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Judgment
Ramesh Ranganathan, CJ
This Special Appeal is, no doubt, preferred against the interlocutory order passed by the learned Single Judge, and the writ petition is still pending before him. Mr. T.A. Khan, learned Senior Counsel, would express urgency and submit that, since the High Court is closed for Deepawali vacation from 24.10.2019 to 30.10.2019 and the last date for admission of students is 30.10.2019, any delay in hearing the matter would render the writ petition infructous, and deprive the appellant of the opportunity to admit students in its college for the academic session 2019-2020. Since the contentions urged before us are based on the impugned order, and on the statutory regulations applicable thereto, we heard Mr. V.K. Kaparwan, learned counsel for AYUSH and Mr. Ramji Srivastava, learned counsel for the Central Council of Indian Medicine (in short "CCIM") respondent no. 2, and, with their consent, are disposing of the Writ Petition itself.
The impugned order dated 09.10.2019 records that, in view of the short comings and deficiencies and in terms of the provisions of IMCC Act and the relevant Regulations, the Central Government had decided to deny permission to the appellant-writ petitioner college for taking admission in the under graduate (BUMS) course with 60 seats under Sections 13A/13C of the IMCC Act for the academic session 2019-20. The shortcomings, pointed out in the impugned order, read as under:
"1. Teaching Staff:
a. There is no LF in Ain-Uzn-Anf-Halaq wa Asnan department.
b. There is only 01 LF in department of Moalajat against the requirement of 02."
Instruments & Equipments:- Colorimeter (Photoelectric) is not available in Physiology (Munafeul Aza) Lab.
College has not submitted the visitation fees for regular as well as fresh inspection on Court order, instead, submitted expired Demand Draft dated 24.01.2019 to Council.
"As per regulation, all shortcomings observed for the academic session 2019-20 should have been fulfilled on 31.12.2018."
Mr. T.A. Khan, learned Senior Counsel appearing on behalf of the petitioner, would draw our attention to the Indian Medicine Central Council (Requirements of Minimum Standard for under-graduate Unani Colleges and attached Hospitals) Regulations-2016 (for short the "2016 Regulations") which were made by the Central Council for Indian Medicine in the exercise of its powers under Section 36(J) of the Indian Medicine Central Council Act, 1970 with the approval of the Central Government. Regulation 3 of the 2016 Regulations relates to the requirement of minimum standards for grant of permission and, under Sub-Regulation 1(a), the Unani Colleges established under Section 13A, and existing under Section 13C of the Act and their attached hospitals, shall fulfill all the requirements of minimum standards for infrastructure, teaching and training facilities referred to in Regulation 4 to 11 upto the 31st of December of every year for consideration of grant of permission for undertaking admissions in the ensuing academic session.
Regulation 3(3) are the requirements of minimum standards for grant of conditional permission of one year and, under clause (a) (III) thereunder, the conditional permission of one year, for a particular academic session, shall be granted only to those colleges which are fulfilling the requirements, on the basis of the inspection by the Central Council between the 31 st of December to the 31st of March for the succeeding academic session, if the availability is of a minimum of 75% of the required equipment as specified in Schedule-VII. As noted hereinabove, all that is stated in the impugned order, with respect to equipment is that colorimeter (photo electric) is not available in the Physiology (Munafeul Aza) Lab.
Mr. T.A. Khan, learned Senior Counsel, would submit that even this equipment is available, and would draw refer to an invoice dated 18.03.2019 to submit that a colorimeter was, in fact, procured. Even if we were to proceed on the premise that what is recorded in the impugned order is correct, and the appellant-writ petitioner does not have this equipment, Regulation 3(3)(a)(iii) requires conditional permission of one year to be granted in case 75% of the required equipment, as specified in Schedule-VII, is available. While Mr. T.A. Khan, learned Senior Counsel, would contend that, even if the said equipment is held not to be available, the appellant-writ petitioner would nonetheless fulfill this requirement of 75%, suffice it to observe that the first respondents ought to have considered whether the petitioner fell within the ambit of Regulation 3(3)(a)(iii) of the Regulations and was, therefore, entitled for grant of conditional permission.
The impugned order also refers to the deficiency in teaching staff, and it is stated that there is no lower faculty in Unani Department, there is only one lower faculty in Ain-Uzn-Anf-Halaq department, and there is only one lower faculty in the department of Moalajat against the requirement of 2. In terms of Regulation 3(3)(a)(i) of the 2016 Regulations, conditional permission of one year can be granted, if the requirement of teachers, as specified in Scheduled V to the 2016 Regulations, is satisfied. Scheduled V contains details of the teaching staff in Unani colleges. In terms of Note 3 below, the deficiency of teachers, for upto 60 intake capacity, shall not exceed more than 10% of the total requirement, with availability of a minimum of one teacher in each of 14 Departments; the total number of higher faculty shall not be less than 11 Professors or Readers distributed in a minimum of 11 Departments, and this relaxation is for seeking conditional permission to undertake admissions for a particular academic session. An example is given therein of a college having upto 60 seats intake capacity, and such a college is required to have a minimum faculty of 27, out of which there should be a minimum of 11 Professors or Readers covering not less than 11 Departments.
Even as per inspection caused by the Central Council of Indian Medicine, detailed in its report dated 30.09.2019/03.10.2019, the petitioner college had a higher faculty of 16 (6 Professors and 10 Readers), and a lower faculty of 15 (Assistant Professors/Lecturers). Further, as is evident from the said report itself, the total number of higher faculty of 16 is spread over 14 Departments. It does appear that, despite the shortage of faculty pointed out in the impugned order, the petitioner satisfies the norms, on relaxation being granted in terms of Note-3 below Scheduled V of the Regulations.
The third objection in the impugned order is that the college had not submitted visitation fees. It is unnecessary for us to dwell on this aspect any further, since Mr. Ramji Srivastava, learned counsel appearing on behalf of the second respondent, would fairly state that the petitioner had, in fact, deposited the visitation fees of Rs. 5.2 lacs with the second respondent on 01.10.2019. It does appear from the facts detailed hereinabove, that the first respondent had rejected the petitioner's application without even examining whether they were entitled for the relaxation prescribed in the 2016 Statutory Regulations.
Mr. V.K. Kaparwan, learned counsel appearing on behalf of the first-respondent, would submit that the impugned order also records that, as per the Regulations, all shortcomings observed for the academic session 2019-20 should have been fulfilled on 31.12.2019, and in case the petitioner had complied with these deficiencies, only after 01.01.2019, such compliance of shortcomings would be no avail. While the impugned order does state that the shortcomings, observed for the academic session 2019-20, should have been fulfilled by 31.12.2018, the said order does not state as to which shortcomings, the petitioner had complied with on or after 01.01.2019.
We are satisfied, therefore, that the impugned order, which was passed without considering the applicable 2016 Statutory Regulations, must be, and is accordingly, set aside.
Mr. T.A. Khan, learned Senior Counsel, would request us to permit the petitioner to admit students contending that the last date for admission of students is 30.10.2019. It would be wholly inappropriate for us, in proceedings under Article 226 of the Constitution of India, to undertake any such exercise of directing admission of students, as admission of students is conditional on grant of permission by the first respondent. The impugned order of rejection is not in accordance with law, and is accordingly set aside. Since the last date of admission for students is due to expire on 30.10.2019, suffice it to direct the first respondent to reconsider the matter, in the light of the 2016 Statutory Regulations and the observation made hereinabove, with utmost expedition and, in any event, on or before 26.10.2019. The first respondent shall communicate its decision to the petitioner by 26.10.2019, including by e-mail.
Both the Special Appeal and the Writ Petition are, accordingly, disposed of. No costs.
Let a certified copy of this order be issued to the learned counsel for the parties, on payment of the prescribed charges, by 17.10.2019.