Chief Justice's Court
Case :- WRIT - C No. - 5599 of 2018 Petitioner :- Sainath Charitable Trust Respondent :- Union Of India And Another Counsel for Petitioner :- Udit Chandra Counsel for Respondent :- A.S.G.I.,Santosh Kumar Shukla,Vinay Singh
Hon'ble Govind Mathur,Chief Justice Hon'ble Saurabh Shyam Shamshery,J.
In the present petition for writ, following reliefs are sought:
(i) To issue writ order or direction in the nature of mandamus calling for entire record.
(ii) To issue writ order or direction in the nature of certiorari quashing the impugned order dated 16.10.2017 passed by respondent No.2 (Annexure No.1 to the writ petition) on the ground of violation of principles of Natural Justice in view of the constitution bench judgment in the case of Gullapalli Nageshwar Rao v. A.P.S.R.T.C., 1959 AIR (SC) 308.
(iii) To issue writ order or direction in the nature of mandamus declaring the letter as illegal, arbitrary on the ground of violation of principles of Natural Justice in view of constitution bench judgment in the case of Gullapalli Nageshwar Rao v. A.P.S.R.T.C., 1959 AIR (SC) 308.
(iv) To issue writ order or direction in the nature of certiorari quashing the impugned notice dated 01.9.2017 (Annexure No.8 to the writ petition) on the ground of arbitrariness.
(v) To issue writ order or direction in the nature of mandamus directing the respondents to give Letter of Permission (LOP) to the petitioner in view of Section 13A (5) of the Indian Medicine Central Council Act, 1970.”
Facts in brief as narrated in the petition for writ are as follows:
(a) Petitioner is a registered trust and vide its application dated 28.4.2016 had applied for grant of permission of Central Government to start new Ayurveda College in the name of “Sainath Institute of Ayurveda Medical Sciences and Research Center Hinduwari, Sonbhadra, U.P. with 60 beds in BAMS (UC) course, under section 13-A of the Indian Medicine Central Council Act, 1970 hereinafter referred as “IMCC Act”.
(b) Application was referred to Central Council of Indian Medicine hereinafter referred as (CCIM), which visited the College on 28/29.9.2016 to verify the availability of requisite infrastructure including staffing position to start new Ayurveda College. CCIM after inspection forwarded its report and recommended for issuing of Letter of Intent (LOI) with remedial short-comings which had to be complied with by the College, before the date of visitation by CCIM for Letter of Permission (LOP).
(c) The Ministry of 'AYUSH' by letter dated 21.6.2017 after considering/examining the recommendations and verification report of CCIM in terms of Regulation 6 of Regulations namely Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College (Amendment) Regulations of 2013 issued Letter of Intent (LOI) to the Petitioner's Society to establish a new Ayurvedic College with 60 seats under Section 13A of IMMC Act, 1970 from the academic sessions 2017-18, subsequent to the fulfillment of conditions/short-comings mentioned in the 'Letter of Intent' which are as under:
“i. the applicant shall fulfill all the relevant requirements of infrastructure for teaching and training facilities as specified in the Regulations 3 and 10 of the “Indian Medicine Central Council (Requirement of Minimum Standard for under- graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016.
ii. the applicant shall fulfill all the relevant requirements of the “Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Amendment Regulations, 2016” (for Ayurveda).
iii. the applicant shall fulfill all the relevant provisions of Regulations namely the “Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulation 2003 read with amendment Regulations of 2013; and
iv. the applicant shall fulfill all the relevant provisions under the IMCC Act, 1970.”
(d) The CCIM again visited the proposed college on 14.7.2017 to assess the available facilities of teaching and practical training for conducting UG course and to verify the compliance submitted by the applicant during the LOI period and shortcomings/conditions as communicated in LOI. After inspection, the CCIM vide letter dated 9.8.2017 recommended to the Government of India for not issuing Letter of Permission to establish new Ayurveda College in UG (BAMS) course under section 13A of the IMCC Act, 1970 from the sessions 2017-18 due to non-functional college and hospital and other non compliance of mandatory requirements.
(e) The petitioner's college was granted an opportunity of hearing on 8.9.2017 vide Ministry letter dated 1.9.2017 to present their case, to clarify the position and to show cause as to why the application dated 28.4.2016 to establish new college be rejected.
College was also granted permission to make oral and written submissions before the Designated Hearing Committee and to produce documents if any. The letter which was issued by Under Secretary to Government of India mentioned following short-comings as forwarded by the CCIM after inspection.
(i) Teaching staff-There are no higher and lower faculties in all teaching departments namely Ayurved Samhita & Siddhant, Rachna Sharir and Kriya Sharir for 1st Professional year.
(ii) Non-Teaching staff- Non-Teaching staff is not available.
(iii) Hospital staff-Hospital staff is not available.
(iv) Functionality of Hospital-
• There are 00 OPD's against the requirement of 08.
• Computerised Central Registration for OPD and IPD are not available.
• Total number of patients attended OPD from 1st Jan. 2016 to 31st Dec.2016 are nil against the requirement of 60,000.
• Average attendance of patients in OPD per day from 1st Jan. 2016 to 31st Dec. 2016 are nil against the requirement of 200.
• Total number of beds are nil against the requirement of 100.
(v) Instruments/Equipment are not available. Further, in visitor's observation report, Visitor's have stated that-
(i) “We the team visited Sainath Institute of Ayurveda medical sciences and research centre, (AYU0507) SONBHADRA, Uttar Pradesh on 10.07.2017 at 10.30 A.M. The institution is of 2 buildings, one hospital and other academic, about 300 meters distance from one another in separate compound.”
(ii) We the team visited the academic block and found out the building was under construction and not functional with departments, staffs, office etc. (picture and videos attached).
(iii) The college has not uploaded the 1st part and was not having the relevant records and during the inspection we found that the college has showed a polytechnic institute as Ayurveda College during LOI.
(iv) The Hospital building looks like some shops arranged with Inpatient and outpatient facilities with no adequate space, most of the physicians seems to be fake without proper ID card and relevant documents.
(v) No teachers were having personal identification card and teaching code and principal was not present on the day of visitation, but in the group photo of teachers fake persons were seen as teachers, but on through questioning we found that only 3 of them are teachers.
(vi) We the team left the college around 2.30 p.m. From the college.”
(vii) Part-1 (of visitation report) is not submitted by the college.”
(f) The representatives of the proposed college appeared before the Designated Hearing Committee and made oral as well as written submissions.
g) The Ministry of AYUSH by order dated 16.10.2017, after considering the recommendations/observations of Hearing Committee, oral and written submissions made by the petitioner as well as other material on record, disapproved the application of the petitioner for opening of new Ayurveda College and withdrawn the Letter of Intent dated 21.6.2017 issued to the petitioner. In the order following observations were made:
1. There are 07 faculties in the teaching departments for Ist Prof. and regarding 01, HF, consent for the post of Professor and Reader in Department of Ayurved Samhita & Siddhant has been taken for joining the institution after issuing of permission from Ministry of AYUSH.
2. The appointment letters of few non-teaching staff is only available with discrepancy in their posts.
3. Documents of the non-teaching staff in the college are not complete for all.
4. Functionality of the hospital :
• Computerized Registration System is available for OPD and IPD in the hospital. However, Department- wise Registration System for OPD is manual.
• The data of the total patients (Old and New) who attended the OPD from 1st January 2016 to 31st December, 2016 is found to be mismatching with the department register.
• The claimed average attendance of patients in OPD (120/day) from 1st January, 2016 to 31st December, 2016 doesn't deem to be authentic.
• There are 60 beds in the hospital as per the invoice without proof of the payment.
5. Certain instruments/equipment have been purchased for the college and hospital as per the invoice without proof of the payment.
h) The order dated 16.10.2017 is impugned in the present writ petition.
i) Mr. Udit Chandra, learned counsel appearing for the petitioner submits that :-
(a) Notice dated 1.9.2017 which was issued by respondent No.2, whereas submission were heard by one Hearing Committee, however final decision was taken to withdraw the LOI by the respondent No.2 merely on the basis of the report of Hearing Committee, therefore, the Authority took final decision and passed the impugned order without hearing the petitioner and as such, Principles of Natural Justice are violated.
(b) In support of his submission, learned counsel for the petitioner has relied upon a Constitution Bench judgment of Hon'ble Supreme Court in the matter of Gullapalli Nageshwar Rao v. A.P.S.R.T.C., 1959 AIR (SC) 308, wherein paragraph 31, it has been held that:
“31.The second objection is that while the Act and the' Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party- appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.”
(c) Learned counsel for the petitioner, further relied upon paragraph 33 of the judgment passed by Hon'ble Supreme Court in the matter of Nagarjuna Construction Co.Ltd. Vs. Govt of Andhra Pradesh, reported in 2008 (16) SCC 276, wherein it has been held that:
“33. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liber nto the 'Mgna Carta'. The classic exposition of Sir Edward Coke of natural justice requires to 'vocate interrogate and adjudicate'. In the celebrated case of Cooper v. Wands worth Board of Works 1963 (143) ER 414, the principle was thus stated: Even God did not pass a sentence upon Adam, before he was called upon to make his defence. 'Adam' says God, 'where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat. Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond'. Thus, natural justice as understood in its common parlance stands for fundamental equality and fairness which has to be adopted in any action and its soul in fair play in action.”
(d) Counsel also submitted that the constitution of the 'Designated Hearing Committee' is not backed by any statutory provision.
(e) He also submitted that 'Hearing Committee' has not distinguished that present permission was under the category of 60 beds college and not for the category of 100 beds and therefore the impugned order is passed without application of mind.
(f) Lastly he submitted that the impugned order has simply relied upon the observations of 'Hearing Committee' without taking independent consideration.
4. Learned counsel for the respondent would be supporting the order passed by the Ministry of AYUSH.
5. We have considered the submissions made by the learned counsel for the parties and perused the record and are of the considered view that:
(i) The submission that principles of natural justice are violated is contrary to the record available, as before the 'Designated Hearing Committee' the representatives of the petitioner have appeared and not only oral but written submissions with other documents were also submitted.
(ii) The recommendation/report of the 'Designated Hearing Committee' has been considered by the Authority in the Ministry and from the impugned order it is clearly evident that the authority has applied its mind and came to the conclusion of withdrawing the LOI. The relevant consideration in the impugned order is mentioned hereinafter:
“10. WHEREAS, in view of above observations of the Hearing Committee based on submission made by the representatives of the applicant Trust during hearing, it is found that the proposed college is presently having the required 07 number of eligible teachers in 03 departments against the requirement of 07 and 03 Higher faculties in 02 departments against the requirement of 03 for upto 1st professional course for upto 60 UG seats as per RMS. However, 'the representatives of the applicant Trust could not produce sufficient documents to substantiate their claim of having required number of non-teaching staff in the college, required number of hospital staff, genuinely functional OPD in hospital [as date of the patients (old and new) attended OPD form 1st Jan, 2016 to 31st Dec., 2016 submitted by the college is found mismatched with department register and average attendance of patients in OPD for the assessment period did not found authentic by the hearing committee]. required number of beds in the hospital and required number of instruments/equipment in the college and hospital. Therefore, the college is not satisfying the all the conditions laid down in the LOI dated 21.06.2017 issued earlier. In view of above, the college is not fulfilling the criteria as per RMS, 2016 for issuing Letter of Permission to establish a new Ayurveda with intake capacity of 60 seats from the academic session 2017-18, as the proposed college is not having required minimum non teaching staff in the college, required number of hospital staff and genuinely functional Ayurveda hospital in the college.
11. WHEREAS, The CCIM also has recommended to the Central Government for not issuing Letter of Permission to establish new Ayurveda College for UG (BAMS) course from the session 2017-18 due to non-functional college and Hospital.
12. NOW, THEREFORE, in view of position explained in para 3 to 11 above, considering the recommendations and report of CCIM and observations of Hearing Committee based on the submission made by the college, the case does not appear fit for issuing Letter of Permission to establish a new Ayurveda with intake capacity of 60 seats from the academic session 2017-18. Therefore, it has been decided by the Central Government not to issue Letter of Permission to the Managing Director, Sainath Charitable Trust, N-10/3,B-1-2, Lakhraon, Kakarmatta, Varanasi-221009, Uttar Pradesh to establish a new Ayurveda college in the name of “Sainath Institute of Ayurved Medical Sciences and Research Centre, Hainduwari, Sonbhadra-231216, Uttar Pradesh with admission capacity of 60 seats in BAMS (UG) course from the academic 2017-18 under section 13A of the IMCC Act, 1970 and the application dated 28.04.2016 for the purpose is disapproved. Further, Letter of Intent issued earlier on 21.6.2017 in this regard to the applicant is also hereby withdrawn.
13. However, second proviso to sub-Section (5) of Section 13A of the IMCC Act does not prevent any person of medical college whose scheme (application/s) has not been approved by the Central Government to submit a fresh scheme for permission of the Central Government in subsequent year in accordance with the schedule prescribed for receipt and processing of the applications under Regulations “the Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations, 2003” read with the Amendment Regulations, 2013. Hence, the college may apply afresh.”
Therefore the submission of the learned counsel for the petitioner on the issue of principles of natural justice is without basis, hence rejected.
(iii) The counsel for the petitioner has not been able to show any material in order to contradict the observations made by Hearing Committee on various short comings. Therefore, the order for withdrawal of Letter of Intent is correctly passed as petitioner's College has not satisfied the criteria for granting Letter for Permission.
(iv) The submission that the 'Designated Hearing Committee' has no power to recommend is also baseless as the Ministry of AYUSH has specifically mentioned the entire procedure on its website including the hearing by 'Hearing Committee', which is as follows:
“On receipt of the application under section 13A for establishment of new colleges, the Central Government forwards the application to the CCIM for inspection and its recommendation as per the provision of IMCC Act, 1970. Thereafter, the CCIM visits the college for inspection and send its report and recommendation to the Central Government for Issuing of Letter of Intent or rejection of application. On examining the same, the Central Government issue Letter of Intent to the colleges which fulfill the required eligibility criteria or grant an opportunity of hearing to the colleges which are not fulfilling the requirements. During the course of hearing, if the Hearing Committee finds that the college concerned fulfills all the minimum requirements, then Letter of Intent is issued. In the Letter of Intent, the time is provided to the college for removal of remediable deficiencies. Subsequently, the CCIM again visits the college for inspection and send its recommendation for withdrawal of LOI or grant of permission for establishment of new colleges. The Central Government follows the same process as explained above while issuing of LOI for grant or denial of permission for establishment of new colleges. The permission is granted to the colleges which fulfill the requirements, otherwise order of withdrawal of LOI and denial of permission under Section 13A is issued.”
(emphasis supplied) In the background of aforesaid discussion, we are of the considered view that principles of natural justice has been followed and petitioner has not been able to point out that short-comings as mentioned in the impugned order are factually incorrect, therefore, the decision of the Central Government cannot be faulted with.
Accordingly, the writ petition lacks merits and is dismissed.
Order Date:-22.2.2019-SB (Saurabh Shyam Shamshery,J.) (Govind Mathur,C.J.)