1. The petitioner by way of the present petition challenges the order dated 20.04.2012 passed by respondent no.1 whereby the application of the petitioner for recognition for Homeopathy College is rejected.
2. The facts in brief leading to the filing of the present petition could be set out as under:
2.1 The petitioner had applied for recognition for opening a Homeopathy College in the name of B.G. Garaiya Homeopathic College at Rajkot which was not granted. The petitioner thereafter again preferred another application on 27.04.2010 for grant of permission along with necessary documents. Respondent no. 1 time and again sought for one or the other documents which were duly provided by the petitioner. However, respondent no. 1 returned the papers on one or the other ground.
2.2 The petitioner therefore filed Special Civil Application No. 14285 of 2010 before this Court wherein it was ordered that the pendency of the said petition shall not come in the way of the respondent in inspecting the proposed institution of the petitioner afresh. The respondent no. 1 carried out inspection on 05.03.2011 but thereafter no report was received by the petitioner.
2.3 The petitioner therefore again approached this court by way of Civil Application No. 6093 of 2011 in Special Civil Application No. 14285 of 2010 wherein this Court vide order dated 01.06.2011 directed the authorities that a decision should be taken on or before 17.06.2011 and the same should be informed to the petitioner. Respondent no. 1 by letter dated 22.06.2011 informed the petitioner that there being one shortcoming in the petitioner institution, the Executive Committee did not recommend the grant of permission for admission in BHMS Course in the petitioner college.
2.4 Thereafter vide letter dated 30.06.2011 respondent no. 1 informed the petitioner about around ten shortcomings and therefore was asked to remain present with necessary documents on 26.07.2011. The petitioner remained present and put forward its case but no order was passed thereafter. The petitioner thereafter from time to time was constrained to approach this Court as a result of which time passed by and the petitioner could not take admissions for an entire year. This court vide order dated 30.09.2011 passed in Special Civil Application No. 14499 of 2011 disposed of the petition by directing the respondent authorities to constitute a new team and to visit and inspect the petitioner institution as per rules.
2.5 The said inspection was carried out on 10.01.2012. After almost four months from the date of inspection the petitioner institution received letter dated 20.04.2012 from respondent no. 1 rejecting the request of the petitioner to grant recognition. Being aggrieved by the said action of the respondent authorities, the present petition is preferred.
3. This court has heard Mr. Shalin Mehta, learned Senior Counsel appearing with Ms. Mamta Vyas, learned advocate for the petitioner institution, Mr. P.S. Champaneri, learned advocate appearing for respondent no. 1, Mr. K.G. Pandit, learned advocate for respondent no. 2 and Mr. Pradeep Patel, learned advocate appearing for respondent no. 4. Though served none appears for respondent no. 3.
4. Mr. Shalin Mehta submitted that the petitioner institution is not being granted recognition since 2010 with malafide intention. He submitted that the final order dated 20.04.2012 passed by the Under Secretary to the Government of India, Ministry of Health & Family Welfare, Department of AYUSH, rejecting the petitioner’s application seeking permission to start new Homeopathic Medical College, viz., Shri B.G. Garaiya Homeopathic Medical College (District Rajkot) with annual intake capacity of 100 seats travels beyond the show cause notice dated 15.03.2012, whereas only one line deficiencies were stated in the show cause notice dated 15.03.2012, the final order contains the observations of these deficiencies which did not find mention in the show cause notice. To quote two examples –
a) Deficiency one of the show cause notice states that 11 teaching staffs out of appointed 20 have not been found eligible. The final order on deficiency one records that the documents submitted by the college/trust did not appear to be genuine and the college/trust representatives could not produce any supporting documents in respects of the teachers for the year 2011.
b) On deficiency three, the show cause notice states that the college does not have a genuinely functional hospital. The final order on deficiency three records that the IPD register and the OPD register did not appear to be genuine and authentic.
Thus, a clear deviation is noticed in the final order when the same is compared with the show cause notice. As the final order travels beyond the show cause notice, the final order is liable to be quashed.
4.1 Mr. Mehta contended that the final order dated 20.04.2012 completely ignores the petitioner’s reply to the show cause notice dated 15.03.2012, dated 22.03.2012 and the voluminous documents submitted by the petitioner at the hearing held on 22.03.2012. None of the documents submitted by the petitioner in the said hearing of 22.03.2012 or the contention recorded in the show cause reply dated 22.03.2012 find mention in the final order dated 20.04.2012. Clearly therefore, the final order dated 20.04.2012 is passed ignoring the petitioner’s reply dated 22.03.2012 to the show cause notice.
4.2 Mr. Mehta further contended that the show cause notice dated 15.03.2012 is vague and imprecise because it does not specifically tell the petitioner as to what is to be shown to the hearing committee. The Supreme Court has held that a vague and imprecise show cause notice has to be declared violative of the principles of natural justice.
4.3 Mr. Mehta submitted that the findings of the authority passing the final order dated 20.04.2012 are perverse, contrary to the record and opposed to the evidence submitted by the petitioner with its show cause reply dated 22.03.2012. Against the eight deficiencies listed in the show cause notice, the petitioner had submitted voluminous documents in the hearing held on 22.03.2012 as well as during the inspection held on 10.01.2012 to satisfy the authorities that there is no deficiency as noted. Where the findings of the authority granting recognition are perverse, the writ court can interfere in judicial review under Article 226 of the Constitution of India.
4.4 Mr. Mehta has strongly contended that the authorities should have maintained a level playing field between the petitioner and the other homeopathic colleges who were running with all sorts of deficiencies. He submitted that it has been the consistent practice of the department of AYUSH to allow homeopathic medical colleges admission of students on the condition that the relevant CCH regulations would be fulfilled before such admission. Such benefits have been given, as pointed out in the petition, to C.N. Kothari Homeopathic Medical College & Research Centre, Tapi and to Baroda Homeopathic Medical College. Further, the names of eight institutions in Gujarat were pointed out who were allowed to run despite insufficient staff and other deficiencies. He submitted that the petitioner is not seeking parity in illegality. Instead, the petitioner could have been granted conditional or provisional recognition by eliciting an undertaking that if any deficiency is observed, the same would be fulfilled by the petitioner within a stipulated time. Thus, other colleges were allowed time to cure the deficiencies, whereas, the petitioner was not given the same treatment. This was discrimination in favour of the other institutions with a view to single out the petitioner. He submitted that the said conduct on the part of the respondent authorities is violative of Article 14 & 19(1)(g) of the Constitution.
4.5 Mr. Mehta further contended that the final order dated 20.04.2012 makes observations which are contrary to the inspection report dated 10.01.2012 of the Council of Central Homeopathy. CCH was the only agency that the Department of AYUSH had to verify and report the deficiencies if any noticed in the petitioner institution. There is no other agency employed by the Department of AYUSH to carry inspection of the various institutions. Therefore, the final order could not have observed more deficiencies than the deficiencies reported by the Central Council of Homeopathy in its inspection report dated 10.01.2012. However, if comparison of the inspection report dated 10.01.2012 and the final order dated 20.04.2012 is made; the same would reveal that the final order makes observations contrary to the inspection report of CCH.
4.6 Mr. Mehta has drawn the attention of this Court to the deficiencies shown in the show cause notice and submitted that the petitioner institution is having necessary staff and facilities. He submitted that as far as deficiency no.1 as to inadequate staff is concerned, the petitioner institution is having adequate and qualified staff. He submitted that as per the rules, if an employee is qualified but not having experience, even then he/she can be appointed. He submitted that out of 20 teachers only 17 have joined the institution and the rest of them have given their consent.
4.7 Mr Mehta submitted that as far as the deficiency regarding inadequate hospital staff is concerned, the same is also not correct. He submitted that as per the norms of CCH, out of 50, 37 staff members can be appointed as full timers and rest can be appointed as part timers and that for the first year full staff of 50 is not required. He has drawn the attention of this Court to page 215 of the petition which is the proforma for recording the availability of teachers which clearly shows that there was sufficient and adequate staff present. He has also drawn the attention of this Court to pages 216, 217 and 218 which are the lists of teaching, non teaching and hospital staff which are adequate in number.
4.8 Mr. Mehta further submitted that as far as the third deficiency is concerned with regard to no functional operation theatre, the same is incorrect. He submitted that the necessary papers and documents have been supplied thereof. He submitted that in fact in the report for the year 2010-11 dated 05.03.2011, it is mentioned that the hospital is running and that the petitioner institution is having all the necessary equipments and infrastructure.
4.9 As regards the deficiency of museum space, Mr. Mehta submitted that in fact no separate museum space is required as per the rules, however, from the photographs it can be clearly seen that all these facilities are available with the petitioner. He submitted that the same was found in order by the earlier inspection team on 05.03.2011.
4.10 As far as the deficiency of teaching laboratories not being provided is concerned, Mr. Mehta submitted that there is no rule or norm for the same and that other colleges were granted recognition though there is no separate teaching laboratory.
4.11 Mr. Mehta submitted that the deficiency regarding inadequate number of instruments in the department is also not well found inasmuch as the photographs clearly show all these things but the same are not mentioned in the report. He submitted that Dead Stock Registers were also produced as far as Pharmacy, Anatomy, Physiology and Biochemistry laboratories are concerned. He submitted that even as far as the librarian is concerned, one Shri Naresh Bambaria has been appointed as Librarian even as per report dated 10.01.2012.
4.12 Mr. Mehta has contended that there are several deficiencies in other colleges but those are granted recognition and are permitted to be continued with the deficiencies till today. He submitted that considering the same the respondent authorities ought to have granted atleast provisional recognition to the petitioner institution as the petitioner has already made huge investment for the running of the said college and in denying the same the fundamental rights under Articles 19(1)(g) is violated and since there is no provision for appeal under the Act, judicial review is permissible. He submitted that when powers are bestowed upon the authorities concerned, it is also expected that the authorities follow the procedure dutifully.
4.13 Mr. Mehta reiterated that if a joint reading of the report as well as the show cause notice is done, it shall be clear that even though sufficient documents are produced and presented before the committee showing that the petitioner institution is fulfilling the requisite conditions the same are not considered by the respondent authorities thereby causing serious prejudice to the petitioner institution.
4.14 Mr. Mehta has also taken this Court to the photographs of IPD and OPD wards, the purchase orders and bills of equipments purchased, the case papers and submitted that the findings arrived at by the first inspection team was to the effect that a fully functional homeopathic hospital with 50 beds which was established on 01.12.2010 was in existence on 30.04.2010 when the application for permission was submitted to the Central Government. He submitted that in the very report itself it is mentioned that adequate clinical material is available for the setting up of the proposed college and that the final report is contrary to the same which shows the mala fide on the part of the respondent authorities.
4.15 Mr. Mehta has further submitted that one of the deficiencies pointed out was regarding animal experimentation. He submitted that the same could not be carried out as the State Government has implemented ‘The Prevention of Cruelty to Animals Act, 1960’ in the State and therefore it is nor permissible in the State. He submitted that the bills produced on record are not considered by the respondent authorities
4.16 Mr. Mehta submitted that on a perusal of the remarks which are made at page 206 which is the proforma for carrying out inspection/visitation of existing/proposed Homeopathic Medical Colleges and Hospital to ascertain the availability of Minimum Standards and Requirements as per the provisions of Homeopathy (MSE Regulation, 1983), it is clear that in fact the inspectors could not verify much due to paucity of time. He submitted that in fact the inspectors left the premises by 05.00 pm as they had an evening flight to board. Even the remark qua non teaching staff states that a full time qualified librarian with Degree/Diploma in Library Science is appointed. He submitted that even the inspection report dated 05.03.2010 states that one Shri Naresh Babariya, B.A. B.Lib. is appointed as a Librarian and that the total no. Of books is 1065 and that of allied books is around 450. He submitted that even the list of teaching and hospital staff with their consent letters was produced on record; however, when the final report arrived the deficiencies enumerated therein were contrary to all the evidence on record and the findings recorded by the inspection teams.
4.17 Mr. Mehta further submitted that while replying to the show cause notice, the petitioner institution has supplied all the necessary documents required for explaining the so called deficiencies in the show cause notice and even then the respondent authorities have passed the impugned order rejecting the application for permission to the petitioner institution which is required to be quashed and set aside.
4.18 In support of his submissions, Mr. Mehta has relied upon the following decisions of the Apex Court:
(i) Municipal Corporation, Ludhiana vs. Inderjit Singh and Another reported in (2008) 13 SCC 506;
(ii) Shri B.D. Gupta vs. State of Haryana reported in (1973) 3 SCC 149;
(iii) Priyadarshini Dental College and Hospital vs.
Union of India and Others reported in (2011) 4 SCC 623;
(iv) Jaya Gokul Education Trust vs. Commissioner & Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and Another reported in (2000) 5 SCC 231;
(v) Board of Technical Education, U.P. and others vs. Dhanwantri Kumar and Others reported in AIR 1991 SC 271.
5. Mr. PS Champaneri, learned advocate for respondent no. 1 has supported the order passed by the respondent no. 1 and has taken this Court to the Homeopathy Central Council Act, 1973 as well as the Homeopathy Central Council (Amendment) Act, 2002. He submitted that the main object of the Act is to confer powers on the Central Government to control, regulate and maintain the quality of education and the doctors who are going to be trained through such institutions. He submitted that therefore while considering the present matter, this Court may bear in mind the reason and object which are enumerated under the ‘Statement of Objects and Reasons’ as per All India Educational Code (August 2011 edition).
5.1 Mr. Champaneri submitted that the petitioner institution applied for opening of a new Homeopathic Medical College under Section 12A of the HCC Act, 2002. The CCH conducted inspection of the college twice and found that the college does not meet the norms of Homeopathy (MSE) Regulations, 1983 and therefore the CCH decided not to recommend the petitioner college for grant of permission for starting BHMS Degree Course.
5.2 Mr. Champaneri has drawn the attention of this Court to Section 12-A, Section 20, Section 33 of the Act and submitted that the same clearly prescribe that the institution seeking permission has to apply in a standard format and if any of the requirements is not fulfilled, it is open to the respondent no. 1 to deny recognition.
5.3 Mr. Champaneri submitted that the petitioner institution had applied for opening of a new homeopathic medical college on 27.04.2010 under Section 12A of the Act but as the application was defective, it was returned to the petitioner with certain remarks. The petitioner resubmitted the application on 11.05.2010 after clearing the deficiencies but on examination certain deficiencies were still observed. He submitted that the petitioner resubmitted the application on 03.08.2010 but as the requirements still stood unfulfilled, the application was rejected.
5.4 Mr. Champaneri submitted that the petitioner could not comply with the norms of the Act even after returning the applications thrice show that the petitioner college is not well equipped with the facilities as required by the Homeopathy (MSE) Regulations, 1973.
5.5 The relevant sections read as under:
“12-A Permission for establishment of new medical institution, new course of study, etc. (1)Notwithstanding anything contained in this Act or any other law for the time being in force:-
(a) no person shall establish a Homoeopathic Medical College; or
(b) no Homoeopathic Medical College shall - (i)open a new or higher course of study or training (including post-graduate course of study or training) which would enable students of each course or training to qualify himself for the award of any recognized medical qualification; or (ii)increase its admission capacity in any course of study or training (including the post-graduate course of study or training.), except with the previous permission of the Central Government obtained in accordance with the provisions of this section Explanation 1. - For the purposes of this section, "person" includes any University or trust, but does not include the Central Government.
Explanation 2. - For the purposes of this section, "admission capacity" , in relation to any course of study or training (including post-graduate course of study or training) in a medical institution, means the maximum number of students as may be decided by the Central Council from time to time for being admitted to such course or training, (2)(a)Every person or medical institution shall, for the purpose of obtaining permission under sub- section (1) submit to the Central Government a scheme in accordance with the provisions of the clause (b) and the Central Government shall refer the scheme to the Central Council for its recommendations (b)The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme from the Central Government under sub-section (2), the Central Council may obtain such other particulars as may be considered necessary by it from the person or the medical institution concerned, and thereafter, it may -
(a) If the scheme is defective and does not contain any necessary particulars, give reasonable opportunity to the person or the medical institution concerned for making a written representation and it shall be open to such a person or medical institution to rectify the defects, if any, specified by the Central Council.
(b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit it to the Central Government together with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government
(4) The Central Government may, after considering the scheme and the recommendations of the Central Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or medical institution concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme & any such approval shall constitute as a permission under sub-section (1) :
Provided that no scheme shall be disapproved by the Central Government except after giving the person or medical institution concerned a reasonable opportunity of being heard; Provided further that nothing in this sub- section shall prevent any person or medical institution whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme had been submitted for the first time under sub-section (2).
(5) Where, within a period of one year from the date of submission of the scheme to the Central Government under the sub-section (2), no order is communicated by the Central Government to the person or medical institution submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted, and, accordingly, the permission of the Central Government required under the sub-section (1) shall also be deemed to have been granted.
(6) In computing the time-limit specified in sub- section (5), the time taken by the person or medical institution concerned in submitting the scheme, in furnishing any particulars called for by the Central Council, or by the Central Government shall be excluded
(7) The Central Council, while making its recommendations under clause (b) sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely
(a) whether the proposed medical institution or the existing medical institute seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Central Council under Section 20; (b)whether the person seeking to establish a medical institution or the existing medical institution seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment, accommodation, training, hospital and other facilities to ensure proper functioning of the medical institution or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical institution or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical institution or the course of study or training by the persons having the recognised medical qualifications;
(f) the requirement of manpower in the field of practice of homoeopathic medicine in the medical institution; and
(g) Any other factors as may be prescribed.
(8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or medical institution concerned.”
20-Minimum standard of education in Homoeopathy.
(1) The Central Council may prescribed the minimum standards of education in Homoeopathy required for granting recognized medical qualifications by Universities, Boards or medical institutions in India.
(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments and the Central Council shall, before submitting the regulations or any amendment thereof as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
33-Power to make regulations.
(1) The Central Council may, with the previous sanction of the Central Government, make, by notification in the Official Gazette, regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provide for -
(a) the manner of election of the President and the Vice-President of the Central Council;
(b) the management of the property of the Central Council and the maintenance and audit of its accounts;
(c) the resignation of members of the Central Council;
(d) the powers and duties of the President and Vice-President;
(e) the summoning and holding of meetings of the Central Council and the committees thereof, the times and places where such meetings are to be held, and the conduct of business thereat and the number of members necessary to constitute a quorum
(f) the functions of the committees constituted under section 9;
(g) the tenure of office, and the powers and duties of, the Registrar & other officers & servants of the Central Council;
(ga)the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme Is to be preferred and the fee payable with the scheme under clause (b) of sub-section (2) of section 12A;
(gb)any other factor under clause (g) of sub- section (7) of section 12A;
(h) The qualifications, appointment, powers and duties of, and procedure to be followed by, inspectors and visitors;
(i) The courses and period of study of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in any University, Board or medical institution for grant of recognized medical qualification;
(j) the standards of staff, equipment, accommodation, training and other facilities for education in Homoeopathy;
(k) The conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations;
(l) The standards of professional conduct and etiquette and code of the ethics to be observed by practitioners of Homoeopathy;
(m) The particulars to be stated, and the proof of qualifications to be given in applications for registration under this Act;
(n) The manner in which and the conditions subject to which an appeal under section 25 may be preferred;
(o) The fees to be paid on applications and appeals under this Act; and
(p) Any matter for which under this Act provision may be made by regulations.
(2) The Central Government shall cause every regulation made under this Act to be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of 30 days which may be comprised in one session, and if, before the expiry of session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulations shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.”
5.6 Mr. Champaneri submitted that as per the directions of this Court, the application of the petitioner was forwarded to CCH on 20.01.2011 and the CCH conducted inspection on 05.03.2011. Inspection report thereof was forwarded on 17.06.2011 with the recommendations of the Executive Committee wherein the Committee did not recommend grant of permission to BHMS course to the petitioner institution. He submitted that the deficiencies found in the final order are in accordance with the report and the evidence on record.
5.7 Mr. Champaneri further submitted that while considering the evidence on record, respondent no. 1 in para 4 of the impugned order has laid down the deficiencies, in para 5 has discussed the documentary evidence produced qua the said deficiencies, in para 6 has laid down the conclusion arrived at after considering the written submissions and the evidence and finally in para 7 has finally rejected the application seeking permission on a subjective satisfaction of grounds enumerated in sub clause 4 of Section 12A of the Act.
5.8 Mr. Champaneri submitted that it is the absolute prerogative of the Central Council under Section 33 of the HCC Act to make regulations with the previous sanction of the Central Government to carry out the purposes of the Act. He submitted that it is the Central Council which is vested with the powers under Section 20 of the Central Act for prescribing minimum standards of education in Homeopathy.
5.9 Mr. Champaneri submitted that the basic requirements of teaching, non teaching and hospital staff was not met with.
He submitted that the basic facilities like operation theatre, IPD, OPD etc is not there and therefore in the interest of all concerned, the recognition is not granted. Mr. Champaneri further submitted that this court has limited jurisdiction in such matters and can interfere only if the findings are perverse, illegal or the reasonings are palpably wrong. He submitted that the respondent authorities have not committed any procedural irregularity as prescribed under the Rules and therefore the impugned order does not call for any interference by this Court. He submitted that the final order is passed after proper consideration of the application, the inspection report, the report from the Council, materials referred in the show cause notice, reply etc. He submitted that the petition does not call for any interference by this Court and therefore deserves to be dismissed.
5.10 Mr. Champaneri has relied upon the following decisions in support of his submissions:
(i) Decision of the Nagpur Bench, High Court of Judicature at Bombay passed in the case of Shri Hanuman Vyayam Prasarak Mandal and Another vs. The Union of India and Others in Writ Petition No. 4965, 4814 & 5029 of 2011.
(ii) Prof. Yashpal and Another vs. State of Chhatisgarh and Others reported in (2005) 5 SCC 420.
(iii) State of Himachal Pradesh and Another vs. Himachal Pradesh Nizi Vyavasayik Prishikshan Kendra Sangh reported in (2011) 6 SCC 597.
(iv) National Council for Teacher Education and Others vs. Shri Shyam Shiksha Prakshikshan Sansthan and Others reported in (2011) 3 SCC 238.
(v) Shri Morvi Sarvajanik Kelvani Mandal Sanchalit MSKM BE.d College vs. National Council For Teachers Education and Others reported in (2012) 2 SCC 16.
6. Mr. Kiran Pandit, learned advocate appearing for respondent no. 2 has supported the stand of respondent no. 1 and submitted that this court may not interfere with the decision of the expert academic body. He submitted that the respondent no. 2 has no authority to grant recognition to petitioner’s college or any other college. He submitted that the petitioner’s college was inspected on 10.01.2012 by the respondent no. 2 in compliance of directions issued by this Court and report of inspection was received on 27.01.2012 which was placed before the Executive Committee of Central Council on 31.01.2012. He submitted that the decision of the committee was communicated to the respondent no. 1 along with inspection report and other documents received from the college. He submitted that the respondent no. 1 vide order dated 20.04.2012 rejected the application of the petitioner due to non availability of proper infrastructure as mentioned therein.
7. Mr. Pradeep Patel, learned advocate appearing for respondent no. 4 submitted that no ground is made out in the petition against him. He submitted that he has nothing to say on the merits of the matter and that he is in no way concerned with regard to the affiliation whether granted or rejected. Mr Patel submitted that the respondent no. 4 has no interest in the decision or final outcome whatsoever in the matter and therefore has taken a neutral stand.
8. The petitioner had applied for recognition for opening Homeopathic College in the name of B.G. Garaiya Homeopathic College at Rajkot. Thereafter time and again requests were made by the petitioner to grant recognition but the respondent authority did not grant recognition to the petitioner institution.
8.1 The first inspection by the team constituted by the respondent authorities was done on 05.03.2011 and the CCH forwarded its recommendations and visitation report to the Department and not recommended for grant of permission for starting a new Homeopathic Medical College by Gyanjyot Education Trust as the proposed college was not found to be fulfilling the required norms and conditions prescribed by the CCH. Certain deficiencies were pointed out in the notice dated 30.06.2011 and an opportunity of hearing in terms of the provisions of the first proviso to sub section 4 of section 12A of the HCC Act, 1973 was provided. The petitioner institution was represented by authorized representatives and all necessary documents were submitted. However no fruitful order could be passed by respondent authorities.
8.2 Thereafter again a team comprising three members visited the institution on 10.01.2012. The respondent authorities vide letter dated 20.04.2012 rejected the application of the petitioner.
9. While considering the reply and the documents placed on record by both the sides, this court is of the opinion that respondent no. 1 while passing the order dated 20.04.2012 has not taken into consideration the documents which are produced on record. The authority has also not considered the report dated 10.01.2012 in its true spirit which can be pointed out from the fact that the final order undoubtedly travels beyond the show cause notice and the report dated 10.01.2012. For instance, even as each department is concerned, the report dated 10.01.2012 mentions the main items available in each department which is contrary to the findings in the final order.
9.1 The report dated 10.01.2012 itself states that the inspectors could not verify due to paucity of time. This is also supported by the averments made by the petitioner in Para 2 of the reply which reads as under:
“We strongly object the CCH executive committee’s decision of not recommending our proposal of starting new homeopathic college in the light of following facts. We believe that we are being victimised by some prejudiced observations. As Inspectors have not spent the total hours of inspection not more than 6 hours despite they demanded the list of documents in between and the we have provided all the documents even prior to their departure of flight which was at 5 pm on the same day of inspection.”
10. Mr. Champaneri has submitted that the letter dated 05.03.2011 cannot be said to be a show cause notice. This contention cannot be accepted inasmuch as the very purpose of the impugned communication was to call upon the petitioner institution to explain as to why permission should not be denied to it. The communication dated 15.03.2012 itself states “you are given an opportunity to present your case and to show cause as to why the permission to start new Homeopathic Medical College for running BHMS course under Section 12 A of the HCC Act, 1973 should not be denied”.
11. It shall be pertinent to discuss the deficiencies as mentioned in the notice dated 15.03.2012.
1. Number of teaching faculty for UG is mentioned as 20 which is less than the required norms. 11 teaching staff out of appointed 20 have not been found eligible.
11.1 In this context, from a perusal of documents it is found that out of 20 teachers only 17 had joined and the rest of them had given their consent. The photographs of the teachers and the documents like appointment orders, bank statement of salary paid to them, certificates and documents etc were provided during the course of hearing. The same does not seem to have been accepted by the committee.
11.2 The petitioner had also given an assurance that the requisite number of teachers having requisite qualifications as the CCH regulations in the College will be appointed before the admission of students in the said course under intimation to the department and to CCH. Copy of letter dated 17.05.2010 is an example.
11.3 Mr. Mehta had drawn the attention of this Court to the examples of certain homeopathic colleges during the course of hearing where though the report had been adverse to them the said colleges are still running.
11.4 Considering the relaxation granted to the aforesaid colleges, the respondent authorities ought to have considered the fact that the petitioner institution is on the verge of setting up of a new college and when the petitioner institution has already assured that requisite number of teachers will be appointed before the admission of students, the respondent authorities could have given a relaxation to the petitioner institution as done in the aforesaid cases and ought to have granted provisional recognition.
2. There is only 37 hospital staff as against the requirement of 50.
12. In this context, it is borne out that as per the norms of CCH, out of 50, 37 staff can be appointed as full time staff and the rest can be appointed as part timers which are the case with the petitioner institution. The staff as mentioned in the CCH criteria and the performa of minimum standard of Homeopathic College is as per Regulation 10 which was already there at the time of inspection. Here also it shall be relevant to go through the data of various other colleges.
From the documents, it is borne out that 37 staff members are available as full timers. Other than that there are 9 part timers and 4 hospital staff are from Kothari Laboratory. Even if these four are not considered, at least there are 46 staff members and considering the same, some time limit could have been given to the petitioner institution to appoint the remaining four.
3. No functional operation theatre is available. The college does not have a genuinely functional hospital.
13. This is contrary to the inspection report dated 05.03.2011 which clearly states that a fully functional hospital is available. The purchase bills of OT equipments at page no.
329 to 335 and the photographs of the functional operation theatre and the hospital do not support the said observation. The case papers and surgeon notes of the surgeries already performed are enclosed on page nos. 337 to 404. The first inspection report dated 05.03.2011 clearly mentions that there is a fully functional hospital with 50 bed capacity and therefore the said observation in the final order can be said to be contrary to the evidence on record.
4. Separate Space for museum is not provided.
14. The photographs at page 432 show that a museum is in existence with all the models and exhibits. In fact the inspection report dated 10.01.2012 states that even a museum curator is appointed.
5. Teaching laboratories are not provided.
15. It is pertinent to note that CCH norms have yet not indicated for a teaching laboratory. However, going by the photographs and the purchase bills of lab equipments, it cannot be said that there is no provision of a laboratory. The inspection report states otherwise.
6. Required no. of instruments were not available in all the department.
16. List of laboratory wise documents and purchase bill of required number of instruments is produced during the time of inspection copies of which are enclosed from page nos. 439 to 444. Even the inspection report dated 05.03.2011 and 10.01.2012 do not mention any deficiency regarding the same and infact it is mentioned in one of the reports that department wise instrument list is available in the inspection report for anatomy, physiology and bio chemistry departments. Even the dead stock registers support the case of the petitioner institution.
7. Clinical Laboratory is not available.
17. The inspection reports dated 05.03.2011 and 10.01.2012 do not show any deficiency in this regard. It is the case of the petitioner institution that they have a collection centre of a well known pathology lab known as RB Kothari Polydiagnostic Hospital & Research Centre. This does not find place in the impugned order.
8. Librarian is not appointed in the college library.
18. From the records, it is clear that a librarian has already been appointed since long and the documents such as appointment cum joining letter and attendance and salary register are also produced on record. The inspection reports dated 05.03.2011 and 10.01.2012 indicate that a librarian is appointed. The details of librarian namely Shri Naresh Babariya is given. The total number of books is said to be 1065 and allied books is 450. Bills to that effect were also produced.
19. Considering the aforesaid observations, this Court is of the opinion that when the committee decided that time was required to be given to many colleges for improving the functioning of the hospital and that the college authorities must take the required initiatives to improve the shortcomings, the same treatment could have been meted out to the petitioner institution as well in view of the fact that almost all the facilities have been fulfilled by the petitioner institution.
19.1 It is also required to be noted that the final order has travelled beyond the show cause notice. A clear deviation is noticed in the final order when the same is compared with the show cause notice. As the final order travels beyond the show cause notice, the final order is liable to be quashed. None of the documents submitted by the petitioner in the said hearing of 22.03.2012 or the contention recorded in the show cause reply dated 22.03.2012 find mention in the final order dated 20.04.2012.
20. Mr. Champaneri has submitted that the powers to grant recognition is based on their subjective satisfaction of objective facts. This court is of the opinion that when dealing with such cases, the authorities should follow a uniform policy. It is undoubtedly true that the authorities have to perform as a controlling and regulatory body. However, different standards cannot be adopted for different institutions and the decision to grant recognition cannot be based on subjective satisfaction of the authorities but on objective satisfaction of the facts available before the authorities.
21. In the case of Prof. Yashpal and Others (supra), the Apex Court has observed as under:
“20. The consistent and settled view of this Court, therefore, is that in spite of incorporation of Universities as a legislative head being in the State List, the whole gamut of the University which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State legislature on account of a specific Entry on co- ordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which the Parliament alone is competent. It is the responsibility of the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained.”
21.1 In the case of Shri Hanuman Vyayam Prasarak Mandal (supra), the Nagpur Bench of the Bombay High Court has held as under:
“31. The affidavit then states that in the session 2009-10 the Council visited the college on 24.01.2009 and recommended that permission to take admission in only undergraduate courses and not for PG course for the session 2009-10. This was also based on hearing given to the petitioners and later on the Central Government found that the college can be granted permission to take admission in undergraduate and one PG course - Shalakya. This one seat was subject to the rectification of the deficiencies of teachers. This is the purport of the 11.07.2009 communication wherein the recommendations of the CCIM were not accepted in toto by the Central Government. The CCIM then conducted an inspection by visiting the college on 20-21.1.2010, which was for the academic session 2010-11 and it recommended that no permission should be granted for both the courses due to the shortage of teachers and non- availability of a required number of beds and bed occupancy in the IPD. Once again on this adverse recommendation the college was granted opportunity of hearing by the Central Government. Once again a conditional permission only to take admission in undergraduate course with 50 seats came to be granted on 07.09.2010, subject to the rectification of the noticed defects and deficiencies, namely complement of teachers. Thereafter there was inspection for the academic session 2011-12 and the CCIM recommended only permission for undergraduate seats, but no recommendation for PG in Shalakya. It is this report of the CCIM which culminated in the impugned order and we have no reason to hold that requisite opportunities and chances were not given to the petitioners. They have been treated fairly and in a reasonable manner. On every occasion even though the Council recommended no permission, the Central Government proceeded to grant conditional permission. Such of the shortcomings are said to be so serious as would dis-entitle the college a permission and which is a shortcoming or defect, which is capable of being rectified and therefore, where conditional permission should be granted, are all matters within the domain of the Council and the Central Government. The petitioners have rightly been faulted for not been substantiating their case with the help of documents and records. In fact there are several serious breaches which have been noted. There is a mismatch and on cross verification the claims of the petitioners have been exposed. When the Central Government concludes that there are serious inconsistencies and irregularities in the hospital data and records and repeatedly the conditional permissions have been later on misused, by not removing the defects and shortcomings, then, the final conclusion of the Central Government is not required to be faulted, leave alone interfered with and set aside. Even in this year, what we find is that the Central Government has given one opportunity to the petitioners to have the defects rectified, and therefore, it is now for the Central Council and the Central Government to take a decision. We are not permitted to sit in judgment over observations and conclusions of expert bodies. If the expert body concludes that the admissions which have been granted by the petitioners between the interim order dated 17.10.2011 till 11.04.2012, as stated can be regularized, or they cannot be because of the defects and deficiencies not been removed before the cut off date, then, it is for the Central Government to take such steps and measures and pass necessary and requisite orders as are permissible in law. Once the authorities who are in charge of the matter are seized of the situation, it is not for us to pursue the matters any further. In the light of the conclusions that we have reached as above, we are of the opinion that there is no merit in these petitions and they fail.”
33. Thus, it is for the Authorities and Experts to decide as to for how far they desire to continue their pro-tem or Ad-hoc measures. Someday they will have to stop experimenting and accommodating parties like the petitioners. If there is no functional hospital no proper teaching faculty, lack of patients, then, medical education and its cause will suffer and the ultimate loser will be the common man for whose benefit and healthcare we need equipped, efficient and expert Doctors. We have no doubt that the Council and the Central Government is aware of its obligation and duty to give the society the best talent with properly inculcated social values. We only wish to invite their attention to the judgments of the Hon'ble Supreme Court in the case of Prof. Yashpal and another .vrs. State of Chattisgarh and others reported in (2005) 5 SCC 420, wherein it is held as under :
"63..... What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide a high level of teaching and other facilities like well- equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not universities without any teaching facility but having an authority to confer degrees."
And in State of Himachal Pradesh and another .vrs. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh reported in (2011) 6 SCC 597, wherein in paragraph nos. 21 and 22 the Hon'ble Supreme Court has held as under.
"21. The High Court has lost sight of the fact that education is a dynamic system and courses/subjects have to keep changing with regard to market demand, employability potential, availability of infrastructure, etc. No institute can have a legitimate right or expectation to run a particular course forever and it is the pervasive power and authority vested in the Government to frame policy and guidelines for progressive and legitimate growth of the society and create balances in the arena inclusive of imparting technical education from time to time. Inasmuch as the institutions found fit were allowed to run other courses except the three mentioned above, the doctrine of legitimate expectation was not disregarded by the State. Inasmuch as ultimately it is the responsibility of the State to provide good education, training and employment, it is best suited to frame a policy or either modify/alter a decision depending on the circumstance based on the relevant and acceptable materials. The courts do not substitute their views in the decision of the State Government with regard to policy matters. In fact, the court must refuse to sit as appellate authority or super legislature to weigh the wisdom of legislation or policy decision of the Government unless it runs counter to the mandate of the Constitution.
22. With regard to the importance of human resources, especially manpower requirement in various professional and technical fields, the Government is free to frame its policy, alter or modify the same as to the needs of the society. In such matters, the courts cannot interfere lightly as if the Government is unaware of the situation. ..."
34. The Hon'ble Supreme Court once again cautioned all concerned in the case of National Council for Teacher Education and others .vrs. Shri Shyam Shiksha Prakshikshan Sansthan and others, reported in (2011) 3 SCC 238 and in Shri Morvi Sarvajanik Kelvani Mandal Sanchalit MSKM BE.D College .vrs. National Council for Teachers Education and others reported in (2012) 2 SCC 16. Both issues, namely, ill-equipped institutions and misplaced sympathy for students of such institutions have been dealt with and earlier principles are reiterated in these cases. Hence, it is for the Central Government and the Council to deal with the petitioners hereafter. Either they show further indulgence and grant them time to improve or bring about a situation of thus for no further and thereafter decide the fate of the students admitted till date. All that we say is that they do all this expeditiously and before the ensuing exams, so as to avoid inconvenience to all.”
22. In the case of Municipal Corporation, Ludhiana (supra), the Apex Court in paras 13, 14, & 18 has held as under:
“13. A finding of fact has been arrived at that the notices dated 10.01.2001 and 01.02.2001 were not served on the respondent. The said notices were also found to be absolutely vague. They did not contain the description of the property in question. Indisputably, they were issued in the name of a dead person. It is of some significance to notice that whereas in the first two notices objections was called for and/or directions to stop construction was issued, by reason of the third notice, a direction was issued upon the first respondent to demolish the structures. No opportunity of hearing was granted. No notice to show cause was issued. It is on that basis that a purported demolition order was passed which, indisputably, has been carried out. It is, therefore, not correct to contend that the notice dated 14.12.2001 was not final and by reason thereof merely the first respondent was asked to file his show cause. Where a noticee, fails to carry out such direction, demolition can be carried out by the Corporation at the cost of the owner. In effect and substance, therefore, an order of demolition was passed in terms of the aforementioned notice dated 14.12.2001. It was a final order. An appeal thereagainst was, thus, maintainable.
14. The appellant furthermore acted arbitrarily insofar as it demolished the structures, despite pendency of the suit. We would assume that the order of injunction was granted for a limited period, but it is expected of a Statutory Corporation to act thereupon upon informing the court thereabout. Furthermore, the notice was vague. It did not contain any description of the property. How much area of the property was the subject matter of unauthorized constructions had not been disclosed. It is not in dispute that a plan for construction of the building was sanctioned. It was, therefore, obligatory on the part of the authorities of the appellant to categorically state as to how much area, if any, was the subject matter of unauthorized construction.
....
18. Had a proper show cause notice been served upon the first respondent, he could have shown that the alleged violation of the provisions of the Act is of negligible character which did not warrant an order of demolition. Respondent No.1's contention that only an area of 14 sq. ft. was the subject matter of unauthorized construction should have been considered by the appellant and an appropriate order thereupon should have been passed. It was in a situation of this nature, the appellant was statutorily obligated to apply its mind in regard to the nature and extent of unauthorized construction, if any. “
22.1 In the case of Shri B.D. Gupta (supra), the Apex Court in para 9 has held as under:
9. The only ground on which the Government proposed to censure the appellant is the fact that the appellant's explanation dated 18 December 1956 in reply to the statement of charges and allegations had been found unsatisfactory by Government. By the expression "Charges, and allegations" in this "Show Cause ,notice", reference obviously is to the letter of 22 October 1956. That, letter, it will be remembered, contains two charges, namely, Charge 1 (a) and Charge 1(b). The appellant's explanation of 18 December 1956 which is said to have been found unsatisfactory by Government was a reply not only to Charge 1 (a) but also to Charge 1(b) of these two charges, so far as Charge 1 (a) is ,concerned the appellant had been completely exonerated in October, 1958. There is nothing, however, in the "Show Cause notice" of 26 October 1966 to indicate clearly that the dissatisfaction of Government with the appellant's reply of 18 December 1956 had nothing to do with Charge 1 (a). The "Show Cause notice" merely states in vague general terms that the appellant's 'reply to the charges and allegations was unsatisfactory. Even if 'we were to assume, though there is no reasonable ground for this assumption, that Government did not have in mind the contents of Charge 1 (a) while serving this "Show Cause notice", there is nothing in the "Show Cause notice" to give any indication that the particular allegations regarding which the appellant had failed to furnish a satisfactory explanation were referable only to ,Charge 1(b). The notice is vague on other grounds as well. As one reads the first paragraph of the notice, the questions that at once assail ones mind are many: In what way was the explanation of the appellant unsatisfactory ? Which part of the appellant's explanation was so unsatisfactory ? On what materials did the Government think that the appellant's explanation was unsatisfactory. It is to our mind essential for a "Show Cause notice" to- indicate the precise scope of the notice and also to indicate the points on which the officer concerned is expected to give a reply. We have no manner of doubt that the "Show Cause notice" in the instant case did not give the appellant any real ,opportunity to defend himself against the complaint that his previous explanation of 18 December 1956 had been unsatisfactory. 'The appellant did not, therefore, get any chance at all to show ,that he did not deserve a censure upon his conduct.”
22.2 In the case of Board of Technical Education (supra), the Apex Court has held as under:
“1. This appeal and the Special Leave Petitions arise from the judgments of the Allahabad High Court. The High Court quashed the order dated 30- 9-1988 made by the Board of Technical Education (the appellant) cancelling the results of the examination taken by certain students who are respondents in these cases. The High Court found that the orders impugned before it were unsustainable for the reason that the students had not been given proper notices. The notices served on them were found by the High Court to be so vague that they could not have effectively defended themselves in the inquiry. In the absence of proper notices, the inquiry which was held was found by the High Court to be invalid for violation of the rule of natural justice. Accordingly, the High Court directed the appellant-Board to declare the results of the students who had filed the petitions in the High Court.”
22.3 Even in the case of Jaya Gokul Education Trust (supra), the AICTE therein had granted conditional approval and the conditions were specified in Annexure I to the order.
23. Considering the aforesaid decisions, it is evident that the authority has travelled beyond the show cause notice. The petitioners have satisfactorily pleaded their case which is evident from the reply filed in the petition. Considering the fact that substantial part of the criteria as recommended by the CCH were being fulfilled, the recommendation for new college could be granted to the petitioner institution looking to the fact that in majority of the cases like the colleges referred hereinabove have been given provisional recognitions inspite of the short falls.
24. Apart from that the authority has not considered documents which are produced on record. This court is of the opinion that the documents and evidence submitted by the petitioner institution at the hearing have not been considered by the authorities in its true perspective. There is material on record to show that the petitioner institution was compliant of the regulations and the deficiencies against which they were asked to show cause were substantially fulfilled. In that view of the matter, the petitioner institution is required to be granted provisional recognition for starting a Homeopathy College.
25. In the premises aforesaid, petition is allowed. The order dated 20.04.2012 passed by respondent no. 1 is quashed and set aside. The petitioner institution is granted provisional recognition for opening a Homeopathy College in the name of B.G. Garaiya Homeopathic College at Rajkot. It shall be open to the respondent authorities to inspect the institution after a period of 45 days of commencement of institution which is the time period given to rest of the colleges/institutions which are similarly placed as the petitioner institution and take appropriate action after following due procedure. In view of the provisional recognition granted, it shall be open to the petitioner to request the Centralized Admission Committee for Medical Professional Courses to allot students and the University shall permit the institution to enroll the students. Rule is made absolute to the aforesaid extent.
26. At this stage Mr. Champaneri has requested stay of the order. This court is not inclined to stay the order at this stage when provisional recognition has been granted to the petitioner institution. No prejudice is caused to respondent no. 1 is not staying this order but the petitioner institution shall be at a loss of an entire year if the order is stayed. Therefore request is rejected.
(K.S. Jhaveri, J.) Divya//