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2021 DIGILAW 332 (BOM)

Gandhi Natha Rangji v. Union Of India

2021-02-12

S.C.GUPTE, SURENDRA P.TAVADE

body2021
JUDGMENT 1. Heard learned Counsel for the Petitioner, learned Counsel for Respondent No.1, who also appears for Respondent No.3-university, learned Counsel for CET Cell and learned AGP for the Respondent-State. Rule. Rule is taken up forthwith for hearing by consent of learned counsel for parties. 2. This petition challenges an order passed by Ministry of AYUSH-Respondent No.1 on 15 January 2021. By this order, the Ministry denied permission to the Petitioner-college, which has been conducting Homeopathy course since the last 22 years, for taking admission in first year BHMS degree course with 50 Under Graduate seats for Academic Year-2020-2021. This denial was on account of six shortcomings, which were originally conveyed to the college and on which, its submissions were called for and a hearing was held before a Hearing Committee appointed by the Ministry. After the Hearing Committee made its report, the Ministry issued its impugned order rejecting permission. After hearing learned Counsel for the parties, we have come to the conclusion that the so called shortcomings have been either adequately explained/fulfilled by the Petitioner or admit of a favourable order subject to physical verification, as we point out below. 3. The very first shortcoming is said to be non-availability of particulars of IPD/OPD on college website www.gnrhmcsolapur.org. The college's submission on this alleged shortcoming was that these details were indeed available on the college website. The Petitioner even enclosed documents in support of this case. The observation of the Hearing Committee on this submission was that on browsing the college website, the committee did not observe any details. According to the Petitioner, that was so because there was some technical glitch concerning the opening of the website on the particular day. The Petitioner has produced a screenshot of its website, which contains all details of IPD/OPD on it. Anyway, since this would be subject to further physical check, having regard to the order we propose to make, it need not detain us any further. 4. The second deficiency is said to be non-compliance with the provisions of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short "PF Act") and 11 teaching staff getting a salary of less than Rs. 10,000 per month. 4. The second deficiency is said to be non-compliance with the provisions of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short "PF Act") and 11 teaching staff getting a salary of less than Rs. 10,000 per month. At the hearing before the Committee, the college's submission was that out of 24 teaching staff, 14 were part of the existing PF Scheme and 9 newly appointed staff were in the process of enrolling in this PF scheme. As for the salary of 11 teaching staff, the explanation of the college was that this was according to a mutual understanding between the college and their teachers, having particular regard to the fact that the college was a non-aided private institute. So faras compliance with the provisions of PF Act is concerned, the explanation of the college appears to be wholly adequate. It fully explains the position vis-a-vis application of the provisions of the PF Act to all members of existing staff. It is common knowledge that upon enrollment of new staff, it takes some time before their names are reflected in the PF record. Anyway, even this would be a matter, which would be subject to physical verification, since the status of the process for admitting new staff to PF scheme can always be ascertained. 5. The third shortcoming, which probably counts as the most significant of the so called shortcomings brought out by the Respondent-Ministry, is about the strength of teaching staff in individual departments of the college and hospital. It was claimed in the impugned order that there was non-availability of (i) one professor each in the Departments of Anatomy, Physiology, Pharmacy, Pathology, FMT, POM (Medicine), Surgery and Repertory and (ii) one Reader each in the Departments of Organ on, MM, OBG and community Medicine and (iii) one Lecturer each in the Departments of Anatomy, Surgery and OBG. It was further observed that 12 faculty posts were vacant without any full time or guest faculty. The applicable regulations, namely, Homeopathy Central Council (Minimum Standards Requirement of Homeopathic Colleges and attached Hospitals) Regulations, 2013 require either one Professor or Reader and one Lecturer in the concerned departments. Each of these departments admittedly has one Reader along with one Lecturer, and accordingly, the criteria of minimum teaching staff for degree course with an intake of upto 50 seats are fully satisfied in the case of the Petitioner. Each of these departments admittedly has one Reader along with one Lecturer, and accordingly, the criteria of minimum teaching staff for degree course with an intake of upto 50 seats are fully satisfied in the case of the Petitioner. There is indeed no requirement of a Professor in any of these departments, when each has one Reader along with a Lecturer. The objection that there is no Reader in Department of Organon, MM, OBG and community Medicine also has no merit, since each of these departments has one Professor along with one Lecturer. (As we have indicated above, the requirement is either of a Professor or a Reader together with a Lecturer.) As for the objection of non-availability of a Lecturer in the Departments of Anatomy, Surgery and OBG, the same is dealt with below whilst discussing the fifth shortcoming, since this so called non-availability is on account of ineligibility, which is a specific objection at Sr. No.5 and is dealt with below. There is no merit in the Ministry's objection concerning vacancy of 12 faculty posts. The Petitioner-college has successfully shown that they have requisite strength of 24 faculty for their student intake capacity of 50 and each of their departments is individually equipped with minimum required teaching staff as demonstrated above. 6. Coming now to the fourth shortcoming, which is said to be of guest faculty (the requirement for which under the Regulations is 8 nos.), at the hearing before the Hearing Committee, the college submitted a list of 8 guest teachers in different departments of their institution. This has been noted by the Hearing Committee, along with the particular departments in which such guest faculties were available, indicating that the matter only needed to be physically verified. In view of the order we propose to pass, even this shortcoming would, thus, be adequately dealt with. 7. The fifth shortcoming is said to be concerning the eligibility of three Lecturers, respectively, in the departments of Anatomy, surgery and OBS/ Gyne. One Dr. Sunil Anantrao Bhosle, who works as a Lecturer in Anatomy with the Petitioner, is said to be ineligible on account of his appointment having been made after he completed 40 years. There is material on record in support of the Petitioner's case that Dr. Sunil Bhosle was first appointed on 15 April 2002. One Dr. Sunil Anantrao Bhosle, who works as a Lecturer in Anatomy with the Petitioner, is said to be ineligible on account of his appointment having been made after he completed 40 years. There is material on record in support of the Petitioner's case that Dr. Sunil Bhosle was first appointed on 15 April 2002. His appointment at that stage was for a period of 1 year, i.e. 15 April 2002 to 14 April 2003. He was continued thereafter from year to year and finally appointed as a permanent teacher with approval from Respondent No.3-University on 21 February 2014. The approval was granted with effect from 13 January 2014. The incontrovertible material on record, thus, indicates that Dr. Sunil Bhosle was appointed as a Lecturer when he was within the permissible age and was physically available in the post of a Lecturer in the Department of Anatomy at the relevant time. Dr. Ranjit Dyandev Dhole, who is a Lecturer in Surgery with the Petitioner, is said to be ineligible because of some discrepancies in his joining date. It is the Ministry's case that as per his affidavit, Dr. Ranjit Dhole's joining date was18 January 2020, though for the purpose of online teacher database, it is said to be 1 August 2018. So also, in his appointment letter dated 1 August 2018, the interview date was mentioned as 2 July 2019. Before the Hearing Committee, this was adequately explained by the Petitioner. It was submitted that the concerned faculty had joined the Petitioner on 1 August 2018; the appointment at that time was given by the Chairman of the institution; and subsequently, he was presented before the staff selection committee of MUHS, Nashik on 18 January 2020. It was in these circumstances that his joining date uploaded on OTD (Online Teacher Database) was 1 August 2018, though from the standpoint of the university's approval the date was 18 January 2020. This is an adequate explanation and does not call for any further scrutiny. As for the third Lecturer, Dr. Rajashree Bhalchandra Shelgikar, who is said to have joined on 23 July 2013, she is said to be ineligible for not having a post-graduate degree. This is an adequate explanation and does not call for any further scrutiny. As for the third Lecturer, Dr. Rajashree Bhalchandra Shelgikar, who is said to have joined on 23 July 2013, she is said to be ineligible for not having a post-graduate degree. It has been explained by the college to the Hearing Committee that she had joined the institution on 27 November 2001 as a demonstrator in the department of physiology; she was appointed as a lecturer in OBGY on 28 September 2003, but was presented before the staff selection committee of MUHS, Nashik on 13 January 2014 and was thereupon selected as a Lecturer in the subject OBGY. Learned Counsel for Respondent No.1 is unable to show that as of the date of her joining there was any requirement of a post-graduate degree. Each of these submissions of the Petitioner is supported by incontrovertible documentary evidence and does not admit of any controversy. There is, thus, no shortcoming on any score in that behalf. 8. The last of the so called shortcomings pointed out by the Ministry was insufficient member of ward boys, secretarial staff and hospital reception staff. The college submitted before the Hearing Committee that it had appointed one ward boy, two aayas, one accountant-cum-secretarial staff and one reception staff in the institution. The Hearing Committee's remark on this submission was that it had noted these appointments; they were, however, to be verified by physical verification. In view of the order we propose to pass today, this so called shortcoming would, accordingly, be taken adequate care of. 9. The foregoing narration makes it clear beyond the pail of controversy that the Petitioner has either duly explained/complied with all the shortcomings, which have prevented the Respondent-Ministry from granting its permission to the college or the shortcomings, in the light of the explanation tendered, were subject to physical verification, and since we are anyway ordering physical verification as per our operative order, there should be no controversy regarding these latter shortcomings. 10. The foregoing narration establishes that there was no way the Respondent-Ministry could have come to the findings that it has. 10. The foregoing narration establishes that there was no way the Respondent-Ministry could have come to the findings that it has. In the light of the explanations tendered by the college, observations of the Hearing Committee and material produced by the college before the Hearing Committee, which was also passed on to the Ministry, the findings arrived at in the impugned observations can only be termed as patently unreasonable and arbitrary, calling for interference in our writ jurisdiction under Article 226 of the Constitution of India. 11. We, accordingly, make Rule absolute and allow the petition in terms of the following order: (i) Respondent No.1 shall accept shortcomings listed at Sr. Nos.3 and 5 of para-5 of its order dated 15 January 2021, as having been fully explained and/or complied with by the Petitioner. (ii) As for shortcomings listed at Sr. Nos.1, 2, 4 and 6, we direct Respondent No.1 to physically verify the explanation tendered by the Petitioner in the light of observations made by the Hearing Committee, both of which form part of paragraph-5 of the impugned order dated 15 January 2021. (iii) Respondent No.2 shall carry out physical verification ordered above within a period of one week from today and report its findings on such verification to Respondent No.1 forthwith. (iv) Respondent No.1 shall pass final orders based on such physical verification within a period of two weeks thereafter. (v) Respondent No.1 and the Petitioner shall both, through their respective advocates, communicate this order orally to Respondent No.2 immediately upon the order being uploaded and the latter shall act accordingly. (vi) Respondent No.4 CET Cell shall allow the Petitioner to participate in the Mop-Up round of admissions proposed to be held tentatively from 17 February 2021. (vii) Since the participation of the Petitioner in the Mop-Up round and admissions to students in the Petitioner college would be subject to the order of the Ministry and final noting of compliance by this court as proposed in this order, the admissions shall be essentially provisional. (viii) The Petitioner shall, accordingly, communicate the provisional nature of admissions to be granted by it in the Mop-Up round to be held by Respondent No.4-CELL, through appropriate endorsement on admission forms issued to its students. (viii) The Petitioner shall, accordingly, communicate the provisional nature of admissions to be granted by it in the Mop-Up round to be held by Respondent No.4-CELL, through appropriate endorsement on admission forms issued to its students. The endorsement shall indicate that admissions will be subject to further orders that may be passed by Respondent No. 1-Ministry or by this court (ix) The writ petition shall appear on board on 8 March 2021 for noting compliance.