Non
- Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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
to Homeopathic Colleges for the academic year 2017-2018.
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
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
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
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
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.
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
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
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
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
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.