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2023 DIGILAW 366 (GUJ)

Shree Gyanjyot Education Trust v. Union Of India

2023-02-23

BHARGAV D.KARIA

body2023
JUDGMENT : 1. Heard learned Senior Advocate Mr. D.C.Dave appearing with learned Advocate Mr. Udit N. Vyas for the petitioner and learned Advocate Mr. Harsheel D. Shukla for Respondent Nos. 2 and 3. 2. Rule returnable forthwith. Learned Advocate Mr. Harshil D. Shukla waives service of Rule on behalf of Respondent Nos. 2 and 3 whereas learned Advocate Ms. Krishna G. Rawal appears and waives service of Rule on behalf of Respondent No.1. 3. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 14.11.2022 at Annexure-K passed by the Respondent No.1 – Union of India to the extent it denied 2 seats in the subject of Materia Medica and 3 seats in the subject of Repertory of Post Graduation Course education to be imparted by the petitioner in its Homeopathy Medical College in the faculty of MD Homeopathy. 4. The brief facts of the case are as under. 4.1 The letter of permission dated 30.9.2014 was issued to establish Homeopathy Medical College in the name and style of ‘B.G.Garaiya Homeopathic Medical College’ for imparting higher course of study upto the level of graduation with the intake capacity of 100 seats for the academic years 2012-13, 2013-14 and 2014-15 on a consolidated basis to the petitioner Shree Gyanjyot Education Trust (hereinafter referred to as “the petitioner”). 4.2 The college granted admission for the academic years 2012-13 and 2013-14 under various orders of this court as well as the Hon’ble Supreme Court of India. 4.3 The erstwhile Homeopathy Central Council Act, 1973 (hereinafter referred to as “the Act 1973”) was replaced by National Commission for Homeopathy Act 2021 (hereinafter referred to as “the Act 2021”). The petitioner submitted the renewal permission application for the academic year 2020-21 which was declined by the Respondent No.1 – Union of India on 12.1.2021. The said order was challenged by the petitioner by filing Special Civil Application No. 1898 of 2021. This court by order dated 20.2.2021 quashed and set set aside the order dated 12.1.2021 and permitted the college to impart education for the academic year 2020-21. 4.4 The decision of this court was challenged by preferring LPA No.440 of 2021 which was dismissed and SLP (C) No. 15566 of 2021 was also preferred before the Hon’ble Supreme Court which was also dismissed and the order dated 20.2.2021 attained finality. 4.4 The decision of this court was challenged by preferring LPA No.440 of 2021 which was dismissed and SLP (C) No. 15566 of 2021 was also preferred before the Hon’ble Supreme Court which was also dismissed and the order dated 20.2.2021 attained finality. 4.5 The petitioner trust moved an application (scheme) for commencement of a higher course of study at the level of post-graduation leading to the educational qualification of M.D. (Homeopathy) in 3 subjects (1) Materia Medica – 6 seats, (2) Repertory – 6 seats and (3) Organon – 6 seats w.e.f. academic year 2022-23. 4.6 The respondent authority issued a letter of intent on 2.5.2022 granting an in-principal approval to the petitioner for commencing a higher course of study at the level of post graduation. Thereafter inspection was carried out by a team of inspectors appointed by the Respondent No.3 – Board in June 2022. 4.7 The Respondent No.3 Board issued a letter of permission dated 23.8.2022 to commence the post-graduation course with the following intake capacity: Table-II Intake approved by Respondent No.3 - Board Course Intake applied Intake granted Intake refused Materia Medica 06 04 02 Repertory 06 03 03 Organon 06 03 03 Total 18 10 08 4.8 The petitioner therefore preferred First Appeal under Section 29(5) of the Act 2021 before the Respondent No.2 - National Commission for Homeopathy (hereinafter referred to as “the Respondent No.2-Commission”) on 9.2022. The Respondent No.2-Commission was pleased to allow the Appeal in part by order dated 30.9.2022 and modified the approved intake capacity for the postgraduate courses of the college as under: Course Intake applied Intake granted Intake refused Materia Medica 06 04 02 Repertory 06 03 03 Organon 06 03 00 Total 18 10 05 4.9 The Petitioner therefore preferred Second Appeal under Section 29(6) of the Act 2021 before the Respondent No.1 – Union of India on 7.10.2022 for denial of intake capacity of 5 seats refused by the appellate authority. 4.10 The Respondent No.2 – Commission refused the intake capacity of 5 seats to the petitioner for postgraduate consisting of 2 seats of Materia Medica and 3 seats of Repertory on the ground that the petitioner did not submit the letter from Saurashtra University with regard to the approval of the postgraduate teachers. However, the petitioner could only submit the letter dated 22.8.2022 from the University to the effect that the approval is under process. However, the petitioner could only submit the letter dated 22.8.2022 from the University to the effect that the approval is under process. This letter was submitted by the petitioner before the Respondent No.2 – Commission. 4.11 It is the case of the petitioner that after the respondent No.1 rejected the Second Appeal, the Saurashtra University issued approval letters dated 6.12.2022 and 13.12.2022 of the teachers in cadre of Professors, Lecturers and Readers who are required to impart education at post-graduation level in the Homeopathy College. 4.12 The petitioner, therefore, by letter dated 14.12.2022 again submitted before the respondent No.1 that in view of the approval granted by the Saurashtra University, the case of the petitioner may be reconsidered for granting intake capacity of 5 seats which was refused for want of refusal letter from the University. 4.13 The respondent No.1 by letter dated 30.12.2022, however, rejected the prayer made by the petitioner as there is no procedure of reappeal to the Central Government prescribed under the provisions of the Act 2021 and therefore such request was not considered. 5. Learned Senior Advocate Mr. D.C.Dave appearing with learned Advocate Mr. Udit N. Vyas for the petitioner trust submitted that the only ground on which the respondent Nos. 1 and 2 have refused to grant intake capacity of 5 seats was due to non-granting of approval by the Saurashtra University to the faculty members who are required to impart the education to post graduate students. Learned Senior Advocate Mr. Dave relied upon the amended Homeopathy (Post Graduate Degree Course) M.D. (Homeopathy) Regulations 1989 and submitted that as per the Regulation 12(1) the student guide ratio is prescribed as under: (a) The student-Supervisor (Guide) Ratio shall be 3:1 if the Guide or Supervisor is of Professor cadre. (b) The student-Supervisor (Guide) Ratio shall be 2:1 if the Guide or Supervisor is of Reader cadre. (c) The student-Supervisor (Guide) Ratio shall be 1:1 if the Guide or Supervisor is of Lecturer cadre. 5.1 Referring to the Regulation 12(1) of the Regulation 1989, it was submitted that the Saurashtra University has granted approval to the teachers in the cadre of Professors, Lecturers and Readers. There are sufficient number of approved Supervisor-Guides available with the petitioner to impart education to the postgraduate students as per the application made by the petitioner for 6 seats for each of the 3 subjects. 6. There are sufficient number of approved Supervisor-Guides available with the petitioner to impart education to the postgraduate students as per the application made by the petitioner for 6 seats for each of the 3 subjects. 6. Considering such submissions, this court passed the following two orders on 2.2023 as under: Order-1 “1. Heard learned advocate Mr.Udit N. Vyas for the petitioner, learned advocate Mrs.Krishna G. Rawal for the respondent No.1 and learned advocate Mr.Harsheel D. Shukla for the respondent Nos.2 and 3. 2.1. Learned advocate Mr.Vyas for the petitioner submitted that after the respondent No.1-Ministry of Ayush passed an impugned order on 14.11.2022, the intake of five seats comprising two seats in Materia Medica and three seats in Repertory are not sanctioned. It was submitted that the only defect in not sanctioning the intake of five seats was non approval of the guide list by the Saurashtra University. 2.2. Learned advocate Mr.Vyas submitted that after the passing of the order by the Ministry of Ayush on 14.11.2022, the Saurashtra University by two separate communications dated 06.12.2022 and 13.12.2022 have approved the guide list for both the subjects for which the intake capacity of five seats is refused by the respondents. 2.3. Learned advocate Mr.Vyas referred to and relied upon the provisio to Sub-section (3) of Section 29 of the National Commission for Homeopathy Act, 2020 (for short ‘the Act, 2020’) and submitted that before disapproving the scheme/application, an opportunity to rectify the defect, if any, ought to have been granted by the respondent No.3-Medical Assessment and Rating Board for Homeopathy (for short ‘the Board’). 2.4. It was submitted that no such opportunity was granted to the petitioner for rectifying the defect of providing the approval of the University of guide list for above two subjects and only because of such technical ground which is now cured as per the sanction granted by the Saurashtra University, the respondents are required to reconsider the issue of sanctioning intake capacity of five seats which have refused earlier. 3. On the other hand, learned advocate Mrs.Krishna Raval for the respondent No.1 submitted that the petitioner instead of approaching the respondent No.3-Board for rectifying the defect has approached the Ministry of Ayush by way of Re-Appeal and the Ministry of Ayush has no power to reconsider or review as per provisions of Section 29(6) of the Act, 2020. 4. 3. On the other hand, learned advocate Mrs.Krishna Raval for the respondent No.1 submitted that the petitioner instead of approaching the respondent No.3-Board for rectifying the defect has approached the Ministry of Ayush by way of Re-Appeal and the Ministry of Ayush has no power to reconsider or review as per provisions of Section 29(6) of the Act, 2020. 4. At this juncture, learned advocate Mr.Harsheel Shukla for the respondent Nos.2 and 3 submitted that he has no instructions on the above aspect and therefore, he seeks time to take instructions. 5. Let the matter be listed at 02:30 p.m today.” Order-2 “When this matter is taken up at 2:30 p.m. as per the order passed in fornoon session, learned advocate Mr. Harsheel Shukla for respondent Nos. 2 and 3 submitted that he has instructions from the respondent No.3-Medical Assessment and Rating Board, Homeopathy, that, if the petitioner makes an application within a period of two days so as to point out that there is no defect for granting intake of 05 seats consisting of 02 seats of Meteria Medica and 03 seats of Repertory of the Post Graduation (M.D.) for Homeopathy Branch, the same shall be considered by respondent No.3 within a period of two weeks from the date of receipt of such application. Learned Senior Advocate Mr. Dhaval Dave for learned advocate Mr. Udit Vyas submitted that the petitioner shall make such application on before 09.02.2023. Stand over to 23rd February, 2023. To be listed on top of the Board.” 7. Pursuant to above orders, the petitioner made an application before the respondent no.3 in order to enable the petitioner to point out that there are no defects in the set up of the college for grant of the balance 5 seats for its postgraduate course in the subject of Materia Medica (2 seats) and Repertory (3 seats) as the Saurashtra University has already granted approval to the requisite teachers in the cadre of Professors, Lecturers and Readers. 8. 8. Pursuant to the application dated 8.2.2023 made by the petitioner before the Respondent No.3, the Respondent No.3 passed order dated 21.2.2023 rejecting the application of the petitioner on the ground that Saurashtra University has not mentioned that the Teachers are specifically approved as guides for the subjects for post graduation and the college has not provided to the University with details of approved qualifications and experience to become eligible as Supervisor or a guide. It was therefore concluded by the Respondent No.3 that the University approved guide list has not been submitted to substantiate the claim in respect of sufficient teaching faculty in post graduate subjects and it was therefore held that the college is not fulfilling the eligibility criteria more particularly related to teaching faculty as per the provisions of the Act 2021 and related regulations for conducting Post Graduate course in Department of Materia Medica and Repetory. 9. Learned Senior Advocate Mr. Dave has tendered the draft amendment so as to place application dated 8.2.2023 and the order dated 21.2.2023 passed by the Respondent No.3 Board along with the averments. The same is allowed in terms of the draft. To be carried out forthwith. 10. Learned Senior Advocate Mr. Dave therefore submitted that the Respondent No.3 Board has not considered the list of the teachers for Professors, Lecturers and Readers approved by the Saurashtra University and has raised a hyper technical objection to reject such approved list on the ground that the word “Supervisor - Guide” is not mentioned in such list though as per the Regulation 12(1) of Regulations 1989 the teachers in cadre of Lecturers, Professors and Readers are to be treated as Supervisor or Guide. It was submitted that there is no deficiency with regard to the shortcomings pointed out by Respondent No.2 in the order dated 30.9.2022. It was therefore submitted that the Respondent Board ought to have granted permission to the petitioner for further intake of 2 seats of Materia Medica and 3 seats of Repertory which was refused earlier. 11. On the other hand, learned Advocate Mr. Harsheel D. Shukla for Respondent Nos. It was therefore submitted that the Respondent Board ought to have granted permission to the petitioner for further intake of 2 seats of Materia Medica and 3 seats of Repertory which was refused earlier. 11. On the other hand, learned Advocate Mr. Harsheel D. Shukla for Respondent Nos. 2 and 3 submitted that respondent no.3 has considered the approved list issued by the Saurashtra University in letter and spirit, word by word, wherein, admittedly no word “Supervisor or Guide” is mentioned, and therefore, the Respondent No.3 has rightly refused the application made by the petitioner pursuant to the order passed in this case on 7.2.2023. Learned Advocate Mr. Shukla submitted that he is not having any instruction with regard to the observations made by Respondent No.3 Board at this juncture with regard to the observation made therein in the order dated 21.2.2023 and therefore he prayed for time to take instructions, with regard to the observations made by the Respondent No.3 Board. 12. On bare perusal of the order dated 21.2.2023 passed by Respondent No.3 Board pursuant to the application made by the petitioner as per order dated 7.2.2023 passed by this court, there is no confusion and no query may be raised for which the clarification is required from the Respondent No.3 Board and therefore the prayer made by learned Advocate Mr. Shukla is not entertained and the petition is taken up for hearing. 13. Having heard learned Advocates for the respective parties, the Respondent No.3 Board has refused to grant permission for the balance intake capacity of 5 seats consisting of 2 seats of Materia Medica and 3 seats of Repertory by observing as under:- “3. As per the letter no. Affiliation/9/2131/2022 dated 12.2022 issued by Saurashtra University, it is observed that University has issued an approval for appointment ofteachers regarding changes in teaching faculties whereas it is not mentioned that the teachers are specifically approved as Guides for the subjects in which PG applications were placed. College has not provided University approved qualifications and experience to become eligible as Supervisor or Guide. Therefore, it has been observed that University approved guide list has not been submitted to substantiate the claim in respect of sufficient teaching faculty in PG departments. College has not provided University approved qualifications and experience to become eligible as Supervisor or Guide. Therefore, it has been observed that University approved guide list has not been submitted to substantiate the claim in respect of sufficient teaching faculty in PG departments. Therefore, Medical Assessment and Rating Board for Homoeopathy observed that the College is not fulfilling the eligibility criteria particularly related to teaching faculty as per the provisions of NCH Act, 2020 and related regulations for conducting Post Graduate course in Department of Materia Medica and Repertory.” 14. Regulation 12(1) reproduced herein above clearly provides that the students-Supervisor (Guide) ratio is mentioned for three types of teachers i.e. Professor, Lecturer and Reader. So far as ‘Professor’, the Students-Supervisor (Guide) ratio is prescribed as 3:1, for ‘Reader’ as 2:1 and for ‘Lecturer’ as 1:1. 15. On perusal of the approval letters dated 6.12.2022 and 13.12.2022 issued by the Saurashtra University, it is clear that the Saurashtra University has stated the cadre of each of the faculty as ‘Professor’, ‘Lecturer’ and ‘Reader’, and therefore, there is neither any ambiguity nor any dispute or confusion with regard to the approval letter of the Saurashtra University submitted by the petitioner before the Respondent No.3 Board containing the approval of category of each of the teacher. In view of such facts, the denial by the Respondent No.3 on the ground that the Saurashtra University has not mentioned the teachers specifically approved as ‘guide’ for the subjects is contrary to the Rule 12(1) of the Rules 1989 itself. 16. In view of foregoing reasons, the impugned order passed by Respondent dated 21.2.2023 pursuant to the application made by the petitioner as per the order passed by this court on 7.2.2023 is hereby quashed and set aside. The Respondent No.3 is directed to issue letter of permission to the Petitioner for increased the intake capacity of 2 seats in Materia Medica and 3 seats in Repertory for the academic year 2022- 2023 forthwith. The Respondent No.4 is directed to permit the petitioner to give admission as per the aforesaid order without waiting for the formal order to be passed by Respondent No.3. Rule is made absolute to the aforesaid extent. No order as to cost.