Tamil Nadu Dr. Mgr Medical University vs Svs Educational And Social Trust

Civil Appeal No. 10920 of 2018 (Arising out of S.L.P. (Civil) No.2194 of 2018)

TAMIL NADU DR.MGR MEDICAL UNIVERSITY .... Appellant

Versus

SVS EDUCATIONAL AND SOCIAL TRUST ….Respondent JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The request of the First Respondent for continuance of

provisional affiliation for admission of students in Bachelor

of Homeopathy Medicine and Surgery (BHMS) degree

course for the academic year 2016-2017 was rejected by

the Appellant. In a Writ Petition filed by the First

Respondent assailing the said order, the High Court of

Madras directed the Appellant to permit the First

Respondent to participate in the counselling for admission Signature Not Verified Digitally signed by

to Homeopathic Colleges for the academic year 2017-2018. CHARANJEET KAUR Date: 2018.11.12 16:12:28 IST Reason: 1 The Division Bench of the High Court of Madras upheld the

said interim order. Hence this Appeal.

2. The Central Council for Homeopathy, the Third

Respondent herein, conducted an inspection on 06.08.2013

and recommended for grant of permission to the First

Respondent for starting a Homeopathic college with an

intake of 50 students. The Government of India, Ministry of

Ayurvedic, Yoga and Naturopathy, Unani, Siddha and

Homeopathy (AYUSH), the Second Respondent herein,

refused to grant the permission on the basis of its own

assessment. In view of the deficiencies of the requisite

facilities found in an inspection conducted later, the

application of the First Respondent for admission to the first

batch of students to BHMS course was rejected by the Third

Respondent. However, the Second Respondent decided to

grant permission to the First Respondent to start a new

homeopathic medical college under Section 12 A of the

Homeopathy Central Council Act, 1973 (hereinafter referred

to as the ‘Act’). On 28.09.2015, the First Respondent was

informed that it can admit 50 students for the academic

year 2015-2016 subject to the condition that sufficient

2 infrastructure, hospital facilities and qualified teachers in

each department as per the relevant regulations were

provided before the admission of students. It was

mentioned in the letter dated 28.09.2015

that the First Respondent should comply with the

requirements of the Act and the relevant regulations made

thereunder for obtaining permission to admit students in

the academic year 2016-2017.

3. In view of the unfortunate death of three students of

BNYS course in the First Respondent institute on

23.01.2016, the Government of Tamil Nadu directed

relocation of BHMS students also. The First Respondent-

College was closed down by the District Collector,

Villupuram and students were adjusted in Government

Homeopathy Medical College, Thirumangalam. Thereafter,

the First Respondent filed an application for grant of

provisional affiliation which was rejected by the Appellant

on 08.04.2016. The reason for rejection was the failure on

the part of the First Respondent in not rectifying the

deficiencies notified to the College in the inspection. Writ

Petition No.18510 of 2016 filed by the First Respondent

3 challenging denial of provisional affiliation was dismissed

by the High Court. However, a Division Bench of the High

Court directed the Appellant to reconsider the grant of

affiliation after conducting another inspection in

the Writ appeal filed by the First Respondent against the

judgment in Writ Petition 18510 of 2016.

4. On a reconsideration of the matter the Appellant

rejected the request of the First Respondent for

continuance of provisional affiliation for admission of

students to BHMS course for the year 2016-2017 by an

order dated 08.02.2017. The First Respondent questioned

the rejection of his request for grant of provisional affiliation

by filing a Writ Petition in the High Court of Madras.

Pending disposal of the Writ Petition filed by the First

Respondent, the High Court directed the Appellant to

include the First Respondent in the counselling for

admission to the first year BHMS course for the year 2017-

2018. In the Writ appeal filed against the said order, the

First Respondent was directed to proceed with the

counselling and admit students for the year 2017-2018. By

an order dated 29.01.2018 we issued notice in the SLP and

4 stayed the operation of the impugned order of the High

Court.

5. The Ministry of AYUSH was formed on 9th November

2014 to ensure the optimal development and propagation

of AYUSH systems of health care. The main objective of the

Ministry of AYUSH is to upgrade the educational

standards of Indian systems of medicines and

Homoeopathy Colleges in the country. Section 12 A of the

Act postulates that a Homeopathic Medical College shall be

started only with the previous permission of the Central

Government. Permission was granted in favour of First

Respondent to start a Homeopathic Medical College on

28.09.2015. First Respondent could make admissions to 50

seats for the academic year 2015-2016 in the first year

BHMS course subject to the condition that the requisite

infrastructure, hospital facilities and qualified teachers in

each department as per the Central Council for

Homeopathic Regulations are complied with before the

admission of the students. It was made clear that the

College should fulfil all the requirements of the Act before

obtaining permission for admission to the academic year

2016-2017. There is no doubt that the approval that was

5 granted by the Second Respondent was valid only for a

period of one year. The High Court committed a serious

error in proceeding on the basis that the approval granted

for the year 2015-2016 was neither rescinded nor cancelled

and there was no necessity for the First Respondent to seek

for a fresh approval.

6. There is a further requirement of affiliation from the

Appellant University for starting a Homeopathic College in

the State of Tamil Nadu. The Tamil Nadu Dr. MGR Medical

University (Affiliation of Homeopathic Medical College)

Statute, BHMS, MD (Homeopathy) prescribes for the

procedure relating to affiliation of Homeopathy Colleges

according to which an application has to be made for

issuance of a “letter of consent of affiliation ” for starting a

Homeopathy College. According to the said Statute a letter

of consent of affiliation is granted only on fulfilment of the

conditions mentioned therein. Para 12 of the Statute

makes it clear that the application for provisional affiliation

can be made only after obtaining letter of permission from

the department of AYUSH, Health and Family Welfare to

start a Homeopathy Medical College.

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7. On 07.06.2013, the Appellant issued a letter of

consent of affiliation in the prescribed format. It was

mentioned in the said letter that the consent of affiliation

was valid for a period of one year from the date of

issuance. The First Respondent was also directed not to

admit any student till the provisional affiliation is granted

by the University to start the first BHMS degree course. A

perusal of the consent of affiliation in Form 5 which has

been filed by the First Respondent would make it clear that

the University agreed in principle to grant affiliation to the

proposed Homeopathy College and that the consent was

subject to grant of permission by the Government of India

under Section 12 A of the Act.

8. The request for grant of provisional affiliation made by

the First Respondent was rejected by an order dated

08.04.2016 by the Appellant. There is a reference to an

inspection that was conducted pursuant to a letter written

by the Government of India on 28.09.2015. It was stated in

the letter dated 08.04.2016 that a scrutiny of the

inspection report showed that the deficiencies pointed out

have not been rectified by the First Respondent. The

7 matter pertaining to grant of provisional affiliation was

reconsidered by the Appellant after a direction was issued

by the High Court. By a letter dated 08.02.2017, the

Appellant informed the First Respondent that the question

of continuance of provisional affiliation for the academic

year 2016-2017 does not arise as there was no order of

provisional affiliation issued to the institute. The request

made by the First Respondent for continuance

of provisional affiliation for admission of students for the

academic year 2016-2017 to BHMS degree course was

rightly rejected.

9. The High Court held that the Appellant committed an

error in not passing any order on the application made by

the First Respondent for continuance of affiliation on

03.08.2017. As stated earlier, the application for

continuance of provisional affiliation was reconsidered by

the Appellant University and a decision was taken on

08.02.2017. During the pendency of the Writ Petition

wherein the said decision was challenged, the Appellant

could not have considered yet another application which

was made on 03.08.2017. The High Court erred in holding

8 that the non-consideration of the application dated

03.08.2017 for continuance of affiliation is a default on the

part of the University. The High Court committed a further

mistake in finding that the deficiencies pertained only to

land.

10. It is clear from the record that the First Respondent-

University does not have the requisite approval from the

Central Government as provided in Section 12 A of the Act.

As the consent to affiliation was granted subject to the

approval from the Central Government for the period of

one year, the request made by the First Respondent for

continuance of provisional affiliation was rightly rejected by

the Appellant. We are in agreement with the submission

made by the learned Advocate General for the State of

Tamil Nadu that as the First Respondent did not have

provisional affiliation, there was no question of

continuance of the provisional affiliation to the First

Respondent. The First Respondent is not entitled for the

relief that was granted by the High Court for admission of

students to the first BHMS degree course for the academic

year 2017-2018 as it has neither approval from the Central

9 Government nor affiliation from the Appellant. Exercise of

jurisdiction in favour of provisional admissions during the

pendency of a Writ Petition exposes the students to the risk

of losing precious years in case of dismissal of the Writ

Petition. Courts should desist from passing interim orders

directing provisional admissions of students. [See:

Krishna Priya Ganguly & Ors. v. University of

Lucknow & Ors.1 and Union of India v. Era Educational

Trust & Anr.2].

11. While affirming the order passed in the Writ Petition,

the Division Bench referred to the submissions made by the

parties but did not express its views. It is imminent that

points raised have to be adjudicated upon and reasons to

be recorded in support of the decision. The Division Bench

failed to consider the submissions of the Appellant relating

to the lack of approval by the Central Government in favour

of the First Respondent without which the First Respondent

is not entitled to the relief sought for. The Division Bench

ought not to have granted the relief without deciding

1 (1984) 1 SCC 307 2 (2000) 5 SCC 57

10 whether the First Respondent had the requisite approval

from the Central Government to start a College.

12. For the aforementioned reasons, the order of the High

Court is set aside and the appeal is allowed.

....................................J. [S.A. BOBDE]

....................................J. [ L. NAGESWARA RAO]

NEW DELHI;

NOVEMBER 12, 2018.

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