Allowed

Sham-E-Ghausia Minority Pg Ayurvedic Medical College and Hospital,Ghazipur Thru. Alok Kumar Trivedi v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Ayush, Lucknow and Others

Allahabad HC4 Dec 2024WRIC/10202/2024

Case brief

AI extract

What is this about?

The Allahabad High Court quashed orders refusing approval for undergraduate and postgraduate Ayurvedic courses and rejecting related appeals. The court held that the authority violated natural justice by rejecting the appeal on new grounds without prior notice and ordered a fresh surprise inspection.

What did the court decide?

Impugned orders dated 03.09.2024, 16.10.2024, and 19.11.2024 quashed. Liberty granted to the Medical Assessment and Rating Board to conduct a fresh surprise inspection and consider additional grounds

Sham-E-Ghausia Minority Pg Ayurvedic Medical… — Education and Admissions | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:80965

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Court No. - 19

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Case :- WRIT - C No. - 10202 of 2024

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Petitioner :- Sham-E-Ghausia Minority Pg Ayurvedic Medical College And Hospital,Ghazipur Thru. Alok Kumar Trivedi Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush, Lucknow And Others Counsel for Petitioner :- Rajat Rajan Singh Counsel for Respondent :- C.S.C.,A.S.G.I.,Devak Vardhan

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Hon'ble Manish Mathur,J.

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Heard Mr. J.N. Mathur, learned senior counsel assisted by Mr. Rajat Rajan Singh, learned counsel for petitioner, learned State counsel for opposite party Nos. 1, 5 & 6, Mr. Shashi Prakash Singh, learned senior counsel/A.S.G.I. assisted by Mr. Umesh Singh, learned counsel for opposite party No.2 and Mr. Devak Vardhan, learned counsel for respondent Nos. 3 & 4.

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In view of urgency indicated by learned counsel for the petitioner and in view of the fact that material on record particularly three impugned orders clearly delineate the dispute between parties, keeping in view the dictum of Hon'ble Supreme Court in case of M. S. Gill and another vs. The Chief Election Commissioner; 1978 AIR 851 , time for filing the counter affidavit is dispensed with.

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Petition has been filed challenging orders dated 03.09.2024, 16.10.2024 and 19.11.2024 pertaining to refusal of the competent authority to grant approval for conduct of undergraduate B.A.M.S. and post graduate course for petitioner institution and the other two related orders rejecting the first and second appeals preferred by the petitioner.

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Learned counsel for petitioner submits that initially the institute in question was given recognition for conduct of the aforesaid courses since the year 2001 with the last approval having been granted on 16th September, 2023 for a period of one year, whereafter in terms of the National Commission for Indian System of Medicine Act, 2020, a fresh application for approval was submitted whereafter, an inspection of the premises of the institution took place on 05th & 06th February, 2024 in which as per report submitted, the deficiency found was with

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regard to absence of two teachers mentioned therein. The aforesaid aspect was agitated by petitioner institution whereafter a monetary penalty of Rs.50 lacs for the academic session 2024-25 was imposed upon the petitioner institution, which chose not to challenge the same but made an application thereafter seeking permission to deposit the said amount in easy installments. Permission was granted vide order dated 30 August, 2024 but before deposit of such amount, the impugned order was passed due to which the amount could not be deposited.

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It is submitted that subsequently, a surprise inspection of the premises of institution was undertaken on 18th & 19th March, 2024 and report was submitted that access to premises of the institution was denied on the ground that the General Secretary of the college had passed away and all the teaching and non-teaching staff of the institute was attending his funeral. It is submitted that it was on account of this aspect that denial of entry in premises was presumed by opposite parties leading to passing of a show cause notice against petitioner institution pertaining to the said aspect, which was replied to, whereafter the impugned order dated 03 September, 2024 was passed denying approval for another year to the petitioner. It is submitted that said order was thereafter challenged in first appeal, which was rejected and against which second appeal was preferred, which has also been rejected. The orders rejecting approval, first appeal and second appeal are under challenge in this petition.

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Learned counsel for petitioner has further submitted that although at the initial and first appellate stage, grant of approval has been rejected only on the ground of denial of access to premises of the institute, the second appellate order however has adverted to various other factors for which no prior show cause notice was ever served upon the petitioner. It is submitted that even otherwise in terms of section 28(1) (c) of the Act, 2020, the opposite party should very well have conducted another surprise inspection of the premises to ascertain the aspects required for grant of approval in terms of Sections 29 & 30 of the Act.

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Learned counsel appearing on behalf of opposite party No.2 submits that Section 28(1)(c) of the Act, 2020 confers power upon the Medical Assessment and Rating Board for Indian System of Medicine to conduct numerous inspections for the purposes of approval and disapproval of an institution, whereunder liberty may be granted to the said authority to conduct such further surprise inspection. It is also

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submitted that liberty may be granted to the authority concerned to consider the aspect on which the second appeal has been rejected after giving prior notice to the institute concerned.

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Learned counsel for opposite parties No. 3 & 4 on the basis of instructions however submits that prior to the inspection held on 18th February & 19th February 2024, all the institutes concerned had already been put to notice vide letter dated 11 December, 2023 that surprise inspection may be conducted at any time for purposes of approval and therefore the petitioner institute being under notice was required to keep at least a skeleton staff for the purposes of such surprise inspection. It is submitted that since institute completely denied access to the inspecting team, denial of access was deemed leading to rejection for approval.

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Learned State counsel has adopted the submission advanced by learned counsel for the opposite party Nos. 3 & 4.

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Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident from a perusal of Sections 29 & 30 of the Act, 2020 that approval or disapproval for a scheme to establish a new medical institute or start a post graduate course or increase of seats is to be done in accordance with provisions of Section 28 & 29 of the Act, keeping in mind the provisions of Section 30 of the Act, as well.

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Section 28(1)(c) clearly stipulates that the Medical Assessment and Rating Board for Indian System of Medicine shall perform various functions including carrying out an inspection of medical institution for assessing and rating such institution in accordance with regulations made under the Act.

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Proviso to Section 29(3) provides that before disapproving of a scheme, an opportunity to rectify the defects, if any, shall be given to the person concerned while Section 29(7) permits the rating board to conduct evaluation and assessment of any university or medical institution at any time, without any prior notice and assess various bench marks.

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It is relevant that for purposes of carrying out functions indicated in Sections 29 and 30 of the Act, 2020, the Medical Assessment and Rating Board is empowered to carry out various inspections of the medical institution as envisaged under the aforesaid provision.

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In the present case, the initial inspection of premises of the institution was made on 5th & 6th February, 2024 with report indicating a deficiency pertaining to absence of two teachers named therein. After consideration of reply by the institute, the aforesaid aspect came to an end with imposition of fine of Rs.50 lacs, which too was subsequently directed to be deposited in installments.

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The second limb of dispute commenced with the inspection held on 18th & 19th March, 2024 regarding denial of access to premises of the institute. It is quite evident that the show cause notice pertains only to the said aspect and none other. Reply of the institute was also submitted only on the said aspect, which was rejected by means of the impugned order dated 03rd September, 2024.

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Even in first appeal, the aspect under consideration was only pertaining to denial of access to the inspection team by the institute on 18th & 19th March, 2024.

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However, a perusal of the second appellate order dated 19th November, 2024, indicates rejection of the second appeal on various other grounds apart from the ground of denial of access to the inspecting team.

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From a perusal of material on record, particularly, the earlier show cause notices issued to the petitioner institution, it is evident that no prior show cause notice was ever served upon the institute with regard to the additional grounds taken while rejecting second appeal of petitioner institution.

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The second appellate order also does not indicate any prior notice having been served upon the petitioner institution requiring any reply or explanation from the institute pertaining to the additional grounds for rejection of appeal.

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In such circumstances, so far as the second appellate order is concerned, it clearly violates principle of natural justice inasmuch as it rejects the appeal on the grounds which were not the subject matter either of the initial rejection order or even of the first appeal, and for which no show cause notice was ever served upon petitioner institute.

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Since, the initial dispute with regard to approval of the petitioner institution pertains only to denial of access to the inspecting team, in the considered opinion of this Court, keeping in view the provisions of Section 28(1)(c) of the Act, 2020, it would appropriate that an opportunity be granted to the inspecting team of the opposite party

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No.4 i.e. Medical Assessment and Rating Board for Indian System of Medicine to conduct a fresh surprise inspection of the premises of the petitioner institution for the purposes of grant of approval or otherwise to it.

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In view of aforesaid discussion, the impugned orders dated 03rd September, 2024, 16th October, 2024 and 19th November, 2024 are hereby quashed by issuance of a writ in the nature of certiorari granting liberty to opposite party No.4 i.e. the Medical Assessment and Rating Board for Indian System of Medicine to conduct a surprise inspection of the premises of petitioner institution for the purposes of consideration of their application for approval of relevant course for the academic session 2024-25. Consequential orders shall be passed by the concerned authority in pursuance of such inspection.

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With regard to additional grounds taken for rejecting petitioner's second appeal, the opposite parties are granted liberty to consider such factors afresh but only after providing the petitioner institution a show cause notice with regard to same and considering their reply.

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Learned senior counsel appearing for opposite party No.2 at this stage submits that the time prescribed for counselling will elapse on 20th December, 2024, and petitioner institution has not been granted approval as on date.

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With regard to such submission, in the opinion of this Court, there is still ample time left for the last date of counselling to come to an end and even otherwise in case any order favourable to petitioner's approval is passed by the opposite parties, they may be considered in the subsequent rounds of counselling in case the same is still available.

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In view of the aforesaid discussion, the petition succeeds and is allowed at the admission stage itself.

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Parties to bear their own costs.

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Order Date :- 4.12.2024

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Reena/-

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(Manish Mathur,J.)

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Digitally signed by :- REENA KANNAUJIYA High Court of Judicature at Allahabad, Lucknow Bench

Sham-E-Ghausia Minority Pg Ayurvedic Medical College and Hospital,Ghazipur Thru. Alok Kumar Trivedi v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Ayush, Lucknow and Others

Case brief

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Sham-E-Ghausia Minority Pg Ayurvedic Medical College and Hospital,Ghazipur Thru. Alok Kumar Trivedi v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Ayush, Lucknow and Others

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