Partly allowed

M/S Muniyal Institute of Ayurveda Medical Sciences v. Union of India

Karnataka HC29 Jun 2021WP/47612/2018

Case brief

AI extract

What is this about?

Two writ petitions challenging orders denying permission for undergraduate admissions to Ayurveda colleges. The High Court set aside the orders for not applying mind to objections, held newly noticed deficiencies not part of earlier notice, and remanded for fresh consideration while protecting admitted students.

What did the court decide?

Impugned orders denying permission quashed; matter remanded to respondent for fresh adjudication; results to be declared forthwith subject to final decision.

M/S Muniyal Institute of Ayurveda Medical… — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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W.P.No.47612/2018 (EDN/AD) C/W

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W.P.No.44321/2018 (EDN/MED)

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In W.P.No.47612/2018

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BETWEEN:

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M/S. MUNIYAL INSTITUTE OF AYURVEDA,

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MEDICAL SCIENCES,

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No.34-c, SHIVALLI INDUSTRIAL AREA,

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MANIPAL - 576 104,

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REPRESENTED BY ITS CHAIRMAN,

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DR. M. VIJAYABHANU SHETTY.

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DR. U. KRISHNA MUNIYAL MEMORIAL TRUST, No.34-C, SHIVALLI INDUSTRIAL AREA, MANIPAL - 576 104.

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REPRESENTED BY ITS MANAGING TRUSTEE, DR. M. VIJAYABHANU SHETTY.

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… PETITIONERS

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(BY SRI. M.S.RAJENDRA FOR M/S HOLLA & HOLLA , ADV.)

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AND:

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UNION OF INDIA, MINISTRY OF AYUSH, AYUSH BHAVAN, ‘B’ BLOCK, GPO COMPLEX, INA, NEW DELHI 110 023,

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REPRESENTED BY ITS SECRETARY.

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CENTRAL COUNCIL OF INDIAN MEDICINE, 61-65, INDUSTRIAL AREA, JANAKPURI, NEW DELHI - 110 058 REPRESENTED BY ITS SECRETARY.

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RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES 4^TH BLOCK, JAYANAGAR, BANGALORE - 560 041 REPRESENTED BY ITS REGISTRAR

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… RESPONDENTS

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(BY SRI. C. SHASHIKANTHA, ASG FOR R-1; SMT. MANASI KUMAR, ADV., FOR R-2; SRI. N.K.RAMESH, ADV., FOR R-3)

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THIS PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 29.09.2018 ISSUED BY THE MINISTRY OF AYUSH, UNION OF INDIA, THE R-1 HEREIN VIDE ANNEXURE-E, ETC.

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In W.P.No.44321/2018

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BETWEEN:

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PRASANNA COLLEGE OF AYURVEDA AND HOSPITAL, LAILA, BELTHANGADY, DAKSHINA KANNADA - 574 214.

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REPRESENTED BY ITS PRINCIPAL DR. B.K.PRASHANTH, S/O B.KRISHNA BHAT, AGED ABOUT 38 YEARS. … PETITIONER

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(BY SRI. D.R.RAVISHANKAR, ADV.)

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AND:

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THE UNION OF INDIA, BY MINISTRY OF AYURVEDA, YOGA, NATUROPATHY, UNANI, SIDDHA & HOMEOPATHY (AYUSH), AYUSH BHAWAN, ‘B’ BLOCK, GPO COMPLEX, INA, NEW DELHI - 110 023. REPRESENTED BY ITS PRINCIPAL SECRETARY.

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THE CENTRAL COUNCIL OF INDIAN MEDICINE, JAWAHAR LAL NEHRU BHARTIYA, CHIKITSA AVAM, HOMOEOPATHY ANUSANDHAN BHAWAN, 61-65, INDUSTRIAL AREA, JANAKPURI ‘D’ BLOCK, NEW DELHI - 110 058. REPRESENTED BY ITS SECRETARY.

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RAJEEV GANDHI UNIVERSITY OF HEALTH SCIENCES KARNATAKA, 4^TH ‘T’ BLOCK, JAYANAGAR, BENGALURU - 560 041.

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REPT. BY ITS REGISTRAR.

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THE KARNATAKA EXAMINATION AUTHORITY., SAMPIGE ROAD, 18^TH CROSS, MALLESWARAM, BENGALURU - 560 055. REPRESENTED BY ITS SECRETARY.

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… RESPONDENTS

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(BY SRI. C.SHASHIKANTHA, ASG FOR R-1; SMT. MANASI KUMAR, ADV., FOR R-2; SRI. N.K.RAMESH, ADV., FOR R-3 & R-4)

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THIS PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNEXURE-H, THE ORDER DATED 26.09.2018 FOR THE ACADEMIC YEAR 2018-19, ETC.

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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ARAVIND KUMAR, J. , MADE THE FOLLOWING:

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ORDER

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Petitioners who are running Ayurveda Medical College have called in question order dated 26.09.2018 - Annexure-E in W.P.No.44321/2018 and order dated 29.09.2018 - Annexure-E in W.P.No.47612/2018 passed by first respondent, whereunder they have been denied permission to admit students for Under Graduate (BAMS) course with 100 seats under Section 13A of the Indian Medical Central Council Act, 1970 (for short, ‘IMCC Act’ for the academic year 2018-19.

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We have heard the arguments of Sri M.S.Rajendra and Sri D.R.Ravishankar, learned advocates appearing for petitioners in the respective writ petitions and Smt.Manasi Kumar, learned Central Government Counsel appearing for second respondent and Sri C.Shashikantha, learned Assistant Solicitor General appearing for respondent No.1 - Union of India. Perused the records.

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Since facts in these two writ petitions are separate

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and distinct, they are narrated herein below:

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RE: W.P.No.47612/2018

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First Petitioner has established second petitioner Medical college in the year 1990 and has been receiving permission for running Under Graduate and Post Graduate Course from the year 2008. In the year 2011, first respondent accorded permission to the petitioners to start Post Graduate course in five subjects on being satisfied with the infrastructures provided therein. For the academic year 2015-16, 2016-17 and 2017-18, first petitioner has been admitting students with intake capacity of 100 seats after obtaining approval. On 02.02.2018, a suo motu inspection came to be conducted by respondent No.2 - Central Council of Indian Medicine (for short, ‘CCIM’) and a surprise inspection was conducted on 23.05.2018 and 24.05.2018 and it was said to be in terms of Regulation 3 of the Indian Medical Central Council (Requirements of Minimum Standard for

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Under-Graduation Ayurveda Colleges and Attached Hospitals) Regulations, 2016 (for short, ‘2016 Regulations’). On the basis of said inspection a report came to be submitted by second respondent to first respondent resulting in a show-cause notice dated 10.08.2018 – Annexure-B being issued by first respondent to petitioner stating thereunder that five deficiencies specified thereunder was found by the imparting team and sought to know the views of petitioner. Hence, personal hearing was afforded by calling upon the petitioner to appear before the Hearing Committee on 21.08.2018. Petitioner had submitted its reply/detailed explanation on 18.08.2018 enclosing relevant documents in support of its defence and trial to point to first respondent out that deficiencies pointed out in the show-cause notice have been complied. The personal hearing held on 21.08.2018 was attended to by the petitioner through its authorised representative. Subsequently, first respondent passed the impugned order dated 29.09.2018 – Annexure-E denying permission for the

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academic year 2018-19 on the ground that said

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deficiencies are not complied. Hence, this writ petition.

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RE:W.P.No.44321/2018 :

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In the year 2016-17, the scheme propounded by the petitioner was approved and petitioner was permitted to have an intake of 100 students subject to terms and conditions specified thereunder and as contemplated under Section 13A of IMCC Act. The conditional permission for the academic year 2017-18 vide communication dated 08.08.2017 - Annexure-B was also issued with intake capacity of 100 students and thereby students admitted in the year 2016-17 were promoted to the second year and fresh batch of students have been admitted for the academic year 2018-19. An inspection came to be conducted by respondent No.3 – University and Local Inspection Committee (LIC) recommended the claim of the petitioner for renewal of affiliation. In the meanwhile, a suo motu inspection came to be conducted

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by respondent No.2 – CCIM on 03.02.2018 and also on 21/22.05.2018. A report came to be forwarded to the Central Government vide communication dated 26.07.2018. Pursuant to same, show-cause notice came to be issued to the petitioner on 09.08.2018 vide Annexure-E which was duly replied to by the petitioner and respondent No.2 afforded a personal hearing to petitioner so as to ensure that there is due compliance of principles of natural justice. The proceedings of personal hearing came to be recorded by the Committee in the meeting held on 18.08.2018 and authorised representative of the petitioner had also attended the meeting and had submitted the documents in support of reply given to show-cause notice and contending that deficiencies pointed out in show-cause notice have been complied. In the meanwhile, admissions to 1^st year course for the academic year 2018-19 came to be made by petitioner even prior to 26.09.2018. However, vide impugned order dated 26.09.2018 – Annexure-H permission ought for admitting students to academic year 2018-19 was denied

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to the petitioner/College and as such, present writ petition came to be filed.

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It is the contention of Sriyuths M.S.Rajendra and D.R.Ravishankar, learned advocates appearing for petitioners/colleges that impugned orders are in violation of principles of natural justice; there is no application of mind to the objections filed by the petitioners to the show-cause notices and respondent No.1, without even assigning any reasons as to why objections filed by petitioners/colleges is not tenable or the compliance report submitted by petitioners/colleges does not meet the deficiency pointed out and the impugned orders are passed in a perfunctory manner. Relying upon the judgments of Co-ordinate Bench rendered by this Court in the case of BAHUBALI VIDYAPEETHS JV MANDAL GRAMIN AYURVEDIC MEDICAL COLLEGE Vs. UNION OF INDIA in W.P.No.107076/2018 disposed of on 01.07.2019 and in the case of SHRI SHIVAYOGESHWAR RURAL AYURVEDIC MEDICAL COLLEGE Vs. UNION OF INDIA in

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W.P.No.105417/2018 disposed of on 01.07.2019, in which

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cases one of us was a member – AKJ, they have prayed for quashing of the impugned orders and have prayed for allowing the writ petitions. They have also relied upon the judgment rendered by the Co-ordinate Bench of this Court in the case of CENTRAL COUNCIL OF INDIAN MEDICINE

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Vs. UNION OF INDIA – ILR 2011 KAR 5105 and they have prayed for allowing the writ petitions.

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Per contra, Smt.Manasi Kumar, learned counsel appearing for respondent No.2 - CCIM would support the impugned orders and contend that admissions were made by petitioners/colleges even before permission was granted and as such, they cannot claim any equities, muchless can plead hardship. She would also contend that issue relating to permission granted in the subsequent years would ratify the deficiencies of previous year is pending before the Hon’ble Apex Court and as such, she has prayed for matters being deferred. Reiterating the contentions raised in the statement of objections, she

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would pray for either consideration of prayer sought for in the writ petitions being deferred or in the alternative, would pray for rejection of prayers sought for in the writ petitions.

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Having heard the learned advocates appearing for parties, at the outset, it is required to be noticed that respondent No.1 namely Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH) by communication dated 08.03.2018 (Annexure-L in W.P.No.47612/2018) addressed to all the Ayurveda, Siddha and Unani Colleges in the Country has informed that visitation by CCIM at this point of time would create confusion and may adversely affect the ongoing process for grant of permission and as such, it has called upon CCIM

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to stop all such inspection/visitation till further orders. Smt.Manasi Kumar, learned counsel for respondent No.2 has made a valiant attempt to contend that said communication is a stray communication which has emanated from the Department and same should be

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ignored said issue is no more res-integra , in view of law laid down by Hon’ble Apex Court in the case of THE TEMPLE OF HANEMANN HOMOEPATHIC MEDICAL COLLEGE & HOSPITAL Vs. UNION OF INDIA & OTHERS in Civil Appeal No.6734/2018, wherein Hon’ble Apex Court has clearly held that Regulation 3(5) of the Regulations, 2013 has to be harmoniously interpreted with the provisions of Section 17 of the Act not repugnant thereto. It has further held that power conferred under Section 17 has to be exercised only by CCH therein and in the instant case, it is the CCIM. Thus, the power to inspect Medical Colleges would definitely vests with CCIM in the light of the law laid down by the Hon’ble Apex Court and there cannot be any dispute to said proposition.

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Be that as it may. Insofar as W.P.No.47612/2018 is concerned, we notice that five(5) deficiencies which were pointed out by first respondent under the show-cause notice based on second respondent’s inspection report were as under:

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“i. Aadhaar based Geo location enabled attendance system for teaching staff, non-teaching staff, hospital staff not available.

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ii. Web based computerized central registration system is not available.

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iii. Functional X-ray, ECG & USG not available. iv. Animal house not available as per PG regulations.

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v. Part-time teachers are not available as per RMS.”

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A personal hearing was afforded to petitioner/college to substantiate said deficiencies had been complied as contended by them in the objections filed to the showcause notice.

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We may notice at this juncture itself that prima facie the objections raised would not have any adverse impact on the studies that would be undertaken by the students. We say so, for the simple reason that deficiencies (i) and (ii) which relates to marking of attendance by students and staff members based on Geo location and Web based computerized central registration are administrative issues. Infact this has also been answered to by the petitioner/college not only in its reply to the show-cause

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notice, but also in the personal hearing held on 21.08.2018. In fact, in its reply dated 18.08.2018, it has been specifically contended by petitioner/college that said facility is available, and currently it was unable to use the system as it is non-functional due to a mail send by CCIM, whereunder it is clearly admitted by the CCIM itself that certain technical issues are being faced and till same is sorted out, petitioner/College has been called upon to utilize the manual attendance. Hence, petitioner has contended that it was not put to use at that relevant point of time. In otherwords no fault could have been laid at the doors of petitioner for not having complied the first deficiency point out by it. The mail forwarded by respondent No.2 to petitioner dated 27.03.2018 - Annexure-F would support this stand of petitioner. The issue relating to Web based computerized central registration system which was stated to be not found in the petitioner/college has been specifically denied by petitioner in its reply to show-cause notice as well as in the personal hearing held on 21.08.2018 and the

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documents like representative data of central register, bill copy of software company, etc., were produced along with statement of objections. In fact, non-functional of X-ray, ECG and USG equipments has been denied and it has been contended that visitation team itself had confirmed its working condition and to establish the placement of orderes to purchase said equipments, including registers, purchase bills, photographs of the machines taken during visitation of the representatives of CCIM and the like documents had been produced. This material being available before respondent No.1 along with the report of respondent No.2 was the one which was required to be examined by evaluating and ascertaining as to whether there is truth or otherwise in these contentions and the supporting documents would belie the report of CCIM or otherwise. This exercise seems to have not been undertaken as could be seen from the impugned order dated 29.09.2018 - Annexure-E in W.P.No.47612/2018.

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Yet another intriguing factor which cannot go unnoticed is that respondent No.1 while passing the

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impugned order has not only taken into consideration the deficiency pointed out in the show-cause notice issued by it namely the deficiencies pointed out by CCIM but also certain other fresh deficiencies pointed highlighted at the time of personal hearing, of which petitioner was never put to notice so as to enable petitioner/college submit its reply. This finding is supported by the view taken by respondent No.1 under the impugned order whereunder permission for the academic year 2018-19 to Under Graduate course was denied by observing that with regard to teaching staff there is shortage of one higher faculty in the department of Shalya Tantra which post is additionally required for conducting to students of Post Graduate. As to how a teacher required for Post Graduate would be the ground for rejecting permission to admit students for Under Graduate course is explained.

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In fact, with regard to hospital staff, there is no reference to the same in the show-cause notice at all and even this aspect never came up for consideration in the personal hearing held on 21.08.2018. We may add at this

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juncture itself that the shortcomings which has been noticed under the impugned order is in addition to what was observed by CCIM and they are to the following effect :

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“ I. Teaching staff:

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(i) There is 01 higher faculty available in the department of Kaumarbhritya against the minimum requirement of 02.

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(ii) There is shortage of 01 Higher faculty in the department of Shalya Tantra additionally required for PG.

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II. Hospital staff:

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(i) There is no Hospital Superintendent against the minimum requirement of 01.

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(ii) There is no Medical Specialist, Surgical Specialist, Obstetrician, Pathologist, Anesthesiologist, Ophthalmologist, Pediatrician, Radiologist, Dentist and Physiotherapist against the minimum requirement of 01 each.

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(iii) There is no Yoga Teacher or expert available in stag for Panchkarma Therapy Section against the minimum requirement of 01.

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(iv) There is no Microbiologist in Clinical Laboratory against the minimum requirement of 01.

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(v) There is 01 worker in Teaching Pharmacy and Quality Testing Laboratory against the minimum requirement of 01.

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(vi) There is no Analytical Chemist, biochemist and Pharmacologist in Teaching Pharmacy

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and Quality testing Laboratory against the minimum requirement 01 each.

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III Animal House is not available.”

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On this short ground itself, the impugned order is

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liable to be set aside and accordingly it is set aside.

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RE:W.P.No.44321/2018 :

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In the instant case, petitioner is issued with a show-

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cause notice dated 09.08.2018 pointing out five

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deficiencies and they are as under:

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“1. Only 02 part time teachers are available against the requirement of 08.

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Yoga teacher is not available

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Web based computerized central registration system is not available.

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X-ray, USG, ECG is not available in the hospital.

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Aadhaar based Geo location enabled attendance system not available.”

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This notice was duly replied by the petitioner/college

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and said deficiencies which had been pointed out by CCIM by its report which was forwarded to first respondent. To

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the personal hearing afforded by first respondent, representative of the petitioner had appeared. In support of its claim that five deficiencies pointed out under showcause notice, submission came to be made as to how the said deficiencies pointed out by CCIM are duly complied or in other words it was contended by petitioner that, deficiencies pointed out did not exist and no ground exists for denial of permission to admit students for the academic year 2018-19. In fact, with regard to deficiencies (iii) and (v) referred to supra it relates to administration and it may not have a direct impact on the course which the students would undergo as Under Graduates in their first academic year.

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However, this Court cannot sit in the arm chair of respondent No.1 and decide as to whether the said requirement is to be met or not by the petitioner. It is for the competent authority like second respondent which is an expert body to decide on said issues. However, there are certain defects or deficiencies which are curable and in the instant case, petitioner had specifically asserted and

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contended before the authorities that deficiencies pointed out by respondent No.2 in its report forwarded to respondent No.1 has been complied and the said deficiencies does not exist. It is in this background, the adjudicating authority namely first respondent while examining these aspects, ought to have recorded its subjective satisfaction based on objective assessment of the material available before it. This exercise seems to have not been undertaken by first respondent as evident from the impugned order itself and we say so for the reasons more than one: firstly, in the reply submitted to show-cause notice by petitioner/college and reiterated in the personal hearing held on 18.08.2018 it has not been adverted to under the impugned order passed by first respondent as to why the reply submitted by petitioner is untenable or the supporting documents cannot be relied upon; and secondly, respondent No.1 has not dealt with under impugned order as to how curable defects or the deficiencies which are in the nature of irregularities would have any adverse impact on the study of Under Graduate

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course admitted to first year Under Graduate course. For these reasons and also for the reasons already indicated by us in W.P.No.47612/2018 which is squarely applicable to the facts of the present case, impugned order cannot be sustained.

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As already observed by us hereinabove, it is for respondent No.1 to decide as to whether requirements contemplated under the Regulations prescribed by respondent No.2 - CCIM has been complied by petitioners/colleges or not.

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The contention of Smt.Manasi Kumar, learned counsel appearing for respondent No.2 - CCIM that writ petitions ought to be deferred would have been acceded to by us at the first instance itself, but for the observations made by the Hon’ble Apex Court in its order dated 19.04.2021 passed in Special Leave to Appeal No.4618/2021, wherein it has been observed to the following effect:

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“Issue notice xxx xxx returnable in two weeks. We make it clear that the students who

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have been granted admission to PG Ayurveda courses for the Academic year 2018-2019 by the respondent-Colleges shall not be disturbed”

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In the instant case, petitioners/Colleges have indisputably admitted the students for the Under Graduate course for academic year 2018-19 and therefore, they will have to be protected by virtue of aforesaid order passed by the Hon’ble Apex Court. As such, contention prayer made by Smt.Manasi Kumar, learned counsel for respondent No.2 - CCIM is not acceded to.

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Smt.Manasi Kumar, learned counsel for respondent No.2 has vehemently contended that students for the academic year 2018-19 have been admitted even prior to permission having been granted/ refused or in otherwords even before consideration of application. Though at first blush the said argument looks attractive, on a deeper examination, we are persuaded not to accept the said contention as permission for academic year 2016-17 had already been granted by order dated 09.11.2016 vide (Annexure-A in W.P.No.44321/2018) subject to the condition that requirements specified thereunder are

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fulfilled by petitioner/college before 31.12.2016 so as to enable them to get conditional permission for the academic year 2017-18. The three conditions which have been specified in Annexure-A obviously seems to have been fulfilled and this persuaded respondent No.1 to grant permission to petitioner/college for the academic year 2017-18 by communication dated 08.08.2017 - (Annexure-B in W.P.No.44321/2018) which is in pari materia with communication dated 09.11.2016 - (Annexure-A) and it is not the case of respondents 1 and 2 that requirements specified in these two communications have not been fulfilled. On the other hand, what is stated in show-cause notice is the non-compliance of deficiencies pointed out during the surprise inspection. Thus, it cannot be gain said by respondent/authorities that in anticipation that a probable deficiencies that may be pointed out by the authorities, petitioner is to be prevented from admitting students for the academic year 2018-19 or it should not have admitted students. Said contention

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deserves to be considered for the purpose of outright rejection and accordingly it stands rejected.

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For the reasons aforestated, we proceed to pass the following:

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ORDER

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(i) Writ Petitions are allowed in part. (ii) Order dated 29.09.2018 - Annexure-E in W.P.No.47612/2018 and order dated 26.09.2018 - Annexure-H in

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W.P.No.44321/2018 are hereby quashed.

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(iii) Matter is remanded back to first respondent to adjudicate the prayer of petitioner afresh keeping in mind the observations made hereinabove.

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(iv) In the meanwhile, results which have been withheld shall be declared forthwith by respondent No.3 - University and it is needless to state that declaration of results would be subject to outcome of final decision that would be taken by first

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respondent and petitioners/colleges shall intimate each of the students that they would not be entitled to claim any equities and it would not vest them any right whatsoever.

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All pending applications stands consigned to records.

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Sd/JUDGE

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Sd/JUDGE

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PKS

M/S Muniyal Institute of Ayurveda Medical Sciences v. Union of India

Case brief

What is this about?

What did the court decide?

M/S Muniyal Institute of Ayurveda Medical Sciences v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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