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[Cites 11, Cited by 0]

Gujarat High Court

Rishiraj Education Foundation vs Union Of India on 20 February, 2021

Author: Biren Vaishnav

Bench: Biren Vaishnav

              C/SCA/1292/2021                           CAVORDER




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
                 R/SPECIALCIVILAPPLICATIONNO. 1292of 2021
==========================================================

RISHIRAJEDUCATIONFOUNDATION Versus UNIONOF INDIA ========================================================== Appearance:

MR. DHAVALDAVE,SENIORCOUNSELWITHUDITN VYAS(9255)for the Petitioner(s)No. 1 MR. SIDDHARTHDAVE,ADVOCATEFORMRDEVANGVYAS(2794)for the Respondent(s) No. 1,2 NOTICESERVED(4)for the Respondent(s)No. 3 ========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date: 20/02/2021 CAVORDER 1 By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 11.01.2021 by which the Aarya­Veer Homeopathic Medical College at Kuvadva, Rajkot, has been denied permission for taking admission in B.H.M.S Course with intake capacity of 100 seats for A.Y 2020­2021.
2. The facts in brief are as under:
* The Petitioner is a public trust. It inter alia runs a college in the name of Arya­Veer Homoeopathic Medical College ("College" for short). The College is engaged in imparting education in the discipline of Homoeopathy at the level of graduation leading to the qualification of B.H.M.S. The College was established in the academic year 2017­18 with the intake capacity of 100 seats. Page 1 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021
C/SCA/1292/2021 CAVORDER * 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.
* Thereafter, the College received from Respondent No. 1 the hearing notice dated 28th October, 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.
* 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. * Thereafter, the College was served with the impugned order dated 11th January, 2021 passed by Respondent No. 1. Vide this order the College was denied extension of permission for the academic year 2020­21.
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             C/SCA/1292/2021                      CAVORDER




3    Mr.Dhaval Dave, learned Senior Advocate with Mr.Udit Vyas,
learned advocate for the petitioner submits that the impugned order passed by Respondent No. 1 is wholly unsustainable and would make the following submissions:
* 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 upon appreciation of the observations of the Designated Hearing Committee of Respondent No.1 which heard the College. Needless to mention that if the observations of the Designated Hearing Committee were to be again assessed by someone in the set up Respondent No.1 who was not part of the Designated Hearing Committee for coming to the final conclusion, hearing accorded to the College became an empty formality. This completely vitiates the impugned order. Reliance is placed on a decision of the Apex Court in the case of Parul University V/s Union of India & Anr. 2017 SCC Online Guj 77 -Paragraphs 30 & 31, SLP (C) 1390­1391 preferred against the same rejected Page 3 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021 C/SCA/1292/2021 CAVORDER vide order dated 5th February, 2018.
* The impugned order is a non­speaking order in true sense. Because no reasons are assigned in the impugned order for not subscribing to the observations of the Designated Hearing Committee which accepted the explanation submitted by the College in respect of the alleged deficiencies. * 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. Reliance is placed on a decision of the Apex Court in the case of Hindustan Petroleum Corporation V/s Darus Shapur Chenai & Ors. (2005) 7 SCC 627 - Paragraphs 24 to 27.

* 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.



*     The first deficiency alleged against the College is with regard



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             C/SCA/1292/2021                       CAVORDER

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 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.

* The second deficiency alleged against the College is with regard to in all eleven 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 eleven 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 Page 5 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021 C/SCA/1292/2021 CAVORDER Designated Hearing Committee did not find it necessary. Needless to mention that once the person whose signature is doubted confirms the same, the doubt has to end. Further, the signature matching demands expertise to reach any conclusion thereon. Reliance is placed on a decision of the Apex Court in the case of Thiruvengadam Pillai V/s Navaneethammal & Anr. (2008) 4 SCC 530 - Paragraph 16.

* Further, barring two new appointees, the rest nine from the aforesaid eleven teachers were with the College in the previous academic year 2029­20. Accordingly, during the inspection for the academic year 2019­20 they were confirmed as teachers working in the College.

* Without prejudice to the aforesaid, even if the impugned order was warranted, the impugned order would fail to hold the field for not following the procedure mandated by section 19 of the Homoeopathy Central Council Act, 1973.

* 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 Page 6 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021 C/SCA/1292/2021 CAVORDER rather than denying extension of permission. Hence, the alleged deficiencies, though not in existence as aforesaid, even if presumed to be there, warranted time to the College to rectify rather than the impugned order. Reliance is placed on a decision of the Apex Court in the case of Royal Medical Trust V/s Union of India (2015) 10 SCC 19 - Paragraph 29.

* 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 a decision of the Apex Court in the cases of Jagat Narain Subharti Charitable Trust & Anr. V/s Union of India & Ors. (2017) 16 SCC 666) - Paragraph 16 & Kanachur Islamic Education Trust V/s. Union of India (2017) 15 SCC 702 - Paragraphs 18 to 20. * 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 the said judgments can never be construed as laying down an absolute proposition of Page 7 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021 C/SCA/1292/2021 CAVORDER 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. * 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 a decision of the Apex Court in the case of Deoraj V/s State of Maharashtra (2004) 4 SCC 697 - Paragraph 12.

3 Mr.Siddharth Dave, learned advocate would support the order denying the permission and make the following submissions:

* Mr.Siddharth Dave would submit that the order impugned in the petition is just and proper. He would invite the attention of the Court to the regulations i.e. MSR, 2013. He would submit that Regulation 3(1) requires the college to fulfill the minimum Page 8 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021 C/SCA/1292/2021 CAVORDER standards in context of teaching facilities referred to in Regulations 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 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 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 Page 9 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021 C/SCA/1292/2021 CAVORDER respond and the authority found them to be insufficient compliance. The order therefore cannot be said to be an unreasoned order.
* 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 submitted that the order was not bad as institutional hearing is 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 submit that the decision of Parul University v. Union of India reported in 2017 SCC OnLine Guj 77, was not applicable. He would reiterate that Kanachur (supra) was considered in Royal Medical Trust and Another v. Union of India and Another reported in [(2017) 16 SCC 605], where it was held that the judgment applies in the facts of the case. He would rely on paras 26 to 33 thereof. Mr.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. Page 10 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021
C/SCA/1292/2021 CAVORDER Reliance was also placed on the decision in case of Manoharlal Sharma v. Medical Council of India 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 The following deficiencies are made out in the impugned order which reads as under:

"

1. Details of IPD/OPD and other details are available on the college website: www.avhmch.org at the time of hearing.

2. College has submitted declaration vide Ref. No. AVHMC/2020­21/158 dated 07/11/2020 duly signed by the Principal of the institution mentioning there is no employee in the Institution who is under the minimum limit of salary covered under the EPFO Act.

3. Notarized affidavits obtained from the individual teachers declaring signatures on the different documents are their only have been submitted by the college in respect of mismatching of the signatures in different documents.

4. List of 18 Part time teachers was submitted by the college.

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C/SCA/1292/2021 CAVORDER Ministry's observations as recorded in the impugned order dated 11th January, 2021 for passing the impugned order.

1. Notarized affidavit submitted by the aforesaid Teaching Faculties/ College stating that the signature on affidavit in presence of notary and on the documents uploaded on the teachers code are mine only. However, CCH has observed discrepancies in their affidavit and other documents, thus considered 'teachers on paper' only, hence, in this connection, on the basis of observation of the CCH, it appears that the teaching faculty are not regular at college and some proxy has been signing on their behalf at the College. Since the teachers are direct beneficiary of this proxy signature arrangement, therefore they have given affidavit that different signatures on different are their only.

2. Therefore, Ministry stands with the recommendation and observation of the CCH, which is the Regulator and has NOT considered these teachers as eligible regular teacher in the college."

5.1 With regard to the first deficiency, it has been rightly pointed out that the college does not come under the compulsory EPF criteria at all as the employees draws salary much above Rs.15,000/­. Aa far as ESI Act is concerned, that is not applicable to educational institutions in Gujarat. Even it is not the case of the authorities that the institution has been held by the competent authorities under the Act for a breach thereof. 5.2 with regard to the second deficiency, reading of the Page 12 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021 C/SCA/1292/2021 CAVORDER impugned order would indicate that 11 teachers were found to be ineligible due to discrepancies in their affidavits and signatures. What is evident from the explanation given by the college before the designated hearing committee is that the teachers filed affidavits confirming their signatures on all the documents. There was therefore no reason why the hearing committee could have discarded this. This submission of Shri Dhaval Dave, learned Senior Advocate, needs to be accepted in view of the decision in the case of Thiruvengadam Pillai (supra). These teachers atleast nine of them were also in the college in the previous academic year 2019­

20. Perusal of the observations made by the Ministry in the impugned order would indicate that the only reason given is that the deficiency was considered as "Teachers on paper". The order does not reflect the consideration placed before the Hearing Committee with regard to the material placed by the teachers confirming their signatures. Even otherwise, they were not deficiencies or mistakes which could be treated as non rectifiable. 6 Accordingly, the order dated 11.01.2021 is quashed and set aside. Petition allowed in terms of para 32(a).

(BIRENVAISHNAV,J) BIMAL Page 13 of 13 Downloaded on : Sun Feb 21 08:04:55 IST 2021