Karnataka High Court
Navodaya Medical College vs Rajiv Gandhi University Of Helath on 16 August, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.14961 OF 2022 (EDN-RES)
BETWEEN:
1. VYDEHI INSTITUTE OF MEDICAL
SCIENCES & RESEARCH CENTRE,
NO.82, EPIP AREA, WHITEFIELD,
BANGALORE-560 066.
REPRESENTED BY ITS PRINCIPAL/DEAN
DR. SHREEDHAR VENKATESH, AGED 59 YEARS,
S/O LATE SRI K K NAIDU
R/O BENGALURU.
2. SRINIVASA TRUST
NO.82, EPIP AREA, WHITEFIELD,
BANGALORE-560 066.
REPRESENTED BY ITS CHAIRPERSON
SMT. KALPAJA D A,
AGED ABOUT 51 YUEARS,
R/O BENGALURU.
...PETITIONERS
(BY SRI. M.R. NAIK, SENIOR COUNSEL FOR
SRI. SURAJ NAIK, ADVOCATE)
AND:
1. RAJIV GANDHI UNDERSITY OF HEALTH SCIENCES,
4TH "T" BLOCK, JAYANAGAR,
BENGALURU-560 041.
REPRESENTED BY ITS REGISTRAR.
2. THE NATIONAL MEDICAL COMMISSION,
POCKET 14, SECTOR 8,
DWARAKA PHASE 1, NEWDELHI - 110 077.
REPRESENTED BY ITS CHAIRMAN.
3. STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
2
(MEDICAL EDUCATION),
M S BUILDING, BANGALORE-560 001.
...RESPONDENTS
(BY SRI ASHOK N. NAYAK, ADVOCATE FOR R-1;
SRI. N. KHETTY, ADVOCATE FOR R-2;
SMT. SHARADAMBA, AGA FOR R-3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS OF THE PROCEEDINGS BEFORE THE RESPONDENTS
AND DECLARE THT THE CONSENT TO AFFILIATION HAS TO BE
GRANTED IN ACCORDANCE WITH THE REPORT OF THE LOCAL
INSPECTION COMMITTEE DTD 14.07.2022 VIDE ANNEXURE-D
AND RECOMMENDATION OF THE COMMITTEE OF ACADEMIC
COUNCIL DTD 16.07.2022 VIDE ANNEXURE-E AND THE
RECOMMENDATION OF THE SYNDICATE OF THE R1 VIDE
ANNEXURE-F BE DECLARED AS ARBITRARY AND
UNSUSTAINABLE AND ETC.
THIS W.P. COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
In this petition, the petitioners have sought for the following reliefs:
I. Issue an appropriate writ, order or direction, in the nature of Mandamus; declaring that 'the consent of Affiliation' has to be granted, in accordance with the Report of the Local Inspection Committee dated 14.07.2022 vide Annexure 'D' and Recommendation of the Committee of Academic Council dated 16.07.2022 vide Annexure-E and; the recommendation of the Syndicate of the Respondent No.1 vide Annexure-F be declared as arbitrary and unsustainable.3
II. Issue an appropriate writ, order or direction in the nature of Mandamus; directing the Respondent State to issue an NOC in terms of the recommendation of the Committee of Academic Council dated 16.07.2022 vide Annexure E and further be pleased to direct the Respondent No.2, National Medical Commission to consider for increase of intake; treating the 'consent of affiliation; to the extent of intake 'recommended' by the 'Committee of Academic Council' dated 16.07.2022 vide Annexure-E; and process the application of the petitioner for grant of permission for increase in intake as sought for.
III. Pass such other and further orders as this Court may deem fit and proper in the facts and circumstances of this case.
2. Heard Sri. M.R. Naik, learned Senior counsel appearing for the petitioners and learned counsel for respondent Nos.1 and 2 as well as learned AGA for respondent No.3 and perused the material on record.
3. In addition to reiterating the various contentions urged in the Memorandum of Petition and referring to the documents produced, learned Senior counsel for the petitioners invited my attention to the Notification dated 4 04.07.2022 issued by respondent No.1-Rajiv Gandhi University of Health Sciences (RGUHS) calling for fresh/additional course/intake in affiliation for medical post graduate(MD/MS/DM/M.ch) for the academic year 2023-24. Pursuant thereto, the petitioners submitted their application together with all necessary enclosures/documents for renewal of consent for affiliation as well as for increase in intake for PG degree courses for the academic year 2023- 24 in favour of the petitioners.
3.1 Upon the petitioners submitting the application referred to supra, respondent No.1-RGUHS issued an Official Memorandum dated 12.07.2022 appointing a local inspection committee (LIC) for the purpose of considering the application made by the petitioners. On 14.07.2022, the LIC team visited the petitioner-college and having found that all requirements were satisfied, issued a report dated 14.07.2002 recommending grant of fresh affiliation and increase in intake as sought for by the petitioners. In pursuance of the same, the Committee of Academic Council (CAC) of respondent No.1-RGUHS held a meeting on 16.07.2022 and also recommended affiliation and 5 increase in intake in terms of the recommendation of the LIC. It is the grievance of the petitioners that despite the aforesaid facts and circumstances and the material on record including the recommendations of the LIC and CAC, which have been taken into account, the Syndicate of the RGUHS has proceeded to take the impugned decision in its meeting dated 16.07.2022 not accepting the recommendations of the LIC and CAC in so far as the petitioner-College is concerned and as such, petitioners are before this Court by way of the present petition.
3.2 Learned Senior counsel for the petitioners, on instructions, submits that the petitioners do not intend to press its prayers/reliefs sought for in the present petition as against respondent No.2-National Medical Commission for the present and liberty may be reserved in favour of the petitioners to take recourse to such remedies as available in law including initiating fresh proceedings, if so advised.
In support of his contentions, learned Senior counsel places reliance upon the following decisions:
1) Comptroller and Auditor General of India, Gian Prakash, New Delhi and another Vs. K.S. Jagannathan and another - AIR 1987 SC 537;6
2) Mohinder Singh Gill and another Vs. Chief Election Commissioner, New Delhi and others - (1978) 1 SCC 405;
3) Harshith Agarwal Vs. Union of India - (2021) 2 SCC 710;
4) State of Maharashtra Vs. Indian Medical Association - AIR 2001 SCW 5023 and
5) St. Johns Teachers Training Institute Vs. Regional Director - (2003) 3 SCC 321.
4. Per contra, learned counsel for the respondents, in addition to reiterating the various contentions urged in the Statement of Objections submit that there is no merit in the petition and that the same is liable to be dismissed.
5. I have given my anxious consideration to the rival submissions and perused the material on record.
6. Before adverting to the rival contentions, it is necessary to refer to the legal principles enunciated by the Apex Court in the aforesaid judgments, which are as under:
6.1 In Mohinder Sing Gill's case (supra), it was held as under:7
" 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16] :
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."
6.2 In Comptroller and Auditor General of India's case (supra), it was held as under:
"18. The first contention urged by learned counsel for the appellants was that the Division 8 Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission--both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the appellants in the exercise of its jurisdiction under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. ITO [AIR 1966 SC 81 :
(1965) 3 SCR 536, 540] this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and 9 complicated requirements of this country." In Hochtief Gammon v. State of Orissa [(1975) 2 SCC 649 : 1975 SCC (L&S) 362 : AIR 1975 SC 2226 : (1976) 1 SCR 667, 676] this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the government or its officers.
19. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago, Martin, B., in Mayor of Rochester v. Regina [1858 EB & E 1024, 1032, 1034] said:
"But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen's Bench. That court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute: Comyn's Digest, Mandamus (A).... Instead of 10 being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable."
The principle enunciated in the above case was approved and followed in King v. Revising Barrister for the Borough of Hanley [(1912) 3 KB 518, 528-9, 531] . In Hochtief Gammon case [(1975) 2 SCC 649 : 1975 SCC (L&S) 362 : AIR 1975 SC 2226 : (1976) 1 SCR 667, 676] this Court pointed out (at p. 675 of Reports: SCC p. 656) that the powers of the courts in relation to the orders of the government or an officer of the government who has been conferred any power under any statute, which apparently confer on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Padfield v. Minister of Agriculture, Fisheries and Food [1968 AC 997] the House of Lords held that where Parliament had conferred a discretion on the Minister of Agriculture, Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and objects of the Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which 11 was a matter of law for the court and though there might be reasons which would justify the Minister in refusing to refer a complaint to a committee of investigation, the Minister's discretion was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere by an order of mandamus. In Halsbury's Laws of England, 4th Edn., vol. I, para 89, it is stated that the purpose of an order of mandamus is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the 12 object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 6.3 In Harshith Agarwal's case (supra), it was held as under:
"9. There is no dispute that on 6-9-2019 the first respondent lowered the qualifying cut-off percentile for NEET (UG) 2019 for admission to BDS course by 10.00 percentile for each category i.e. General, SC/ST/OBC and persons with locomotor disability of lower limbs. The Dental Council of India by a letter dated 28-12-2020 proposed that the percentile for admission to BDS course in dental colleges should be lowered by 20 percentile for each category. It was stated in the said letter that only 7,71,500 students qualified for 13 admission to MBBS/BDS, (UG) AYUSH and other UG medical courses for the year 2020-2021. It was made clear by the second respondent that the students qualified are not commensurate with the sanctioned admission capacity in different courses like MBBS, BDS, (UG) AYUSH and other UG medical courses. The second respondent informed the first respondent that there is shortage of the students for admission to BDS course and underlined the fact that vacant seats in professional courses would amount to national waste. However, the first respondent decided not to lower the minimum marks required for admission to BDS course. In this background, the correctness of the decision of the first respondent not to reduce the minimum marks for first year BDS course has to be examined."
6.4 In Indian Medical Association's case (supra), it was held as under:
"3) The management seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of University before the last day of October of the year preceding the year from which the permission is sought.
(5) Out of the applications recommended by the University, the Government may grant permission to such institutions as it may consider 14 right and proper in its absolute discretion, taking into account the Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of Health Sciences learning."
6.5 In St. John's Teachers Training Institute's case (supra), it was held as under:
"15. Sub-section (3) of Section 14 casts a duty upon the Regional Committee to be satisfied with regard to a large number of matters before passing an order granting recognition to an institution which has moved an application for the said purpose. The factors mentioned in sub- section (3) are that the institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education as may be laid down in the Regulations. As mentioned earlier, there are only four Regional Committees in the whole country and, therefore, each Regional Committee has to deal with applications for grant of recognition from several States. It is therefore obvious that it will not only be difficult but almost impossible for the Regional Committee to itself obtain complete particulars and details of financial resources, accommodation, 15 library, qualified staff, laboratory and other conditions of the institution which has moved an application for grant of recognition. The institution may be located in the interior of the district in a faraway State. The Regional Committee cannot perform such Herculean task and it has to necessarily depend upon some other agency or body for obtaining necessary information. It is for this reason that the assistance of the State Government or Union Territory in which that institution is located is taken by the Regional Committee and this is achieved by making a provision in Regulations 5(e) and (f) that the application made by the institution for grant of recognition has to be accompanied with an NOC from the State or Union Territory concerned. The impugned Regulations in fact facilitate the job of the Regional Committees in discharging their responsibilities.
18. Learned counsel for the appellants has also submitted that the impugned regulations have the effect of conferring the power of consideration of the application for the grant of recognition under Section 14 of the Act upon the State Government, as in the event of rejection of an NOC the application is not even registered by the Council. This contention no longer survives on account of a subsequent development. Shri M.N. Krishnamani, learned Senior Counsel appearing for the respondents, has submitted that the Council has 16 made fresh regulations on 13-11-2002 which are known as the NCTE (Form of Application for Recognition, the Time of Submission of Application, Determination of Norms and Standards for Recognition of Teacher Education Programmes and Permission to Start New Course or Training) Regulations, 2002. Regulation 6 thereof reads as under:
"6. Requirement of no-objection certificate from the State Government/UT Administration.--(i) Application from every institution seeking recognition to start a course or training in teacher education or from an existing institution seeking permission to start a new course or training and/or increase in intake shall be accompanied by a no-objection certificate (NOC) from the State or Union Territory in which the institution is located.
(ii) The endorsement of the State Government/UT Administration in regard to issue of no-objection certificate (NOC) will be considered by the Regional Committee while taking a decision on the application for recognition.
(iii) If NOC issued by the State Government/UT Administration does not indicate the intake, it will be for the Regional Committee to determine the intake taking into account the infrastructural and instructional facilities available in the institution and other relevant provisions in the norms and standards applicable to the relevant teacher training programme.
(iv) NOC issued by the State Government/UT Administration will remain valid till such time the State 17 Government/UT Administration withdraws/cancels it.
(v) NOC will be deemed to have lapsed if the institution fails to get recognition within three years from the date of its issue.
(vi) Requirement of NOC shall not apply to government institutions.
(vii) Requirement for NOC shall not apply to university department for taking up innovative teacher education programme for a maximum intake of 50 (fifty only). The question as to whether a programme is innovative will be decided by the Regional Committee concerned."
19. Regulation 6(ii) of these Regulations provides that the endorsement of the State Government/Union Territory Administration in regard to issue of NOC will be considered by the Regional Committee while taking a decision on the application for recognition. This provision shows that even if the NOC is not granted by the State Government or Union Territory concerned and the same is refused, the entire matter will be examined by the Regional Committee while taking a decision on the application for recognition. Therefore, the grant or refusal of an NOC by the State Government or Union Territory is not conclusive or binding and the views expressed by the State Government will be considered by the Regional Committee while taking the decision on the application for grant of recognition. In view of these new Regulations the challenge raised to the validity of Regulations 5(e) and (f) has been 18 further whittled down. The role of the State Government is certainly important for supplying the requisite data which is essential for formation of opinion by the Regional Committee while taking a decision under sub-section (3) of Section 14 of the Act. Therefore no exception can be taken to such a course of action.
21. Learned counsel for the appellant has strongly urged that in some cases the State Government has sat over the matter for a very long period without taking any decision either to grant an NOC or declining to grant the same and on account of this inaction of the State Government the application moved by the institutions before the Regional Committee was not even registered for consideration and thereby the right of the appellants to establish an institution for teachers' training or starting a course in teacher education was completely defeated. There can be no manner of doubt that the State Government must take a decision on the application moved by an institution for grant of an NOC within a reasonable time. If the State Government does not take a decision within a reasonable time it will obviously defeat the right of an institution to have its application considered by the Regional Committee. It will therefore be proper that the Council frames appropriate regulations fixing the time-limit within which a decision should be taken by the State Government on the 19 application moved by an institution for grant of an NOC. In the present cases, we are of the opinion that till such regulations are made the decision should be taken by the State Governments within four months, failing which it shall be deemed that the NOC has been granted."
7. If the facts and circumstances obtaining in the instant case are examined, bearing in mind the aforesaid principles, the undisputed material on record clearly establishes that both the LIC and CAC of the RGUHS recommended grant of fresh affiliation and increase in intake in favour of the petitioner-Institution after coming to the categorical conclusion that all requirements, infrastructure etc., had been satisfied and fulfilled by the petitioners. In fact, a perusal of the reports of the LIC and CAC will also indicate that no shortcomings/deficiencies have been pointed out by either the LIC or CAC, who have come to the definite and specific conclusion that the petitioners are entitled to increase in the intake and a fresh affiliation as sought for by it. In this context, a perusal of the impugned decision of the Syndicate of the RGUHS will clearly establish that the same is completely and totally a 20 non-speaking, unreasoned, laconic, cryptic, illegal and arbitrary decision which has been made without any application of mind or assigning any cogent or valid reasons as to why the recommendations made by the LIC and CAC should not be accepted and the impugned decision being contrary not only to principles of natural justice but also to the procedure prescribed under Section 45 of the RGUHS Act, the same deserves to be quashed on this ground alone.
8. A perusal of the impugned decision taken by the Syndicate in so far as the petitioner-Institution is concerned will also indicate that despite specifically noticing and stating that there were no deficiencies in the LIC reports and CAC proceedings in so far as the petitioner-Institution is concerned, has illegally and arbitrarily and without assigning any reasons whatsoever declined to accept the said reports, proceedings, recommendations etc., of the LIC and CAC and consequently, the impugned decision of the Syndicate of RGUHS deserves to be quashed on this ground also.
21
9. Interestingly, a perusal of the impugned decision of the Syndicate of the RGUHS will also indicate that despite noticing that there were deficiencies in the reports of the LIC and CAC in respect of other colleges, in particular, Government Colleges, the recommendations made in this regard have been accepted by the Syndicate thereby indicating that different yardsticks/criteria have been adopted by the RGUHS while deciding the grant of fresh affiliation and increase in intake and on this score also, the impugned decision in so far as the petitioner- Institution is concerned, is discriminatory, unjust, irrational, unfair and arbitrary and the same deserves to be quashed and necessary directions in this regard are to be issued to the respondents in this regard.
10. Learned Senior counsel for the petitioners is also correct in his submissions that despite the petitioners submitting a representation dated 19.07.2022 to the RGUHS requesting reconsideration of its decision in the light of the material on record, the RGUHS did not consider 22 the same and consequently, necessary directions are to be issued to respondent No.1-RGUHS in this regard also.
11. In the result, I pass the following:
ORDER
(i) The petition is hereby allowed.
(ii) The impugned decision taken in the meeting of the Syndicate of RGUHS-respondent No.1 at Annexure-F dated 16.07.2022 is hereby quashed in so far as petitioner No.1-College is concerned.
(iii) Respondent No.1-RGUHS is hereby directed to take a fresh decision with regard to the application submitted by the petitioners as well as address the grievance of petitioners -
Institution including the representation dated 18.07.2022 bearing in mind the report of the Local Inspection Committee dated 14.07.2022 and the report of the Central Academic Council dated 16.07.2022 vide Annexures-D and E respectively, in accordance with law, as expeditiously as 23 possible and at any rate within two weeks from the date of receipt of a copy of this order.
(iv) Immediately upon taking the decision as stated supra, the RGUHS shall forward/communicate the same to respondent No.3-State of Karnataka within a period of one week from that date of taking such decision by the RGUHS.
(v) Immediately upon receipt of the decision of the RGUHS as stated supra, respondent No.3-State of Karnataka shall proceed further and take appropriate decision and pass suitable orders in accordance with law, as expeditiously as possible and at any rate, within a period of ten days from the date of receipt of decision of the RGUHS.
(vi) In view of the submission made on behalf of the petitioners as regards respondent No.2- National Medical Commission, the reliefs sought in the present petition as against 24 respondent No.2 are hereby rejected as not pressed with liberty to initiate fresh proceedings in this regard,
(vii) It is needless to state that both respondent No.1 and respondent No.3 shall comply with the directions issued in this order bearing in mind the judgments of the Apex Court referred to supra, in the body of this order.
Sd/-
JUDGE Bmc/Srl.