmuch as, the large number of Colleges both private and Government were inspected by the Central Council of Indian Medicine (CCIM) and in many such Colleges where there was deficiency of staff and other facilities yet they have been granted conditional permissions whereas in case of the petitioner despite it complying with the minimum requirements as provided under the Regulations of 2016 yet the permission has been denied, coupled with the facts, it has been submitted that the order passed by the opposite party no. 1 dated 02.09.2019 is arbitrary, non-speaking and does not take into consideration the reply submitted by the petitioner-institution, despite the fact that this Court in its order dated 28.08.2019 had directed that an appropriate decision be taken on the notice dated 27.06.2019 after considering the reply submitted by the petitioner on 03.07.2019.
12. It has been submitted by the learned counsel for the petitioner that the alleged deficiencies which were pointed out were duly replied by the petitioner in its reply dated 03.07.2019 yet they have been misconstrued and only with a purported intent to deny the permission to the petitioner the Authorities have taken a diabolical stand and no reason has been indicated as to why the reply of the petitioner was not found sufficient despite ample documentary evidence was brought on record, coupled with the fact that the same also finds mentions in the minutes of the meeting issued by the opposite party no. 1, however, the same has not been considered in its correct earstnestness rather only with a view to deprive the admissions to the petitioner-institution, the reply of the petitioner has been rejected.
13. The learned counsel for the petitioner has also submitted that the reasons as recorded by the opposite party no. 1 which was brought on record by the opposite party no. 1 by means of order dated 20.09.2019 also indicates that an attempt was being made by the opposite party no.1 to improve the reasoning contained in the order dated 02.09.2019 and as such this exercise of supplanting reasons to an order dated 02.09.2019 subsequently through the observations of the Hearing Committee dated 02.09.2019 is not permissible and for the aforesaid reasons the order has been assailed being arbitrary, unlawful and having been passed in colourable exercise of powers.
14. Sri Savitra Vardhan Singh appearing for opposite party no. 1 on the strength of the observations of the Hearing Committee submitted before the Court has sought to argue that the opposite party no. 2, i.e. the CCIM has the power to make an inspection since it received a complaint regaring non-fulfillment of the basic requirements, accordingly a re-visit was made by the team appointed by the CCIM on 19.06.2019 and upon the aforesaid re-visit it was found that the petitioner-institution did not have the requisite number of teaching staff nor had the requisite number of part time teachers. The functionality of the hospital was in question, apart from the fact that there were other requirements of equiments, instruments and infrastructural facilities which were lacking and for the said reason the permission was rightly refused.
15. It has also been submitted by Sri Savitra Vardhan Singh that the order dated 02.09.2019 clearly indicates the deficiencies as noted and submitted by the CCIM and on that basis it has been ascertained the petitioner-institution did not fulfill the requirements. It has further been submitted that the observations of the Hearing Committee is based on the material which was before opposite party no. 1 and as such the findings in the order dated 02.09.2019 are corroborated by the observations of the Hearing Committee and as uch the same does not amount to any improvement in the order dated 02.09.2019, accordingly, it has been prayed that the above writ petitions be dismissed.
16. The Court has considered the submissions of learned counsel for the parties and also perused the records.
17. The formal education relating to Ayurved a stream of medical study in India is governed by the provisions of the Indian Medical Central Council Act, 1970, "hereinafter referred to as the Act of 1970". The Act of 1970 more specifically in Chapter II has envisaged a constitution of a Central Council by the Central Government for the purposes of the Act and it is this Council which is the apex body for regulating Ayurved and Homeopathy (More popularly known as Ayush Courses).
18. Chapter II-A deals with the powers of the Council to recommend to the Central Government for grant of permission for establishment of new Medical Colleges, new courses of studies amongst others. Section 13-A of the aforesaid Act provides that no person shall establish a Medical College or no Medical College shall open a new or higher course of studies nor increase its admission capacity except with the previous permission of the Central Government in accordance with the provisions of the Act.
19. Sub Section 2 of Section 13-A envisages that every person or Medical College shall for the purposes of obtaining permission under Sub Section 1 shall submit to the Central Government a Scheme in accordance with the provisions of Sub Section 3 and the Central Government shall refer the Scheme to the Central Council for its recommendation. Sub Section 4 provides that on receipt of a Scheme from the Central Government, the Central Council may obtain such other particulars as it may consider necessary from the person or the Medical College concerned and thereafter if it finds that the Scheme is defective and does not contain necessary particulars give a reasonable opportunity to the person or the Medical College concerned for making a written representation and it shall be open to such person or Medical College to rectify the defects, if any, noticed by the Central Council. The Central Council may apart from calling for the necessary particulars also has the power to consider the Scheme having regard to the factors as referred in Sub Section 8 and then submit to the Central Government together with its recommendations thereon within a period of 6 months from the date a receipt of the reference from th Central Government.
20. Once the Central Government receives the Scheme and the recommendations from the Central Council as envisaged under Sub Section 4 then it may after obtaining such particulars as it may consider necessary from the person or the Medical College concerned and having regard to other factors as mentioned in Sub Section 8 will either approve the Scheme with such conditions as it may deem necessary or disapprove the Scheme and any such approval shall constitute as a permission under Sub Section 1. A proviso has been appended to Sub Section 5 of Section 13-A that no Scheme shall be disapproved by the Central Government except after giving the person or the Medical College concerned a reasonable opportunity of being heard.
21. In the exercise of powers conferred by Clause (j) of Section 36 of the Indian Medicine Central Council Act, 1970, the Central Government has notified the Regulations on the 7th November, 2016 known as "Indian Medicine Central Council (requirements of minimum standards for under Graduate Ayurved Colleges and attached hospitals) Regulations, 2016. Regulation 3 provides the requirement of minimum standard for the grant of permission. The minimum requirements as provided under Regulation 3 confers a Mandate that the Central Council shall visit the College suo moto three months before the expiry of the permission. Sub Regulation 2 of Regulation 3 provides for requirements of minimum standard to grant of permission for a period of 5 years whereas sub Regulation 3 provides for requirements of minimum standards to grant a conditional permission for one year. Broadly speaking, the requirements under the Regulations relate to the requirements of teaching staff, non-teaching staff, technical staff, equipments and other infrastructural facilities including requirements for land, minimum constructed areas, requirements for out patient departments for various streams, biometric attendance, admissions and further schedules have been annexed detailing such requirements."
22. The record indicates that the opposite party no. 1 by means of its letter dated 17.03.2016 had given its No Objection Certificate to the petitioner-institution for conducting the BAMS Course with 100 seats. The petitioner-institution was also granted the provisional affiliation with Jyotiba Phule Ruhelkhand University, Bareilly, a copy of which has been brought on record as Annexure No. 5. The petitioner-institution has been running its institution for the Academic Years 2017-18 and 2018-19.
23. The present controversy relates to the Academic Year 2019-20. It is not in dispute that a team of CCIM visited the College on 15-16.03.2019. The report of the visiting team has been brought on record as Annexure No. 6. From the perusal of the same, it indicates that the College's Infrastructure was examined and it was found that it matches as per the requirements of the visitors. The availability of the total land area, availability of the area of the Herbal Garden, constructed area of the College and constructed area of the hospital was verified and found to be correct. The report also indicates that the area of common department notes the actual availabililty and after granting the relaxation of 20 % it found that there was no such shortcoming as existing.
24. Similarly, the Area of the Teaching Departments, List of the Teaching Departments, availability of computers and printers, charts, models, specimen, central library, herbal gardens, Teaching Pharmacy, college website and college council including teaching staff, non-teaching staff, functionality of the hospital, hospital's infrastructure, hospital staff's verification amongst others were found to be satisfactory. Accordingly, in furtherance of the aforesaid, in the 283rd Meeeting of the CCIM held on 15.05.2019, the Screening Committee decided to recommend the Government of India for grant of conditional permission to the petitioner-institution for 100 seats in UG (BAMS) Course for the Academic Session 2019-20.
25. The aforesaid facts could not be disputed by the learned counsel for the opposite parties nor the basis of the alleged complaint, could be explained by the counsel for the opposite parties. However, a letter was issued dated 25.06.2019, a copy of which has been brought on record as Annexure No. 10 indicating that upon a complaint received the CCIM has decided to re-visit the Institution on 19.06.2019 to acess the available facilities of teaching and practicial training for BAMS Course. The aforesaid letter further indicates that in light of the report of the visitors placed before the Executive Committee on 20.06.2019, the CCIM decided for refusing the permission for UG (BAMS) Course for the Academic Year 2019-20 due to poor functional hospital and the earlier recommendations dated 20.04.2005 in respect of the petitioner-institution was withdrawn.
26. The learned counsel for the petitioner has submitted that once the earlier visitors appointed by the CCIM had made an assessment of the petitioner-institution for the year 2019-20 and found that the requirements as per the Regulations of 2016 were available with the petitioner-institution then merely upon an alleged complaint, the details of which have not been disclosed, the CCIM re-visited the College and made a recommendation on the basis of the surprise visit holding that the hospital was having poor functioning.
27. In view thereof the recommendations issued earlier in favour of the petitioner was withdrawn while it recommended to the Government of India, not granting the permission to the petitioner-institution for the Academic Year 2019-20.
28. The learned counsel for the petitioner has drawn the attention of the court to the show cause/hearing notice dated 27.06.2019 wherein 17 deficiencies were pointed out and it required the petitioner to submit its reply. The petitioner submitted its reply dated 03.07.2019 with requisite documents which has been brought on record as Annexure No. 15.
29. From the perusal of the letter dated 02.09.2019 it indicates that it does not contain any reasons. Practically, on the perusal of the minutes of the meeting before the Hearing Committee dated 03.07.2019 it only records the deficiencies as well as the gist of the reply submitted by the petitioner-institution.
30. It is in this backdrop that the Court has broadly considered the deficiencies, the reply submitted by the petitioner-institution and examined whether the findings given by the opposite party no. 1 are borne out from the record or they are short of the requisite standard required of an Authority taking such a decision which affects the institutions and students studying therein.
31. From the perusal of the order dated 02.09.2019, it indicates that it only reproduces the deficiencies which were mentioned in the notice dated 27.06.2019 based on the report of the visitors. It further goes on to record that before the Hearing Committee the College was represented by its representative who has submitted its written submissions vide its reply dated 03.07.2019. Thereafter it records that in view of the observations of the Hearing Committee, the petitioner-institution is found to be not fulfilling the basis minimum requirements for the grant of permission for the Academic Year 2019-20. The order dated 02.09.2019 does not give any reasons why the reply of the petitioner was not found adequate.
32. At this stage, while the Court looked at the observations of the Hearing Committee it finds that the observations are also flawed. It appears that only for the sake of refusing the permission, the observations of the Hearing Committee have been given only to arrive at a conclusion. This Court is proded to tread on this trail for the reason that from the perusal of the notice served on the petitioner dated 27.06.2019, wherein deficiencies were noticed, the reply submitted by the petitioner -institution along with the requisite documents apparently addresses the issue of the deficiency but the observations contained in the report of the Hearing Committee dated 06.07.2019 which has been brought on record indicates that the reasoning has gone on a tangent and has arrived at a conclusion which has no nexus with the deficiency pointed out and the reply given by the petitioner-institution.
33.. To illustrate the same, it would be relevant to mention that the petitioner has been charged with the deficiency relating to the teaching staff that it has only one eligible teacher available against the requirement of 32 as per Regulations of 2016. It has also been pointed out that there is only higher faculty available in the 10 departments against the requirement of 20 higher faculty and that there is no Professor+Reader+Lecturer in each of the 10 departments. The petitioner while giving its reply to the aforesaid, clearly stated that it had 32 teachers in 10 departments and all were duly appointed as per the Regulations of 2016 and each of them are having separate files which were attached as proof with their reply. The documents submitted by the petitioner related to the list of all teachers, group photographs, attendance registers of teaching staff/biometric attendance, salary register of the teaching staff, bank payment details of salary as well as of Form-16.
34. Despite the above documents explaining and substantiating the reply submitted by the petitioner, the Hearing Committee has observed that the regular existence of the teaching faculty could not be ascertained due to non-submission of Form-16, leave record of faculties, College order regarding summer vacation for the said year and biometric machine purchase bill and installation certificates. It also recorded that the College had only submitted the Bank statement for the months of February and March, 2019 and they did not bring on record any salary related document for the year 2018. Similar observations have been raised by the opposite parties in respect of the non-availability of the higher faculty in all the 10 Departments as well as there is no Professor, Reader or Lecturer in each of the 10 Departments.
35. This Court is of the view that the Hearing Committee failed to apply itself as once the requisite documents were brought on record, it could not be said that these documents were not sufficient to identify the existence of the teaching faculties. The charge levelled against the petitioner was specific that it did not have the requisite number of available teachers. The petitioner appears to have randomly produced the documents explaining and establishing that it had the requisite number of teachers and teaching staff. Once, the requisite documents including the Bank statement, Form-16 were produced relating to the requisite number of teachers then a new ground has sought to be created that the regular existence of such faculty could not asceratained and this approach is completely misplaced.
36. Another point which requires consideration is the fact that once the inspection of the College was made on 15-16.03.2019 and the report was issued indicating the requisite number of teaching staff, then under what circumstances, was the earlier report shelved, upon which the recommendation was made and thereafter upon a sudden re-visit the teachers were not found tobe in regular existence and this is also shrowded with suspicion. The Bank statements, Form-16, experience certificates appointment and joining letters amongst other documents were produced on record which buttressed the submission of the petitioner. If at all, the opposite parties were not satisfied then it ought to have put the petitioner to more specific notice requiring it to bring the requisite documents for the period it wished to verify.
37. Thus, this Court finds that not only the reasons recorded are shallow but they try to dilute the stand by imposing a fresh question on the petitioner rather than addressing the question which it was required to answer in terms of the notice dated 27.06.2019.
38. So is the situation in so far as the non-availability in respect of the higher faculty and regarding there being no Professor, Reader or Lecturer in each of the 10 departments.
39. Regarding the non-availability of part-time teachers, the Hearing Committee observed that though the list of all modern medicine consultants and documents regarding the Yoga Teacher was submitted yet it came to the conclusion that no part-time teacher of Yoga Teacher and 8 modern medicine consultants were available whereas the earlier visiting faculty of the CCIM upon making the inspection on 15-16.03.2019 found that the petitioner-institution did possess the requisite faculty of the part-time teachers.
40. Similar is the situation regarding the deficiency alleged regarding the functionality of the hospital. Though, the petitioner-institution had submitted a list of bed distribution in each department, State NOCs and District registration but since separate purchase details regarding the mattresses, pillow, side boxes, bedsheets were not provided. Upon this, the Hearing Committee observed that the petitioner did not fulfill the functionality of the hospital. This finding apparently is incorrect, inasmuch as, these items were physically verified merely because the purchase details of peripherals such as mattresses and pillow was not provided would not give rise to the conclusion that the items which were physically verified were not available. The fact that 203 patients per day on an average were being treated at the hospital and the Central OPD Record was submitted which matched with the departmental OPD record, the drug dispensing record which was also cross checked by the Hearing Committee, thus, this also indicates the functionality of the hospital.
41. In light of the aforesaid documents and facts which was before the Hearing Committee and inspite of it has came to the conclusion that the OPD stock medicine puchase bills and payment details could not be furnished at the time of hearing, thus the OPD was not found functional.
42. Instead of going through each and every deficiency as noticed, suffice to submit that in respect of each of the deficiency the Hearing Committee has given its observations which do not bear or have any relevance to the charge/deficiency pointed out in the letter dated 27.06.2019 and the documents submitted by the petitioner along with its reply dated 03.07.2019 which addresses the deficiency but the conclusion drawn are at variance. So much so that deficiency of not having a Herbal Garden which was clearly established and could be verified as the opposite party had submitted the Herbal Garden photographs with the visitors, the plant list and bills, demonstration route map but the same did not find favour only on the ground that the approved plan with concerned Municipal Authorities could not be furnished at the time of hearing.
43. The requirement of the equipment and instrument was found to be present but since the document regarding the payment of the same could not be provided at the time of hearing despite a categoric submission that the payment for the said articles was made in cash, the Hearing Committee has made an adverse observation. As far as, the requirement regarding Central Library, Lecture Halls, Operation Theaters, Chemical Laboratories, the same also were apparently explained and duly verified by the documents, coupled with the fact that the earlier visitors found the same to be in order but the present inspection made on 19.06.2019 did not find favour.
44. Learned counsel for the opposite parties also could not explain that certain facilities like the Herbal Garden, Library, the requisite land area which are static in nature, inasmuch as, they existed at the time when the intital NOC/Permission was granted and continued for the year 2017-18 and 2018-19 and was also found present in the inspection dated 15-16.03.2019 but how it was suddenly found wanting in the inspection made on 19.06.2019.
45. From the discussion made above, it would indicate that the reasons given by the Hearing Committee are absolutely wanting of the requisite standards where an Authority is to apply its mind to take a decision.
46. The counsel for the opposite parties also could not explain as to the fact that various other College both private and Government were granted permissions despite having deficiencies in the teaching staff, non-teaching staff as well as other infrastructure and equipments but what methodology it has adopted to discard and deprive the permission to the petitioner. A complete list has been brought on record by the petitioner by way of a supplementary affidavit wherein it appears that the opposite parties have made a pick and chose method of granting conditional permission to various Colleges who did not have the requisite staff and had various shortcomings.
47. Another aspect which requires consideration is that it is the CCIM which conducts the visit. It had made the first visit on 15/16-.03.2019 and a report in favour of the petitioner-institution was issued upon which it was recommended for taking admissions for the Academic Year 2019-20. However, no material has been brought on record or explained as to what was the nature of the alleged complaint, nor the opposite party could indicate as to what action has been taken against the visitors who had given the report in the month of March, 2019 upon which the recommendation was issued in favour of the petitioner. If the opposite parties found sufficient merit in the alleged complaint which prompted it to go in for a second visit and after the second visit if the said deficiencies were pointed out which compelled the opposite parties to revoke the permission to take admission in the Academic Year 2019-20 then it was all the more incumbent upon the opposite parties to have taken action against the earlier visitors who faulted in issuing the report. Thus, either the first report or the second report could be correct but not both. Either way, it is the opposite party i.e. CCIM which is required to perform its statutory functions of making the visit and they ought to be more responsible for their actions. In the present case, neither the CCIM nor the Union of India have been able to justify their stand nor did they file any counter affidavit to bring on record any material to support their stand.
48. Under these circumstances the order dated 02.09.2019 apparently not containing any cogent reasons and is shrowded with suspicion. It is trite law that irrelevant and non-existing basis or invalid reasons vitiate an order passed by an authority.
49. The Apex Court in the Case of State of Punjab Vs. Baldeep Singh reported in 2016 (1) SCC 724 has held as under:-
4. There can be no gainsaying that every decision of an administrative or executive nature must be a composite and self-sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. If precedent is required for this proposition it can be found in the celebrated decision titled Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : (1978) 2 SCR 272] of which the following paragraph deserves extraction: (SCC p. 417, para 8) "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police v. Gordhandas Bhanji, AIR 1952 SC 16 : 1952 SCR 135] : (AIR p. 18, para 9) ''9. ... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.' Orders are not like old wine becoming better as they grow older."
50. Simialarly, the Apex Court in the case of Rashmi Metaliks Ltd. Vs. Kolkata Metropolitan Development Authorities, 2013 (10) SCC 95. Considering as to how an order passed by the Administrative for a quasi-judicial authority is to be examined. The relevant portion is reproduced hereinafter:-
14. Regardless of the weight, pithiness or sufficiency of the explanation given by the appellant Company in this regard, this issue in its entirety has become irrelevant for our cogitation for the reason that it does not feature as a reason for the impugned rejection. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the authority or any of the respondents to adopt this ground for the first time in this second salvo of litigation by way of a side wind.
15. The impugned judgment [Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority, MAT No. 1031 of 2013, decided on 11-7-2013 (Cal)] is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned judgment [Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority, MAT No. 1031 of 2013, decided on 11-7-2013 (Cal)] itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision.
16. The following observations found in the celebrated decision in Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : AIR 1978 SC 851] are relevant to this question: (SCC p. 417, para 8) "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police v. Gordhandas Bhanji, AIR 1952 SC 16] : (AIR p. 18, para 9) ''9. ... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.' Orders are not like old wine becoming better as they grow older."
51. In light of what has been discussed above, the order passed by the opposite party no. 1 dated 02.09.2019 contained in Annexure No. 1 cannot be supported as it is bereft of any reasons nor does it reflect that there has been due application of mind nor that it considers the submissions and the documents submitted by the petitioner, such an order in the opinion of the Court cannot be sustained.
52. It will also be noted that the opposite parties do not dispute that the reply which was submitted by the petitioner-institution clearly gave its stand in respect of each of the deficiency which was pointed out. The College representative also explained the situation, if the Hearing Committee was in any doubt then it ought to have put the petitioner-institution to notice seeking fresh clarification since depriving the petitioner-institution from taking admission has serious consequences especially when an institution invests huge fund not only for establishing the institution but also for maintaining and underaking upgradation from time to time.
53. From the perusal of the entire record, this Court is satisfied that the impugned order by which the permission has been denied in light of the observations of the Hearing Committee do not stand to reason and the said order cannot be sustained.
54. At this juncture the Court deems proper to notice the decision of the Apex Court regarding provisional admission, recognitions relating with medical and educational institutions including consideration for grant of interim order and the time schedule.
(i) Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed College Vs. National Council for Teachers' Education & Ors. passed in Civil Appeal No. 11215 of 2011. The relevant extract is reproduced hereinbelow:-
10. Mushroom growth of ill-equipped, under-staffed and un-recognised educational institutions was noticed by this Court in State of Maharashtra v. Vikas Sahebrao Roundale and Ors. (1992) 4 SCC 435. This Court observed that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and those Societies and individuals were establishing such institutions without complying with the statutory requirements. The unfortunate part is that despite repeated pronouncements of this Court over the past two decades deprecating the setting up of such institutions. The mushrooming of the colleges continues all over the country at times in complicity with the statutory authorities, who fail to check this process by effectively enforcing the provisions of the NCTE Act and the Regulations framed thereunder...
13. Secondly, because this Court has in a long line of decisions rendered from time to time disapproved of students being allowed to continue in unrecognised institutions only on sympathetic considerations. In N.M. Nageshwaramma (supra) this Court while dealing with the prayer for grant of permission to the students admitted to unrecognised institution observed:
"3. xxxxxx We are unable to accede to these requests. These institutions were established and the students were admitted into these institutes despite a series of press notes issued by the Government. If by a fiat of the court we direct the Government to permit them to appear at the examination we will practically be encouraging and condoning the establishment of unauthorised institutions. It is not appropriate that the jurisdiction of the court either under Article 32 of the Constitution or Article 226 should be frittered away for such a purpose. The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and unwary children, teachers who have not received proper and adequate training. True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched. We have no hesitation in dismissing the writ petitions with costs."
14. To the same effect is the decision of this Court in Managing Committee of Bhagwan Budh Primary Teachers Training College and another v. State of Bihar & Ors. (1990) Supp. SCC 722, where this Court observed:
"2. It is not possible to grant any such permission as prayed for because the granting of such permission would be clearly violating the provisions of the Education Act (see the judgments in S.L.P. No. 12014 of 1987 decided on November 25, 1987 and the A.P. Christians Medical Educational Society v. Government of A.P.)....".
15. In State of Tamil Nadu and Ors. v. St. Joseph Teachers Training Institute and Anr. (1991) 3 SCC 87, this Court once again found fault with the grant of relief to students admitted to unrecognised institutions on humanitarian grounds. This Court said:
"6. The practice of admitting students by unauthorised educational institutions and then seeking permission for permitting the students to appear at the examination has been looked with disfavour by this Court. ............ In A.P. 14 Christians Medical Educational Society v. Government of A.P (1986) 2 SCC 667, a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation had not been granted, was rejected by this Court. The court observed that any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations. The court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these decisions and observations and yet it granted relief to the students on humanitarian grounds. Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law." (emphasis supplied)
16. Reference may also be made to State of Maharashtra v. Vikas Sahebrao Roundale and Ors. (supra) and Chairman, Bhartia Education Society v. Himachal Pradesh & Ors. (supra). In the latter case this Court observed:
"15. The practice of admitting students by unrecognised institutions and then seeking permission for the students to appear for the examinations has been repeatedly disapproved by this Court (see N.M. Nageshwaramma v. State of A.P, A.P. Christian Medical Educational Society v. Govt. of A.P. and State of Maharashtra v. Vikas Sahebrao Roundale4). We, therefore, find no reason to interfere with the decision of the High Court rejecting the prayer of the students admitted in 1999 to regularise their admissions by directing the Board to permit them to appear for the JBT examination conducted by it. The two appeals (CAs Nos. 1228 and 1229 of 2011) filed by the Society/Institute and the students in regard to the 1999 admissions are therefore liable to be dismissed.
(ii) Mahavir Institute of Medical Sciences & Anr. Vs. Union of India and Another passed in Writ Petition (C) No. 818 of 2018. The relevant extract is reproduced hereinbelow:-
"This Court is not equipped to adjudicate a factual dispute regarding the existence of staff, patients, clinical material and other facilities in a medical college and hospital. Deference has to be shown to findings of an expert body which has found that the facilities in the Petitioner-College are inadequate. Unless there is a jurisdictional error or ex facie perversity in an inspection report, this Court will not interfere with a decision taken on the basis of recommendation of an expert body. See Medical Council of India Vs. Kalinga Institute of Medical Sciences (KIMS) & Ors. 2016 (11) SCC 530."
(iii) Medical Council of India Vs. N.C. Medical College & Hospital & Ors. passed in Civil Appeal No. 9519 of 2019. The relevant extract is reproduced hereinunder:-
"On the one hand, the High Court has doubted the report of inspection and for that surprisingly relied on the self-serving contents of the website of the college. There is nothing to vouch for the authenticity of the website information. It is not what the institution asserts on website but what is actually found on inspection, that has to be considered by the court and while exercising judicial review it is settled law that court cannot sit in appeal over the report of the assessors as observed in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS), (2016) 11 SCC 530 thus :
"21. A perusal of the decision of the High Court clearly indicates that it considered the latest report of the Inspection Team as if it was hearing an appeal against the report. In doing so, the High Court went into great details on issues relating to the number of teaching beds in the hospital, the limitations in the OPD Department, the number of units available in the subjects of General Medicine, Pediatrics etc., bed occupancy, number of Caesarean sections, discrepancy in data of major and minor operations, computerization in the institution, number of patients in the ICU, number of static X-ray machines, deficiency of examination halls, lecture theatres, library, students hostel, interns hostel, playground etc. etc. Surely, this was not within the domain of the High Court in exercise of its jurisdiction under Article 226 of the Constitution.
22. The High Court did not appreciate that the inspection was carried out by eminent Professors from reputed medical institutions who were experts in the field and the best persons to give an unbiased report on the facilities in KIMS. The High Court under Article 226 of the Constitution was certainly not tasked to minutely examine the contents of the inspection report and weigh them against the objections of KIMS in respect of each of its 18 items. In our opinion, the High Court plainly exceeded its jurisdiction in this regard in venturing into seriously disputed factual issues."
In Kanachur Islamic Education Trust (R) v. Union of India & Anr. (2017) 15 SCC 702 it has been observed that affected party should be given an opportunity to meet the case effectively and the passing of just decision supported by reasons is part of fair hearing. It is the duty of the adjudicator to ensure fairness in procedure and action, the Court observed:
"21. No endeavour whatsoever, in our comprehension, has been made by the Respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the Petitioner's college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for LOP depending on the stages involved. This, however, does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-à-vis the scheme for establishment of a college before disapproving the same. The manner in which the Respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency, as alleged. The Respondents having failed to persuasively establish the said deficiencies, as noted in the impugned order dated 10.08.2017, in spite of opportunities available including the one granted by this Court, such a determination cannot be sustained in the facts and circumstances of the case. We are of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the Respondents, the Petitioner's college/institution ought not to be penalised. Consequently, on an overall view of the materials available on record and balancing all relevant aspects, we are of the considered opinion that the conditional LOP granted to the Petitioner's college/institution on 12.09.2016 for the academic year 2016-17 deserves to be confirmed." There is no dispute with the aforesaid proposition. However, in the instant case fair opportunity has been given and the reasons in detail were mentioned by the assessors and MCI. It was a case of repeated inspections having been made. In view of deficiencies found permission could not have been accorded for session 2018-19. "
55. That since the question regarding the deficiencies and whether they exist or not and whether they have been properly explained, is not within the domain of this Court to explore in detail. Since the C.C.I.M. is an expert body and in terms of the Scheme of the Act it is for the Central Government to take appropriate decision, therefore, this Court does not venture any further and suffice to state that the manner in which the decision dated 02.09.2019 has been taken it falls short of the requisite standards and, therefore, cannot be sustained and is liable to be quashed.
56. In view of the above, this Court is of the considered opinion that the impugned order is arbitrary and the manner in which the decision has been taken by the respondent no. 2 suffers from the vice of colourable exercise of power and accordingly the order dated 02.09.2019 is quashed.
57. The Court further directs that the opposite party no. 1 shall be at liberty of putting the petitioner to fresh notice clearly stating the deficiencies for which it wants a specific reply from the petitioner, within 10 days from the date a certified copy is prodcued before the Authority and the petitioner shall give its reply and shall be entitled to a personal hearing within 10 days from service of such notice and after the hearing is afforded to the petitioner, the opposite party no. 1 shall pass a fresh order within 10 days, thereafter, so that the entire exercise is completed within 30 days from the date a certified copy of this order is placed before the concerned authority.
58. It is made clear that the Court has set aside the order not examining the deficiencies on merits, but on the process of the decision making, thus, the merits will be seen by the opposite party no. 1, who shall pass a fresh order strictly in accordance with law.
59. In view of the discussions made above, the writ petition No. 22965 (MS) of 2019, in view of the subsequent development i.e. passing of the order dated 02.09.2019, has been rendered infructuous and accordingly is dismissed
60. However, the writ petition No. 25397 (M/S) of 2015 is partly allowed. There shall be no order as to costs.
[Jaspreet Singh, J.] Order Date: ..11.2019 Asheesh