Haridwar Ayurvedic College And Research Centre vs Union Of India And Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in WPMS No.2359 of 2019 dated 21.08.2019. The appellant herein filed WPMS No.2359 of 2019 seeking a writ of certiorari to quash the letter dated 29.07.2019 issued by the first respondent; and a writ of mandamus commanding the first respondent to grant permission for an intake of 60 seats of Undergraduate (BAMS) Course for the Academic Session 2019-20.

Facts, to the limited extent necessary, are that the petitioner has been running an Ayurvedic Medical College, namely Haridwar Ayurvedic College and Research Centre, since 2016-17. The said college, which has been declared a Minority Educational Institution as per Section 2(g) of the National Commission for Minority Educational Institution Act-2004, has been offering B.A.M.S. Course in its institute, and is affiliated to the Uttarakhand Aayurved University, Harrawala, Dehradun.

The petitioner was being granted permission on an yearly basis, in terms of Section 13C and Section 13A of the Indian Medicine Central Council Act-1970 (the "1970 Act" for short) for sixty seats for Undergraduate (BAMS) Course; and, in terms of Section 13-A (1) of the 1970 Act, the petitioner submitted a scheme claiming to have complied with the requirements regarding teaching staff, non teaching staff, instruments/equipment and other requirements. After causing physical inspection, the second respondent issued letter dated 14.05.2019 forwarding its recommendation to the first respondent to grant conditional permission for admission in the undergraduate (BAMS) course with 60 seats for the academic session 2019-20. The few shortcomings, found in the scheme submitted by the petitioner, are, according to them, within the permissible relaxation norms of the 2016 regulations. The petitioner claims that the CCIM had, therefore, recommended the petitioner's scheme for grant of conditional permission for admission for the year 2019-20. On the recommendation of the CCIM not being accepted, and the petitioner's request for grant of conditional permission being rejected by the first respondent by the order impugned in the writ petition, the petitioner invoked the jurisdiction of this Court resulting in the order under appeal being passed.

In the order under appeal, the learned Single Judge observed that refusal by the first respondent is based on an inspection report submitted by the Central Council of Indian Medicine ("CCIM" for short); the CCIM had found certain shortcomings but had, nonetheless, recommended in favour of the petitioner; this report did not find favour with the Department of AYUSH, Government of India in view of the shortcomings, such as there was no higher faculty available in the department of Kayachikitsa against the minimum requirement of two, and a Bio-statistician was also not available; there were other shortcomings as well; the petitioner's case was that, inspite of these deficiencies, their case definitely comes within the zone of relaxation under the Indian Medicine Central Council (Requirements of Minimum Standard for under-graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016 ("the 2016 Regulations" for short); this relaxation should have been granted to the petitioner, particularly when such a recommendation had been made by the CCIM; and this aspect had not been considered by the Department of AYUSH, Government of India. The writ petition was disposed of directing the petitioner to make an application to the Department of AYUSH, Government of India which, if necessary, was directed to get an inspection caused by the CCIM, and pass appropriate orders within ten days thereafter, as per the Regulations. The first respondent was directed to consider the petitioner's case in view of the zone of relaxation as per the 2016 Regulations. Aggrieved thereby, the present appeal.

Mr. T.A. Khan, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, would draw our attention to the 2016 Regulations to contend that the deficiencies pointed out by the CCIM, in its recommendations to the first respondent, fell within the permissible relaxation limits for grant of conditional permission. Learned Senior Counsel would take us through each of these shortcomings, and compare it with the permissible relaxation limits stipulated in the statutory 2016 Regulations, in support of his contention that, despite the appellant-writ petitioner having fulfilled the requirements for grant of conditional permission and though the CCIM was satisfied that the shortcomings fell within the permissible limits under the 2016 Regulations while recommending the petitioner's case for grant of conditional permission, the first respondent had, mechanically and without applying its mind to the relevant 2016 Regulations, rejected the petitioner's application for grant of conditional permission; and had, instead, rejected their request without even taking note of the relevant provisions relating to relaxation under the 2016 Regulations.

Mr. T.A. Khan, Learned Senior Counsel, would submit that no useful purpose would be served in directing the first respondent to reconsider the matter, since they had already decided to reject the petitioner's request for grant of conditional permission; and a mandamus should be issued directing them to accord conditional permission.

Before examining the contentions, urged on behalf of the appellant-writ petitioner by the learned Senior Counsel, it is useful to take note of the deficiencies pointed out by the CCIM in its letter dated 14.05.2019. With regards teaching staff, the CCIM had recorded that no higher faculty was available in the department of Kayachikitsa against the minimum requirement of two; and a Bio-statistician was also not available. With regards non-teaching staff, the CCIM had recorded that there was only one laboratory technician available in the department of Rognidan, against the minimum requirement of two.

Regulation 3 of the 2016 Regulations relates to the requirement of minimum standards for grant of permission and sub-clause (3), thereunder, relates to the requirement of minimum standard to grant conditional permission of one year. Regulation 3(3)(a) stipulates that conditional permission of one year, for a particular academic session, shall be grantee only to those colleges which fulfilled the requirements on the basis of the inspection of the Central Council between 31st December to 31st March of the succeeding academic session; (i) the requirement of teachers as specified in Schedule-V; (iii) availability of minimum 75% of the required equipment as specified in Schedule-VII; and (vi) availability of technical and other staff as specified in Schedule-VI.

Scheduled V of the 2016 Regulations contains details of the teaching staff in Ayurvedic colleges and, under Note (iii) thereunder, the deficiency of teachers for upto 60 in-take capacity shall not exceed more than 10% of the total requirement, with availability of a minimum of one teacher in each of the fourteen Departments; and the total number of higher faculty shall not be less then twelve professors or Readers distributed in a minimum of eleven Departments; this relaxation is for seeking conditional permission for a particular academic session; and for example - a college having upto sixty in-take capacity shall have a minimum twenty seven total faculty, out of which a minimum shall be of twelve Professors or Readers covering not less than eleven departments.

Mr. T.A. Khan, learned Senior Counsel, would submit that the petitioner has complied with the requirement of Note (iii) below the table in Schedule-V, despite which conditional permission was refused. Learned Senior Counsel would also draw our attention to the scheme submitted by the petitioner wherein, with respect to teaching staff as per Schedule-V, they have furnished details of a total faculty of 31 of which 12 are Professors/Readers (four Professors and 8 Readers), thereby satisfying the requirement of having a minimum faculty of 27, of which 12 were Professors or Readers covering not less than eleven Departments.

Learned Senior Counsel would also draw our attention to Schedule-IV, particularly to Note (5) below the table therein, to submit that, for conditional permission, a minimum of 80 % and above of hospitals staff shall be required which, on a bare reading of the recommendation of the CCIM dated 14.05.2019, would show to have been fulfilled. Learned Senior counsel would submit that, while shortcoming No.3 of the recommendation of the CCIM in its letter dated 14.05.2019 relates to shortage of instruments/equipments in Rasashastra Laboratory, shortcoming No.4, relates to availability of general and essential equipment/instruments of 98.94%. Learned Senior counsel would draw our attention to the Note, below the table in Schedule-VI of the 2016 Regulations, which stipulates that, for conditional permission, a minimum 80% and above technical and other staff are required; and, in terms of Regulations 3(3)(III), availability of a minimum of 75% of the required equipment, as specified in Schedule-VII for grant of conditional permission, are available.

It does appear, from a perusal of the contents of recommendation letter of the CCIM dated 14.05.2019, when read in juxta-position with the 2016 Regulations, that the petitioner has fulfilled the conditions stipulated for grant of conditional permission in terms of the 2016 Regulations; and it is for this reason that the CCIM had favourly recommended their case for grant of conditional permission for one year. While it is true that none of these statutory provisions, under the 2016 Regulations, were even noted by the first respondent while passing the impugned order, we must express our inability to agree with the submission of Mr. T.A. Khan, learned Senior Counsel, that, since the first respondent had failed to take note of these statutory provisions, this Court should, therefore, issue a mandamus to the first respondent to accord conditional permission to the appellant-writ petitioner for the academic session 2019-20.

Power to grant approval is conferred on the first respondent under the provisions of the 1970 Act and the 2016 Regulations made thereunder. While we do find considered force in the submission, urged on behalf of the appellant-writ petitioner, that the requirement for grant of conditional permission has been fulfilled by the petitioner, that would not justify this Court doning the robes of the first respondent to grant conditional permission to the petitioner or to issue a mandamus to the first respondent to accord such approval.

Since any decision, to be taken by the first respondent, can only be in terms of 1970 Act and the 2016 Regulations, suffice it to modify the order under appeal, and, instead, direct the first respondent to examine whether the shortcomings pointed out by the CCIM in its letter dated 14.05.2019, (which letter was issued after physical inspection of the petitioner's institution on 29/30.03.2019), falls within the permissible relaxation limits, stipulated in the 2016 Regulations, for grant of conditional permission to the petitioner's college for one year.

Mr. Ramji Srivastava, learned Counsel for the CCIM, would submit that, while the next phase of counseling is scheduled to be held on 31.08.2019, the mop-up counseling is scheduled to be held on 19.09.2019.

Suffice it, in such circumstances, to set aside the order impugned in the writ petition, modify the order under appeal, and direct the first respondent to consider the petitioner's scheme, in the light of the recommendation made by the CCIM in its letter dated 14.05.2019, in compliance with the 1970 Act and the 2016 Regulations, and in accordance with the observations made hereinabove, and pass orders afresh in accordance with law within one week from the date of production of a certified copy of this order.

Mr. T.A. Khan, learned Senior counsel, would submit that, while all other institutions were informed of the order passed by the first respondent through email, the petitioner was alone communicated by post which resulted in the needless delay in invoking the writ jurisdiction of this Court. Suffice it, therefore, to direct the first respondent, immediately after a decision is taken by them and an order is passed pursuant thereto, to communicate the same to the appellant-writ petitioner herein both by email and by registered post.

The Special Appeal is, accordingly, disposed of. No costs.

Let a certified copy of this order be issued, to the learned counsel for the parties by tomorrow, on payment of the prescribed charges.