Alok Aradhe, J
1. The petitioner is a College established by G.R. Educational Trust. The petitioner college has been set up with an object to impart education in Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S). The petitioner (hereinafter referred to as 'the College' for short) in this writ petition has assailed the validity of the order dated 01.02.2023, by which Medical Assessment and Rating Board for Indian System of Medicine (hereinafter referred to as 'the Board' for short) has imposed a penalty of Rs.2.75 Crores on the College under Section 28(f) of the National Commission for Indian System of Medicine Act, 2020 (hereinafter referred to as 'the Act' for short). The College also assailed the validity of the order dated 06.03.2022 passed by National Commission for Indian System of Medicine (hereinafter referred to as 'the Commission' for short), by which appeal preferred by the College under Section 24(3) of the Act, against order of the Board dated 01.02.2023, has been dismissed. The College has also assailed the validity of the order dated 17.03.2023 passed by the Commission, by which conditional permission under Section 28 of the Act, for admission for intake capacity of 60 seats in B.A.M.S course for academic session 2022-23 has been denied.
2. Facts giving rise to filing of this writ petition briefly stated are that the Trust has established the College in the year 2014 to impart education in B.A.M.S course. The Inspectors of the Commission conducted the inspection of the premises of the College on 30.11.2021 and granted conditional permission to the College on 09.12.2021 for admission in respect of 60 seats in B.A.M.S course for the academic year 2021-22. Thereafter, the premises of the college were again inspected on 12.07.2022.
3. The Commission for the first time on 17.08.2022 notified the requirement for the institution to submit CCTV camera footage of the faculty for six months and google time line of the faculty for six months. After a period of five months from the date of inspection, the Commission issued a notice to the College on 19.12.2022, in which seven deficiencies viz., (i) Medicinal plants are not displayed with proper plates. (ii) College Council not constituted as per norms as HOD is not a member of the Council. (iii) Data with regard to research publications details of CME programs, conferences for the academic activities conducted by the institution. (iv) Details of award and achievement by the students and faculty and results of all examination for one year not uploaded. (v) Shortcoming to the extent of 38.15% and 15.29% in average attendance of patients in OPD and average bed occupancy respectively. (vi) Registers of OPD not found signed by the Principal / Superintendents and (vii) Signatures of certain teachers were found to be mismatched.
4. The College was therefore, asked to appear before the Designated Hearing Committee on 23.12.2022, which was appointed by the President of the Board. The College submitted a reply on 22.12.2022 and appeared before the Hearing Committee which consisted of two members viz., Dr.Suryakanth Vage and Dr.Haridra Deya. The Board in its meeting held on 29.01.2023 discussed the same and approved the recommendations of the Hearing Committee. Accordingly, the President of the Board passed an order on 01.02.2023 imposing a penalty of Rs.2.75 Crore under Section 28(f) of the Act.
5. The College thereupon preferred an appeal before the Commission. The Chairman of the Commission, agreed with the recommendations made by the Hearing Committee and decided to dismiss the appeal. Accordingly, an order dated 06.03.2023 was passed dismissing the appeal.
6. Thereafter, by another order dated 17.03.2023, the Commission denied conditional permission for intake capacity of 60 students under Section 28 of the Act. In the aforesaid factual background, this petition has been filed.
7. Learned Senior Counsel for the College submitted that an opportunity of hearing was afforded to the College by a Hearing Committee comprising of Dr.Suryakanth Vage and Dr.Haridra Deya, whereas, impugned order has been passed by the President of the Board. It is submitted that the Committee, which has heard the College has not passed the order and therefore, the opportunity of hearing afforded to the college is an empty formality. In support of aforesaid submission, reference has been made to order dated 15.-7.2019 passed by a division bench of Dharwad Bench of this court in W.P.No.111713/2019. It is pointed out that the aforesaid order was not challenged by the respondents and was implemented. It is urged that the appeal preferred by the College was also heard by the same Hearing Committee comprising of Dr.Suryakanth Vage and Dr.Haridra Deya and the order passed by the Commission is based on the recommendations made by the aforesaid officers. Therefore, no sanctity can be attached to the order dated 06.03.2023 passed by the Commission in an appeal preferred by the College. Learned Senior Counsel for the College further submitted that the order dated 17.03.2023 passed by the Commission by which conditional permission under Section 28 of the Act for admission for intake capacity of 60 students in B.A.M.S course for the academic session 2022-23 has been denied also suffers from an infirmity inasmuch as opportunity of hearing has been granted by the hearing committee, whereas, the order has been passed by the President of the Board. Our attention ha also been invited to Section 19(1)(c) of the Act and it has been contended that the Board is required to pass an order under Section 28 of the Act, whereas, the same has been passed by the President and therefore, the order dated 17.03.2023 cannot be sustained in the eye of law.
8. On the other hand, Learned counsel for the respondent Nos.2 and 3 has fairly submitted that the appeal preferred by the College against the order dated 01.02.2023 has been heard by the Committee of two members viz., Dr.Suryakanth Vage and Dr.Haridra Deya and on the basis of their recommendations, the impugned order dated 06.03.2023 has been passed. It is further, submitted that the order dated 17.03.2023 has been passed by President on behalf of the Board.
9. We have considered the rival submissions made on both sides and have perused the record. Before proceeding further, it is apposite to take note of the relevant statutory provisions. Chapter V of the Act deals with the 'Autonomous Boards'. Section 19 deals with the Composition of Autonomous Boards. Section 19(1)(c), which is relevant for the purpose of the controversy in this petition, reads as under:
19(1)(c) The Medical Assessment and Rating Board for Indian System of Medicine shall consist of a President and members.
Provided that the President and six out of eight shall be chosen from the Ayurveda, Sidha, Sowa, Rigpa and Unani Discipline of Indian System of Medicine in such manner that atleast one member represents each such discipline separately and remaining two members would be accreditation experts.
10. Thus, it is evident that the Board consists of a President and eight members. It is also not in dispute that an order under Section 28 of the Act was an order under Regulation 3(3) of the Indian Medicine Central council (Requirements of Minimum Standard for under graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016 (hereinafter referred to as 'the Regulations' for short) has to be passed by the Board. In the instant case, admittedly, after inspection of the premises of the College, a notice dated 19.12.2022 was issued to the College. The College was asked to appear before the designated hearing committee on 23.12.2022. The aforesaid designated committee consisted of two members viz., Dr.Suryakanth Vage and Dr.Haridra Deya. The aforesaid committee after hearing the college made recommendations, which were discussed by the Board in its meeting held on 29.01.2023 and thereafter, an order dated 01.02.2023 was passed imposing penalty of Rs.2.75 Crores on the College under Section 28(8) of the Act. Thereafter, the College preferred an appeal. the appeal preferred by the College was again heard by a hearing committee comprising of aforesaid two members viz., Dr.Suryakanth Vage and Dr.Haridra Deya who had already made a recommendation against the College. It is not in dispute that on the basis of recommendations made by the hearing committee comprising of aforesaid two officers, the President of the Board by an order dated 06.03.2023 dismissed the appeal. Thus, the decision making process clearly suffer from the vice of bias and the order was passed by the appellate authority in violation of the principles of natural justice and therefore, the same cannot be sustained in the eye of law.
11. As stated supra, the Board comprises of President and eight members. However, in the instant case, the impugned order dated 17.03.2023 by which conditional permission was denied to the College was passed by the President of the Board alone, which is evident from para 9 of the order, which is extracted below for the facility of reference:
Therefore, in view of the shortcoming mentioned above, it has been decided by the President, Medical Assessment and Rating Board for Indian System of Medicine, to issue Denial of Conditional Permission to Karavali Ayurvedic Medical College Hospital and Research Centre, Neermarga, Mangalore-575029, Karnataka (Inst. ID-AYU0479), for intake Capacity of 60 seats in UG (BAMS) course, under section 28 of the NCISM act, 2020 from the academic session 2022-23.
Thus, the order denying the conditional permission required to be passed admittedly by the Board has been passed by the President of the Board alone. Therefore, the same cannot also cannot be sustained in the eye of law.
For the aforementioned reasons, the impugned order dated 06.03.2022 passed by the Commission as well as the order dated 17.03.2023 passed by the Board denying the conditional permission to the college for intake capacity of 60 students for B.A.M.S course for academic session 2022-23 are hereby quashed. The appeal preferred by the College against the order dated 01.02.2023 shall be decided by the Commission afresh after affording an opportunity of hearing to the College within a period of four weeks. In addition, the Board is directed to decide the issue pertaining to grant of additional permission to the College within an outer limit of two weeks from today. In case, the college is able to satisfy the Board that the deficiencies do not exist, the Board shall also pass appropriate orders.
With the aforesaid directions, the writ petition is disposed of. Needless to state that all issues are kept open to the parties to be agitated in appropriate proceedings.
