Gujarat High Court
Limbdi Vikas Trust vs Union Of India on 15 February, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1769 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA Sd/-
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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 ?
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LIMBDI VIKAS TRUST
Versus
UNION OF INDIA
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Appearance:
MR UDAYAN P VYAS(1302) for the Petitioner(s) No. 1,2,3
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 2,3
MR. KM ANTANI(6547) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1,5,6
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 15/02/2023
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Harsheel D. Shukla waives service of notice of rule on behalf of respondent nos.2 and 3 and Page 1 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 learned advocate Ms.Krishna Raval waives service of notice of rule on behalf of respondent no.1.
2. By this petition under Article 226 of the Constitution of India, the petitioners have challenged three orders passed by the respondent no.3-Medical Assessment And Rating Board, respondent no.2-National Commission for Homeopathy and respondent no.1-Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH) rejecting the application of the petitioner to permit admission of the students for the Academic Year 2022-23.
3. The brief facts of the case are as under:
3.1. The petitioner no.1 is formed and registered as Public Trust on 30.04.1999 under the Provisions of Bombay Public Trusts Act, 1950.
3.2. The petitioner no.1-Trust is running and managing Homeopathic Medical College under the name and style of "Limbdi Homeopathic Medical College and Hospital" at Limbdi that is petitioner no.2 herein. The petitioner no.2- Page 2 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023
C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 College is affiliated with Saurashtra University.
3.3. The petitioner no.1 established a new Homeopathy College on 30.04.2015 under Section 12 A of the Homeopathy Central Council Act, 1973 and permission was sought to start new college in the discipline of Homeopathy at the level of graduation with an intake on 100 seats on and from the Academic Year 2016-17.
3.4. The application of the petitioner College was declined by the order dated 19.10.2016 passed by the Central Government. The petitioner therefore approached to this Court and the Division Bench of this Court by order dated 08.03.2017 allowed the Letters Patent Appeal preferred by the petitioner quashing and setting aside the order dated 19.10.2016 passed by the Central Government.
3.5. By letter of permission dated 28.05.2019 for the Academic Year 2017-18 and by letter of permission dated 06.11.2018 for the Academic Year 2018-19 and by letter of permission dated 02.07.2019 for the Academic Year 2019-20, permissions were granted by the Ministry of Ayush, Central Government for admitting new students in the first year by the petitioner no.2-College.
Page 3 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 3.6. For the Academic Year 2020-21, by order dated 28.01.2021 passed by the Director on behalf of the Central Government denied the permission to the petitioner no.2- College for admission of students for B.H.M.S. at an undergraduate level in respect of intake of 100 seats.
3.7. This Court by order dated 20.02.2021 in Special Civil Application NO.3637 of 2021 granted interim relief whereby the order dated 28.01.2021 was stayed and the petitioner no.2- College was permitted to admit the students with an intake of 100 seats for Academic Year 2020- 21, the said petition is pending for final hearing.
3.8. For the Academic Year 2021-22 by order dated 24.03.2022, Central Government confirmed the order dated 07.02.2022 passed by the National Commission for Homeopathy confirming the order dated 16.12.2021 passed by the Medical Assessment and Rating Board for Homeopathy reducing the intake capacity from 100 seats to 60 seats while granting extension of the permission for admission to the petitioner no.2 College.
3.9. The petitioner therefore being aggrieved by reduction of intake capacity preferred Special Page 4 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 Civil Application No.3737 of 2022 before this Court and by judgment and order dated 31.03.2022, this Court allowed the said petition quashing and setting aside the orders passed by the respondent nos.1 to 3 with a direction to grant permission for admission with an intake capacity of 100 seats in B.H.M.S. Course in the petitioner no.2-College.
3.10. Thereafter it appears that on 03.09.2022 a surprise inspection was carried out by three members committee on behalf of the Medical Assessment and Rating Board for Homeopathy (For short "the Board") for the Academic Year 2022-23 at the petitioner no.2-College and forwarded the report to the Board without providing a copy of the such report to the petitioners.
3.11. The petitioner nos.1 and 2 submitted a proforma application online on 07.09.2022 to the Board followed by physical submissions of the same seeking extension of permission for admission to BHMS Course with an intake of 100 seats for the academic year 2022-23.
3.12.The respondent No.3 issued a notice dated 25.10.2022 for hearing and fixing the hearing pursuant to the application made by the petitioners for seeking extension of permission for intake of 100 seats for admission to the Page 5 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 BHMS Course for the academic year 2022-23 and called upon the petitioners to respond to the deficiencies noted by the Board as per the provisions of National Commission for Homeopathy Act, 2020 ('the Act' for short) and the relevant Rules and Regulations made thereunder fixing the date of hearing on 27.10.2022 through video conference.
3.13. On 27.10.2022, the representative of the petitioner No.1 and the petitioner No.2 appeared online for hearing before the Board and explained in detail the reasons and justification in response to the deficiencies raised in the notice of hearing and substantiated its claim as to why the permission for admission should be granted to the petitioner No.2 College for intake capacity of 100 seats for admission of the students for Academic Year 2022-23.
3.14. On 30.10.2022 the written explanation in form of compliance report together with all documentary evidence and other supporting documents in respect of each of the deficiencies raised in the notice for hearing were furnished online to the Board.
3.15.The respondent No.3 Board by order dated 11.11.2022 denied the permission for admission Page 6 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 to the students with an intake capacity of 100 seats in BHMS Course for the Academic Year 2022-
23. 3.16.The petitioner No.2 therefore, preferred First Appeal before the National Commission for Homeopathy under section 24(3) of the Act on 05.12.2022, which was also rejected by an order dated 29.12.2022 reiterating the decision of the Board for denial of the permission to the petitioners for admission of students for BHMS Course for Academic Year 2022-23.
3.17.The petitioner, thereafter, preferred Second Appeal on 02.01.2023 under section 9(6) of the Act, 2020 before the respondent No.1-AYUSH. The petitioner at that stage filed this petition. During the pendency of this petition, the respondent No.1-AYUSH passed an order dated 02.02.2023 rejecting the Second Appeal of the petitioner and confirming the order dated 11.11.2022 passed by the respondent No.3 and order dated 29.12.2022 passed by the respondent No.2 on the ground that serious deficiencies exist on the part of the petitioner.
3.18. The respondent No.1 while rejecting the Second Appeal had made the overall observations in the impugned order dated 02.02.2023 as under:
"Overall observation:Page 7 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023
C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023
1. Total teaching staffs could not be verified, as college has not provided certified copy of account transfer of salary through bank.
2. It is observed that Order for examination issued by college has no dispatch/reference number thus, originality is doubtful and thus, clarification for absence of staff on the day inspection cannot be considered.
3. As per submission of the college the teaching faculties were attending examination duty or Ganesh Utsav so genuine presence of teacher is doubtful.
4. The submitted document does not ascertain that the camp was being conducted on 03.09.22.
5. Leave letter of staff is of 17/11/2022.
However, hearing was on 27.10.2022 so the presence of staff could not be ascertained.
6. The experience claimed by Dr. Sweta Mehra till 2022 in Pandit Jawahar Lal Nehru Homoeopathic Medical college, Amravati, Maharashtra is false, as the College is non- functional from 2017 onwards.
7. It is observed that all the registers submitted by the college does not have total pages also pages are not numbered and the test results reported in the pathology lab register, X-ray register & USG register have non-medical terms (layman terms) which cannot be considered as the college is a Medical college which creates doubts for its hospital functionality."
3.19 The above observations are made after considering the submissions made by the resubmission of the petitioner No.2 College.
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4. Learned senior advocate, Mr.Dhaval Dave submitted that the observations made by the respondent Nos.1 to 3 are on the face of it without any substance inasmuch as the respondent-petitioners have submitted all the details before the respondents in respect of each of the seven deficiencies which were pointed out by the Board at the first instance in notice dated 25.10.2022.
5. It was submitted that the respondent nos.1 to 3 have found the deficiencies of the petitioners inspite of the fact that the petitioners have submitted all the details before the respondents from the day one.
6. It was submitted that the petitioners were also not provided with the copy of the inspection report dated 03.09.2022 nor the same is placed before this Court for perusal. Learned senior advocate, Mr.Dave submitted that this Court has time and again held that the copy of the inspection report is required to be provided to the petitioners so as to enable the petitioners to meet with the observations qua deficiencies made by the inspection team so as to rectify the deficiencies pointed out in the report.
7. Learned senior advocate, Mr.Dave has thereafter Page 9 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 referred to each of the deficiencies which were considered by the respondent authorities and submitted that none of the deficiencies would suggest that the same is not rectifiable. He invited the attention of this Court to each of the deficiencies which are pointed out by the respondent no.3 Board and the explanation considered by the respondent Nos.1 and 2 as referred to in the order dated 02.02.2023 passed by the AYUSH as under:
"Shortcomings of the college and observations:
I. Shortcoming observed by NCH: Total teaching staffs could not be verified, as college has not provided certified copy of account transfer of salary through bank.
Resubmission of College: We had submitted certified copy of bank receipt of staff salary. We are resubmitting it for your kind perusal along with bank debit details of salary in passbook. We are resubmitting Form- 16 of all staffs.
Observation of Central Government: On examining the submission made by the college at the time of second appeal and documents received from NCH the observation is as under:
The College has submitted Bank statement of staff only from May 2022- November 2022, not for the full academic year. On random examination of documents submitted, it is observed that in the month of June, college submitted a consolidated salary transfer of Salary of College staff for the month of June from SBI to Union Bank of India. However, College not submitted any document for individual disbursement of this consolidated Page 10 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 amount for distribution as individual salary for College staff. Consolidated salary disbursement is not sufficient to clarify whether individual staff got any salary or not. Further, College also submitted one acquittance register of June 2022 wherein salary was distributed to teaching, non-teaching and Hospital staff, for this no bank statement is provided. Names of staff is entirely different in salary distribution for consolidated salary distribution and in acquittance register, so for staff where bank statement given- individual disbursement not provided and for those staff where individual disbursement given- bank statement was not provided. Similarly, in month of August 2022, bank statement for consolidated transfer of salary of Hospital staff provided, No individual disbursement of salary to Hospital staff provided and few staff like teaching, non- teaching staffs' Acquittance register provided, their bank statement not provided. Therefore these documents can not be accepted as valid documents for salary transfer. Hence, deficiency persists.
II. Shortcoming observed by NCH: It is observed that Order for examination issued by college has no dispatch/reference number thus, originality is doubtful and thus, clarification for absence of staff on the day inspection cannot be considered.
Resubmission of College: There is Supplementary theory examination conducted by Saurashtra University, Rajkot from 22/08/2022 to 30/08/2022 copy of University time table attached herewith. Then Viva examination was conducted from 01/09/2022 to 05/09/2022 as per schedule of Saurashtra University with reference number, date and sign of authority. Previously we had submitted examiner's order and faculty duty list but due to typing error reference number was not in order but that entry was made in outward register. Copy of outward register with reference number we are submitting herewith for your kind perusal. Copy of theory exam time-table, viva-exam time table Page 11 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 along with duty list of college faculty and examiner's orders attached herewith for your kind perusal. In written submission to NCH appeal dated: 05/12/2022 we had submitted copy of faculty attendance register, acquaintance roll and biometric details in relevant annexure.
Observation of Central Government: On examining the submission made by the college at the time of second appeal and documents received from NCH the observation is as under:
The college submitted one office order by College itself with no dispatch/reference number, originality of this document is doubtful. Outward register not submitted during initial submission to MARB of NCH, it is submitted after hearing. Thus it has been created as an afterthought and, cannot be accepted at this stage. Further, the observation of Inspectors during Physical inspection cannot be denied. Hence, deficiency persists.
III. Shortcoming observed by NCH: As per submission of the college the teaching faculties were attending examination duty or ganesh utsav however, visiting team has not reported of examination being conducted in the college itself in its report also that the college could have made the presence of teaching staff as the examination and ganesh utsav was being conducted in the college itself so genuine presence of teacher is doubtful.
Resubmission of College: Examination duty staffs were available in their concern duty departments allotted by Principal for conducting smooth examination and presence of teaching faculty in Ganesh Utsav was authenticated by letter of Mota Mandir Trust. Also we had submitted the copy of College Council meeting resolution for celebration of Ganpati Utsav as a part of Sports & Extracurricular activities attached herewith.Page 12 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023
C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 As we have informed before that visitation team was in hurry to leave the campus due to their flight around 6:00 pm from Ahmedabad, so they had asked to show only affidavits and list of faculty in the college which we had presented to them. Consequently, no demand of staff gathering in office for face presentation we have tried to attend the inspection team and provided as much as they have asked. In written submission to NCH appeal dated: 05/12/2022 we had submitted copy of faculty attendance register, acquaintance roll and biometric details in relevant annexure. Photographs of Ganesh Utsav with faculties and students attached herewith.
Observation of Central Government: On examining the submission made by the college at the time of second appeal and documents received from NCH the observation is as under: College submitted that Examination duty staffs were available in their concern duty departments allotted by Principal for conducting smooth examination But On day of Inspection, there was examination of Physiology and Community Medicine, but no teaching faculties were available_in Department of Physiology and Community Medicine, Pictures submitted by College are of Ganesh Utsav are not sufficient enough to justify absence of teachers from teaching duty. Further, the observation of Inspectors during Physical inspection cannot be denied. Hence, deficiency persists.
IV. Shortcoming observed by NCH: The submitted document does not ascertain that the camp was being conducted on 03.09.22 also any other document such as photographs of camp are not available to justify the submission.
Resubmission of College: Certificate of appreciation has been given by concern Panchayat authority for the presence of staff in the camp. Also we are submitting copy of letter which was sent to inform regarding camp.Page 13 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023
C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 date to concern village herewith for your kind perusal along with camp photographs.
Observation of Central Government: On examining the submission made by the college at the time of second appeal and documents received from NCH the observation is as under: There is no reference no. on copy of letter of college which was sent to Sarpanchshri to inform regarding camp, no reference numbers on any of documents submitted by Untadi Village Panchayat or by Borna Village Panchayat which raises doubt on the authenticity of these documents. Thus, cannot be considered. Further, mere submission of photographs cannot substantiate the claim of college as the observation of Inspectors during Physical inspection cannot be denied. Hence, deficiency persists.
V. Shortcoming observed by NCH: Leave letter of staff is of 17/11/2022. However, hearing was on 27.10.2022 so the presence of staff could not be ascertained.
Resubmission of College: There was no leave report dated 17/11/2022 submitted by us. This date is only match with Dr. Taimim Khadawale's Joining letter in our submission. Copy of Diwall vacation circular given by Saurashtra University we had submitted before and resubmitting herewith which stated that Diwali vacation was from 20/10/2022 to 31/10/2022. We came to know about online hearing on dated 26/10/2022 as we received mail on 25/10/2022 at 4:26 pm on the day of DIWALI. On dated 27/10/2022 was "Bhai-Duj" still we had tried to arrange and represent necessary information before hearing committee.
Observation of Central Government: On examining the submission made by the college at the time of second appeal and documents received from NCH the observation is as under: College submitted Circular & list of holidays for Page 14 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 academic year 2022 of Saurashtra University. These holidays might be applicable to College but should not be applicable to the Hospital, as hospital is always functional, at least with the minimal staff on the days of holidays. Hence, deficiency persists.
VI. Shortcoming observed by NCH: It is observed that the college Pandit Jawahar Lal Nehru Homoeopathic Medical college, Amravati, Maharashtra is non-functional from 2017 onwards therefore the authenticity of the experience claimed by Dr. Sweta Mehra till 2022 could not be established.
Resubmission of College: We have already appointed extra faculty in Department of Surgery named Dr. Taimim Khadakwale as an Associate Professor on dated: 17/11/2022. Qualified and experience and all other required documents along with affidavit are attached herewith. Pandit Jawaharlal Nehru Homoeopathic Medical College, Amravati had court order dated: 18/11/2022 to continue 100 students' education till date and the hall tickets of 3rd and Final year B.H.M.S examination students of that college we have attached herewith for assurance of working college in respect of her experience letter of Dr. Sweta Mehra till 2022. Hence, she was staff in continued college in her previous experience.
Observation of Central Government: On examining the submission made by the college at the time of second appeal and documents received from NCH the observation is as under:
College appointed new faculty in Department of Surgery named Dr. Taimim Khadakwale as an Associate Professor on 17/11/2022, i.e. after issue of denial of permission by MARB of NCH. Thus, cannot be accepted for 2022- 23. Further, Pandit Jawahar Lal Nehru Homoeopathic Medical college, Amravati, Maharashtra is non- functional from 2017 onwards therefore the the experience claimed by Dr. Sweta Mehra till 2022 is False. Hence, deficiency persists.Page 15 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023
C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 VII. Shortcoming observed by NCH: It is observed that all the registers submitted by the college does not have total pages also pages are not numbered and the test results reported in the pathology lab register, X-ray register & USG register have non-medical terms (layman terms) which cannot be considered as the college is a Medical college which creates doubts for its hospital functionality.
Resubmission of College: We have certified all register and total number of registers has been mentioned in certificates which we are submitting herewith. Lab register, X-Ray register and USG register entries has been done by lab attendant by oral order by Technician. But it's result are maintain by Pathologist & Radiologist. Copy of concern registers attached herewith for your kind perusal.
Observation of Central Government: On examining the submission made by the college at the time of second appeal and documents received from NCH the observation is as under: All the registers submitted by the college do not have total pages. College submitted data of X-ray, USG and Pathology lab register and numbered it from 1 onwards, it is not in continuation for the whole academic year. Thus these does not appear as genuine registers. Further, test results reported in the X-ray register & USG register have non-medical terms (layman terms) which cannot be accepted as the college is a Medical college which creates doubts for genuine functionality of hospital. Hence, deficiency persists."
8. Referring to the above observations of the Central Government, it was submitted that though the petitioners have submitted all the details, the adverse inferences have been drawn by taking a hyper technical approach. It was submitted that so far as first deficiency with regard to the non-verification Page 16 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 of the teaching staff is concerned, the petitioner no.2- College had already submitted all the details with regard to the Bank Statements for the payment made to the teaching staff, however, it is observed by the respondent No.1 authority that as the amount is transferred from one Bank account to another Bank account and no document for individual disbursement of the consolidated amount as individual salary for the College staff was submitted. The conclusion is arrived at that the teaching staff is not verifiable. It was submitted that such observations made in the impugned order are contrary to the documents placed on record inasmuch as the inspection team could have called all the teaching staff for physical verification during the course of inspection so as to conduct the identification parade, but no such effort was made by the inspection team and only on the basis of the documents, an adverse inference is drawn without any basis.
9. With regard to the second deficiency, it was pointed out that though the staff was engaged for examination when the inspection was carried out for examination duty, the same was not believed because the letter of the University did not have the outward number. It was submitted that the respondent without any basis and without verification from the University has arrived at the conclusion that in absence of outward number on the letter, the staff Page 17 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 of the petitioner No.2- college could not have been present on the examination duty and such letter was shown and as a result adverse inference was drawn that there was no adequate teaching staff.
10. With regard to third deficiency, it was submitted that the teaching staff was engaged in 'Ganesh Utsav' was also not believed inspite of the submission of the letter from the panchayat and photographs of the students and teachers in such festival on the date of the inspection. It was therefore submitted that the respondent authorities have without any basis drawn adverse inferences and doubted the intention of the petitioner-College of having the sufficient number of teaching staff.
11. With regard to the leave letter of the staff dated 17.11.2022 it was submitted by the learned senior advocate, Mr.Dave that there is no leave letter of dated 17.11.2022, but it was an appointment letter of dated 17.11.2022 of one of the faculty member and there was a vacation on 27.10.2022 and the staff was on leave because of the Diwali vacation. It was therefore submitted that the adverse inference drawn that the hospital could not have been closed during Diwali, it was pointed out that there is no observation by the Board, Commission or the AYUSH that there was no staff available during the period when the inspection was carried out, but it was observed that majority of Page 18 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 the staff was on leave. In such circumstances, the adverse inference drawn by the authorities is without any basis.
12. It was further submitted that as the experience claimed by Dr.Sweta Mehra till 2022 was not believed by the respondent nos.1 to 3, the another faculty member is appointed on 17.11.2022, but the same was not believed because such faculty member was appointed after the date of inspection. It was submitted that the petitioners have rectified the deficiency and therefore it ought to have been considered by the respondent authorities.
13. It was submitted that all the infrastructure facilities are available in the college as well as the hospital and the adverse inference drawn by the respondent authorities is without any basis as the respondents have continued the affiliation of the college and permission to run the 2nd, 3rd and 4th Year of the BHMS Course is not withdrawn and therefore it cannot be said that the infrastructure facility is not available for the 1st year and the same is available for the 2nd, 3rd and 4th year of the BHMS Course. It was therefore submitted that the impugned orders passed by the respondent nos.1 to 3 authorities suffer from non-application of mind and are perverse in nature. It was submitted that in Page 19 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 such circumstance, all the three orders are required to be quashed and set aside.
14. On the other hand, learned advocate Mr.Harsheel D. Shukla for the respondent nos.2 and 3 supported the orders passed by the respondent authorities and submitted that serious deficiencies existed on the date of inspection on 03.09.2022 and in view of such deficiencies, the respondent authorities have rightly denied the permission to the petitioner no.2-College to admit the students with 100 intake capacity for the Academic Year 2022-23.
15. It was submitted that all the seven deficiencies which are enumerated in the impugned order dated 02.02.2023 goes to show that the petitioner College is not functioning properly and is not having the Homeopathy Hospital functioning properly so as to extend the permission to admit 100 students for the Academic Year 2022-23.
16. Having heard the learned advocates for the respective parties and having gone through the impugned orders as well as the material documents produced on record, it appears that on bare perusal of the reasoning given by the respondent no.1 in the impugned order dated Page 20 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 02.02.2023 reiterating what is stated by the respondent no.3- Board as well as the Commission in the respective order passed on 11.11.2022 and 29.12.2022, it is shocking that all the respondent authorities without application of mind, have come to a conclusion that the deficiencies which are pointed out in the inspection report dated 03.09.2022 exist and on that basis denied the permission to admit 100 students of Academic Year 2022-23 for B.H.M.S. Course run by the petitioner no.2-College.
17. With regard to each of the deficiencies, the observations of the Central Government are reproduced hereinabove which clearly shows that so far as deficiency no.1 is concerned, the submission made by the petitioner no.2-College is rejected only on the ground that the names of the staff is entirely different in salary distribution for consolidated salary distribution and in the register. Such a mistake, if any would have been rectified by the petitioner no.2-College and for that purpose it cannot be said that teaching staff of the petitioner no.2-College is not verifiable.
18. With regard to the deficiency no.2, the Central Government has observed that the petitioner has created a document with outward number as an afterthought but such conclusion is Page 21 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 without any basis. The fact remains that the teaching staff was on examination duty as per the list provided by the petitioner no.2-College but the said letter was without any reference number and therefore the same was not believed but outward register was provided during the submissions before the Commission after hearing and therefore the adverse inference drawn by the respondent no.1 is contrary to documents on record.
19. With regard to the third deficiency the observation made by the Central Government is even more shocking as it is observed that, "College submitted that examination duty staffs were available in their concerned duty department allotted by the Principal for conducting smooth examination but on day of inspection, there was examination of Physiology and Community Medicine, but no teaching faculties were available in Department of Physiology and Community Medicine. Pictures submitted by the College are of Ganesh Utsav are not sufficient enough to justify absence of teachers from teaching duty."
20. Such finding given by the Central Government is contrary to the submissions made by the petitioners, inasmuch as in absence of any inspection report provided to the petitioners as well as to this Court it is not possible to discern as to what observations were Page 22 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 made by the inspection team on the date of inspection. It was submitted by the petitioners that inspection team was in hurry to leave the College in its submissions and therefore no physical verification of the staff was conducted. The inspection team ought to have conducted an identification parade of the teaching staff of the petitioner no.2- College if they had any doubt. However the observation of the inspection team is treated as a gospel truth by the Board, the Commission and the Central Government and on that basis no adverse inference against the petitioner could have been drawn as no reasonable person having a common sense could have arrived at such a finding as arrived at by Board, the Commission as well as the Central Government and therefore such finding is nothing but a perverse finding arrived at by the respondent authorities.
21. Similarly, for deficiencies with regard to the submission of documents to ascertain the camp at the village is also doubted, the leave report dated 17.11.2022 which does not exist is taken into consideration, and though the petitioner no.2- College has appointed Dr.Taimim Khadakwale as an associate professor from 17.11.2022, such appointment was not considered on the ground that the appointment was made after the date of inspection and lastly Page 23 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 with regard to the infrastructure with the College is height of perversity.
22. From the observation qua the deficiency no.7, it is clear that only because the registers submitted by the College donot have total pages and data of X-ray, USG and Pathology Lab registers are numbered from page no.1 onwards, and not in continuation for the whole Academic Year and therefore the same were branded as non-genuine registers. It is also observed that test results reported in X-ray register and USG register have non-medical terms which cannot be accepted and therefore it is observed that the Hospital do not function at all. Such observation made by the respondent authorities clearly shows the pervert mentality of respondent authorities for not granting the permission to the petitioners for admission of 100 intake capacity for B.H.M.S. Course for the Academic Year 2022-2023.
23. In view of the above foregoing reasons and more particularly when no copy of the inspection report is provided to the petitioners and the deficiencies which are considered without any basis all the three impugned orders passed by the Board, Commission and AYUSH are hereby quashed and set aside and the respondent no.3 is Page 24 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023 C/SCA/1769/2023 JUDGMENT DATED: 15/02/2023 directed to grant the permission to the petitioner no.2-College for admission of students with 100 intake capacity seats for B.H.M.S. Course for the Academic Year 2022-23 forthwith.
24. The respondent no.4-Admission Committee for Professional Undergraduate Medical Education Courses is also directed to permit the petitioners to admit the students forthwith as the last cut off date is stated to be 4th March, 2023. Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(BHARGAV D. KARIA,J) URIL RANA Page 25 of 25 Downloaded on : Thu Feb 16 21:37:14 IST 2023