Gujarat High Court
Vidhyadeep Charitable Trust vs Union Of India on 10 February, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/498/2020 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 498 of 2020
With
R/SPECIALCIVILAPPLICATIONNO. 8574of 2020
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEBIRENVAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy NO of the judgment ?
4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== VIDHYADEEPCHARITABLETRUST Versus UNIONOF INDIA ========================================================== Appearance:
MRJIGARM PATEL(3841)for the Petitioner(s)No. 1 MRCJ VIN(978)for the Respondent(s)No. 4 MRDEVANGVYAS(2794)for the Respondent(s)No. 1 MRYASHN NANAVATY(5626)for the Respondent(s)No. 2 MR. KMANTANI(6547)for the Respondent(s)No. 3 ========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date: 10/02/2021 COMMONCAVJUDGMENT
1. Both these petitions are filed by the common petitioners Vidhyadeep Charitable Trust.Page 1 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022
C/SCA/498/2020 CAVJUDGMENT
2. Prayer in Special Civil Application No.498 of 2020 reads as under:
"37A This Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction declaring that an order dated 10th October, 2019 (Annexure "R") passed by Respondent No.1 herein denying permission for taking admission to "Vidhyadeep Homeopathic Medical College & Research Center" run and managed by Petitioner for imparting education in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS with the intake of 100 seats for the academic year 2019-20 is null, void, illegal, arbitrary, unreasonable, non-est and in violation of fundamental rights guaranteed under Article 14 and Article 19(1)(g) of the Constitution of India thereupon be pleased to quash and set aside the same."
3. In Special Civil Application No.8574 of 2020, the prayers after the amended petition read as under:
"35A This Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction declaring the impugned decision of Respondent No.1, as reflected from its communication dated 17th March, 2020 (Annexure "L"), returning the application submitted by the college of the Petitioner named Vidhyadeep Homeopathic Medical College & Research Center, Surat, for extension of permission for the academic year 2020-21 for continuing with the course in the discipline of Homeopathy at the level of graduation leading to the educational qualification of BHMS with the intake of 100 students as null, void and non-est. Page 2 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT 35B This Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction declaring the non-issuance of the communication dated 10th July, 2020 (Annexure "N") along with the login id, password and teacher's code to the concerned college of the Petitioner by Respondent No.2 as null, void and non-est. 35C This Hon'ble Court be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondent No.1 and Respondent No.2 to grant extension of permission to the college of the Petitioner named Vidhyadeep Homeopathic Medical College & Research Center, Surat, for imparting education in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS with the intake of 100 seats for the academic year 2020-21.
38 FF) This Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any another appropriate writ or order or direction quashing and setting aside the order dated 7 th December 2020 passed by the Respondent No. 1 (Annexure - S)."
4. Facts in brief are as under:
4.1 The petitioner is a public trust under the Bombay Public Trust Act, 1950. An application under Section 12A of the Homeopathy Central Council Act, 1973 was submitted by the petitioner to the respondent no.1 seeking permission for establishing a college in the name of Vidhyadeep Homeopathic Medical and Research Center for imparting Page 3 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT education in the discipline of Homeopathy at the level of graduation leading to the educational qualification of BHMS with the intake of 100 students with effect from academic year 2017-18. The application was rejected by an order dated 10.11.2017. The rejection was challenged by the petitioner by filing Special Civil Application No.21189 of 2017. On 12.04.2018, this Court quashed the order and directed that the respondent no.1 shall take a fresh decision by 31.05.2018. On 28.06.2018 the respondent no.1 passed an order rejecting the application of the petitioner.
4.2 Aggrieved by the order of rejection on 28.06.2018, a second petition being Special Civil Application No.10803 of 2018 was preferred challenging the order of rejection.
By an order dated 08.08.2018 this Court allowed the petition and quashed the order dated 28.06.2018 and issued a direction to issue a letter of permission to the college of the petitioner for the academic year 2018-19 with an intake of 100 students for the BHMS course.
4.3 Since the order was not complied with, the petitioner was constrained to move a contempt petition, wherein, on Page 4 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT 26.10.2018 a Division Bench of this Court passed an order giving a direction for allotment of students to the college of the petitioner for the academic year 2018-19. A Letters Patent Appeal preferred against the order of learned Single Judge dated 28.06.2018 was dismissed on 03.07.2019. 4.4 Since the Standard Information Form submitted by the petitioner for seeking extension of permission for the academic year 2019-20 was not being processed, the petitioner was constrained to file Special Civil Application No.13547 of 2019. This Court by an order dated 08.08.2019 directed the respondents to consider the application for extension of permission within a period of 10 days. On 16.09.2019, the respondent no.1 wrote a letter to the petitioner that the question of considering the case of the petitioner for extension of permission would not arise, as the permission for establishing the college had already been rejected by a communication dated 28.06.2018 and thereafter the petitioner had not filed any application for extension.
4.5 Against the directions of the learned Single Judge, the petitioner had preferred a Letters Patent Appeal No.1607 Page 5 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT of 2019 wherein on 19.09.2019, when the communication dated 16.09.2019 was placed on record, the Division Bench deprecated the stand of the respondent and directed the respondents no.1 and 2 to take a final decision afresh for extension of permission for the years 2019-20 within one week. No decision was taken despite the direction upto 03.10.2019 and therefore the petitioner again filed MCA No.2 of 2019 wherein the Division Bench held the respondent no.1 in contempt and issued a further direction that the respondent no.1 should place its decision on record with regards to the extension of permission to the college by 07.10.2019, failing which, the respondent no.1 was directed to remain personally present. No decision was taken on 07.10.2019 and therefore the Court directed that the appeal be placed for hearing on 10.10.2019. On 10.10.2019, the Division Bench passed an order to grant extension of permission for the academic year 2019-20 and also directed the respondent no.3-admission committee to allot students and the respondent no.4 University to grant extension of affiliation. On 10.10.2019, though a request was made to recall the order on the ground that the respondents had denied the extension of permission, the Page 6 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT Division Bench refused to recall the order. The Letters Patent Appeal was disposed of.
4.6 On 24.12.2019, the order of 10.10.2019 was served on the petitioner by which the respondents declined extension of permission for the academic year 2019-20 which led to the petitioner to filing Special Civil Application No.498 of 2020. In the meantime on 26.12.2019, the college sought permission seeking extension of permission for the academic year 2020-21 by providing the standard information format. On 09.01.2020, the order rejecting the permission for academic year 2019-20 was stayed by this Court in Special Civil Application No.498 of 2020. On 17.03.2020, the application of the petitioner seeking extension for the academic year 2020-21 was returned by the respondent no,1 holding that the same was not within the time frame prescribed. To this, the petitioner college on 27.05.2020 explained the fallacy of returning the application and declined to accept it. Pending the representation, it appears that due to the COVID-19 pandemic, a policy decision was taken on 10.07.2020 to the effect that there would be no physical inspection of the Page 7 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT colleges seeking extension of permission for the academic year 2020-21 and all the colleges will have to submit the requisite information in the form of self-declaration online. For such submissions the concerned colleges would be provided online link, log-in ID, teachers code and password. Based on this communication, the petitioner requested the respondent no.1 for providing a log-in id, online link and the teachers' ID which was not given. Therefore on 18.07.2020, the present petition being Special Civil Application No. 8574 of 2020 was preferred by the petitioner. On 27.07.2020, the Court by an interim order granted ad-interim relief in terms of para 38G. Accordingly the petitioner was furnished online link and therefore the petitioner was enabled to submit online extension for permission for the academic year 2020-21. 4.7 A surprise inspection was carried out on 06.11.2020. On 26.11.2020, the petitioner received a show-cause notice dated 25.11.2020 for hearing on the inspection report and the recommendations thereon by the Central Council of Homeopathy. The hearing was slated on 03.12.2020. A request was made by the petitioner for furnishing a copy of Page 8 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT the inspection report. A written note was filed in detail explaining and disputing the deficiencies that the show cause notice indicated. On 03.12.2020, a Hearing Committee heard the petitioner through video conferencing. On 07.12.2020, the respondent no.1 passed an order refusing extension of permission to the college of the petitioner for the academic year 2020-21. This brought about an amendment in the petition by which the petitioners even now seek to challenge the order of 07.12.2020 by which the extension permission for the academic year 2020-21 has been refused.
5. Mr. Dhaval Dave, learned Senior Advocate appearing with Mr.Jigar Patel made the following submissions:
5.1 Mr.Dave would invite the Court's attention to the order passed by this Court in Special Civil Application No.10803 of 2018. He would submit that the order dated 28.06.2018 by which permission to establish a college for the academic year 2017-18 was denied and which was subject matter of challenge was quashed and set aside and the respondent authorities were directed to grant letter of approval for the academic year 2018-19. This order was Page 9 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT passed on 08.08.2018. He would invite the attention of the Court to page 63 of the paper-book, wherein, since the order of the learned Single Judge was not being complied with, the petitioner was constrained to file a contempt petition. In the petition for contempt also, the Court directed the respondents for permitting the petitioner to admit students for the academic year 2018-19. He would submit that the college became functional on 20.08.2019.
Letters Patent Appeal was dismissed. He would then submit that on 16.09.2019, on an application made by the petitioner, the college was denied extension for the academic year 2019-20 on the ground that the permission to set up the college was rejected. He would then take the Court to the observations of the order of the Division Bench dated 19.09.2019 in the Letters Patent Appeal filed by the petitioners deprecating the authorities' stand of not taking a decision in accordance with the directions issued by this Court in Special Civil Application No.13547 of 2019. He would also invite the attention of this Court to the observations made by the Division Bench in the consequent orders, where the Court prima-facie opined that the respondent had committed gross contempt. Page 10 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022
C/SCA/498/2020 CAVJUDGMENT 5.2 After the order of the Division Bench, by the impugned communication dated 10.10.2020 which was initially a subject matter of challenge in Special Civil Application No.498 of 2020, permission for extension for the academic year 2019-20 was refused on 10.10.2019 which was challenged by a petition being Special Civil Application No.498 of 2020. He would invite the order of the Court dated 09.01.2020 and submit that the order refusing extension of permission for the academic year 2019-20 has been stayed.
5.3 The petitioner through Shri Dhaval Dave, learned Senior Advocate would further submit that thereafter, since the petitioner was not being granted extension permission for the academic year 2020-21 though an application was filed in March, 2020 and no log-in ID was being allotted, the petitioner was constrained to file the present petition on 16.07.2020 with a prayer that the fact that the respondents had returned their application paled into insignificance in view of the policy decision of the Government that no physical inspection would be carried out. He would invite the attention of the Court to the order passed by this Court Page 11 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT in the present petition on 27.07.2020, wherein, the Court had observed that prima-facie the case would not fall under Section 12C and therefore ad-interim relief in terms of para 38G by which the respondents were directed to provide the log-in ID, was granted. It appears that after the order was passed, and since the petitioner was keen on extension permission for the academic year 2020-21, a request was made that the inspection be carried out forthwith so that an appropriate permission can be taken. However, it appears that a show cause notice was issued and pursuant to the show cause notice, a fresh order dated 07.12.2020 has been passed whereby, extension for the academic year 2020-21 has also been rejected on the ground that there have been several deficiencies which have been enlisted in the impugned order dated 07.12.2020.
5.4 Mr.Dhaval Dave learned Senior Advocate would submit that the foregoing facts would indicate that the respondents were inconsiderate of the earlier orders of this Court in which serious view had been taken against the respondents. When academic year 2018-19 refusal was Page 12 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT quashed and set aside by this Court, the Division Bench had in no uncertain terms observed and directed that letter of extension be granted for the year 2019-20. Permission to admit students was also given pursuant to the directions of the Division Bench, despite which on 10.10.2019 after the order of the Letters Patent Appeal was passed, permission for the year 2019-20 was refused compelling the petitioner to file Special Civil Application No.498 of 2020. He would submit that the petitioner's college had become functional in the year 2018 and as per the Homeopathic Council Act, it does not contemplate extension of the letter of permission and unless the permission is withdrawn, it cannot be said that the college is functioning without the permission. Mr.Dave would submit that the refusal for extension was communicated as late as in October 2019, which was stayed by this Court in January, 2020. In the meantime, the petitioner had applied for extension of permission in March, 2020, for the academic year 2020-21 and which was not decided by the authorities which compelled the petitioner again to file the present petition and it was only when this Court under the Letters Patent Appeal issued directions that they came out Page 13 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT with a refusal of extension and thereafter on physical verification of colleges and on the surprise inspection, they have denied permission on grounds of deficiencies shown extensively that according to the respondents are prevalent in the college.
5.5 Mr.Dhaval Dave would submit that the stand of the respondents in invoking the provisions of Section 12C of the Act is misconceived because it was a college which was established after the amended provisions came into force on 18.05.2018. The college was established in August 2019 and therefore the provisions of Section 12C would not be attracted.
5.6 Mr.Dhaval Dave would submit that the order dated 07.12.2020 is wholly unsustainable in law and in facts. He would submit that the order is passed in violation of principles of natural justice inasmuch as the copy of the inspection report and the recommendations of the CCH for non-supply, the order is in defiance of the judgment in the case of Parul University by the Division Bench. He would submit that the order travels beyond the show cause notice. That the findings recorded in the impugned order are such Page 14 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT that no man of ordinary prudence would come to such a conclusion. He would therefore submit that the petition deserves to be allowed and even the observations in the affidavit-in reply are contemptuous in so far as an averment is made in the affidavit that once permission was denied in the year 2018, no such permission or extension deserves to be granted to the petitioner.
6. Mr.Siddharth Dave has appeared for the respondent no.1 and has filed written submissions and also made submissions orally.
6.1 Mr.Siddharth Dave would submit that many prejudicial misstatements have been made by the petitioner. The past history is of no relevance. What the Court has to examine is the order of 07.12.2020 carried out post inspection wherein, there have been noticeable shortcomings on behalf of the institution and therefore the permission for the academic sessions 2020-21 has rightly been rejected. He would submit that the regulations viz. the Homeopathy Central Council (Minimum Standard Requirement of Homeopathic Colleges and Attached Hospitals) Regulations, 2013 stipulate basic minimum requirements Page 15 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT that the colleges have to follow. He would submit that making of an application for renewal is a sine-qua-non in accordance with Regulation 11(2) of the Regulations, wherein the regulation clearly stipulates that it shall be the responsibility of the petitioner institution to apply seeking renewal six months prior to the expiry of the renewal permission.
6.2 Mr.Siddharth Dave would submit that only to honour the interim order passed by this Hon'ble Court the ID and password code was supplied without the petitioner having applied for permission for extension. A show cause notice was issued giving notice of the shortcomings to the petitioner and if the order dated 07.12.2020 is compared with the show cause notice, the shortcomings are the same as per which notice was issued and the college was put to notice thereof. Shri Siddharth Dave would therefore submit that it cannot be said that the order dated 07.12.2020 violates the principles of natural justice. He would also submit that in accordance with the provisions of Section 18(4) Homeopathy Central Council Act, 1973, the report of inspection is a confidential document which Page 16 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT ought not to be given to the college and therefore, non supply of the report apart from not causing any prejudice thereto is not to be supplied and therefore there is no violation of principles of natural justice. 6.3 Mr.Siddharth Dave would submit that the deficiencies as listed in the order dated 07.12.2020 are extensively considered and a well-reasoned order is passed after considering the mandatory requirements of the regulations of the year 2013 and therefore, no fault can be found against the respondents.
6.4 Shri Siddharth Dave submitted that the hearing Committee consists of experts who have examined the deficiencies along with the explanation given by the petitioner and after considering the provisions of the mandatory requirements of the regulations, each deficiency has been given a finding for and therefore this Court under Article 226 of the Constitution of India should not interfere. He relied on the following decisions:
(I) Karpagam Faculty of Medical Sciences and Research v.
Union of India reported in (2017) 16 SCC 568 (II) Royal Medical Trust v. Union of India reported in Page 17 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT (2017) 16 SCC 605 (III) I Q City Foundation reported in (2017) 16 SCC 249.
7. Mr.Dave would submit that the mandatory provisions of the regulations have been followed and even if a single deficiency is found, the college is not entitled to permission and therefore the order cannot be faulted.
8. Mr.Dhaval Dave, learned Senior Advocate for the petitioner relied on the following judgments:
Sl. Name of Ratio and Paragraphs
No. Judgment
1 Temple of The Central Government has no
Hanemann power to appoint and cause
Homoeopathic inspection of a homoeopathic
Medical College and medical college.
Hospital v. Union of
India [Paragraphs: 18 to 22]
(Civil Appeal No.
6734 of 2018)
2 Parul University v. Ministry of AYUSH has no right
Union of India of inspection. [Paragraph 17,
18 and 22]
(LPA 1475 of 2016)
If no decision is taken in one
year, the permission is
deemed to have been granted.
[Paragraphs 25 to 29]
Where hearing is done by one
and order is passed by
another, order stands vitiated.
[Paragraphs 30 to 31]
Page 18 of 41
Downloaded on : Wed Jan 12 08:06:23 IST 2022
C/SCA/498/2020 CAVJUDGMENT
Sl. Name of Ratio and Paragraphs
No. Judgment
Principles of natural justice are
violated if inspection report is
not provided prior to the
hearing.[Paragraph 32]
3 Parul University v. Ministry of AYUSH is required
Union of India &Anr. to give explanation for not
accepting the report of the
(SCA 17953 of Central Council of Indian
2017) Medicine. In absence of any
explanation for not accepting
the report of the Council,
Ministry of AYUSH cannot
order its own inspection.
[Paragraphs 14 and 18]
If no decision is taken within a
period of one year from the
date of application (Scheme)
under Section 13-A,
permission is deemed to have
been granted under Section
13-A (6). [Paragraphs 17
and 22]
Non-supply of inspection
report violates principles of
natural justice. [Paragraph
23]
4 Parul University v. The decision in SCA 17956 of 2017
Union of India and SCA 17953 of 2017 was
followed.
(SCA 12869 of
2018)
5 Royal Medical Trust Grant of renewal of permission is
v. Union of India distinct and different from grant of new permission. The rationale (2015) 10 SCC 19 behind a inspection for grant of renewal of permission is to ensure that the institution is given Page 19 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT Sl. Name of Ratio and Paragraphs No. Judgment reasonable time to set right the deficiencies or offer explanation.
[Paragraph 29] 6 Kanachur Islamic The inspection report did not Education Trust v. disclose any substantial Union of India deficiency warranting disapproval. [Paragraph 18] (2017) 15 SCC 702 The finding of the Hearing Committee stands vitiated by non-consideration of representations, explanations and supporting documents [Paragraph 18] A reasonable opportunity of being heard includes a fair hearing and takes within its fold a just decision supplemented by reasons and rationale. Fair hearing casts a sacrosanct duty on the authority to ensure fairness of procedure and action. Any dereliction would lead to invalidation of the decision.
[Paragraph 19 and 20] A college or institution cannot be penalised for persistent defaults and shortcomings in the decision-making process.
[Paragraph 21] 7 Jagat Narain Where the factors that Subharti Charitable weighed with the competent Trust & Anr. v. authority are palpably Union of India & Ors. untenable and the order passed cryptically and without (2017) 16 SCC 666 application of find, it can be interfered with. [Paragraph Page 20 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT Sl. Name of Ratio and Paragraphs No. Judgment 16] Considering that admission process had already started and the same was time bound, the Hon'ble Supreme Court of India directed authorities to admit students. [Paragraph 19] 8 Parul Arogya Seva Where there is an error apparent on Mandal v. Union of the face of the record, this Hon'ble India Court has interfered with the findings of an expert body.
(SCA 7122 of 2013 [Paragraph 15] and LPA 1409 of 2014) 9 Deoraj v. State of Where withholding interim Maharashtra relief would tantamount to dismissal of the petition, (2004) 4 SCC 697 interim relief even of final nature can be granted.
[Paragraph 12] An order granting interim relief may not be a reasoned order but the aspects of prima facie case, balance of convenience and irreparable loss do work on the back of the mind of a judge. [Paragraph 11] 10 Rajesh Kumar All amendments which are Aggarwal & Ors. V. necessary for deciding real question K.K. Modi & Ors. in controversy deserve to be allowed [Paragraphs 15-20] (2006) 4 SCC 385 11 Thiruvengadam Comparison of Page 21 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT Sl. Name of Ratio and Paragraphs No. Judgment Pillai v. handwriting/signature requires Navaneethammal & expertise Anr. [Paragraphs 15.1-16] (2008) 4 SCC 530
9. Mr.Siddharth Dave would also rely on the decision in case of Manoharlal Sharma v. Medical Council of India and Ors. reported in 2013 (10) SCC 60.
10.Having considered the submissions of learned advocates for the respective parties, what needs to be considered is that the petitioner institution is constrained to prosecute repeated litigations before this Court in order to see that it continues to function as a college established under the Act. When permission for the academic year 2017-18 was denied, the petitioner was constrained to move this Court challenging the denial of the permission which was denied on 10.11.2017. In the petition filed, this Court directed that the respondents take a fresh decision. On 28.06.2018, permission for the academic year 2017-18 was refused. The petitioner was constrained to file second petition being Special Civil Application No.10803 of 2018. It will be relevant to consider the order passed by this Court in SCA No.10803 of 2018 dated 08.08.2018. The observations and the submissions were considered by this Court Page 22 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT and the following order was passed:
"13. Upon hearing the submissions made at bar and considering the facts of the case, it is quite evident that the deficiencies as pointed out in serial nos. (I) and (v) of para-4 of the impugned order though removed before the impugned order is passed but since the same were in existence at the time of inspection by Central Council of Homeopathy the respondent rejected the request to issue Letter of Permission. In other words, it appears that the respondent passed the impugned order considering the deficiencies noticed at the time of earlier two hearings extended to the petitioner but failed to consider the fact that vide order dated 12.04.2018 passed by this Court in Special Civil Application No. 21189 of 2017 the respondent was directed to take appropriate decision after giving opportunity of hearing to the petitioner as expeditiously as possible preferably by 31.05.2018. It is a matter of fact that the respondent heard the petitioner on 25.05.2018 and at that time there were no any deficiencies in the scheme submitted by the petitioner and further it is not case of the respondent that there were existing any deficiencies at the time of hearing before the Designated Committee. So, the reasons/grounds assigned by the respondent that the deficiencies which were in existence earlier at the time of inspection the petitioner is not entitled to the prayer made in the application/scheme cannot be accepted since the scheme is as per the Rules and Regulations, and therefore, the respondent authority committed an error apparent on the face of record. Therefore, this Court is of the opinion that even in its limited jurisdiction under Article- 226 of the Constitution of India the matter merits interference by quashing the impugned order dated 28.06.2018. The petition is hereby allowed and order dated 28.06.2018 is hereby quashed and respondent authorities are hereby directed to grant Letter of Approval for intake of 100 seats for academic year 2018-19 as prayed for by the Page 23 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT petitioner vide application dated 29.04.2016.
14. In view of above observations and directions, present petition stands disposed of. No order as to costs. Direct service is permitted."
11.The petition was allowed and directions were issued that permission be granted for the academic year 2018-19. The respondents did not relent and did not comply with the order and therefore, in contempt proceedings, this Court in MCA No.1198 of 2018 by an order dated 26.10.2018 was constrained to pass the following order:
"8. In this case, it is to be noticed that application was made as early as on 28/29.04.2016 seeking grant of permission for the academic year 2017-18. In the first round of litigation, order was quashed and the matter was remitted back. Even thereafter, respondents have not considered the case of the applicant without noticing the removal of deficiencies as pointed out by the Inspection Committee. As such, this Court, while quashing the order dated 28.06.2018, has allowed the petition with further direction to the respondent authority to grant Letter of Approval for intake of 100 seats for academic year 2018-19, as claimed by the applicant vide application dated 29.04.2016. Though judgment of the learned single Judge is dated 08.08.2018, no further steps are taken by the respondent authorities and now belatedly, representation is made by learned counsel appearing for respondent No.5 that Union of India is contemplating to file appeal against the order of the learned single Judge. It is fairly admitted during the course of hearing that appeal is not yet filed and in view of the specific direction for grant Letter of Approval for intake of 100 seats for the academic year 2018-19, there is no reason Page 24 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT or justification on the part of the respondents in not passing any orders of approval, as claimed by the applicant. As much as it is pleaded by learned Government Pleader, appearing for the Admission Committee that today is the last day for choice filling and as much as the applicant was not granted approval by the respondent authority, it was not allowed to make any choice filling, we deem it appropriate to issue suitable directions to allow the applicant-Trust to make admissions in the college for the academic year 2018-19 by issuing necessary advertisement in the newspapers and to make admissions in accordance with law.
9. For the aforesaid reasons, we permit the applicant-Trust to make admissions in its college for imparting education in the discipline of Homeopathy at the level of graduation leading to the qualification of BHMS, for the academic year 2018-19, by issuing necessary advertisements in the newspapers inviting applications to fill up the seats in question. The admissions shall have to be made by the applicant on or before 31.10.2018. After granting admissions, a list of admitted students shall be prepared by the applicant Committee, along and furnished to the Admission with necessary particulars of the students, which shall be scrutinized by the Admission Committee, so as to see that the admissions granted by the applicant are in accordance with the relevant Rules of admission. The Admission Committee shall thereafter forward such list to the competent authorities.
10.With the above directions, the Miscellaneous Civil Application stands disposed of."
12.The Letters Patent Appeal filed by the Union of India against the directions of the learned Single Judge was also dismissed. The Standard Information Form for the academic year 2019-20 was not Page 25 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT being considered which again constrained the petitioner to move a third petition. It will be worthwhile to appreciate the mindset of the respondent in reproducing the observations of the Division Bench of this Court in Letters Patent Appeal No.1607 of 2019. In an order dated 19.09.2019, the Court was constrained to make the following observations:
"4. To this submission, Shri Devang Vyas, learned Assistant Solicitor General appearing for the respondent authority has candidly submitted that final decision is yet to be taken and he is under a instruction to indicate that the same will be taken as early as possible, preferably within a period of one week from today and has submitted that the same will be communicated to the appellant institute.
5. Since this being the submission and the authorities have assured the Court to take a final decision within a period of one week after carrying out appropriate process through respondent No.2 - Central Council of Homeopathy, instead of examining the other issues, we deem it proper to direct the authority to take final decision within a period of one week from today, as assured and the same shall be communicated to the appellant promptly.
6. We make it clear that if the decision is taken in favour of the appellant then, the authorities are directed to make appropriate arrangement for finalization of admission to fill up the students as demanded by the appellant and if ultimately the decision is taken against the appellant, it would be open for the appellant to challenge the same by carrying out appropriate proceedings.Page 26 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022
C/SCA/498/2020 CAVJUDGMENT
7. With above directions, present Letters Patent Appeal stands disposed of. Direct service is permitted."
13.The Court gave a direction to take a decision within a stipulated time. Since that was also not complied with, an MCA was moved for recall where the Court on 03.10.2019 passed the following order:
"5. Having considered the facts and circumstances of the case and having perused the material on record, prima facie, we are convinced that the opposite parties are in gross contempt. We, therefore, direct that whosoever be holding the post of Secretary, Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH), Government of India, to remain present before this Court on Monday I.e. on 7.10.2019 along with the explanation for noncompliance.
6. At this stage, Shri Siddharth Dave, learned Counsel, submitted that in case directions as contained in the judgment and order dated 19.9.2019 are complied with, the personal appearance may be exempted.
7. Considering this request, it is provided that the personal appearance would be necessary on 7.10.2019 and only subject to the condition that the compliance is made of the judgment and order dated 19.9.2019 and the decision so taken is placed on record, by way of an affidavit, the personal appearance would not be necessary."
14.Once again an order was passed on 07.10.2019, wherein, the Court observed the stand of the respondents and deprecated the practice adopted. It will be in the fitness of things to reproduce the order Page 27 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT dated 10.10.2019 which was thereafter passed by this Court which reiterates the history behind the litigation. Paras 12 to 19 of order dated 10.10.2019 needs reproduction as under to suggest as to how the respondents have proceeded in taking the decision that is impugned in this petition. The Court was constrained to observe that the respondents have shown remote respect to the Court's authority. The Court was also constrained to observe that they were at pains to state that it is a case where from the initial stage itself the authority has shown a tendency not to allow the students to be enrolled under one pretext or the other which may not be ultimately in the interest of the institute as well as the students at large.
"12. We also found clearly that there is not a remote respect to the competent courts' order by this authority and the authority appears to have been acting as a power charged authority, irrespective of court's decision and this tendency we are unable to allow further to be precipitated. As a result of this, we deem it proper in this peculiar background of fact to allow the present application for reliefs claimed.
13. With pains, we must state in the present proceedings that here is a case in which from the initial stage itself, the authority has shown a tendency not to allow the students to be enrolled under one pretext or the other and kept on lingering the litigation which may not be ultimately in the interest of institute as well as the students at large. As such, under this peculiar circumstance, we are constrained to allow the present Misc. Civil Application.
14. We may observe here that this is a clear Page 28 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT defiance of the order passed by the Court as we noticed and also upon candid submission of the learned counsel representing the authority itself. Resultantly, this disobedience is not possible to be viewed by us leniently. We may here refer to some of the observations made by the Apex Court in case of T.N.Godavarman Thirumulpad, Through the Amicus Curiae v. Ashok Khot & Anr., reported in (2006) 5 SCC 1 on the issue of disobedience of the orders of the Hon'ble Court. Relevant observations made in Para.5 are reproduced below :
"5. Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court's orders are to be followed and complied with."
15. From the aforesaid proposition of law and in the background of these facts and circumstances, while allowing present Misc. Civil Application and while recalling the order dated 19.9.2019, we may further constrain to observe that since the deadline is extended only upto 15.10.2019, if the students are not permitted to be enrolled / admitted, again the academic year 201920 would lapse. Resultantly, we may also constrain to consider the reliefs to be granted in terms of Para.9(B) and (C). This we are inclined to grant in view of the peculiar circumstance that while disposing the Letter Patent Appeal by the Division Bench of this court, it was clearly observed in a decision Page 29 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT delivered in Letters Patent Appeal No.1338 of 2019 that admittedly, when the college had staff and deficiency was cured after the inspection, the authority is not permitted to raise any objections and clearance of deficiency is noted by the Division Bench of this Court in an order dated 3.7.2019 which is recorded as an admitted position. Para.5 is indicative of this fact. We also took a note of circumstance that respondent authority from the beginning in the present proceedings has adopted a peculiar stand; firstly that the order was passed unilaterally without affording opportunity of hearing. But then, the direction given by this Court to pass afresh order and denial stand was again reiterated and the learned Single Judge on 8.8.2018 found that it is not the case of the authority that there were existing any deficiencies at the time of hearing before the Designated Committee. This has been clearly observed in Para.13 of the order passed by the learned Single Judge. Now despite the direction having been issued to grant Letter of Approval to the college for the academic year 201819, time was whiled away by this very Council which led a contempt proceedings to be initiated. In contempt proceedings also, the stand of the authority that the order of the leaned Single Judge is in contemplation to challenge and ultimately, led the Division Bench to pass a specific order of grant of admission to college for the academic year 201819 and then, at a much later stage, the appeal came to be preferred, disposed of in July,2019 wherein the aforesaid admitted stand was noticed by the Division Bench and still, however, the authority has bent upon not to obey the orders of the Court and on account of time lapse, a fresh petition was required to be moved I.e. Special Civil Application No.13547 of 2019, wherein despite the direction to take the decision within a period of 10 days from 7.8.2019, till date we have unfortunately noticed that no decision is taken yet. This conduct, in our considered opinion, is not permitted to be encouraged in any form. As a result of this, the relief prayed for by the applicant deserves to be granted. Page 30 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022
C/SCA/498/2020 CAVJUDGMENT
16. We also notice that this respondent - Council has rather developed a tendency to conduct the proceedings in this very manner and in case of one another institute in Special Civil Application No.14347 of 2019, the learned Single Judge was also constrained to issue direction to admit the students for the current academic year, even subject to the inspection and as such, we have noticed that not only in the present proceedings but, in another petition also, rather the Courts are compelled by this respondent - Council to pass the orders. We also incline to direct the authorities to consider the request and by granting extension of permission to the college for the academic year 2019-20, direct the Admission Committee first to allot the students to the present applicant - college on or before the extended last cut-off date I.e. 15.10.2019 and the respondent No.4 authority is also to grant extension of affiliation to the applicant - college for the academic year 2019-20.
17. While parting with this order, we are constrained to observe that we have seriously noticed the incorrigible and defiant attitude of respondent authority in not observing the court's directions. This order be placed before the appropriate authority for taking specific note of this conduct for appropriate steps.
18. With above observations, we allow present Misc. Civil Application in terms of relief sought and also dispose of the Letters Patent Appeal No.1607 of 2019 along with connected civil application.
19. Direct service permitted. "
15.It appears that in passing the impugned order of 07.12.2020, the ring of pain of orders passed herein above by the Division Bench has fallen on deaf ears.Page 31 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022
C/SCA/498/2020 CAVJUDGMENT
16.Mr.Dhaval Dave learned Senior Advocate through a tabular statement has reproduced the impugned order and made remarks as to how the impugned order suffers from the vice of unreasonableness inasmuch as no prudent man would come to a conclusion that he has. Even in the amended petition, each explanation has been dealt with vis-a-vis each objection that has been raised by the petitioner.
17.It will also be in fitness of things to reproduce para 31IIIa onwards to 31IIIr which indicate and vindicates the stand that the order dated 07.12.2020 is misconceived and without application of mind passed only with a view to harass the institution in continuing to involve it in litigation year to year to stumble over the respondents for permission each year though initially the letter of intent or the refusal for the academic year 2017-18 was quashed.
a.i.a. Though the college of the Petitioner is having the biometric attendance system and though the proof thereof was submitted, the very existence of biometric attendance system was declined to be accepted in the impugned order solely on the basis that the same was not in use on the date of the inspection without considering the explanation given to the effect that during pandemic it was not advisable to use biometric attendance. So far as the documents establishing the usage of biometric attendance system pre- pandemic period is concerned, the same were never demanded. However, the college of the Page 32 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT Petitioner is having the same. Be that as it may, when the college of the Petitioner is having the biometric attendance system, the deficiency alleged against the college of the Petitioner in the hearing notice to the effect that the same is not available loses its significance. The muster roll with signature of the staff showing their presence was submitted for November, 2020 not for other months just to show that in November, 2020 the biometric attendance system was not operated at all. However, no adverse inference can be drawn on the basis of the same particularly when the attendance register for other months was never summoned either in the hearing notice or during hearing. Be that as it may, the college of the Petitioner has the attendance register for all the months.
a.i.b. The alleged discrepancy on account of alleged overwriting on the signature of Dr. Chirag Modi in the attendance register of 1st June 2020, 8th June 2020 and 22nd June 2020 was never put to the college of the Petitioner for explanation thereon either in the hearing notice or during the hearing. Else, it would have been pointed out that on the concerned dates another doctor named Dr. Yashpal Solanki was on half leave and therefore, the signature of Dr. Chirag Modi who was in replacement for half leave of Dr. Yashpal Solanki was found as overwriting signature in attendance register for the concerned dates. Be that as it may, it is not possible to appreciate as to how such thing can be said to be deficiency so as to deny extension of permission particularly when the existence of Dr. Chirag Modi in the setup of the college of the Petitioner on the relevant date was not in dispute.
a.i.c. The list of hospital staff with designation was never summoned from the college of the Page 33 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT Petitioner in the hearing notice as also during the hearing. Else, the same would have been submitted. It is needless to mention that this can never be termed as deficiency by any standard so as to warrant refusal of extension of permission.
a.i.d. The attention of the college of the Petitioner was never focused either in the hearing notice or during the hearing on the alleged discrepancy notice in the attendance registers of June 2020 qua the signature of the nursing staff. Even what is observed in the impugned order in this regard as observation of the Hearing Committee is too vague to cull out anything therefrom which is meaningful so as to warrant refusal of extension of permission. It is irrational by any standard to draw adverse inference on the aspect of existence of hospital staff merely because designation of the hospital staff is not mentioned in the attendance register by the hospital staff while signing the same. Even no explanation was sought at any point of time on this count from the college of the Petitioner. Else, same would have been appropriately clarified. Be that as it may, this cannot be termed as deficiency as at the most it could be termed as irregularity in maintaining attendance register which can be always rectified.
a.i.e. The case sheets of IPD and OPD of 6 th November 2020 was submitted in as much as the deficiency alleged in the hearing notice was to the effect that on the date of the inspection i.e. 6th November 2020 IPD and OPD were found to be not functional in the hospital of the college of the Petitioner and there were no patients. Else, the college of the Petitioner is having sufficient case sheets of IPD and OPD for other date. As a matter of fact the bare look at the photographs taken on the date of Page 34 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT inspection of the college of the Petitioner demonstrates beyond the province of any doubt that the hospital attached to the college of the Petitioner is a functional hospital. Even the explanation rendered by the college of the Petitioner in its reply to the hearing notice is totally ignored in the impugned order save and except simply reproducing the same.
a.i.f. The entries of patients visiting the OPD of the hospital after the visit of the inspectors would obviously find their place in the OPD register after the signatures of the inspectors. Be that as it may, there was no reference about this aspect as weighing with Respondent No. 1 either in the hearing notice or during the hearing. Else this would have been dislodged by the college of the Petitioner.
a.i.g. So far as the alleged overwriting in the OPD register above the signature of the inspectors is concerned, nothing was brought to the notice of the college of the Petitioner for the purpose of explanation thereon either in the hearing notice or during the hearing. Even otherwise, the observation of the Hearing Committee in this regard is too vague to understand and to qualify as deficiency warranting denial of extension of permission.
a.i.h. The stock register of medicine was never demanded either in the hearing notice or during the hearing. Else, the same would have been submitted as the same is maintained by the college of the Petitioner.
a.i.i. No explanation was ever sought from the college of the Petitioner in respect of the dates and the time of screenshots submitted by the college of the Petitioner to establish online Page 35 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT conducting of classes by the faculty. Else, the same would have been submitted as the same is available from the concerned screenshots.
a.i.j. The attendance register of faculties of the month prior to September 2020 was never summoned from the college of the Petitioner either in the hearing notice or during hearing. Else, the college of the Petitioner is having the same.
a.i.k. The copies of salary register, bank statement, time table, biometric attendance etc. referred to in the impugned order as having been not produced by the college of the Petitioner were never demanded from the college of the Petitioner either in the hearing notice or during hearing. If the Hearing Committee was of the view that such documents would be required, the Hearing Committee ought to have put the college of the Petitioner to the notice thereof. Be that as it may, the college of the Petitioner is having for the same.
a.i.l. The Covid circular which was in force on the date of inspection suspending the functioning of the college of the Petitioner was shown to the inspectors. Even the same was referred to during the course of hearing. However, despite the same it is observed by the Hearing Committee in the impugned order that no such circular was shown. Be that as it may, the fact that functioning of all educational institutions was suspended during the ongoing pandemic is a matter of common knowledge for all. Hence, it sounds absurd to the extent possible to attach significance to such circular to establish that the college was not fully functional on the date of inspection pursuant to such Covid circular.Page 36 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022
C/SCA/498/2020 CAVJUDGMENT
a.i.m. Form No. 16 under Income Tax Act 1961
evidencing the factum of deduction of tax at source (TDS) in respect of payment of salary paid to the faculties was produced in respect of in all 16 faculties who were appointed prior to 1st December 2019. Because, form No. 16 is always in respect of the concerned accounting year. Hence, the tax at source was deducted in respect to the concerned faculties qua their salary and accordingly, the same was deposited. So far as the faculties appointed subsequent to 1st December 2019 are concerned, form No. 16 in respect of tax at source qua their salary would be reflected in the next accounting year. However, apart from this the impugned order conveniently remains oblivious of the fact that all the 33 faculties were paid salary through cheque. Further, out of these 33 faculties in all 31 faculties who are there on the roll of the college of the Petitioner on the date of inspection had filed an affidavit confirming that they discharge their duties as faculties in the college of the Petitioner. Two faculties joined subsequent to the inspection and therefore their affidavits were not there. However, they are also willing to file their affidavits, if so required by Respondent No. 1.
a.i.n. There was no reference in the hearing notice with regard to the alleged mismatch of the signature of Dr. Sheetal Kamle. Even during hearing also no query was put in this regard. Else, an appropriate answer would have been provided. Be that as it may, Dr. Sheetal Kamle is a faculty in the setup of the college of the Petitioner.
a.i.o. So far as Dr. Sanket Vadama as a faculty is concerned, the objection raised against him in the show cause notice was with regard to the discrepancy in the actual date of joining and the Page 37 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT date of joining mentioned by him in his affidavit. Accordingly, in reply to the hearing notice another affidavit of Dr. Sanket Vadama was filed pointing out his actual date of joining as there was bonafide error in mentioning the date of joining in his earlier affidavit. As it appears, since it was not possible then to find any fault against Dr. Sanket Vadama in this regard in view of his clarificatory affidavit, impugned order refers to the alleged discrepancy in his experience certificate for which the attention of the college of the Petitioner was never focused. Besides this, the impugned order fails to make out the significance of such discrepancy even if it is in fact there on the aspect of extension of permission particularly when the existence and the qualification of this faculty are not in dispute.
a.i.p. So far as the allegation of mismatch of signature of Dr. Avni, Dr. Monica and Dr. Neelaben, the faculties in the college of the Petitioner are concerned, the same would lose their significance in view of the affidavits filed by them confirming their signatures on their appointment letter, joining letter, attendance register, salary register and other documents. However despite this the impugned order refers to the same as discrepancies. The other issues referred to in the impugned order against these faculties were never put to the notice of the college of the Petitioner. So far as Dr. Rajesh is concerned, there was no mention of his name in the hearing notice alleging any discrepancy in the record concerning him.
a.i.q. Though sufficient proof was submitted with regard to the existence of faculties of modern medicine, the same is not believed in the Page 38 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT impugned order without any cogent and justifiable reason.
a.i.r. The rest of the discrepancies alleged in the impugned order are such that even if things are presumed to be there on hypothesis without prejudice to the per-contra contention of the Petitioner, the same would not warrant refusal of extension of permission for the academic year 2020-21.
18.As far as the decision cited by Mr.Dhaval Dave for the petitioner on the question of violation of principles of natural justice in not giving the copy of the inspection report, it will be apt to reproduce para 32 of the decision in case of Parul University v. University of India rendered in Letters Patent Appeal No.1475 of 2016. The same reads as under:
"32. At this stage, it is also to be observed that the copy of the report submitted by the team of Medical Inspectors sent by the Central Government itself was not given to the petitioner and even the copy of the recommendations given by the Hearing Committee was also not supplied to the petitioner. However, it is true that in the show cause notice issued on 07.10.2016 the deficiencies were pointed out but the fact remains that the report of the inspection team was not provided to the petitioner. Therefore also we are of the view that respondent No.1 has not strictly followed the principles of natural justice."
19.Even considering the decision in case of Royal Medical Trust (supra) para 29 thereof, the Supreme Court has categorically observed that the grant of renewal of permission is distinct and Page 39 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT different from the grant of new permission and therefore, once the permission was granted to the petitioner, repeated request for renewal were spurned by the respondent only on the ground that the application was not maintainable under Section 12C of the Act. Admittedly when the college was established on 18.05.2018, the stand of the respondents on the applicability of the Section 12C also is misconceived. In accordance with the decision in Parul Arogya Seva Mandal v. Union of India rendered in Special Civil Application No.7122 of 2013 and LPA No.1409 of 2014 when appreciating the submissions A to P in the petition as juxtaposed with the findings and observations of the hearing Committee and the submissions of the college, the deficiencies are not such which warrant no extension of permission for the year 2021.
20.Accordingly, the petition is allowed. The order dated 07.12.2020 is quashed and set aside. The action of the respondent no.1 in returning the application by communication dated 17.03.2020 refusing extension of permission for the academic year 2020-21 is also quashed and set aside. The respondent nos.1 and 2 are directed to grant extension of permission to the college of the petitioner viz. Vidhyadeep Homeopathic Medical College and Research Center, Surat, for imparting education in the discipline of Page 40 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022 C/SCA/498/2020 CAVJUDGMENT Homeopathy at the level of graduation leading to the qualification of BHMS with the intake of 100 seats for the academic year 2020-
21.
21.The respondents are directed to grant extension of affiliation to the college of the petitioner named Vidhyadeep Homeopathic Medical College and Research Center, Surat, for academic year 2020-21 with an intake of 100 students as if the order dated 07.12.2020 has not been passed.
22.In view of having quashed the order dated 07.12.2020 in SCA No.8574 of 2020, the previous order refusing permission for the academic year 2019-20 dated 10.10.2019 is also quashed and set aside. Both the petitions are therefore allowed with no order as to costs. Rule is made absolute.
(BIRENVAISHNAV,J) ANKITSHAH Page 41 of 41 Downloaded on : Wed Jan 12 08:06:23 IST 2022