JUDGMENT : 1. Heard learned advocate Mr.Mitul Shelat with learned advocate Ms.Disha Nanavaty for the petitioner, learned advocate Mr.Harsheel D. Shukla for the respondent No.1 and learned advocate Mrs.Krishna G. Rawal for the respondent No.2. 2. Issue Rule, returnable forthwith. Learned Advocate Mr.Harsheel Shukla waives service of notice of rule for respondent No.1 and learned advocate Mrs.Krishna Rawal waives service of notice of rule for the respondent No.2. 3. By this petition, the petitioner has prayed for the following reliefs : “A. This Hon’ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction quashing and setting aside the Impugned Orders dated 16.11.2022 and 30.12.2022 passed by the Respondent; AA. This Hon’ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction quashing and setting aside the Impugned Order dated 02.02.2023 passed by the Respondent No, 2; B. This Hon’ble Court be pleased to issue a writ of Mandamus, or any other appropriate writ, order or direction directing the Respondent to grant Letter of Permission to the Petitioner for 60 seats for under-graduate programme in Bachelor of Ayurveda Medicine and Surgery for the academic year 2022-2023 and include Petitioner's name in the total seat matrix for the remaining rounds of counselling, including the mop-up round and round for filling up of stray vacancies.” 4. The brief facts of the case are as under : 4.1. In accordance with Section 29 of the Act, for the purpose of obtaining permission to start an ayurvedic medical college, a scheme is to be submitted to the Medical Assessment and Rating Board constituted in terms of the Act where a scheme is approved, such approval constitutes the permission to establish a new medical college where a scheme is disapproved, the person is entitled to prefer an appeal to the Commission and thereafter, before the Central Government. 4.2. It is the case of the petitioner that in accordance with the above Regulations, the following schedule is laid down for receipt and processing of the applications: - Sr. No. State of Processing Last date 1 Receipt of applications by Central Government. 1st July to 31st August of any year. 4.2. It is the case of the petitioner that in accordance with the above Regulations, the following schedule is laid down for receipt and processing of the applications: - Sr. No. State of Processing Last date 1 Receipt of applications by Central Government. 1st July to 31st August of any year. 2 Forwarding eligible applications by Central Government 30th September 3 Recommendation of Central Council of Indian Medicine to Central Government 31st March (of the following year) 4 Issue of Letter of permission by Central Government 31st May (of the following year) 4.3. It is the case of the petitioner that the applications for the academic year 2022-23 was extended from 31.8.2021 to 31.10.2021. On 27.09.2021, the petitioner applied to the State Government for an Essentiality Certificate / No Objection Certificate for the establishment of a new Ayurveda College with a capacity of 60 seats. In pursuance of the Application, the State of Gujarat carried out due verification for grant of No Objection Certificate. On 27.10.2021, the petitioner was issued a No Objection Certificate (“NOC”) in respect of the establishment of Ayurveda College with 60 seats for starting B.A.M.S Course for the Academic Year 2022-23 by the Health & Family Welfare Department, Government of Gujarat. That as per the NOC, it was certified that the petitioner possessed adequate clinical material as per the requirement of the Regulations. 4.4. Thereafter, the petitioner submitted its application to the Board in accordance with Section 29 of the Act. It is the case of the petitioner that pursuant to the preliminary scrutiny of the application, certain deficiencies were intimated to the petitioner. The petitioner by its covering letter dated 15.3.2022 submitted compliance in deference to the same. 4.5. It is the case of the petitioner that upon being satisfied with the compliance, the Respondent requested the petitioner to make payment of visitation and digitization fee by its communication dated 13.4.2022. The petitioner made payment in terms of the same. The team appointed by the Respondent undertook the verification of the physical and other infrastructural facilities available with the petitioners College on hybrid mode on 6.6.2022 and 7.6.2022. Upon consideration of the report, the Respondent addressed a communication dated 8.9.2022 inter alia, intimating the shortcomings as reflected in the report. The petitioner was given an opportunity to appear before the designated hearing Committee to submit its clarification. 4.6. Upon consideration of the report, the Respondent addressed a communication dated 8.9.2022 inter alia, intimating the shortcomings as reflected in the report. The petitioner was given an opportunity to appear before the designated hearing Committee to submit its clarification. 4.6. It is the case of the petitioner that the petitioner submitted its representation dated 13.9.2022, providing justification in respect of the alleged shortcomings and evidencing compliance with the prescribed norms. 4.7. It is the case of the petitioner that the petitioner was heard in virtual mode by the Hearing Committee on 16.9.2022. During the course of the hearing, the petitioner submitted its clarification to each of the shortcomings and demonstrated the compliance with the prescribed norms. The petitioner received the Impugned Order dated 16.11.2022, by which the decision of the President of the Medical Assessment and Rating Board to issue denial of letter of intent to the petitioner has been communicated. It is the case of the petitioner that in terms of the impugned Order, the only deficiency reflected therein is that at the time of submission of the application, the hospital was not fully functioning for last two years. 4.8. It is the case of the petitioner that in accordance with the provisions of the Act and the Regulations, the petitioner preferred an Appeal before the National Commission for Indian System of Medicine on 23.11.2022. The petitioner brought to the notice of the Appellate Authority the following facts: (i) The hospital building received BU Permission on 25.8.2019 and biomedical waste registration on 30.8.2019. (ii) The hospital of the petitioner Trust had commenced its operation on 2.9.2019. (iii) The conventional opening of the hospital (formal inauguration) was done on 1.1.2020. 4.9. It is the case of the petitioner that the petitioner placed on record all material documents evidencing the fact that the hospital had indeed commenced from September 2019. This included, inter alia, the appointment of the hospital staff, the attendance register and other contemporaneous documents evidencing the working of the hospital. 4.10. It is the case of the petitioner that the hearing of the Appeal was fixed on 2.12.2022 before the Designated Hearing Committee and the Proceedings of the Appeal were held virtually. During the course of the hearing, the petitioner made detailed submissions evidencing the fact that the hospital had indeed commenced functioning from September 2019. 4.10. It is the case of the petitioner that the hearing of the Appeal was fixed on 2.12.2022 before the Designated Hearing Committee and the Proceedings of the Appeal were held virtually. During the course of the hearing, the petitioner made detailed submissions evidencing the fact that the hospital had indeed commenced functioning from September 2019. During the course of the hearing, and in deference to the same, the petitioner submitted further documents as instructed by the Committee. 4.11. It is the case of the petitioner that the Appeal was required to be decided within 15 days. The petitioner has received an order dated 30.12.2022 of the Respondent - National Commission for Indian System of Medicine, adjudicating upon the petitioner's Appeal. The order in terms records that the attendance register and salary acquaintance register of the hospital from November 2019 to October 2021 are found to be correct. However, the petitioner's Appeal is not entertained presumably since in the NOC of the State Government, it is mentioned that “Applicant owns and manage 60 beds hospital established in January 2020”. 4.12. It is the case of the petitioner that during the pendency of the present proceedings, the petitioner preferred an appeal before the Central Government, Ministry of Ayush, Government of India in accordance with the provisions contained In Section 29 of the India System of Medicine Act, 2020. 4.13. In accordance with the provisions of Section 29 the Appeal is to be decided within a period of 7 days. The petitioner did not receive any response to the Appeal filed by the petitioner within the stipulated time period. The petitioner, therefore, addressed a reminder dated 13.01.2023 inviting attention of the Authority to the mandate of Section 29 and praying for consideration of the Appeal. The petitioner states that since no response was received even after the reminder, the petitioner has addressed another reminder by email dated 16.01.2023. 5. This Court passed the following order on 9th February, 2023 : “1. Heard learned advocate Mr. Mitul Shelat for learned advocate Ms. Disha Nanavaty for the petitioner, learned advocate Mr. Harsheel Shukla for respondent No.1 and learned advocate Ms. Krishna Rawal for respondent No.2. 2. This petition is filed being aggrieved by denying permission to the petitioner to start a new Ayurvedic College. 3. Learned advocate Mr. Heard learned advocate Mr. Mitul Shelat for learned advocate Ms. Disha Nanavaty for the petitioner, learned advocate Mr. Harsheel Shukla for respondent No.1 and learned advocate Ms. Krishna Rawal for respondent No.2. 2. This petition is filed being aggrieved by denying permission to the petitioner to start a new Ayurvedic College. 3. Learned advocate Mr. Mitul Shelat for the petitioner submitted that the only deficiency which was found by the First Appellate Authority was with regard to fully developed Ayurvedic Hospital Building was not functioning prior two years from the date of application. It was pointed out that the application was made on 28.10.2021 and the hospital was inaugurated on 01.01.2020 but the hospital started functioning in September,2019 and therefore, the hospital was running prior two years from the date of application. 4. It was further pointed out that the Second Appellate Authority has travelled beyond the show-cause notice and the findings arrived at by the First Appellate Authority to deny the permission to the new Ayurvedic College proposed to be started by the petitioner-institution. 5. On the other hand, learned advocates Ms. Rawal and Mr. Shukla for the respondents-authority submitted Rule 10(a)(i) of MSR-2016 stipulates that the hospital is required to be fully developed prior two years from the date of application having appropriate number of beds, bed occupancy, out-patient department attendance corresponding to the annual students intake capacity as specified in sub-regulation (2) of regulation 7. 6. It was submitted that admittedly, the hospital has started from 01.01.2020. Therefore, the petitioner is not fulfilling requirement of Rule 10(a)(i) of the Regulation. 7. It was further pointed out that the authorities have considered various deficiencies of the hospital run by the petitioner and therefore, the petitioner has rightly been denied the permission under the provisions of the National Commission for Indian System of Medicine Act,2020. 8. On considering the submissions made by both the sides and after perusal of the material and documents produced on record, it appears that the Second Appellate Authority has travelled beyond the scope of show-cause notice as well as the findings arrived at by the First Appellate Authority in the impugned order dated 02.02.2023 which was passed during the pendency of this petition as the petitioner was permitted by this Court to file second appeal so as to complete the chain on availing remedy under the Act. The observation of the Central Government in the impugned order dated 02.02.2023 reads as under: “Observation of Central Government: On perusal of attendance register for period of 01.09.2019 to 01.11.2021, submitted by college during first appeal to NCISM it is observed that college has submitted attendance for only 01.09.2019 to 31.12.2019 (January to March, September to December) 01.01.2020 to 31.12.2020 (January to March, September to December) and 01.01.2021 to 30.11.2031 (January to March, July to November), Further, it is observed that all listed staff in register have not taken any leave since two years. All complete listed staff present for whole submitted period. Even during Covid-19 pandemic, a single staff has not taken any type of leave. It shows that documents made by college only for purpose of fulfilling the requirement. It seems that documents are not genuine. Further, college has not submitted biometric attendance of hospital staff. Furthermore, on examining the documents submitted by the proposed college in its First appeal (college has not submitted any documents in its Second Appeal), it is observed that college has not submitted the following documents regarding the genuine availability of Hospital staff, non-teaching staff and the existence of fully functional hospital for two years before the submission of the application: - No documents were submitted regarding Attendance (Biometric with ‘In & Out time’ format). - No documents are submitted regarding PF & ESI contribution of the staff. - No documents were submitted regarding form 16 issued by TRACES of hospital and non-teaching staff. - College has not submitted computerized data of OPD. - College has not submitted any documents in regard to Central/Department wise computerized OPD/IPD data for the assessment period October 2019 to November 2021. - No documents are submitted with regards admitted IPD patients/ case sheets, investigation report. - No documents are submitted regarding duty roster of hospital staff. - College has not submitted building completion certificate, biomedical waste disposal certificate and fire safety certificate. - College has not submitted hospital instrument purchase bill or medicine purchase bill. - Therefore, in vies of non-availability of required documents, the deficiency related to functionality of the hospital is genuine and still persisting as observed by Hearing Committee of the First Appeal. - College has not submitted building completion certificate, biomedical waste disposal certificate and fire safety certificate. - College has not submitted hospital instrument purchase bill or medicine purchase bill. - Therefore, in vies of non-availability of required documents, the deficiency related to functionality of the hospital is genuine and still persisting as observed by Hearing Committee of the First Appeal. In view of above, the observation made by the Hearing Committee during First Appeal appears to be appropriate it, as per relevant regulations 10 (a) (i), at thee time of submission of application, there shall be a fully developed hospital building as specified under regulations 4 and 5 with functional Ayurveda hospital two Yeats prior from the date of application, having appropriate number of beds, bed occupancy and Out-Patient ‘Department attendance corresponding to the annual students intake capacity as specified in the sub-regulation (2) of regulation 7 of MSR, 2016. Therefore, in view of the above if is observed that the deficiency related to genuine functionality of Hospital is still persisting as mentioned above.” 9. The above observations are contrary to the deficiency which was mentioned in the said order which reads as under: “Deficiency:- i. Salary statement for last two years has not been submitted by the college. ii. The existence of fully functioning hospital for last two years before submission of application is not substantiated as per Regulation 10(1)(i) of MSR,2016.” 10. The deficiency pertains only to salary statement for last two years and existence of fully functioning hospital for last two years before submission of the application. The Second Appellate Authority has considered even the computerized other aspects which were not in dispute since found to have been complied with in the order of the Appellate Authority. 11. Therefore, the order passed by the Second Appellate Authority is not tenable in law. 12. The First Appellate Authority has also not considered the submission made by the petitioner that the hospital was running since September 2019 and it was officially inaugurated on 01.01.2020. It appears that the respondents-authorities have adopted a pedantic approach by shutting their mind and eyes and other organs which any human person possesses having commonsense to the facts of the case and therefore, the approach of the respondents-authorities is highly deprecable. 13. It appears that the respondents-authorities have adopted a pedantic approach by shutting their mind and eyes and other organs which any human person possesses having commonsense to the facts of the case and therefore, the approach of the respondents-authorities is highly deprecable. 13. Be that as it may, on perusal of the record it is clear that the petitioner-institution has fulfilled all the conditions on the date of the application made on 28.10.2021. However, due to lackadaisical approach of the respondents-authorities, the petitioner-institution is not able to start the Ayurvedic College from the academic year 2022-23. Let the respondent-Board appoint an inspection team, who will conduct a surprise inspection of the hospital run by the petitioner within a period of two weeks from today and submit a report before this Court with regard to fulfillment of the criteria for granting permission to the new Ayurvedic College which is proposed to be started by the petitioner so as to permit the petitioner to get the permission from the respondents for the academic year 2023-24. Learned advocates for both the respondents are requested to communicate this order forthwith to the respondent- Board for its implementation. Stand over to 24.02.2023” 6. Pursuant to the order dated 9th February, 2023, respondent No.1-National Commission for Indian System of Medicine conducted the inspection of the petitioner-College on 20th February, 2023 and 21st February, 2023 to assess the available facilities for teaching and practical training for LOI in UG (BAMS) course with 60 seats for the academic session 2023-24 under Section 13A/13C of IMCC Act, 1970. 7. Though the inspection was to be carried out pursuant to the aforesaid order dated 09.02.2023 by the Commission, it appears that the same was conducted by the Commission exercising the powers under Section 13A and 13C of the IMCC Act, 1970. In such circumstances, the functioning of the hospital of the petitioner was only required to be considered from the said report. 8. The inspection team, in the report, has submitted before this Court with regard to the functioning of the Hospital as under : "(i) Observation on functionality of all OPD's. : All the OPDs were functional with adequate no. of patients, Instruments & equipments. Consultants were found available in the OPDs. Computerised Central Registration System was installed & functional at the time of visitation. (ii) Observation on functionality of all Hospital. of patients, Instruments & equipments. Consultants were found available in the OPDs. Computerised Central Registration System was installed & functional at the time of visitation. (ii) Observation on functionality of all Hospital. : The hospital was found functional at the time of visitation. Ksharshutra and other panchakarma procedure has been performed Labour Room was available but not functional as no deliveries were conducted. OT was existing with adequate instruments & equipment. 5. Dispensary had adequate medicines & Clinical Lab was found functional. (iii) Observation on Conditions of Deparments.: All the departments of first year were existing with adequate infrastructure & facilities. (iv) Overall opinion about Hospital/Colleges. : Hospital was existing with Adequate infrastructure & Instruments. In college, the first year Departments & Library were existing with Adequate infrastructure & Instruments & facilities. (v) Supportive documents/paints on the lancunae.: The hospital staff was filled less in number in Part-1 as per MSR. Labour Room was available but Deliveries were not conducted till the date of the visitation. No separate OPD of Netra & ENT were found in Shalakya Tantra. X-Ray Machine Radiologist Chamber were not available in Hospital.5 Modern Medical Staff were not appointed as per MSR. No staff were appointed in Labour Room, Panchakarma Unit, OT & Teaching Pharmacy as per part-1 submitted by the institute. Specimens & Departmental Library Books were unavailable in Kriya Sharira & Rachana Sharira. Sanskrit Teacher was nc appointed as per MSR. (vi) Observation regarding deficience observed by visitors. : 15. New Hospital staff were appointed against the 15 Hospital staff who were left after Part-1 submission.” 9. In view of the above observation on functionality of the Hospital run by the petitioner, the respondent No.1 is directed to issue the permission to the petitioner to run the UG (BAMS) course with 60 seats for the academic year 2023-24. The other short comings which are found during the course of inspection are not relevant for the purpose of granting the permission as such short comings were already considered by Authority for the purpose of granting permission for the Academic Year 2022-23 and only the short coming which was existing was with regard to the functionality of the Hospital which is now found to be operational. 10. In view of the foregoing reasons, the petition is allowed. 10. In view of the foregoing reasons, the petition is allowed. The respondent- Authorities are directed to grant permission to the petitioner for conducting UG (BAMS) course with 60 seats for the academic year 2023-24 within a period of two weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent. No orders as to cost.