Punjab-Haryana High Court
Shaheed Kartar Singh Sarabha Ayurvedic ... vs The Union Of India And Others on 17 October, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.17787 OF 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: OCTOBER 17, 2012
Shaheed Kartar Singh Sarabha Ayurvedic College, Village and Post
Sarabha, District Ludhiana
.....Petitioner
VERSUS
The Union of India and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Rajiv Atma Ram, Sr.Advocate with
Mr. Nikhil Chopra, Advocate,
for the petitioner.
Mr. Sukhdeep S. Singh, Sr. counsel assisted by
Central Government counsel
for the Union of India-respondent No.1.
Mr. Ashok Tyagi, Advocate,
for respondent No.2.
Mr. Yatinder Sharma, DAG, Punjab,
for the State.
****
RANJIT SINGH, J.
The petitioner, which is a self financing Ayurvedic Medical College, has a permission for annual intake capacity of 60 students. For the session 2012-13, the intake capacity of the petitioner-College for Under Graduate B.A.M.S. Course, has been reduced from 60 seats to 50 seats. This reduction is ordered only on the ground that CIVIL WRIT PETITION NO.17787 OF 2012 :{ 2 }:
one teacher is deficient in the College, which has on its roll 38 eligible teachers against the requirement of 39 in terms of the instructions/regulations governing the issue. The petitioner-College accordingly has approached this Court through the present writ petition to impugn this order on the ground that the order passed by the respondents on this count is irrational and illogical as one teacher held ineligible because of absence can not be taken as deficiency especially so when he had gone to attend extreme domestic emergency due to sickness of his father and so was not present in the premises of the College on the day of inspection.
The facts, noticed in brief, are that as per the requirement of regulations known as Indian Medicine Central Council (Minimum Standard requirements of Ayurveda Colleges and attached Hospitals), Regulations 2012 (for short, "Regulations 2012"), which are applicable w.e.f. 18.7.2012, only 30/27 teachers are required for intake capacity of 60 students. It is stated that the impugned order is dated 24.8.2012 and, thus, the current norms as contained in Regulations 2012 referred to above would apply on the date the impugned order was passed and the College, thus, would fulfill the requirement of faculty, as per this Regulation. The petitioner, therefore, would term the impugned order to be arbitrary and one which was passed without application of mind.
The pleaded case even otherwise is that deficiency of one teacher can not be a sufficient ground to reduce the intake capacity by 10 seats and the time ought to have been granted to the petitioner-College to appoint more teachers and indeed the petitioner CIVIL WRIT PETITION NO.17787 OF 2012 :{ 3 }:
factually has appointed five more teachers, increasing the strength of faculty to 43 teachers, which are on the role of College as on date.
The petitioner-College otherwise was set-up in 1998-99 and was granted no objection/essentiality certificate by the State of Punjab. The petitioner-College had applied for and was granted admission for starting Ayurvedic Medical College and Hospital by the Central Council of Indian Medicine (CCIM) and the Government of India for session 1998-99. Since then the College has been granted permission every year.
The petitioner-College earlier was affiliated with the Panjab University and later was affiliated with Baba Farid University of Health Sciences, Faridkot. The Punjab Government has now notified an Act on 1.2.2011, by the name Guru Ravi Dass University Hoshiarpur, Punjab Act, 2009, whereby separate University has been established for Ayurvedic Colleges. The petitioner-College accordingly is affiliated with Guru Ravi Dass University, Hoshiarpur, from the year 2011 onwards.
CCIM conducted the inspection of the petitioner-College for session 2011-12. The case was forwarded to respondent No.1- AYUSH. The outcome of the inspection conducted by CCIM or the order recommending/rejecting the case was never communicated to the petitioner. The petitioner, therefore, was constrained to approach this Court through Civil Writ Petition No.19460 of 2011 and an interim relief for allocation of students was granted, besides directing Union of India to take decision in accordance with law. On 25.10.2011, respondent No.1 passed an order against the petitioner. The CIVIL WRIT PETITION NO.17787 OF 2012 :{ 4 }:
petitioner accordingly amended the writ petition filed earlier and the amended writ petition is listed for hearing on 6.11.2012. This Writ Petition No.19460 of 2011 was ordered to be heard with Civil Writ Petition No.18961 of 2011, which has been disposed of by giving direction to the Union of India to inspect and satisfy about the minimum norms itself.
As per the petitioner, identical situation has now arisen for session 2012-13. CCIM inspected the petitioner-College for this session as well. The case of the petitioner was recommended for 50 seats against the total intake capacity of 60 seats for Under Graduate course. This is only due to one reason that total eligible teachers at the time of inspection were found 38 instead of the required minimum strength of 39 teachers. This is despite the fact that the CCIM has sought clarification in regard to two teachers, who were absent at the time of inspection. The petitioner had submitted the reply immediately. Dr.Rajesh Kumar Srivastava, who was found absent at the time of inspection, reportedly has resigned w.e.f. 31.3.2012, following the death of his father at Varanasi. Dr.Raja Ram Mahto, the second teacher found absent had met with an accident while he was on leave at his home town, Ranchi. The requisite details in this regard were submitted to the CCIM. The case of the petitioner-College was apparently forwarded by CCIM to respondent No.1 and thereafter respondent No.1 has communicated the following deficiencies to the petitioner-Institution:-
"The College is having 38 eligible teachers against the requirement of 39 teachers."
CIVIL WRIT PETITION NO.17787 OF 2012 :{ 5 }:
The petitioner-Institution was called for personal hearing on 7.6.2012. The only deficiency pointed out was replied in the manner that the father of one of the teacher, namely, Dr.Rajesh Kumar Srivastava was seriously sick and so he had gone to attend to his ailing father. Despite this, no order was being passed by respondent No.1, when the petitioner approached this Court by filing Civil Writ Petition No.16129 of 2012. Notice of motion was issued but the petitioner was served with an order dated 24.8.2012, reducing the intake capacity of the petitioner-College from 60 to 50 seats in Under Graduate B.A.M.S. Course for the session 2012-13. The petitioner accordingly has filed the present writ petition to challenge this reduction.
In the writ petition, the petitioner has placed reliance on the amended Regulations 2012 on the ground that the petitioner- College was inspected subsequent to the promulgation of these regulations but during the course of hearing, learned senior counsel appearing for the petitioner has confined his submissions on the aspect of deficiency of one teacher. As per the petitioner, there is no deficiency and the absence of one teacher for the reason as explained can not be taken and counted as deficiency.
Notice of motion was issued. Mr.Sandhu had put in appearance on behalf of respondent No.1-Union of India, on the very first date when the writ petition came up for hearing as he had filed a caveat. Replies on behalf of respondent-Union of India as well as CCIM have been filed.
The reason for denial of the permission as contained in CIVIL WRIT PETITION NO.17787 OF 2012 :{ 6 }:
the reply is on account of deficiencies. One of the deficiency as noticed is that the College was having 38 eligible teachers against the requirement of 39 teachers, which is 90% of the total requirement of 43 eligible teachers for intake of 60 seats. It is disclosed in the reply that the College had submitted the list of 42 eligible teachers. One teacher, namely, Dr.Kamaludin was not attending his duties on 1.3.2012. Out of the submitted list of 43 teachers, visitation team of CCIM had considered only 38 teachers eligible. The petitioner-
College statedly had urged to consider the remaining four teachers as eligible as they were appointed on the basis of their experience and educational qualifications. Some teachers shown at Sr.Nos.2R, 20R and 27P were non-Post Graduate teachers and were found having long gap of teaching. One teacher at Sr.No.25R, namely, Dr.Rajesh Kumar Srivastava, was absent on the day of inspection by CCIM. He was appointed as a Reader in the month of January 2012 and as per the time table issued w.e.f. 2.1.2012 showed him as Lecturer. This teacher was considered ineligible because he was absent on the day of inspection. However, it was further found that he had resigned from the College on 31.3.2012. Though some other reasons are mentioned in addition to justify the observation and finding that only 38 eligible teachers are working but learned senior counsel appearing for the petitioner has very vehemently submitted that Dr.Rajesh Kumar Srivastava could not be excluded from the strength of faculty merely because he had gone to attend to his ailing father on the day of inspection. The other reasons as disclosed are:-
"......(vi) A teacher at Sr.No.40L namely Dr.Kamaludin was CIVIL WRIT PETITION NO.17787 OF 2012 :{ 7 }:
found in duplicity with Banaras Hindu University. Simultaneously, he was working at two places - in the college and in BHU as Senior Resident. The representatives of the college accepted that Dr.Kamaludin was not coming to college since 1st, March, 2012 without any information. Hence, the college authority was not aware that he was working in BHU as Resident.
(vii) Regarding the teacher at S.No.2R (Dr.Dhun Bahadur Upadhyay), the major gap in teaching was sought between 21.5.2003 to 16.2.2009 (5 years, 8 months, 24 days) when he was working as lecturer.
(viii) Regarding the teacher at S.No.20R (Dr.Sheojee Thakur), the major gap in teaching was observed between 28.8.2003 to 16.2.2009 (5 years, 5 months, 17 days). No certificate was submitted by the college for confirmation of these dates.
(ix) Regarding the teacher at S.No.27P (Dr.Vijay Shankar Pandey), the major gap in teaching was found between 21.5.2003 to 16.2.2009 (5 years, 8 months, 7 days) when he was working as lecturer."
The short question that would arise for consideration is whether the action of the respondents in holding that there was a shortage of one faculty of eligible teacher in the facts and circumstances of this case is justified or not.
As per senior counsel appearing for the petitioner, Dr.Rajesh Kumar Srivastava can not be counted as ineligible only on CIVIL WRIT PETITION NO.17787 OF 2012 :{ 8 }:
the ground that he was not present on the date of inspection, as he had gone to attend to his ailing father, who had subsequently expired also. This is the ground on which said member of the faculty has submitted his resignation on 31.3.2012. The counsel appearing for respondent-Union of India, has highlighted this aspect to his advantage to justify the impugned order. He would urge that mere fact that this faculty member had submitted his resignation would mean that the decision taken by the respondent-Union of India is justified and the deficiency in the faculty is clearly in existence. As per the counsel, the position has to be seen till the date of passing of the order and it can not be confined only till the date of the inspection.
The counsel for the petitioner would attempt to catch the counsel for Union of India on this submission to state that if this is to be so construed, then on the date of order, the petitioner Institution had employed some additional faculty members, which fact is available on record and duly averred in the writ petition. On the other hand, if the position is to be seen on the date of inspection, then Dr.Rajesh Kumar Srivastava can not be excluded from being a member of the faculty as on that day, he certainly was employed in the faculty but was temporarily absent due to sickness of his father. The counsel would contend that there can not be better proof to show and justify the reasons of this absence than the subsequent death of his father, which would be sufficiently show that he had gone to attend to his sick father.
I have considered the rival submissions made before me.
CIVIL WRIT PETITION NO.17787 OF 2012 :{ 9 }:
In fact, against the minimum requirement of having 39 eligible teachers, the petitioner-Institution in fact is shown to have employed 43 teachers, which according to it were fully eligible. Without going into the reasons for which the other teachers have been held to be ineligible and, thus, not counted towards the strength of faculty in the Institution, it may be seen if Dr.Rajesh Kumar Srivastava was held ineligible on any justified ground or not. If it is held that his absence was justified, then it is possible to hold that there was no deficiency in the faculty as he would have to be counted as eligible.
Concededly, the show cause notice issued to the petitioner-College (Annexure P-8) clearly shows that the permission has been granted for reduced 50 seats only due to one reason that the College is having 38 teachers against the required strength of 39 teachers. The impugned order, Annexure P-22, is passed only on this ground, whereby the intake capacity of the petitioner-College has been reduced from 60 seats to 50 seats in under graduate B.A.M.S. Course, academic session 2012-13. The operative part of the impugned order, disclosing reasons for granting permission for reduced intake is as under:-
"However, on the examining the case, it was observed that the college is not having required number of eligible teachers against the requirement of 39 teachers for 60 UG (BAMS) seats as per approved criteria mentioned at para 3 on pre page. Therefore, under provisions of the first proviso to sub-section 5 of Section 13A of the IMCC Act, 1970, an opportunity of hearing was granted to the CIVIL WRIT PETITION NO.17787 OF 2012 :{ 10 }:
college on 7.6.2012. The college through its representatives appeared before the Hearing Committee. In view of the observation of the hearing committee based on submission made by the college during hearing, the recommendations and visitation report of the CCIM and further clarification from the CCIM, it can be understood that as per the approved norms for 2012-13 session as mentioned in para - 3 on pre page, the college does not fulfill the eligibility conditions like the college has not produced sufficient documents to substantiate their claim of having required number of eligible teachers. It has, therefore, been decided to reduce the seats from 60 to 50 in UG (BAMS) course for the academic session 2012-13."
It is, thus, clear that it is only the shortage of one teacher, which has led to this reduction in the intake capacity of the College.
The counsel for Union of India appeared a bit uncharitable in making two prong pleas to justify the impugned order. The respondents have either to confine itself to state that deficiency is to be seen on the date of inspection or that it can be so seen till date of passing the order. If the plea is that the position can be seen even upto the date of passing the order, then the same can not be allowed to be a one way traffic only. It would then amount to saying that "Head I win and Tail you loose". If the respondents intend to see the position on the date of order, then they would not be justified in not taking the factual position existing in the College on the said date of passing of the impugned order. If by then, the College has CIVIL WRIT PETITION NO.17787 OF 2012 :{ 11 }:
employed some more teachers, obviously it would have removed the deficiency and the deficiency required to be seen on the date of order, would justify the plea of the petitioner that there is no deficiency on the said date. If on the other hand, position is to be seen on the date of inspection, then the respondents would not be entitled to rely on the subsequent development regarding the resignation of Dr.Rajesh Kumar Srivastava, which was much after the date of inspection. Since the deficiency is observed and noticed on the basis of inspection carried out by CCIM, it would be fair to hold that the position, as it existed on the date of inspection, should govern and not what is pleaded on behalf of the respondents that the same is to be seen on the date of the order.
While taking this view, I am quite conscious of the fact that it would be easy to show the full strength on the date of inspection by employing the teachers, who can then leave the College, being fully aware that the position on the date of inspection would be seen. This practice, in my view, can certainly be checked. Firstly, the inspection is conducted by CCIM, perhaps not with an advance notice and it is conducted suo-motu keeping the date of visit as surprise. Secondly, there is no bar for any subsequent inspection, in case such a situation comes to the notice of the respondents and action can then be taken to ensure that deficiency is removed or College put to terms for which there are ample powers.
The absence of Dr.Rajesh Kumar Srivastava on the date of inspection apparently is genuine. If his father was sick and if he had gone to attend to his ailing father, this absence can not be CIVIL WRIT PETITION NO.17787 OF 2012 :{ 12 }:
construed to mean that he was not employed and so ineligible to be counted as a faculty to say that there is deficiency. There is sufficient assurance available on record that this reason is not advanced without basis. This fact is amply evident from the death of his father, which followed and for which he has even submitted his resignation. I am of the view that opinion formed by the respondents on this ground to construe it to be a deficiency is not rational. Irrationality, illegality and perversity are well recognized grounds to invoke power of judicial review. This aspect regarding the scope of judicial review by the Courts was also considered by this Court in Civil Writ Petition No.13843 of 2012 (Dayanand Ayurvedic College, Jalandhar Vs. The Union of India and others), decided on 10.10.2012, wherein on the basis of various judgements, it is observed that it is well settled that judicial review generally speaking is not directed against a decision but is against the decision making process. Thus, the courts in such cases may not interfere in the decision as such, but can examine the decision making process adopted by the authorities to arrive at the decision which is challenged before the court. Judicial review of administrative action as based upon one or the following conditions viz. Illegality, procedural irregularity and irrationality is a well recognized principles.
I am, therefore, inclined to hold that the decision of the respondent-Union of India to reduce the intake capacity of the petitioner-College from 60 seats to 50 seats only due to deficiency of one teacher excluding Dr.Rajesh Kumar Srivastava is irrational and, thus, can not be sustained. The order is not irrational only on the CIVIL WRIT PETITION NO.17787 OF 2012 :{ 13 }:
ground that deficiency of one faculty can not be a reason to reduce the intake capacity but to construe this to be a deficiency on the ground for which one teacher was absent, would make the order look irrational or atleast not rational.
The reference made by counsel for Union of India to an unreported judgement of Hon'ble Supreme Court titled Rajeev Gandhi Ayurvedic College and Hospital Vs. Union of India and others, Special Leave to Appeal No.28689 of 2011, decided on 1.2.2012 may not fully apply to the facts of the present case. Firstly, the Hon'ble Supreme Court has simply dismissed the Special Leave Petition on 1.2.2012 filed to challenge the judgement passed by Division Bench of Madhya Pradesh High Court in Writ Petition No.15444 of 2011 on 28.9.2011. In this case, the College on the date of inspection was found having 8 higher faculties against the minimum requirement of 20. Two teachers out of the list of 10 higher faculties were found ineligible. The Central Government accepted the explanation in respect of two teachers but still, the College was found short of one teacher on the date of inspection. In this case, the deficiency due to shortage of faculty was not on account of absence but was due to ineligibility of the teacher. That is not the situation here. Concededly, the deficiency is due to the teacher being not present on the date of inspection, though, subsequently aspect of his resignation on 31.3.2012 is also highlighted. Merely, the order dismissing the S.L.P. by the Hon'ble Supreme Court can not be construed to be a judgement or a binding precedent. This view, at the most, is a view of Madhya Pradesh High Court and is not fully CIVIL WRIT PETITION NO.17787 OF 2012 :{ 14 }:
applicable to the facts of the present case.
The writ petition is accordingly allowed. The petitioner- Institution is permitted to admit students to its full intake of 60 seats. There shall, however, be no order as to costs.
October 17, 2012 ( RANJIT SINGH ) khurmi JUDGE