IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI WRIT PETITION NO.29872 OF 2019 (EDN-REG-P) BETWEEN:
BAPUJI AYURVEDIC MEDICAL COLLEGE AND HOSPITAL SAVALANGA ROAD SHIMOGA RUN BY BAPUJI AYURVEDIC VIDHYA SAMSTHE, HONNALI REPRESENTED BY ITS PRESIDENT SRI.M.V.P.ARADHYA S/O.M PANCHAKSHARAIAH AGED ABOUT 62 YEARS (BY SRI.VINOD PRASAD, ADV.) AND:
1. THE GOVERNMENT OF INDIA BY ITS SECRETARY TO MINISTRY OF HEALTH & FAMILY WELFARE DEPT OF INDIAN SYSTEM OF MEDICINES (AYUSH) NORTH BLOCK NEW DELHI-110 001 2. CENTRAL COUNCIL OF INDIAN MEDICINE REP. BY ITS SECRETARY, NO. 61-65 INSTITUTIONAL AREA, OPP. ‘D’ BLOCK JANAKAPURI, NEW DELHI-110 001 3. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES ‘T’ BLOCK, JAYANAGAR BANGALORE-560 011 BY ITS REGISTRAR … PETITIONER ... RESPONDENTS (BY SRI.C.SHASHIKANTH, ASG FOR R1 SMT.MANASI KUMAR, ADV. FOR R2 SRI.ASHOK N.NAYAK, ADV. FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE CENTRAL GOVERNMENT DATED: 01.07.2019 AT ANNEXURE-K ISSUED BY THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF AYURVEDA, YOGA AND NATUROPATHY, UNANI, SIDDHA AND HOMEOPATHY (AYUSH), VIDE ANNEXURE-K TO THE WRIT PETITION AND ETC.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In the instant petitioner, petitioner has sought for the following relief:
i) Issue a writ of certiorari quashing the order of the Central Government in F.No.L.14014/179/2019-EP(1) dated 01.07.2019 at Annexure- K issued by the Under Secretary to Government of India, Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (Ayush), Vide Annexure-K to the writ petition.
ii) Issue any other Writ/order/direction which this Hon’ble Court deems fit in the circumstances of the case including the cost of the writ petition.
iii) Interim prayer.
2. The petitioner had the benefit of permission to run the Bapuji Ayurvedic Medical College and Hospital (for short ‘the College’) for a period of five years from 2016-17 to 2020-21. Such permission was granted on 1.9.2016. In this background, the competent authority inspected the petitioner’s College on 4/5.4.2019. Pursuant to the inspection report, Central Government issued a communication on 24.5.2019, highlighted certain deficiencies in the College pursuant to the Regulations with the Indian Medicine Central Council (Requirements of Minimum Standard for under-graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016 (for short ‘Regulations 2016’). Government of India passed an order on 1.7.2019 relating to shortcomings under Section 13A/13C of the Indian Medicine Central Council Act, 1970 (for short IMCC Act) with reference to the letter dated 14.5.2019. In the order dated 1.7.2019, petitioner’s-college was informed that deficiencies /shortcomings were required to be complied within 31.12.2019, so as to Indian Medicine Central Council may carry out the inspection for consideration of the matter of permission for taking admission in UG(BAMS) from the academic year 2020-2021.
3. Learned counsel for the petitioner submitted that certain deficiencies have been complied. In respect of other deficiencies are concerned, it was approved before the authority by its communication dated 28.5.2019 before order was passed. Learned counsel for the petitioner submitted that petitioner – college is entitled for admission in the year 2019-20, since to comply deficiencies, it is pointed out that pursuant to the inspection report of the Government of India order, petitioner has time up to 31.12.2019. Petitioner further contended that before completion of specified period of 150 days for compliance in terms of Regulations 2016, respondents are not prevented in process of admission in the ensuing academic year. Petitioner also contended two members of the respondents have heard the petitioner, whereas order has been passed by the other members. In such circumstances, order at Annexure-K dated 01.07.2019 is illegal and arbitrary. In support of this contention, he relied on earlier decision of this Court passed by the Division Bench of this Court in W.P. No.111713/2019. Later on followed by this Court in W.P. No.31569/2019 disposed of on 1.8.2019.
4. On the other hand, learned counsel for the respondents vehemently contended that cutoff date 31.12.2019 is for the academic year 2020-2021.
5. Learned counsel for the respondent Nos.2 and 3 resisted the petitioner’s contention and heavily relied on various provisions of Regulations 2016. Clause 3(1) (a) of the Regulation 2016 to contend that Institution must comply all deficiencies before 31st December of every year for consideration of grant of permission for undertaking the admission in the ensuing academic sessions. Therefore, petitioner is not entitled to have the benefit of admission of students for the academic year 2019-20. Time granted up to 31.12.2019 is for the academic year 2020 - 2021.
6. Heard Learned counsel for the parties.
7. Undisputed facts are that petitioner has been granted time to comply the deficiencies up to 31.12.2019. question for interpretation is ‘whether 31.12.2019 is required to be taken into consideration for the purpose of admission and to run the petitioner’s – Institution is for 2019-20 or 2020-21?’ 8. Admittedly, respondents have not inspected the petitioner’s Institution and found out any deficiencies as on 31.12.2018 so as to deny admission for the year 2019-20. One has to draw inference that time limit granted to comply deficiencies is for ensuing academic year for the reasons that admissions would be commenced and it would be over in the month of September of every year. If there is any deficiency in an Institution that is required to be complied as on 31st of December of the previous year, when time limit is granted. At the same time, question of denying admission for the current year is highly arbitrary and illegal. Therefore, where the inspection conducted by the official-respondents and if there is any deficiency and further time limit is granted to such of those Institution to comply by 31.12.2019 which means for the future academic year 2020-2021. In the present case, it is for the year 2020-21. The contention of the petitioner is that petitioner has been permitted to comply deficiencies within 180 days. Before completion of 180 days official-respondents cannot deny any benefit. That apart, oral hearing was given by two members whereas single member has passed the order. On this issue, Division Bench of this Court in W.P. No.111713/2019 held as under:
11. It is pursuant to the proviso to sub-section 5 of section 13A, opportunity of hearing was extended to petitioner and there is no dispute to the fact that such hearing was held by the authority constituted by the 1st respondent who held the sitting or hearing on 18.05.2019, whereunder reply submitted by the petitioner to the compliance report has been noticed and questions also came to be posed to the petitioner and answer given or elicited has been incorporated in the said report. The said authority which heard the petitioner as well as representative of the petitioner having noted the contentions of the petitioner has drawn the minutes as per Annexure-J and forwarded the same to the 1st respondent. 1st respondent by impugned order dated 05.06.2019 has rejected or denied the permission for the academic year 52019-20 by reiterating the contents of the report submitted by 2nd respondent has not been complied with by the petitioner. This finding recorded by the 1st respondent under the impugned order is factually erroneous, at-least partially. We say so, because one of the deficiencies pointed out by 2nd respondent relates to quality testing laboratory not being available in Petitioner College. However, in its compliance report dated 17.05.2019 (Annexure-H) submitted by petitioner it has not only produced supporting documents like instruments, purchase of invoice bills, photographs and video of the existing quality testing laboratory but has also produced the bank statement for having paid the bills to the concerned staff who are working in said laboratory. This aspect has also been recorded by the hearing authority, it is proceeding dated: 18.05.2019 (Annexure-J). however, curiously under the impugned order there is no reference to this fact as to why purported deficiency pointed out by 2nd respondent which has said to have been complied by the petitioner as per its compliance report dated 17.05.2019 is being rejected or overlooked. In other words there is non-application of mind by the 1st respondent authority. This situation has obviously arisen on account of hearing authority being different from deciding authority. At this juncture itself, we are reminded by the judgment of the Hon’ble Apex Court in the case of Automotive Tyre Manufacturers Association vs. Designated Authority and others reported in (2011) 2 Supreme Court Cases 258, whereunder it has been held by the Hon’ble Apex Court that person who hears, if not deciding the matter then such personal hearing becomes empty formality. In the instant case of facts we have noticed that deciding authority namely authority which has passed impugned order was not part and parcel of hearing authority. In other words hearing authority was different and deciding authority was different. As such, authority which heard the matter was not in the how know of factual matrix. Whereas the deciding authority who did not have the benefit of the hearing, the petitioner or its authorized representative was not in the how know of factual matrix except reaching the minutes.
12. It is in this background, Hon’ble Apex Court in the case of Automotive Tire Manufacturing Association referred herein supra has referred to the judgment of the Hon’ble Apex Court in the case of Gullapalli Nageswara Rao and others Vs. Andhra Pradesh State Road Transport Corporation and another reported in AIR 1959 Supreme Court 308, whereunder it has been held, if one person hears and another decided, personal hearing becomes an empty formality. On this short ground itself, the impugned order would not stand the test of law and it has to be quashed. Though several other contentions are raised, we do not propose to examine the same and it is left at it for the present.”
9. In view of these facts and circumstances, Annexure-K dated 1.7.2019 is set aside. Concerned official-respondent is hereby directed to carry out deficiency in passing the order. In the meanwhile, if petitioner fulfills the deficiencies, Institution is also permitted to approach the concerned authority within a period of one month from today. Thereafter, official- respondents are directed to pass a speaking order after hearing the petitioner within a period of eight months from the date of receipt of petitioner fulfilling the deficiencies.
Accordingly, writ petition is disposed off.
Sd/- JUDGE BS