Mansimran Kaur

New Delhi, April 26, 2022: Quashing the denial order of the Medical Assessment and Rating Board of the Indian System of Medicine by which the scheme of Sumandeep Vidyapeeth for commencement of the UG programme in Bachelor of Ayurveda Medicine and Surgery(BAMS) was rejected, the Delhi High Court has opined that Institutes possessing the necessary infrastructure for running ayurvedic medical colleges should be encouraged to contribute to the bigger goal of strengthening the infrastructure of this system of medicine in the country.

Observing that it would be against public interest to deny permission to the petitioner college and let these 80 precious seats in BAMS go to waste, Justice Rekha Pallli allowed the writ petition filed by the Petitioner-Institution in the present case challenging the impugned orders.

The Bench observed that there should be formulation of proper guidelines to put an end to the practice of teachers shifting from one institution to another in the same academic year and for the same the petitioner should not be burdened, and the onus of proof lies more on the side of the competent authority to prove the  alleged deficiency.  

The petitioner in the present case was assailing the denial order passed on January 31, 2022 by the Medical Assessment and Rating Board of the Indian System of Medicine wherein the scheme of the petitioner to start a new Ayurvedic Medical College with 100 seats was rejected. The petitioner also assailed the orders dated February 24, 2022 and March 31, 2022 passed by the respondents rejecting his first and second appeal in pursuance of the Letter of Denial that was rejected. 

Brief facts of the case for perusal of the present petition were that the petitioner had received the NO Objection Certificate on August 29, 2020 from the State Government with the admission capacity of 60 seats in BAMS course. Thereafter on September 23, 2020, the petitioner submitted an application  under Section 13 A of the Indian Medical Central Council Act, 1970 for establishment of Sumandeep Ayurvedic Medical College and Hospital. The application however, was rejected by the first respondentstating that an updated “Consent of Affiliation was required”. Aggrieved by the same the petitioner moved to High Court by way of writ petition contending that being a Deemed to be University as per the UGC norms it does not require Consent Affiliation.  In pursuance of the same, the respondent accepted the application of the petitioner without demanding for “Consent for Affiliation” 

Later, LOI was issued clearly informing the petitioner that its scheme for 80 seats in its UG BAMS course had been approved. Thereafter, further inspection was carried out virtually in order  to issue a letter of permission. Based on the inspection, a letter was issued dated January 13, 2022 by the MARBISM stating certain deficiencies. The petitioner claimed that none of the deficiencies stated in the notice actually existed and the same was explained at the time of hearing as well. However, a letter of  denial was issued to the petitioners rejecting the plea of starting the BAMS course on January 31, 2022.  Aggrieved by the same the petitioner instituted first appeal which came to be rejected by the Appellate Authority of the second respondent and the second appeal under which, too, had been rejected by the Central Government. These impugned orders compelled the petitioner to approach this Court  by way of writ petition. 

The Counsel for the petitioner contended that the college in question was in operation from last two years and the hospital of the petitioner was functional since 2018.It was  not only maintaining all its IPD and OPD registers properly, but was  also successfully following the Computerized Central Registration System, as required under Regulation 7(3) of the MSR, 2016, which aspect was also duly verified by the visitors’ team.

The allegation pertaining to maintaining of duty roaster was also refuted by the Counsel of the petitioner on account of it being vague. It was further submitted that  respondent’ s plea was meritless, as the inspection report dated December 13, 2021 conducted by the visitor’s team itself stated that the college was having the required number of teaching and non- teaching staff. It was also contended that the respondent was apprised of the fact that there were six faculty members more who were employed with the petitioner institute and the same information was also present at the web portal of the second respondent but acceptance of the aforesaid faculty members was not considered in the impugned notice.

The Counsel for the respondent , however countered every submission submitted by the petitioner and stated that the non acceptance of the six faculty members was justified as they presented affidavits stating their link with other institutions other than the petitioner institution in the same academic year and the same was contrary to Regulation 3(1)(f) of the MSR 2016. Lack of infrastructure and faculty as stipulated under MSR, 2016 and the Medical College Regulations, 2019 was another reason stated. Thus the refusal to establish a new college to petitioner institute was justified, the Counsel for the respondent submitted. 

The Court dealt with the deficiencies concerning the lack of proper teaching staff and   non maintenance of the OPD and IPD records as alleged in the impugned notice. In view of the same, the Court noted that the fact which was relevant in the instant case was that those six teachers were engaged with the petitioner institution at the time when the respondent issued the notice stating deficiency. It was further submitted that on the web portal  of the second respondent, the name of the six teachers  was linked with the petitioner institute and the same was also verified by the petitioner. 

To gain more clarity on the same, the Court reproduced the extract from the affidavit and concluded that it was nowhere stated in the affidavit itself, that the teacher was restricted to resign from the erstwhile institution thereafter or cannot join any other institute as a full- time teacher. It was also observed that at the time of arguments, the Counsel for the respondent was asked that if there was any provision in the regulation restricting the teachers from resigning from an institution after furnishing an affidavit at the time of visitation but the answer of the Counsel was in negative. 

Hence, the Court was of the opinion that the respondents’ finding of this purported deficiency of the petitioner’s teaching faculty was wholly perverse and showed non-application of mind on the part of the respondents. However, the Bench noted that this would not preclude the respondents from issuing appropriate guidelines or amending their regulations, to prevent teachers who have given affidavits for one institute during a particular academic session from joining another institute during the same academic session, if they deem it necessary.

On the issue of non maintenance of OPD and IPD records, as also the staff duty roster, the Court submitted that respondents did not stress upon the same either in their counter affidavits or at the time of arguments. It was further submitted that none of the three impugned orders highlighted the same aspect. Indeed, the State Government itself issued the NOC and the first respondent forwarded the application based on the finding that the hospital was functional. 

 It was further submitted that the judgments of the Supreme Court in  Medical Council of India v. Kalinga Institute of Medical Sciences  and Medical Council of India vs. The Chairman, S.R. Educational and Charitable Trust and Anr, relied on by the respondents, indeed stated  that primacy should be given to the report of the inspection committee. In the instant case, the visitation committee duly observed that each of the 12 teachers were qualified under the MSR, 2016. 

The Bench also said, “ Our country has, after the outbreak of the covid-19 pandemic, been staunchly promoting the Ayurvedic system of medicine, and therefore, it is the need of the hour to encourage such institutes as the petitioner, which possess the necessary infrastructure for running ayurvedic medical colleges, to contribute to the bigger goal of strengthening the infrastructure of this system of medicine in the country. I am, therefore, of the opinion that it would be against public interest to deny permission to the petitioner college and let these 80 precious seats in BAMS to go waste.”

In light of the above observations, the Court allowed the writ petition keeping in mind the interest of the students and of the general public. Accordingly, the impugned orders were set aside. 

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