1

IN THE HIGH COURT OF AT

Dated this the 10th day of October, 2012

Before

THE HON’BLE MR JUSTICE HULUVADI G RAMESH

Writ Petitions 37754 – 799 / 2010 (Edn) Between: 1 Sri Krishnarajendra Charitable Trust's Indian Institute of Ayurvedic Medicine & Research Bangalore Compound Jayamahal Road, Opp: Darga Bangalore - by its Secretary LK Raju S/o late B V Muniraju 69 yrs, R/o Bangalore

2 Himansu Vaish, 24 yrs S/o Mannilal Vaish

3 Damika Laloo, 18 yrs S/o Tayling Lhuid

4 Taushif Ahmed, 20 yrs S/o Mohammed Ahmed

5 Aiswarya Chand P, 19 yrs S/o Chandran Pillai

6 Nithyanandan, 20 yrs S/o Viswamithran 2

7 Jeevan Singh Kushwaha, 19 yrs S/o Ram Sevak Kushwaha

8 Renjini G, 19 yrs D/o Govindankutty

9 Vaijayanthy S, 20 yrs D/o SanalKumara Pillai B

10 Maneesh Kumar Soni, 18 yrs S/o Khajanchi Prasad Soni

11 Albert Nongrum, 20 yrs S/oSharming Marbaniang

12 Emiliana Tlang,20 yrs S/o Libera Pasi

13 Kuldeep Kumar Verma, 23 yrs S/o Mahadev Prasad Verma

14 Jinthu Paul V, 18 yrs S/o V M Poulose

15 Jagat PratapSingh, 18 yrs S/o Dalvir Singh Badaria

16 Almack Blah, 20 yrs S/o F Kyndykes

17 Rooth M Baby, 18 yrs S/o M V Baby

18 Raginee Pal, 21 yrs D/o Pal 3

19 Dinesh Singh, 19 yrs S/o Vaiz Nath Singh

20 Vijay Anand Singh, 22 yrs S/o Awadesh Kumar Singh

21 Preeti Kumari, 23 yrs D/o Chand Singh

22 Kaswala hardikumar Himmatbhai 19 yrs, S/o Himmatbhai

23 Vismaya T T, 18 yrs D/o Premanathan T T

24 Devesh Kumar, 17 yrs S/oLakhpat Singh

25 Rajiv Bhardwaj, 19 yrs S/o NarenderBhardwaj

26 Vindhavasini Verma, 18 yrs S/o Vidhyanand Verma

27 Pramod Kumar, 17 yrs S/o Amar Singh

28 Deepika Singh, 20 yrs D/o Brijesh Pratap Singh

29 Veena Sukumar, 18 yrs D/o Sukumaran P

30 M D ShahidAnwer, 20 yrs S/o Dabir Ahmed 4

31 R L Krishna Priya, 19 yrs S/o C Rajendra Kumar

32 Parvinder Kumar, 19 yrs S/o Subhash Yadav

33 Neeraj Jaiswal, 24 yrs S/o Ram Swaroop Jaiswal

34 Amanish Kumar, 20 yrs S/o Ashok Kumar Rawat

35 Shivendra Kumar Chaturvedi 18 yrs, S/o Chintamani Chaturvedi

36 Santosh Kumar, 21 yrs S/o Karamdeo Thakur

37 Divya Singh, 18 yrs D/o Brajesh Pratap Singh

38 Monika Saojal, 18 yrs D/o S Saojal

39 Mohammed Shahid, 22 yrs S/o Ali Ahmed

40 Dalvadi Jagdishchandra Kalidas 19 yrs, S/o Kalidas

41 Arvind Vyas, 20 yrs S/oBhanwar Lal Vyas

42 Taranum Fathima, 19 yrs S/o Syed Jaffer Ilyas 5

43 Gauri Sahu, 27 yrs D/o Suresh Chandra Sahu

44 Anand Kumar, 21 yrs S/o Satyawan

45 Madhav Kant, 20 yrs S/o Ajay Kumar

46 Naveen Kumar, 22 yrs S/o Rishi Pal Singh

2-46 are students of Indian Institute of Ayurvedic Medicine & Research Bangalore Palace Compound Jayamahal Road, Opp: Darga Bangalore Petitioners

(By Sri Anand N, Naik & Naik Law Firm, Adv.)

And:

1 Government of – by its Secretary Ministry of Health & Family Welfare Dept. of Indian System of Medicine & Homeopathy (AYUSH), (Education Policy Section) Indian Red Cross Society Annexe Bldg 1, Red Cross Road, New Delhi

2 Central Council of Indian Medicine By its Secretary, 61-65, Institutional Area Opp: D Block, Janakpuri New Delhi

3 Rajiv Gandhi University of Health Sciences T Block, Jayanagar, Bangalore 6

By its Registrar Respondents

(By Sri Kalyan Basavaraj, CGC for R1; Sri Mahesh R Uppin, Adv. For R2; Sri N K Ramesh, Adv. For R3)

Writ Petitions are filed under Art.226/227 of the Constitution praying for a direction to the respondent university to take note of grant of permission under S.13 C by the Central Government in terms of communication dated 20.8.2010 – annexure D, etc.

The Petitions coming on for preliminary hearing this day, Court made the following: ORDER

Petitioners have sought for a mandamus directing the respondents to take note of grant of permission under S.13(C) of the IMCC Act, 1970 by the Central Government in terms of communication dated 20.8.2010 – annexure D and approve the admissions of students admitted for the academic year 2009-10 to BAMS course, as sought for by the petitioner

College under request letter dated 11.11.2010 and for a declaration that in the light of grant of permission under S.13(C) of the Act which dates back to the date of establishment of the institution, the endorsement communication dated 15.12.2009 – annexure H is unenforceable and invalid and also to quash the order dated 24.7.2009 – annexure C by the 1st 7 respondent .

Petitioners are the Institution as well as students who have been pursuing BAMS course in Indian Medicine. They are before this Court for non-approval of the admissions for the academic year 2009-10 on the basis of communication of the order dated 24.7.2009, by which on suo motu inspection being conducted, the case of the petitioners has been rejected pointing out certain deficiencies which, according to the petitioners, is without proper notice and without considering the very effect of the permission which had been granted on minimum conditions being satisfied.

According to the learned senior counsel, this Court has granted interim order permitting petitioners 2 to 46 to appear for I year BAMS examinations scheduled to commence during 2010. Petitioners are before this Court on the ground that for the subsequent year i.e., 2010-11,

Government of India has granted permission for admission to 45 seats acting under S.13(C) of the Act. Accordingly, senior counsel has argued that annexure C is non-est and cannot be acted upon. 8

Heard the counsel representing the respective parties.

According to the counsel representing the 2nd respondent, the very order at annexure C is for the academic year 2009-10. Accordingly, petitioners/candidates were permitted to appear for the examination and they cannot seek equity. As per the inspection report, certain deficiencies were pointed out and the petitioner college had only six teaching faculty as against requirement of 35 teachers and thus, the college is not having even

80% eligible teachers. There is non-compliance as such, the Council has decided not to grant permission for admission to BAMS course in the petitioner institution and rejected the case of the petitioner.

In reply, learned senior counsel submits, pursuant to annexure C issued they have moved the Government once again and the authority having visited the college during February 2010, having reassessed, granted permission. That itself indicate that the college has got infra structure except meting out certain minor deficiencies. Learned counsel has also relied upon the Division Bench judgment of this Court in WA 3877/2009 9 and connected matter decided on 21.1.2010 (CCIM, New Delhi Vs Govt. of India). In para 8 of the said order, the Division Bench has held thus:

Keeping all these aspects in view, the learned Single Judge has referred to the decision in the case of Father Muller's Charitable Institutions, Kankanady, Mangalore Vs Union of India (In WP 23802/1998 DD 6.7.1999). In the aforesaid decision, this Court while considering the permission granted under S.10C of the Medical Councilof India Act which is similar to the provision contained in S.13 C of the IMCC Act has held that the permission granted will have retrospective effect. In that context, the approval granted in the year 2009-10 was taken note of by the learned Single Judge to apply the same to the present facts. As noticed above, it is contended by the learned senior counsel for the appellant that the said decision could not have been relied on by the learned Single Judge since in the instant case the approval for the year 2009-10 is not absolute and as such the application of the said decision would set a bad precedent. The reliance on the said judgment in the background of the earlier reasoning assigned by the learned Single Judge would indicate that in the instant case the same would be relevant since except for the non-approval of the admission for the year 2008-09, 10

the approval had been granted for the earlier year, as well as the subsequent year. Further, as noticed by the learned Single Judge, if the rejection is made under S.13C and in any event, since the requirements were being complied with by the 2nd respondent, it would not have been appropriate to deny the approval for one year in between. Therefore, we are of the view that the application of the said decision to the facts emerging in the present case to the extent as stated above cannot be considered as erroneous.

What is noticed is, 2nd respondent has granted permission for the previous period and subsequently, for the year 2010-11, after having considered the request of the petitioner institution, on inspection certain deficiencies were pointed out. However, petitioners/students have already been admitted and by virtue of the interim order, they have been permitted to take up examinations and the subsequent approval – annexure D itself depicts the fact that minor deficiencies have to be cured.

The present petitions are in respect of the academic year 2009-10.

Certain deficiencies which were pointed out by the Health Ministry at 11 annexure D is to appoint teachers either on contact basis/part time/full time.

Since already the course has been completed and petitioners students have appeared for the examinations pursuant to the permission granted by this

Court by way of an interim order and since already a decision has been taken by the 1st respondent having accorded approval for the academic year

2010-11 as noticed by the Division Bench in the above cited writ appeal, it would not be appropriate to deny approval for one year in between.

Accordingly, the impugned order at annexure C is quashed thereby directing the concerned respondent authorities to accord approval of admission of students by the 1st petitioner institution and to declare the results, if not already declared.

Petitions are allowed.

Sd/- Judge An