Gujarat High Court
Shree Mahatma Gandhi Education Trust vs Union Of India on 20 February, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/2013/2021 CAVORDER
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 2013of 2021
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SHREEMAHATMAGANDHIEDUCATIONTRUST Versus UNIONOF INDIA ========================================================== Appearance:
MR.DHAVALDAVE,LD. SENIORADVOCATEwith UDITN VYAS(9255)for the Petitioner(s) No. 1 MR.SIDDHARTHDAVE,ADVOCATEfor MRDEVANGVYAS,LD. ADDITIONALSOLICITOR GENERAL(2794)for the Respondent(s)No. 1,2 NOTICESERVEDBY DS(5)for the Respondent(s)No. 3 ========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date: 20/02/2021 CAVORDER
1. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the impugned order dated 19.01.2021, by which, the renewal of permission in respect of H.N. Shukla Homeopathic Medical College and Hospital for the academic year 202021 for the BHMS course with intake of 100 seats has been refused.
2. The facts in brief are as under:
2.1 The Petitioner is a public trust. It inter alia runs a college in the name of H. N. Shukla Homeopathic Medical College & Hospital ("College" for short). The College is engaged in imparting education in the discipline of Homeopathy at the Page 1 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER level of graduation leading to the qualification of B.H.M.S. The College was established in the academic year 201617 with the intake capacity of 100 seats.
2.2 The College submitted the requisite details in the manner and within the time frame prescribed by the Respondent Nos. 1 & 2 for extension of permission for the academic year 202021. This is not in dispute. 2.3 Thereafter, the College received from Respondent No. 1 the hearing notice dated 11th November, 2020. Vide this notice the College was called upon to render its explanation in writing in respect of the deficiencies alleged therein against the College and avail the opportunity of hearing before the Designated Hearing Committee of Respondent No. 1 on the date stipulated therein.
2.4 The College, thereupon, submitted its written submission supported by the documents dealing with the deficiencies alleged against it and also made oral submissions before the Designated Hearing Committee of Respondent No. 1. Page 2 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022
C/SCA/2013/2021 CAVORDER 2.5 Thereafter, the College was served with the impugned
order dated 19th January, 2021 passed by Respondent No. 1.
Vide this order the College was denied extension of permission for the academic year 202021.
3. Mr.Dhaval Dave learned Senior Advocate appearing with Mr.Udit Vyas states that the impugned order passed by Respondent No. 1 is wholly unsustainable. In support of this contention, he made the following submissions:
3.1 The impugned order is signed by the Director of Respondent No.1. It is recorded therein that it was passed with the approval of the Competent Authority. However, neither of them was part of the Designated Hearing Committee. This assumes significance as the impugned order is based upon findings independently recorded by Respondent No.1. Needless to mention that if the observations of the Designated Hearing Committee along with the written submissions the College were to be sent back to the Central Council of Homeopathy (CCH) for its recommendations and thereupon, if the recommendations of Page 3 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER CCH were to be accepted for passing the impugned order by someone in the set up Respondent No.1 who was not part of the Designated Hearing Committee, the hearing accorded to the College became an empty formality. This completely vitiates the impugned order. Reliance is placed on the decision in case of Parul University V/s Union of India & Anr. reported in 2017 SCC Online Guj 77, particularly Paragraphs 30 & 31 thereof. SLP (C) 13901391 preferred against the same is rejected vide order dated 5 th February, 2018.
3.2 Further to the aforesaid, if the observations of the Designated Hearing Committee along with the written submissions of the College were to be sent back to the CCH for its recommendations thereon, the College was required to be accorded further opportunity of hearing by Respondent No.1 before taking any decision on such recommendations of CCH. Thus, the impugned order is in true sense without according hearing to the College.
3.3 The impugned order is a nonspeaking order in true sense. Because no reasons are assigned in the impugned Page 4 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER order in support thereof.
3.4 Realizing the aforesaid fatal lacuna in the impugned order, Respondent No. 1 attempted to supply reasons to the impugned order by filing an affidavit in reply. However, it is impermissible to supply reasons to the order for sustaining the order. Mr.Dave would rely on the decision in the case of Hindustan Petroleum Corporation V/s Darus Shapur Chenai & Ors. reported in (2005) 7 SCC 627, particularly Paragraphs 24 to 27 thereof.
3.5 Without prejudice to the aforesaid, even if the deficiencies which are referred to in the affidavitinreply of Respondent No. 1 as the reasons to support the impugned order are read as part of the impugned order, it is not possible to sustain the impugned order. This is evident from the following.
3.6 The first deficiency alleged against the College is with regard to the noncompliance of Employees Provident Funds and Miscellaneous Provisions Act, 1952 and ESI Act, 1942.
However, the former Act is applicable provided there are employees having salary less than Rs. 15,000/. The College Page 5 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER has no such employee. The later Act is not applicable in Gujarat to the educational institutions. Besides this, the concerned authorities under both the Acts have never found the College in breach. This apart, this deficiency, even if exists, is of rectifiable nature. Hence, does not warrant denial of extension of permission partially by way of reduction of intake.
3.7 The second deficiency alleged against the College is with regard to in all nine teachers who were found to be ineligible as their signature was allegedly found to be mismatching in various documents referable to their appointment in the College and their affidavit for allotment of Teacher Code. However, all these nine teachers filed their affidavit before the Designated Hearing Committee confirming their signature on all the documents in question. In fact, the College also pointed out during hearing that all of them were willing to appear in person before the Designated Hearing Committee confirming their affidavit. However, the Designated Hearing Committee did not find it necessary. Needless to mention that once the person whose signature is Page 6 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER doubted confirms the same, the doubt has to end. Further, the signature matching demands expertise to reach any conclusion thereon. Mr.Dave would rely on the decision in the case of Thiruvengadam Pillai V/s Navaneethammal & Anr. reported in (2008) 4 SCC 530, particularly paragraph 16 thereof.
3.8 Further, barring two new appointees, the rest seven from the aforesaid nine teachers were with the College in the previous academic year 201920. Accordingly, during the inspection for the academic year 201920 they were confirmed as teachers working in the College. 3.9 The third deficiency alleged against the College is with regard to in all two teachers who were found to be ineligible as they were above the age limit of 40 years on the date of their appointments. However, these teachers were not declared ineligible on this ground in the academic years 201819 and 201920. The age limit of 40 years at the time of initial appointment prescribed vide Schedule VII of MSR 2013 appears to be directory in nature. Else, these appointments would have been objected to while considering Page 7 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER the College for extension of permission for the earlier academic years.
3.10 The fourth deficiency alleged against the College is with regard to the nonsubmissions of documents concerning the experience of in all two teachers. As such, these documents were part of SIF. Nonetheless they were submitted before the Designated Hearing Committee.
3.11 The fifth deficiency alleged against the College is with regard to the salary proof of in all two nonteaching employees. However, necessary proof in this regard was submitted before the Designated Hearing Committee. 3.12 The sixth deficiency alleged against the College is with regard to the availability of in all eight part time teachers of Modern Medicine against the requirement of eighteen. However, this was clarified before the Designated Hearing Committee with requisite proof that the College has in eighteen part time teachers of Modern Medicine and the mention of figure 8 in SIF was by mistake for figure 18. 3.13 Without prejudice to the aforesaid, even if the Page 8 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER impugned order was warranted, the impugned order would fail to hold the field for not following the procedure mandated by section 19 of the Homeopathy Central Council Act, 1973.
3.14 As such, while dealing with the orders more or less identical to the impugned order, the Honourable Delhi High Court passed interim orders dated 4th February, 2021 (LPA 49/2021), 8th February, 2021 (W.P. (C) 1539/2021 & others) and 10th February, 2021 (W.P.(C) 1794/2021) in batch of matters granting extension of permissions to the concerned Colleges for the academic year 202021. Even Honourable Bombay High Court has also passed similar interim order dated 27th January, 2021 (W.P. (Stamp) 1760/2021). 3.15 Further, the grant of extension (renewal) of permission to an existing college stands on a different footing as compared to the grant of new permission to start the college. In case of former, even if some deficiencies are noticed, time needs to be granted to rectify rather than denying extension of permission. Hence, the alleged deficiencies, though not in existence as aforesaid, even if presumed to be there, Page 9 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER warranted time to the College to rectify rather than the impugned order. He would rely on the decision in case of Royal Medical Trust and Another v. Union of India and Another reported in [(2017) 16 SCC 605].
3.16 The impugned order, if viewed in totality, is cryptic, mechanical, without considering the submissions of the College and suffering from the vice of total nonapplication of mind warranting interception in the present petition. Reliance is placed on the decision in case of Jagat Narain Subharti Charitable Trust & Anr. V/s Union of India & Ors. reported in (2017) 16 SCC 666, particularly Paragraph 16 thereof & also on the decision in case of Kanachur Islamic Education Trust V/s. Union of India reported in (2017) 15 SCC 702 - particularly Paragraphs 18 to 20. 3.17 The judgments relied upon by Respondent No.1 in its affidavitinreply are in respect of the cases where multiple deficiencies of grave and nonrectifiable nature were noticed to which the concerned colleges were having no cogent answer in defence. Hence, the same have no application to the impugned order. Here, it deserves to be mentioned that Page 10 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER the said judgments can never be construed as laying down an absolute proposition of law that, regardless of the nature of order, no interference is possible once the permission is denied to the college. Needless to mention that the proposition sought to be propounded by Respondent No.1 in this regard, if accepted, would mean immunizing the impugned order from the purview of judicial review under Article 226 of the Constitution of India.
3.18 In the last, the contention of Respondent No.1 that grant of interim relief in the present petition is as good as final relief has no potential to deny interim relief to the Petitioner. When the facts are such that nongrant of interim relief would tantamount to dismissal of the petition, the interim relief, though akin to final relief, needs to be granted. Reliance is placed on the decision in case of Deoraj V/s State of Maharashtra reported in (2004) 4 SCC 697, particularly Paragraph 12 thereof.
3.19 Even Honourable Delhi High Court has recorded in the aforesaid orders that, apart from strong prima facie case, the balance of convenience also leaned in favour of colleges Page 11 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER warranting interim orders.
4. Mr.Siddharth Dave appeared for the respondent nos.1 and 2 made the following submissions:
4.1 Mr.Siddharth Dave would submit that the order impugned in the petition denying renewal of permission is just and proper. He would invite the attention of the Court to the regulations known as the Homeopathy (Minimum Standards of Education) Regulation, 2013 ('the Regulations' for short). He would submit that Regulation 3(1) requires the college to fulfill the minimum standards in context of teaching facilities referred to in Regulation No.4 to 13.
Regulation No.7 prescribes requirement of teaching hospital. Regulation no.9 provides for requirements of college which prescribes that there shall be a minimum teaching faculty as per ScheduleIV for the course. He would submit that the contention of Shri Dhaval Dave that the memorandum of understanding would save the college from the deficit is misconceived as the memorandum of understanding viz. for purposes other than teaching. Only full time faculty is required at all levels. As per ScheduleVII which requires Page 12 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER essential qualifications for the teaching staff, the age has to be not more than 40 years as on the last date of receipt of the application.
4.2 Justifying the impugned order, Mr.Dave would submit that admittedly the teaching faculty had members more than 40 years of age . He would rely on the amended regulations of 2019 to submit that it was incumbent upon an existing college to make an application in FormI which was mandatory providing details which the college had not provided which was prerequisite for getting affiliation. He would counter the submission of Shri Dhaval Dave in context of Section 19 of the Homeopathy Central Council Act and submit that the impugned order is not in context of withdrawal of recognition, but is in compliance of Section 12C of the Act, by which, permission for certain existing medical college is to be made. He would invite the attention of the Court to the impugned order and submit that the deficiencies listed therein were material enough and ought to have been complied with. It was a mandatory requirement under the Rules. Nothing was produced by the institution on Page 13 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER record to show that in the previous years there was compliance. There was no prejudice inasmuch to the show cause notice listing out shortcomings the petitioner was invited to respond and the authority found them to be insufficient compliance. The order therefore cannot be said to be an unreasoned order.
4.3 Mr.Siddharth Dave would counter the submission of Shri Dhaval Dave in context of Section 19 of the Homeopathy Central Council Act and submit that the impugned order is not in context of withdrawal of recognition, what is in compliance of Section 12C of the Act, by which, permission for certain existing medical college is to be made. He would invite the attention of the Court to the impugned order and submit that the deficiencies listed therein were material enough and ought to have been complied with. It was a mandatory requirement under the Rules. Nothing was produced by the institution on record to show that in the previous years there was compliance. There was no prejudice inasmuch to the show cause notice listed out in shortcomings and the petitioner was invited to respond and the authority Page 14 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER found them to be insufficient compliance. The order therefore cannot be said to be an unreasoned order. 4.4 With regard to the submissions cited by Shri Dhaval Dave in case of Kanachur (supra), Shri Siddharth Dave relied on the decision in case of Kalinga Mining Corporation v. Union of India and others reported in [(2013) 5 SCC 252] and submit that the order was not bad as institutional hearing as a recognized principle. He would also rely on the decision of the Delhi High Court in the case of Buddhi Vidhatajan Kalyan Samiti v. Union of India and Anr. reported in LAWS (DLH) 2016 12 182, particularly para 26 thereof. He would reiterate that Kanachur (supra) was considered in Royal Medical (supra), where it was held that the judgment applies in the facts of the case. He would rely on paras 26 to 33 thereof. Mr.Siddharth Dave would rely on the decision in the case of J&K Housing Board and another v. Kunwar Sanjay Krishan Kaul and others reported in (2011) 10 SCC 714 to submit that things have to be done in a particular manner. Reliance was also placed on the decision in case of Manoharlal Sharma v. Medical Council of India Page 15 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER and others reported in (2013) 10 SCC 60. Reliance was also placed on the decision in case of Karpagam Faculty of Medical Sciences and Research v. Union of India and others reported in (2017) 16 SCC 568, particularly para 17 to 22 to submit that compliance with the regulations was a prerequisite and therefore the order impugned in the petition would not suffer from any effect of either non application of mind and/or being a nonspeaking order.
5. In rejoinder, Shri Dhaval Dave learned Senior Advocate would submit that the college gave the details in the prescribed form.
6. Having considered the submissions of the learned counsel for the respective parties, rather than deciding the petition on the preliminary issue of the order being defective on the ground of violation of principles of natural justice in context of the submissions made relying on the decisions in the case of Kanachur (supra) and its applicability, it is in the fitness of things to consider the issue on merits.
6.1 What is evident from the reading of the impugned Page 16 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022 C/SCA/2013/2021 CAVORDER order is that the authority found the following deficiencies:
The reasons for recommendation for not granting permission to the Applicant College and Hospital are as under:
1. Details of IPD/OPD data, Hospital staff & Teaching staff not available on college website: www.hnshmc.org.
2. The college has not complied with the provisions of Employee's Provident Funds & Miscellaneous Provident Act 1952 & ESI Act. 1948 and relevant Rules and Regulations.
3. Supportive documents of salary through bank not provided.
4. College is having only 20 eligible teachers against the requirement of 28 for conducting BHMS Course with 100 seats. College has provided a list of 31 teachers but 11 teachers considered ineligible due to discrepancies in their documents & seems to be on papers only. Details of ineligible teachers are as under:
a. Dr Priyanka Shroff, MD (Hom), Lecturer Organon:
Joined on 01.08.2017, signature is not matching in the joining letter & documents for teacher's code and affidavit.Page 17 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022
C/SCA/2013/2021 CAVORDER b. Dr. Geeta Sawaliya, MD (Hom), Reader Organon: Joined on 01.06.2016, signature is not matching in the joining letter & documents for teacher's code and affidavit.
c. Dr Sanjay Manubhai Shah, MD (Hom), Lecturer Horn. Materia Medica: Age exceeded 40 years (DOB2521963) while joining (DOJ 372006) as Lecturer in Homoeopathic Materia Medica, No previous experience provided.
d. Dr Darshan Doshi, MBBS, MD(Pathology), Joined on 01.02.2019 as Reader, Pathology, signature is not matching in the joining letter & documents for teacher's code and affidavit.
e. Dr Jayadeepsingh Chavda, MD(Hom), Lect. Pathology:
Age exceeded 40 years (DOB 25.04.1973) while joining (DOJ03.07.2006) as Lecturer Pathology. No previous experience provided.
f. Dr. Jayeshbhai Vitubhai Vaidya, DMS, Professor, Practice of Medicine: Joined on 10.09.2018, signature is not matching in the joining letter & documents for teacher's code and affidavit.
g. Dr Rajeev Mishra, MBBS, MD (Medicine), Joined on 02.03.2020 as Prof. Practice of Medicine: signature is not matching in the joining letter & documents for teacher's code and affidavit.
Page 18 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022
C/SCA/2013/2021 CAVORDER h. Dr Arti K. Alwani, MD (Hom), Lecturer, Practice of Medicine: Joined on 01.03.2019, signature is not matching in the joining letter & documents for teacher's code and affidavit.
i. Dr Meera Sumesh, MD (Hom) Lecturer Community of Medicine: Joined on 17.10.2018, signature is not matching in the joining letter & documents for teacher's code and affidavit.
j. Dr. Soma Bose, MD (Hom), Reader Community of Medicine: Joined on 01.07.2020, signature is not matching in the joining letter & documents for teacher's code and affidavit.
k. Dr. Ashwini Gopinath Pawar MD (Hom), Reader Practice of Medicine: Joined 01.02.2019, signature is not matching in the joining letter documents for teacher's code and affidavit.
6.2 Further, hospital staffs namely, Hetal Fichadiya Sunil (Lab Technician) & Girishbhai Mehta are not getting any salary as per acquittance roll, thus not considered available. 6.3 Eight Part Time tenchers of Modern Medicine available against the requirement of nine.
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C/SCA/2013/2021 CAVORDER 6.4 Apparently, as far as the first deficiency is concerned, it has been rightly pointed out that the college does not come under the compulsory EPF criteria at all as the employees draw salary much above Rs.15,000/. As far as ESI Act is concerned, the Act is not applicable to educational institutions in Gujarat. Even it is not the case of the authorities that the institution has been held liable by the competent authorities under the Act for a breach thereof. 6.5 The second deficiency is that there was a mismatch in context of nine teachers who were found ineligible, it is apparent on reading the explanation tendered by the college before the Hearing Committee that it was the case of the petitioner institution that there was only a mismatch of signature. The teachers had given their affidavits confirming their signatures.
6.6 With regard to the third deficiency, it was regarding ineligibility on the ground of the age of 40. In the earlier years i.e. 201819 and 201920, no such case was made out. Page 20 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022
C/SCA/2013/2021 CAVORDER 6.7 With regard to the fourth and the fifth deficiencies necessary proof was produced before the Hearing Committee to satisfy the authorities that there were teachers in modern medicine and it was shown that 18 parttime teachers were in the college and the figure 8 was a mistake on the part of the institution.
6.8 Therefore there was sufficient material to show that the respondents had no reason to deny renewal of permission, particularly when, it was pointed out to the designated Hearing Committee to satisfy the discrepancies alleged.
7. For the aforesaid reasons, the petition is allowed. Prayer in terms of paras 34(a) is granted. Direct service is permitted.
(BIREN VAISHNAV, J) ANKIT SHAH Page 21 of 21 Downloaded on : Thu Jan 13 01:10:25 IST 2022