Shaheed Kartar Singh Sarabha Ayurved Medical College and Hospital vs State of Punjab and Others

Jawahar Lal Gupta, J.—The petitioner, an Ayurvedic College, complains that despite the grant of a ''No Objection Certificate'' by the State Government vide letter dated July 20, 1998; the provisional affiliation by the Panjab University vide letter dated September 30, 1998 and the repeated approvals by the Central Council of Indian Medicine during the last three years vide letters dated September 30, 1998, July 6, 1999 and August 21, 2000, the Baba Farid University of Health Sciences has arbitrarily refused to grant affiliation to the Institution. The petitioner alleges that on the basis of the provisional affiliation granted by the Panjab University, it had admitted 40 students for the session 1998-99. These students have been granted registration by the Panjab University and have continued to remain on the rolls of the College. The teams deputed by the Central Council have found that the Institution has the requisite facilities in the matter of staff, library, hospital, equipment and hostels etc. Despite that the University has refused to recognise the College. As against this, the Institutions which were found to be deficient in various respects, have been granted affiliation or allowed to continue. The petitioner maintains that the action is totally arbitrary, unfair and unconstitutional. It is mala fide. Thus, the petitioner maintains that the action is liable to be struck down. Is it so?

A few facts as relevant for the decision of this case may by briefly noticed.

On April 3, 1997, the Shaheed Kartar Singh Sarabha Educational Society, Raikot, District Ludhiana was registered by the Registrar of Firms and Societies, Chandigarh. The Society decided to set up an Ayurved Medical College. On April 9, 1997, the Society applied for the grant of affiliation to the Panjab University, Chandigarh for the proposed College. A copy of this application is at Annexure P.2 with the writ petition. This application had been submitted in conformity with Regulation 1.2, Chapter VIII-A of the Panjab University Calender Volume I. Vide letter dated April II, 1997, the Panjab University called upon the petitioner to get permission from the Central Council of Indian Medicine. It also asked for a ''No Objection Certificate'' from the State Government.

The Society applied for the requisite permission and certification to the two authorities. Vide letter dated July 20,1998, a copy of which has been produced as Annexure P.4, the State Government granted a ''No Objection Certificate'' to the petitioner. On September 30, 1998, the Central Council accorded permission to the Society to admit 40 students in the First Professional Course of Ayurvedaehrya in the Session 1998-99. Having complied with the directions of the University, the Society requested the Panjab University to grant affiliation.

On receipt of the communication dated September 24, 1998, a copy of which is at Annexure P.6 with the writ petition, the University deputed a committee for inspection of the institution. The college was inspected by the committee on November 30, 1998. The petitioner alleges that it was orally permitted to admit 40 students. It had proceeded to do so. Resultantly, 40 students whose names are mentioned in the list at Annexure P.7, were admitted in the First Year of the BAMS Course for the academic session 1998-99.

On July 22, 1998, the Punjab Legislature promulgated the Baba Farid University of Health Sciences Act, 1998. This Act was promulgated to establish and incorporate a University for the purposes of "affiliating and leaching and ensuring proper and systematic instruction, training and research in Modern Systems of Medicine and Indian Systems of Medicine." The Act had to come into force "on such date as the State Government may, by notification in the Official Gazette appoint". This date, as conceded by the counsel for the University, has not been notified so far.

A meeting of the Syndicate of the Panjab University was held on April 24,1999. A copy of the proceedings has been produced on record as Annexure P.41 with the writ petition. An extract from item No. (iii) of the Agenda was noted by the Syndicate. It is in the following terms:-

(iii) "To note the notification No. 9/25/98-5HB-III/1167 dated 31.3.99 from the Principal Secretary. Medical Education and Research, Punjab stating therein that all colleges and other educational institutions in the State of Punjab imparting education in Health Sciences previously affiliated to Guru Nanak Dev University, Amritsar, Panjab University. Chandigarh and Punjabi University, Patiala, be affiliated to Baba Farid University of Health Sciences, Faridkot with effect from 1st day of July, 1999 and that the Baba Farid University of Health Sciences, Faridkot would start conducting the examinations of such Institutions from November/December, 1999. Endst. No. Misc. A-4/4232 Dated 15.5.99 Copy to the following for information and necessary action:- 1. xx xxx

Principal. Shaheed Kartar Singh Sarabha Ayurvedic College, Rajkot (Punjab).

Principal. Satguru Instt. of Research & Dentat Sciences, Muklsar.

Principal. Guru Teg Bahadur Sahib Charitable Hospital, Shaslri Nagar, Ludhiana.

Principal, Lala Lajpat Rai Memorial Ayurvedic College and Hospital, Moga (Punjab).

Principal, Mai Bhago College of Dental Sciences, Muktsar (Pb.). xx xxx

Note: The colleges from Sr. No. 18 to 21 have not been granted affiliated (affiliation) by the Panjab University, Chandigarh due to non receipt of required complete information from the colleges".

A perusal of the above shows that the petitioner-Institution was treated as an affiliated college and its name appeared at Sr. No. 17.

Another fact which deserves mention is that vide letter dated May 13, 1999, the Vice Chancellor of the Panjab University had conveyed to the Institution that provisional affiliation had been granted "in anticipation of the approval of the Syndicate". It was further stated that the college had been permitted to admit 40 students for the session 1998-99 subject to "the fulfilment of conditions and...permission by the Punjab Government". The matter was placed before the Syndicaie in the meeting held on July 30, 1999. The case of the petitioner was considered at Item No. 4 (x). The Agenda item reads as under:-

"The Vice Chancellor, in anticipation of the approval of the Syndicate, has granted provisional affiliation to Shaheed Kartar Singh Sarabha Ayurvedic College, Raikot, Ludhiana for First Professional B.A. M.S. Course for the Session 1998-99 with permission to admit 40 students, subject to the fulfilment of conditions required by the Inspection Committee dated 9.5.1999 and subject to the permission by Punjab Government''''.

The Syndicate had recorded the following resolution:-

"Resolved: That the information contained in Item Nos. 4 and 24 (of) the agenda be ratified, except that sub-items 4(i) to (viii) be stated as withdrawn".

Thus, the action of the Vice Chancellor was ratified by the Syndicate. It may also be noticed here that the students admitted by the petitioner for the session 1998-99, were duly granted registration by the Panjab University. The registration certificates issued on March 15. 2000 have been collectively produced as Annexure P.42 with the writ petition.

The establishment of a Medical Institution is regulated by the Central Council of Indian Medicine. It has been constituted under the Indian Medicine Central Council Act, 197C. The Council after inspection of the Institution had granted approval for admission of 40 students vide letter dated September 30, 1998. This permission was for the First Professional Course in the session 1998-99. This permission was reiterated vide letter dated July 6, 1999 for the session 1999-2000. A copy of this letter is at annexure P. 11. A perusal of this letter shows that the college had been duly inspected by a team and a regular report had been submitted. Yet, another inspection was conducted for the session 2000-2001. Certain shortcomings were pointed out the Institution was asked to make-up the deficiency. However, in view of the available facilities of teaching and practical training, the Council had reiterated the permission for the First Professional Course. A copy of this letter is at Annexure P-30 with the writ petition.

As, already noticed, the 1998 Act had been promulgated on July 22, 1998. It had to come into force with effect from the date to be notified by the State Government in the Official Gazette. This date has not been notified so far. Despite that, on March 31, 1999, the Government issued a notification u/s 7 of the 1998 Act. A copy of this notification is at Annexure P. 10. By this notification, it was inter alia provided that "all the colleges and other educational institutions in the Stale of Punjab imparting education in Health Sciences, previously admitted to the privileges of or affiliated to Guru Nanak Dev University, Amritsar, Panjab University, Chandigarh and Punjabi University, Patiala or any other University, shall now be admitted to the privileges of or affiliated to the Baba Farid University of Health Sciences, Faridkot". It was further provided that u/s 7(2), the 1st day of July 1999 shall be "the date for the purpose of the said Sub-section 2 and Sub-section 3 of Section 7 of the said Act in respect of colleges and institutions of Health Sciences in the State of Punjab", the University was to start conducting the examinations from November/December 1999. The new institutions were required to apply for affiliation to Baba Farid University of Health Sciences.

On August 27, 1999, the University addressed a communication to the petitioner-Institution to send a "list of students together with 4 stamp-size colour photographs of each student alongwith one-time registration-cum-admission fee @ Rs. 50/- per student in the shape of a Bank draft in favour of the Registrar..." A copy of this communication is at Annexure P. 12 with the writ petition. In response to this letter, the petitioner deposited an amount of Rs. 6000/- with the Respondent-University on September, 6, 1999. A copy of receipt No. 923 is at Annexure P. 13. In the meantime, the University informed the College that it wanted to inspect its premises. The petitioner was called upon to deposit an amount of Rs. 40,000/-. The petitioner made this deposit also on September 6. 1999. A copy of this receipt is at annexure P. 14.

The college was inspected by the Committee on September 18, 1999. In pursuance to the report (photo copy of which has been supplied to the court by the counsel for the Respondent-University and is taken on record as Mark ''A''), the University informed the college that the infrastructure and facilities do not exist. The deficiencies should be removed within three months. A copy of this communication is at Annexure P. 16.

The College responded to the communication of the University. It observed that the building was being constructed as per norms of the Central Council. The Administrative Block and the Principal''s office have been provided separately. Other observations were also controverted. The University was requested to allow admission to the college. A copy of the communication is at Annexure P. 17.

On January 27, 2000, the University sent another communication to the petitioner informing it that the college shall be inspected on February 3, 2000 at 11.30 AM. It was called upon to deposit Rs. 30,000/- as inspection fee. The college complied with the direction and made the deposit. The inspection was carried out on February 3, 2000. The petitioner complains that despite requests, a copy of the report was not furnished to it. However, vide letter dated April 26, 2000, a copy of which has been produced as Annexure P. 21, the petitioner was informed that in view of the observations of the visiting Inspection Committee, the academic Council had resolved "not to recommend the grant of consent of affiliation of this University to Shaheed Kartar Singh Sarabha Ayurvedic Medical College and Hospital, VPO Sarabha, District Ludhiana". The college was informed that according to the Inspection Team, the infrastructure and facilities for the students of Phase I were inadequate. The facilities for Phase II did not exist at all.

On receipt of this letter, the petitioner sent two communications dated April 29, 2000 and August 22, 2000 to furnish a copy of the report submitted by the Inspection Committee after inspection on February 3, 2000. Copies of these communications are at Annexures P. 22 and P. 23 respectively. The University responded vide letter dated June 7, 2000. A copy of this communication is at Annexure P. 24. The reports were not supplied. However, the defects pointed out by the Inspection Committee were conveyed.

The petitioner sent its reply vide letter dated June 12, 2000. It informed the University that the construction of the college building required for the first phase had been completed. More staff was being recruited in the relevant subjects and that appointment letters shall be issued in accordance with the rules. Salary shall be paid according to the norms fixed by the Central Council. A 50-bed Hospital with modem equipment was shown to the Inspection Committee on February 3, 2000. The bed occupancy ranged from 70 to 80%. The conditions of the Hostels for the Boys and Girls had been improved. The college requested the University to appoint another Inspection Committee. The petitioner also deposited the requisite fee.

The college was inspected. The Committee recommended that "provisional permission may be given for the first phase". A copy of this report is at Annexure P. 26. Despite this report, the University did not grant affiliation to the college. On September 9, 2000, the college sent a request by fax to the Registrar of the University to kindly forward a copy of the Inspection report which had not been supplied to the Institution by he University. Vide letter dated September 12, 2000, the University informed the petitioner that the report had to be placed before the Academic Council and thereafter the Board of Management which is the final authority to consider the matter. A copy of this communication is at Annexure P. 28.

Since the college was not being granted permission to admit students, it approached this court through the present writ petition Notice of motion was issued. While the matter was pending in this court, the University issued a notice for admission to the BAMS course. The name of the petitioner-institution was not included in the notice. The College made a grievance in this behalf. On January 15, 20001, the writ petition was taken up by the Bench of which one of us was a member. An undertaking was given on behalf of the University that the petitioner''s case shall be decided before the next date of hearing. On the assurance, the case was adjourned to March 12, 20001. The University failed to do so. The Court was informed that the Academic Council was meeting on April 16, 2001. It shall consider and decide the matter in the light of the report dated July 13, 2000. The case was consequently adjourned to April 23, 2001.

On April 16, 2001, the Academic Council considered the petitioner''s case in the light of the report dated July 13, 2000. A copy of the report is a part of the Agenda Item at Annexure P. 35 with the writ petition. It decided to reject the petitioner''s claim. A copy of the proceedings is at Annexure P. 31. In view of this order, the petitioner had to amend the writ petition. Resultantly, an amended petition was filed.

The petitioner alleges that it had adequate facilities. It has been granted a ''No Objection Certificate'' by the State Government. The Central Council has found it suitable for admission of students. The Inspection Committee appointed by the Respondent-University had recommended ''provisional affiliation''. The Panjab University had, in fact, granted affiliation and allowed the admission of students. The students were admitted. Despite that, the University has arbitrarily refused to recognise the college. It is alleged that the action of the University suffers from the vice of discrimination. Various Institutions with far lesser facilities have been accorded affiliation. Instances have been quoted to show that an institution which had only 17 teachers against the required number of 49, has been allowed to continue while the petitioner has been denied affiliation despite the fact that it has been paying the salaries to the teachers for the last three years without being allowed to admit the students Detailed facts in this behalf have been given in a tabulated form at annexure P. 39. On these premises, the petitioner maintains that the action of the Respondent-University is arbitrary, discriminatory, illegal and, thus, untenable.

The claim made by the petitioner has been controverted by the University. A written statement has been filed on behalf of respondent Nos. 3 and 8 by the Registrar. It has been inter alia averred that after March 31, 1999, the New Institutions had to apply for affiliation to the Respondent-University. As such, the action of the Panjab University in issuing the letter dated May 13, 1999 was against the "letter and spirit of the notification Annexure P. 10..." The Institute was got inspected on September 18, 1999. The matter was considered by the Board of Management on October 25, 1999. The decision was conveyed to the petitioner vide letter dated October 29, 1999. The Institution was asked to remove the defects. On receipt of reply, the Institute was informed that it would be inspected on February 3, 2000. It was accordingly inspected. The report was considered by the University. On April 20, 2000, the Institute was informed that it could not be granted affiliation. the discrepancies wee pointed out to the Institute vide letter dated June 7, 2000. On receipt of a compliance report, the Institute was inspected on July 13, 2000. This report was considered by the Academic Council in the meeting held on July 27, 2000. At this stage, it was noticed that all the earlier admissions were being made by the college "through Dr. B.L. Bansal, President of the University. At that time, the college was situated at Raikot. However, by a resolution dated 20.9.1999, the original society was dissolved. The said resolution states that all assets, liabilities, management and control of the Shaheed Kartar Singh Sarabha Educational Society was take over by another society called SISKSS Trust". It also "transpired that whereas the earlier college was at Raikot, now the college was at Sarabha Village". Thus, a letter was sent to the new society on 12.9.2000 (annexure P. 28) pointing out that what was now sought to be affiliated was a totally new institution which had been inspected by the team of Inspectors appointed by the University. It was therefore, necessary to place the report before the academic Council and thereafter the Board of Management". Ultimately, "the report of 13.7.2000 was considered by the Academic Council and the claim of the petitioner for affiliation has been rejected by the Academic Council by its decision dated 16.4.2001 which is impugned in this writ petition". The University maintains that "since the Academic Council has rejected the claim of the petitioner on merits after three inspections...this writ petition is liable to be dismissed on this ground alone".

The other averments have also been controverted. It has been averred that "the members of the Academic Council and Vice Chancellor have bona fide examined the case" and rejected it. Thus, the respondents pray that the writ petition be dismissed.

So far as the Central Council is concerned, it has not filed any reply in this writ petition. However, in a connected matter which is the writ petition filed by the students, a written statement has been filed by the Council. A copy thereof has been placed on the record of this writ petition as Annexure P. 32. In this reply, it has been inter alia averred that "after considering the available facilities of teaching and practical training, Central Council decided to grant permission for taking admission in First Profession of Ayurvedacharya Course for the session 1999-2000 with intake capacity of 40 students subject to the approval of the University and permission of the State Government". Similarly, permission had also been granted for the session 2000-2001. On this basis, it is maintained that "the State Government and the University are obliged in law to act fairly and in accordance with the opinion and the orders of the Central Council. No doubt, as per the stipulated procedure of the Government of India, the college had to complete all modalities and the college should get no objection from the State Government and affiliation with the University". It maintains that "the college is in the list of approved institutions, prepared by the Central Council and hence, it is the duty of the University to affiliate and arrange examination of such college which are approved by the Central Council". u/s 21 of the Indian Medicine Central Council Act, 1970, power is vested only in the Central Council to take steps for withdrawal of recognition by making a representation to that effect to the Central Government". A reference has also been made to the decision of their Lordships of the Supreme Court in Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and Another, and in State of T.N. and Another Vs. Adhiyaman Educational and Research Institute and Others, . On these premises, the Council maintains that the University and the State Government are bound to act in conformity with its decision.

These are broadly the pleadings of the parties.

Counsel for the parties have been heard.

Mr. Rajiv Atma Ram, counsel for the petitioner has contended that by virtue of the provisions of Section 7 of the 1998 Act, the College having been granted provisional affiliation by the Panjab University, it shall be deemed to have been affiliated to the Respondent-University. Secondly, it has been submitted that the Central Council of Indian Medicine is the only competent authority to lay down standards for medical education and to recognise degrees etc. Since the Council had found the petitioner to be suitable for admitting and training the students, the University has no jurisdiction to deny affiliation. Thirdly, the counsel has contended that the action of the University in refusing to grant affiliation is totally arbitrary, unfair and violative of the basic norms of fair-play. It has been pointed out that various institutions which did not have adequate facilities have been granted affiliation. However, the petitioner has been picked up for a totally discriminatory treatment without any basis. In this behalf, it has been highlighted that despite the observations of the Central Council and the recommendation of the Inspection Committee constituted by the University itself, certain observations were made on the Inspection report without even disclosing the name of the person who had made those observations. Still further, an ineligible person belonging to another institution which is a competitor of the petitioner was allowed to participate in the proceedings of the Academic Council. As a result, the members of the Academic Council were given a wrong picture. In any event, the counsel contends that the action of the respondents was wholly without jurisdiction as the matter was never placed before the Board of Management despite having stated before this court that the case had to be finally decided by the Board. On these premises, learned counsel has contended that the impugned order should be annulled and that a direction to grant affiliation be given to the Respondent-University.

The claim made on behalf of the petitioner was supported by Mr. Arun Nehra, appearing for the Central Council. The counsel pointed out that under the 1970 Act, the Council is the only competent authority to determine the suitability of an institution for imparting education and training in Indian Medicine. The University had neither the expertise nor has it laid down any standards for determining the suitability or otherwise of an institution Since the Council has laid down the standards, it was the only authority which was entitled to determine the issue of suitability.

On the other hand. Mr. P.S. Patwalia, counsel for the Respondent-University submitted that the action of the Panjab University in granting provisional affiliation was totally contrary to the notification issued by the State of Punjab on March 31, 1999. He further pointed out that the Panjab University could not have granted provisional affiliation for the session 1998-99 vide its letter of May 13, 1999. Still further, it was submitted that the matter has been considered by the Academic Council of the University on April 16, 2001. It was rejected as various shortcomings in the staff and facilities were noticed. It was also found that a new society had come into being. Initially, the building was to be located at Talab Mandir whereas the current building is in Village Sarabha". The College had unaumorizedly made admissions in the year 1998-99 without there being even a provisional affiliation. The college has been resisting a fresh inspection by the University. Thus, the action of the University is legal and fair. With regard to the approval by the Central Council, it has been contended that serious deficiencies exist in the institution. Even the approval by the Council was subject to affiliation by the University. Thus, the University was within its rights to consider the case for the grant of affiliation in the light of the deficiencies pointed out in the report of the Central Council. So far as the shortcomings in the other Institutions and the charge of discrimination is concerned, it has been broadly submitted that except the college at Gopalpur, all the other Institutions were already affiliated with different Universities. It was not a case of grant of fresh affiliation. Thus, the case of the petitioner cannot be compared with the pre-existing institutions. In any case, the matter is going to be put up before the Academic Council in the meeting to be held in September/October 2001. Appropriate action would be taken against these institutions as well. Still further, so far as the college at Gopalpur is concerned, permission was granted to the Institution subject to its fulfilling the requirement of adequate staff. It was only after they had fulfilled the requirement that permission for admissions was given in December 2000/January 2001. Lastly, it has been contended that if the court finds that the action of the University is not in conformity with law, the matter shall have to be remitted to the University for a fresh decision.

The two questions that arise for consideration are:-

(i) Are the provisions of the 1998 Act applicable?

(ii) Is the action of the Respondent-University just and fair or is it liable to be struck down as being arbitrary and unfair?

Reg:(i)

Section 1 of the Act provides as under:-

"Short title, extent and commencement - (1) This Act may be called the Baba Farid University of Health Sciences Act, 1998.

(2) It extends to the whole of the State of Punjab".

Clause (3) specifically provides that it shall come into force "on such date as the State Government may by notification in the Official Gazette appoint". Normally, an Act of Legislature comes into force from the date it receives the assent or is duly published in the Gazette. However, the 1998 Act was enacted to establish and incorporate a University. The State Government had to provide the entire infrastructure - the land, the buildings and the staff. Thus, it appears that an intentional departure was made from the normal rule. The Legislature had authorised the State Government to notify the date from which the Act had to come into force. The obvious purpose was to ensure that all the facilities are provided before the Act was enforced. Thus, a specific provision was made in Clause (3) that the Act did not come into force automatically.

During the course of hearing on September 14, 2001, the provision of Section 1(3) was pointed out by the Bench to the counsel for the parties. They were asked to check-up as to whether or not a notification had been issued by the State Government. Learned counsel have today informed us that no notification u/s 1(3) has been actually issued by the State Government so far. Thus, in fact, the provisions of the Act have not been enforced. Resultantly, it appears that the Act is not in force. Consequently, the question of transfer of the colleges from one University to another cannot arise.

Mr. Patwalia submits that on the publication of the Act in the Official Gazette, the notification u/s 1(3) is not required.

We are unable to accept this contention. Acts of Legislature are published in the Official Gazette to inform the general public about the fact that the Legislature has passed a particular statue. However, in a case where the Legislature specifically provides that the Act shall come into force on a future date and that such date shall be notified in the Official Gazette, it cannot be said that mere publication of the Act in the Official Gazette shall amount to its promulgation or enforcement. This would be patently contrary to the specific provision contained in Section 1(3).

Mr. Patwalia submits that the State Government had issued a notification u/s 7 in the year 1999. Indeed, it is so. However, the Act having not been enforced, the issue of a notification u/s 7 cannot be of any consequence.

Mr. Patwalia submits that the petitioner has made no such grievance in the petition. It may be so. However, when the matter had come to the notice of the Bench during the course of the proceedings, we had adjourned the case to enable the counsel to check-up the factual positron More than two weeks have passed since the case was adjourned. Learned counsel has made all possible enquiries and informed us that there is no notification u/s 1(3). He, however, submits that publication is only a facet of natural justice. The Act having been published, the petitioner can have no cause for complaint.

Acts of parties cannot change the mandate of the Legislature. The admitted factual position today is that no notification u/s 1(3) has been issued. Thus, the Act has not been enforce. That being so, the mere fact that it had been published in the Official Gazette or that the petitioners have not made any specific complaint in this behalf, can be of no consequence.

The instances of prospective enforcement of statutes are not unknown. The definition of ''Industry'' as given in the Industrial Disputes Act, 1947 was amended by the Parliament in the year 1984. However, the amended definition had to come into force with effect from the dale to be notified in the Official Gazette. This date has not been notified by the Government so far. Thus, despite the Parliament having passed the bill for amendment of the definition, the law remains unchanged. The amended definition has not come into force. Similarly, the 1998 Act had to come into force with effect from the date to be notified in the Official Gazette. The competent authority had to consider the matter. It had to appoint the date on which the Act had to come into force. The date has not been notified so far. Thus the 1998 Act is not in force. The natural consequence is that the transfer of institutions or the exercise of the jurisdiction by the Baba Farid University of Health Sciences is without the authority of law.

The first question is accordingly answered against the respondents. It is held that the provisions of the 1998 Act are not yet in force.

Reg: (ii)

Mr. Patwalia has informed us today that the State Government has decided to issue an ordinance. Thus, the defect shall be rectified. Thus, irrespective of our above conclusion, we have considered the action of the University on merits. The sequence of events as noticed above clearly shows that:-

(i) The petitioner-Institute had been inspected by the learns from the Central Council of Indian Medicine. Vide letters dated September 30, 1998, July 6, 1999 and August 21, 2001, the Council had granted approval to the Institute.

(ii) The State of Punjab had issued a No Objection Certificate vide letter dated July 20, 1998.

(iii) The Panjab University had granted provisional affiliation to the Petitioner-Institution vide letter dated September 30, 1998.

(iv) 40 students were admitted by the College in the First Year of the BAMS Course for the academic session 1998-99. On March 15, 2000, even their registration certificates had been issued by the Punjab University.

(v) Even the Inspection Team appointed by the Baba Farid University had recommended in July 2000 that the petitioner be granted provisional affiliation. Despite the above facts, the Respondent-University has refused to accord affiliation to the Petitioner-Institution. Is the action fair?

It is the admitted position that various inspections were conducted. The final inspection had been conducted on July 13, 2000. A copy of the Inspection report is at Annexure P. 26 with the writ petition. The Committee had recommended that provisional permission may be given for the first phase. Despite that, the University has declined the petitioner''s request. The matter was placed by the University before the Academic Council in the meeting held on April 16, 2001. Why was it kept pending for so many months? There is no answer. Was the delay calculated to defeat the petitioner''s rights? Not impossible. The delay is symbolic of an attitude.

A copy of the proceedings was produced in court. The petition was amended. It is at Annexure P. 31 with the paper Book. The Academic Council had resolved that the petitioner "be not granted affiliation for BAMS course...." Was this action just and fair?

The relevant portion of the proceedings of the meeting held on April 16, 2001 reads as under:-

"Another inspection of the College was fixed for 10.4.2001 but on 5.4.2001 Shri P.S. Patwatia, the University Advocate, informed that the Hon''ble High Court had decided that the Academic Council of the University should consider the question of grant of affiliation on the basis of inspection report dated 13.7.2000, If it was not possible to grant affiliation, specific reasons for not granting affiliation be recorded by the Academic Council.

Dr. P.C. Thamman, Principal, Guru Nanak Ayurvedic College, Muktsar pointed out that as per condition (i) of the N.O.C. No. 15/5/97/2HBV/22659 dated 20.7.1998 issued by the Government of Punjab, the Institute must have got affiliation with the concerned University before making admission but, on the contrary, the Institution admitted one batch of students in November/December, 1998 without getting affiliation with the concerned University and without complying with the condition (iii) of the N.O.C. that no admission shall be made without the prior approval of Punjab Government. Moreover, the admissions were not made in accordance with the criteria prescribed by the Punjab government.

It was further pointed out that the college had given false information to the Hon''ble High Court in C.WP No. 12257 of 2000 that the original Society had not been dissolved whereas as per Annexure 1 the Shaheed Kartar Singh Sarabna Educational Society (Registration No. 16 of 1997-98) near Talab Mandir, Raikot, District Ludhiana, was dissolved w.e.f. 20.9.1999 and the College was taken over by Shaheed Kartar Singh Sarabha Trust (Registration No. 189). Therefore, this Trust should have got fresh N.O.C. from Punjab Government in its name for starting the college at the new site.

Dr. P.C. Thamman further said that the Inspection Committee had written that the teaching staff in the Departments of Maulik Sidhant and Samhita, Raclma Sharir and Kriya Sharir was sufficient, whereas there was not even a single qualified teacher in the Department of Maulik Sidhant. In the Department of Rachna Sharir, Dr. Rajesh Kumar Gupfa shown as Reader was not MD in the subject and Dr. S.K. Vibhuti shown as Lecturer did not possess PG Degree and hence he was not qualified for lecturership. Dr. Suresh Chand shown as Reader in Kriya Sharir is not eligible for the post of Reader even today as he does not possess the requisite experience of teaching as lecturer as prescribed by C.C.I.M Surprisingly, he said that Dr. Suresh Chand was now officiating as Principal of the College.

There was no document attached with the Inspection Report showing details of equipments provided in each department by the college, the space in these three Departments was inadequate and yet the Inspection Committee mentioned the word ''sufficient''. It has also no proper girls hostel or boys hostel. As per CCIM norms, the college must have 50 bedded hospital with 60% bed occupancy, whereas the college had only 20 beds on the day of inspection but the Inspection Committee wrote ''satisfactory condition infrastructure and hospital''. Under the heading ''Miscellaneous Findings'' the Inspection Committee mentioned the name of Dr. C.M. Mittal who had, in fact, been already received by the College on 26.6.2000 on his resignation. Inspite of all these facts the Inspection Committee recommended that permission may be given for the first phase and the improvements recommended must be implemented immediately but not later than six month''s period.

Dr. S.N. Goel, Principal. Guru Nanak Ayurvedic College, Gopalpur (Ludhiana) also said that after the dissolution of Shaheed Kartar Singh Sarabha Educational Society (Registration No. 16 of 1997-98) near Talab Mandir, Raikot, District Ludhiana, the college was taken over by Shaheed Kartar Singh Sarabha Trust (Registration No. 189) but this Trust had not obtained a fresh N.O.C. from the Government of Punjab in its name. He also agreed with the statements made by Dr. P.C. Thamman.

According to latest information received from the college, there were ten teachers out of whom one was designated as Principal, but he was not qualified for Principalship. Three teachers had yet to appear in the Post Graduate examination to get their P.G. degree whereas it is a prerequisite for appointment as Lecturer. The latest information supplied by the college did not indicate any discernible improvements in the functioning of the institution since 13.7.2000.

After some further discussion, it was unanimously resolved that Shaheed Kartar Singh'' Sarabha Ayurvedic College. VPO Sarabha (Ludhiana) be not granted affiliation for BAMS course in view of the position explained above as it did not fulfil the requirements of staff, equipment and other physical infrastructure, as per norms of the CCIM".

A perusal of the above proceedings shows that the main tirade against the petitioner had been raised by Dr. P.C. Thamman. He is admittedly the Principal of Guru Nanak Ayurvedic College, Muktsar. Counsel for the petitioner has contended vehemently that he was ineligible to be even a Principal of the college, as he had already crossed the age of 65 years. He could not have been a member of the Academic Council. This Institution was a competitor of the petitioner. Despite all this. Dr. Thamman had participated in the proceedings. Mr. Rajiv Atma Ram submits that his opinion was biased. The College of which Dr. Thamman is the Principal had shortcomings. These were over-looked. It has been further pointed out that the unfairness of the action of the University is apparent from the fact that various institutions with no or much lesser facilities than the petitioner have been accorded affiliation. Is it so? It has been pointed out by the counsel that the Petitioner-Institution has its own plot of land measuring 5 acres. It has already constructed a major part of the building It has a 50 bed hospital with 80% rate of occupancy. It has 11 members of teaching staff against the prescribed norm of 9. As against this, Guru Nanak Ayurvedic College, Gopalpur does not have the requisite facilities. According to the Inspection report submitted by a team of the University which was placed before the Council, the Department of Maulic Sidhant has a teaching staff of 1 Professor. It has one lecturer in Maulic Sidhant and a lecturer of Sanskrit who has Shastri qualification while the prescribed qualification is MA in Sanskrit with 55% marks or Ph.d. The Inspection Committee found that "the department does not fulfil the CCIM norms". Still further, in the Department of Sharir Rachna (Anatomy), there is only one lecturer. The Inspection Committee had again reported that "the Department does not fulfil the CCIM norms". Similar is the position with regard to the department of Physiology. Despite these shortcomings the college was approved by the Respondent-University for affiliation in the meeting held on April 16, 2001. Why this differential treatment?

Mr. Patwalia submits that the approval was granted by the Academic Council subject to the appointment of teachers before the start of the academic session. Assuming it to be so, why was the petitioner treated differently? If the institute at Gopalpur could be granted provisional affiliation subject to its fulfilling the norms prescribed by the CCIM, there was no reason to treat the petitioner differently. Even the petitioner could have been called upon to make up the deficiency in staff during the academic session.

In this context, it deserves mention that the petitioner had employed the staff in the year 1998. The university was taking its own time in deciding the matter. In the meantime, the college was not permitted to admit any student. Still it was required to bear the burden of paying the salaries. Keeping in view this factual position, it would have been fair to treat the petitioner at par with the Gopalpur Institute. This would have enabled the petitioner also to attract qualified staff who may otherwise be reluctant to accept employment for lack of opportunity, certainty and security.

Another aspect of the matter which deserves notice is that inspection reports in respect of various institutions were a part of the agenda placed before the Academic Council. On the inspection report dated July 17, 2000 in respect of the petitioner-institution, comments were made which were placed at Annexure ''J'' with the agenda. The document at Annexure ''J'' is at Pages 253 to 259 of the Paper Book. This document is not signed by any one. Who had made these comments? This document indicates nothing. Was the petitioner''s explanation obtained with regard to these matter? The answer is no.

Mr. Patwalia submits that the comments had been made by the Registrar of the University. The document does not indicate it to be so. However, even if it is assumed that the Registrar had made these comments, "why were similar comments not made with regard to the other Institution? Mr. Patwalia ways that some comments were made. However, these were not as detailed as the comments in case of the petitioner. Why? At every step, it appears that the petitioner was being treated differently. We are left with a definite impression that there was a definite undercurrent of bias against the petitioner. While the report of the Inspection Committee was clear and categorical that provisional affiliation be granted, the detailed comments were made so as to show that the report should not be accepted. However, similar comments were not made in respect of the other Institution despite the fact that various inadequacies had been pointed out in the reports. The difference in the attitude of the authority leaves a lot to desire.

Even though, we have referred to the Institute at Gopalpur only by way of illustration, yet, on behalf of the petitioner, it has been pointed out that there were deficiencies even in other institutions. For example, it has been pointed out by the counsel that Guru Nanak Ayurvedic College. Muktsar of which Dr. P.C. Thamman is the Principal was required to have 49 teachers. In fact, it had only 17 teachers. It had no Ayurvedic Hospital. Still further, it had only 3 acres of land. According to the report, the accommodation was inadequate. Despite that the affiliation was granted. There is yet another instance. In the second college at Muktsar, against the prescribed norm of 54 teachers, it had a Faculty of 21 only. There was a deficit of 33 teachers. Despite the inadequacy of staff, the University granted it affiliation.

Mr.Patwalia submits that these institutions were already in existence since the years 1996 and 1995 respectively. An undertaking was obtained from them that they will make up the deficiency. It was in view of the interests of the students that the colleges were allowed to continue. He further submits that the petitioner has given inaccurate information in the chart produced as Annexure P-39 with the writ petition.

The factual position as emerging from the Agenda Note with regard to various college that are continuing with the Respondent-University and whose cases were considered in the meeting is as under:-

Sr. No.Name of the College

Teaching Staff Position

Sh. Lakshmi Narayan Ayurvedic College. Amritsar

i). Five teachers are deficient in First Prof. Departments.

ii).Ten teachers are deficient in Second Prof. departments.

iii).Twelve teachers are deficient in Third Prof. departments.

iv). The departments of Sanskrit and Bal Roga are totally devoid of teaching staff.

Dayanand Ayuvedic College, Jalandhar.

i).Three teachers ate deficient in First Prof departments.

ii).Sevcn teachers are deficient in Second Prof departments.

iii).Sixteen teachers are deficient in Third Prof departments.

Mai Bhago Ayurvedic Medical College for Girls, Muktsar.

Total staff required as per CCIM=54 Staff available "in the college = 21 Shortage = 33

Desh Bhagat Ayurvedic College & Hospital. Mandi Gobindgarh.

i).Five teachers are deficient in First Prof departments.

ii). Seven teachers are deficient in Second Prof departments.

iii) Fifteen teachers are deficient in Third Prof departments.

SSMD Ayurvedic College. Moga.

i). Four teachers are deficient in First Prof departments.

ii). Eleven teachers are deficient in Second Prof departments.

Since the year 1999, no action has been taken by the University against these Institutions. On the contrary, their cases were placed before the Academic Council in the meeting held tin April 16, 2001. None of them was disaffiliated. In fact, they were allowed to continue. Mr. Patwalia states that their case is pending for appropriate action. It may be so. As of today, the position is that while the petitioner was denied even provisional affiliation, these Institutions continue to be affiliated to the Respondent-University.

Mr. Patwalia contends that the University had inherited these colleges. They were already affiliated to various other Institutions. Mr. Rajiv Atma Ram points out that even the petitioner-Institution had been granted provisional affiliation by the Panjab University. Still further, it is the admitted position that 40 students had been granted registration by the Panjab University. In this situation, it is clear that the petitioner was in no way differently placed from the various other institutions whose cases were placed before the Academic Council in the meeting held on April 16, 2001. Despite that, it was treated differently. It is clear that the petitioner was not accorded equality of opportunity vis-a-vis the other Institutions.

There is another aspect of the matter. A perusal of the proceedings of the Academic Council shows that Mr. Thamman had waxed eloquent against the petitioner. Mr.Goel had joined him. It was alleged that the petitioner had admitted students without the affiliation having been granted by the University. The fact that the Panjab University had granted provisional affiliation was conveniently over-looked. Then, it was alleged that the Society had been dissolved. The new society had set up the Institution at a new site. A fresh NOC had not been obtained. The basic fact that there was only a reconstitution of the Trust and that the site had remained totally unaltered was completely lost sight of. Still further, there was the criticism of the petitioner regarding the ''Teachers'' and ''equipment''. However, the facts regarding the Institutions which they were themselves running were not even adverted to. A clear instance of double standards having been adopted by the respondents.

Added to all this is the fact that the Central Council which is burdened with the responsibility of ensuring maintenance of academic standards had approved the Petitioner-Institute for affiliation during the period of three years in dispute viz. from 1998-99 to 2000-2001.

This matter has been considered by their Lordships of the Supreme Court in Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and Another, It was held by their Lordships that procedure and conditions for affiliation imposed by the University " could not be inconsistent with the provisions of the Central Act, in particular Section 10(K) of the Regulation and the University could not seek approval of Government". It was further observed that once "approval was granted by the All India Council of Technical Education, if there was any default on the part of the college in compliance with the conditions of approval, the only remedy for the University was to bring these facts to the notice of the AICTE so that the latter could take appropriate action." The rule enunciated by their Lordships fully applies to the facts of the present case. The University did not follow the mandate of law.

Taking the totality of circumstances into consideration, we find that even if the 1998 Act is deemed to be applicable to the Petitioner-Institution by adopting the principle of ''de-facto'' so that the settled position is saved, still the action of the Respondent-University in refusing to accord affiliation to it was arbitrary, discriminatory and unfair. Having reached this conclusion and keeping in view the observations of their Lordships of the Supreme Court in Al-Karim Educational Trust and another Vs. State of Bihar and others, , we think it appropriate to direct that the University shall grant provisional affiliation to the Petitioner-Institution in the same manner and subject to the same conditions to which the other institutions like the one at Gopalpur had been granted affiliation. If the petitioner fails to comply with the conditions action shall be taken against it is in the same manner in which it may be taken against the other Institutions. Still further, we also direct that in the event of the Petitioner-Institution being ultimately disaffiliated, it shall be liable be refund the fees that it would charge from the students.

The second question is accordingly answered in favour of the petitioner.

In the present case, we are constrained to observe that we do not consider it proper to remit the case back to the University because we are satisfied that the petitioner has been unduly harassed and treated in a discriminatory manner during the last two years.

The writ petition is allowed in the above terms. The needful shall be done with one month from the date of receipt of a copy of this order. No costs.

Sd/- Ashutosh Mohunta, J.