Shaheed Kartar Singh

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Civil Writ Petition No. 17787 of 2012
Shaheed Kartar Singh Sarabha Ayurvedic College v. Union of India
2012 SCC OnLine P&H 20209
(BEFORE RANJIT SINGH, J.)
Shaheed Kartar Singh Sarabha Ayurvedic College, Village and Post

Sarabha, District Ludhiana .…. Petitioner
v.
The Union of India and others .…. Respondents
Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Nikhil Chopra, Advocate, for the
petitioner.
Mr. Sukhdeep S. Singh, Sr. Counsel assisted by Central Government counsel for the
Union of India-respondent No. 1.
Mr. Ashok Tyagi, Advocate, for respondent No. 2.
Mr. Yatinder Sharma, DAG, Punjab, for the State.
Civil Writ Petition No. 17787 of 2012
Decided on October 17, 2012
RANJIT SINGH, J.
The petitioner, which is a self financing Ayurvedic Medical College, has a permission
for annual intake capacity of 60 students. For the session 2012-13, the intake capacity
of the petitioner-College for Under Graduate B.A.M.S. Course, has been reduced from
60 seats to 50 seats. This reduction is ordered only on the ground that one teacher is
deficient in the College, which has on its roll 38 eligible teachers against the
requirement of 39 in terms of the instructions/regulations governing the issue. The
petitioner-College accordingly has approached this Court through the present writ
petition to impugn this order on the ground that the order passed by the respondents
on this count is irrational and illogical as one teacher held ineligible because of
absence can not be taken as deficiency especially so when he had gone to attend
extreme domestic emergency due to sickness of his father and so was not present in
the premises of the College on the day of inspection.
The facts, noticed in brief, are that as per the requirement of regulations known as
Indian Medicine Central Council (Minimum Standard requirements of Ayurveda
Colleges and attached Hospitals), Regulations 2012 (for short, “Regulations 2012”),
which are applicable w.e.f. 18.7.2012, only 30/27 teachers are required for intake
capacity of 60 students. It is stated that the impugned order is dated 24.8.2012 and,
thus, the current norms as contained in Regulations 2012 referred to above would
apply on the date the impugned order was passed and the College, thus, would fulfill
the requirement of faculty, as per this Regulation. The petitioner, therefore, would
term the impugned order to be arbitrary and one which was passed without
application of mind.
The pleaded case even otherwise is that deficiency of one teacher can not be a
sufficient ground to reduce the intake capacity by 10 seats and the time ought to have
been granted to the petitioner-College to appoint more teachers and indeed the
petitioner factually has appointed five more teachers, increasing the strength of faculty
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to 43 teachers, which are on the role of College as on date.
The petitioner-College otherwise was set-up in 1998-99 and was granted no

objection/essentiality certificate by the State of Punjab. The petitioner-College had
applied for and was granted admission for starting Ayurvedic Medical College and
Hospital by the Central Council of Indian Medicine (CCIM) and the Government of
India for session 1998-99. Since then the College has been granted permission every
year.
The petitioner-College earlier was affiliated with the Panjab University and later was
affiliated with Baba Farid University of Health Sciences, Faridkot. The Punjab
Government has now notified an Act on 1.2.2011, by the name Guru Ravi Dass
University Hoshiarpur, Punjab Act, 2009, whereby separate University has been
established for Ayurvedic Colleges. The petitioner-College accordingly is affiliated with
Guru Ravi Dass University, Hoshiarpur, from the year 2011 onwards.
CCIM conducted the inspection of the petitioner-College for session 2011-12. The case
was forwarded to respondent No. 1-AYUSH. The outcome of the inspection conducted
by CCIM or the order recommending/rejecting the case was never communicated to
the petitioner. The petitioner, therefore, was constrained to approach this Court
through Civil Writ Petition No. 19460 of 2011 and an interim relief for allocation of
students was granted, besides directing Union of India to take decision in accordance
with law. On 25.10.2011, respondent No. 1 passed an order against the petitioner. The
petitioner accordingly amended the writ petition filed earlier and the amended writ
petition is listed for hearing on 6.11.2012. This Writ Petition No. 19460 of 2011 was
ordered to be heard with Civil Writ Petition No. 18961 of 2011, which has been
disposed of by giving direction to the Union of India to inspect and satisfy about the
minimum norms itself.
As per the petitioner, identical situation has now arisen for session 2012-13. CCIM
inspected the petitioner-College for this session as well. The case of the petitioner was
recommended for 50 seats against the total intake capacity of 60 seats for Under
Graduate course. This is only due to one reason that total eligible teachers at the time
of inspection were found 38 instead of the required minimum strength of 39 teachers.
This is despite the fact that the CCIM has sought clarification in regard to two
teachers, who were absent at the time of inspection. The petitioner had submitted the
reply immediately. Dr. Rajesh Kumar Srivastava, who was found absent at the time of
inspection, reportedly has resigned w.e.f. 31.3.2012, following the death of his father
at Varanasi. Dr. Raja Ram Mahto, the second teacher found absent had met with an
accident while he was on leave at his home town, Ranchi. The requisite details in this
regard were submitted to the CCIM. The case of the petitioner-College was apparently
forwarded by CCIM to respondent No. 1 and thereafter respondent No. 1 has
communicated the following deficiencies to the petitioner-Institution:-
“The College is having 38 eligible teachers against the requirement of 39 teachers.”
The petitioner-Institution was called for personal hearing on 7.6.2012. The only
deficiency pointed out was replied in the manner that the father of one of the teacher,
namely, Dr. Rajesh Kumar Srivastava was seriously sick and so he had gone to attend
to his ailing father. Despite this, no order was being passed by respondent No. 1,
when the petitioner approached this Court by filing Civil Writ Petition No. 16129 of
2012. Notice of motion was issued but the petitioner was served with an order dated
24.8.2012, reducing the intake capacity of the petitioner-College from 60 to 50 seats
in Under Graduate B.A.M.S. Course for the session 2012-13. The petitioner accordingly
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has filed the present writ petition to challenge this reduction.
In the writ petition, the petitioner has placed reliance on the amended Regulations
2012 on the ground that the petitioner-College was inspected subsequent to the
promulgation of these regulations but during the course of hearing, learned senior
counsel appearing for the petitioner has confined his submissions on the aspect of
deficiency of one teacher. As per the petitioner, there is no deficiency and the absence
of one teacher for the reason as explained can not be taken and counted as deficiency.
Notice of motion was issued. Mr. Sandhu had put in appearance on behalf of
respondent No. 1-Union of India, on the very first date when the writ petition came up
for hearing as he had filed a caveat. Replies on behalf of respondent-Union of India as
well as CCIM have been filed.
The reason for denial of the permission as contained in the reply is on account of
deficiencies. One of the deficiency as noticed is that the College was having 38 eligible
teachers against the requirement of 39 teachers, which is 90% of the total
requirement of 43 eligible teachers for intake of 60 seats. It is disclosed in the reply
that the College had submitted the list of 42 eligible teachers. One teacher, namely,
Dr. Kamaludin was not attending his duties on 1.3.2012. Out of the submitted list of
43 teachers, visitation team of CCIM had considered only 38 teachers eligible. The
petitioner-College statedly had urged to consider the remaining four teachers as
eligible as they were appointed on the basis of their experience and educational
qualifications. Some teachers shown at Sr. Nos. 2R, 20R and 27P were non-Post
Graduate teachers and were found having long gap of teaching. One teacher at Sr. No.
25R, namely, Dr. Rajesh Kumar Srivastava, was absent on the day of inspection by
CCIM. He was appointed as a Reader in the month of January 2012 and as per the
time table issued w.e.f. 2.1.2012 showed him as Lecturer. This teacher was considered
ineligible because he was absent on the day of inspection. However, it was further
found that he had resigned from the College on 31.3.2012. Though some other
reasons are mentioned in addition to justify the observation and finding that only 38
eligible teachers are working but learned senior counsel appearing for the petitioner
has very vehemently submitted that Dr. Rajesh Kumar Srivastava could not be
excluded from the strength of faculty merely because he had gone to attend to his
ailing father on the day of inspection. The other reasons as disclosed are:-
“……(vi) A teacher at Sr. No. 40L namely Dr. Kamaludin was found in duplicity with
Banaras Hindu University. Simultaneously, he was working at two places - in the
college and in BHU as Senior Resident. The representatives of the college accepted
that Dr. Kamaludin was not coming to college since 1st, March, 2012 without any
information. Hence, the college authority was not aware that he was working in BHU as
Resident.
(vii) Regarding the teacher at S. No. 2R (Dr. Dhun Bahadur Upadhyay), the major gap
in teaching was sought between 21.5.2003 to 16.2.2009 (5 years, 8 months, 24 days)
when he was working as lecturer.
(viii) Regarding the teacher at S. No. 20R (Dr. Sheojee Thakur), the major gap in
teaching was observed between 28.8.2003 to 16.2.2009 (5 years, 5 months, 17 days).
No certificate was submitted by the college for confirmation of these dates.
(ix) Regarding the teacher at S. No. 27P (Dr. Vijay Shankar Pandey), the major gap in
teaching was found between 21.5.2003 to 16.2.2009 (5 years, 8 months, 7 days)
when he was working as lecturer.”
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The short question that would arise for consideration is whether the action of the
respondents in holding that there was a shortage of one faculty of eligible teacher in
the facts and circumstances of this case is justified or not.
As per senior counsel appearing for the petitioner, Dr. Rajesh Kumar Srivastava can
not be counted as ineligible only on the ground that he was not present on the date of
inspection, as he had gone to attend to his ailing father, who had subsequently
expired also. This is the ground on which said member of the faculty has submitted his
resignation on 31.3.2012. The counsel appearing for respondent-Union of India, has
highlighted this aspect to his advantage to justify the impugned order. He would urge
that mere fact that this faculty member had submitted his resignation would mean
that the decision taken by the respondent-Union of India is justified and the deficiency
in the faculty is clearly in existence. As per the counsel, the position has to be seen till
the date of passing of the order and it can not be confined only till the date of the
inspection.
The counsel for the petitioner would attempt to catch the counsel for Union of India on
this submission to state that if this is to be so construed, then on the date of order,
the petitioner Institution had employed some additional faculty members, which fact
is available on record and duly averred in the writ petition. On the other hand, if the
position is to be seen on the date of inspection, then Dr. Rajesh Kumar Srivastava can
not be excluded from being a member of the faculty as on that day, he certainly was
employed in the faculty but was temporarily absent due to sickness of his father. The
counsel would contend that there can not be better proof to show and justify the
reasons of this absence than the subsequent death of his father, which would be
sufficiently show that he had gone to attend to his sick father.
I have considered the rival submissions made before me.
In fact, against the minimum requirement of having 39 eligible teachers, the

petitioner-Institution in fact is shown to have employed 43 teachers, which according
to it were fully eligible. Without going into the reasons for which the other teachers
have been held to be ineligible and, thus, not counted towards the strength of faculty
in the Institution, it may be seen if Dr. Rajesh Kumar Srivastava was held ineligible on
any justified ground or not. If it is held that his absence was justified, then it is
possible to hold that there was no deficiency in the faculty as he would have to be
counted as eligible.
Concededly, the show cause notice issued to the petitioner-College (Annexure P-8)
clearly shows that the permission has been granted for reduced 50 seats only due to
one reason that the College is having 38 teachers against the required strength of 39
teachers. The impugned order, Annexure P-22, is passed only on this ground, whereby
the intake capacity of the petitioner-College has been reduced from 60 seats to 50
seats in under graduate B.A.M.S. Course, academic session 2012-13. The operative
part of the impugned order, disclosing reasons for granting permission for reduced
intake is as under:-
“However, on the examining the case, it was observed that the college is not having
required number of eligible teachers against the requirement of 39 teachers for 60 UG
(BAMS) seats as per approved criteria mentioned at para 3 on pre page. Therefore,
under provisions of the first proviso to sub-section 5 of Section 13A of the IMCC Act,
1970, an opportunity of hearing was granted to the college on 7.6.2012. The college
through its representatives appeared before the Hearing Committee. In view of the
observation of the hearing committee based on submission made by the college during
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hearing, the recommendations and visitation report of the CCIM and further
clarification from the CCIM, it can be understood that as per the approved norms for
2012-13 session as mentioned in para - 3 on pre page, the college does not fulfill the
eligibility conditions like the college has not produced sufficient documents to
substantiate their claim of having required number of eligible teachers. It has,
therefore, been decided to reduce the seats from 60 to 50 in UG (BAMS) course for the
academic session 2012-13.” It is, thus, clear that it is only the shortage of one
teacher, which has led to this reduction in the intake capacity of the College.
The counsel for Union of India appeared a bit uncharitable in making two prong pleas
to justify the impugned order. The respondents have either to confine itself to state
that deficiency is to be seen on the date of inspection or that it can be so seen till date
of passing the order. If the plea is that the position can be seen even upto the date of
passing the order, then the same can not be allowed to be a one way traffic only. It
would then amount to saying that “Head I win and Tail you loose”. If the respondents
intend to see the position on the date of order, then they would not be justified in not
taking the factual position existing in the College on the said date of passing of the
impugned order. If by then, the College has employed some more teachers, obviously
it would have removed the deficiency and the deficiency required to be seen on the
date of order, would justify the plea of the petitioner that there is no deficiency on the
said date. If on the other hand, position is to be seen on the date of inspection, then
the respondents would not be entitled to rely on the subsequent development
regarding the resignation of Dr. Rajesh Kumar Srivastava, which was much after the
date of inspection. Since the deficiency is observed and noticed on the basis of
inspection carried out by CCIM, it would be fair to hold that the position, as it existed
on the date of inspection, should govern and not what is pleaded on behalf of the
respondents that the same is to be seen on the date of the order.
While taking this view, I am quite conscious of the fact that it would be easy to show
the full strength on the date of inspection by employing the teachers, who can then
leave the College, being fully aware that the position on the date of inspection would
be seen. This practice, in my view, can certainly be checked. Firstly, the inspection is
conducted by CCIM, perhaps not with an advance notice and it is conducted suo-motu
keeping the date of visit as surprise. Secondly, there is no bar for any subsequent
inspection, in case such a situation comes to the notice of the respondents and action
can then be taken to ensure that deficiency is removed or College put to terms for
which there are ample powers.
The absence of Dr. Rajesh Kumar Srivastava on the date of inspection apparently is
genuine. If his father was sick and if he had gone to attend to his ailing father, this
absence can not be construed to mean that he was not employed and so ineligible to
be counted as a faculty to say that there is deficiency. There is sufficient assurance
available on record that this reason is not advanced without basis. This fact is amply
evident from the death of his father, which followed and for which he has even
submitted his resignation. I am of the view that opinion formed by the respondents on
this ground to construe it to be a deficiency is not rational. Irrationality, illegality and
perversity are well recognized grounds to invoke power of judicial review. This aspect
regarding the scope of judicial review by the Courts was also considered by this Court
in Civil Writ Petition No. 13843 of 2012 (Dayanand Ayurvedic College, Jalandhar v. The
Union of India), decided on 10.10.2012, wherein on the basis of various judgements, it
is observed that it is well settled that judicial review generally speaking is not directed
against a decision but is against the decision making process. Thus, the courts in such
cases may not interfere in the decision as such, but can examine the decision making
process adopted by the authorities to arrive at the decision which is challenged before
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the court. Judicial review of administrative action as based upon one or the following
conditions viz. Illegality, procedural irregularity and irrationality is a well recognized
principles.
I am, therefore, inclined to hold that the decision of the respondent-Union of India to
reduce the intake capacity of the petitioner-College from 60 seats to 50 seats only due
to deficiency of one teacher excluding Dr. Rajesh Kumar Srivastava is irrational and,
thus, can not be sustained. The order is not irrational only on the ground that
deficiency of one faculty can not be a reason to reduce the intake capacity but to
construe this to be a deficiency on the ground for which one teacher was absent,
would make the order look irrational or atleast not rational.
The reference made by counsel for Union of India to an unreported judgement of

Hon'ble Supreme Court titled Rajeev Gandhi Ayurvedic College and Hospital v. Union
of India, Special Leave to Appeal No. 28689 of 2011, decided on 1.2.2012 may not
fully apply to the facts of the present case. Firstly, the Hon'ble Supreme Court has
simply dismissed the Special Leave Petition on 1.2.2012 filed to challenge the
judgement passed by Division Bench of Madhya Pradesh High Court in Writ Petition
No. 15444 of 2011 on 28.9.2011. In this case, the College on the date of inspection
was found having 8 higher faculties against the minimum requirement of 20. Two
teachers out of the list of 10 higher faculties were found ineligible. The Central
Government accepted the explanation in respect of two teachers but still, the College
was found short of one teacher on the date of inspection. In this case, the deficiency
due to shortage of faculty was not on account of absence but was due to ineligibility of
the teacher. That is not the situation here. Concededly, the deficiency is due to the
teacher being not present on the date of inspection, though, subsequently aspect of
his resignation on 31.3.2012 is also highlighted. Merely, the order dismissing the
S.L.P. by the Hon'ble Supreme Court can not be construed to be a judgement or a
binding precedent. This view, at the most, is a view of Madhya Pradesh High Court and
is not fully applicable to the facts of the present case.
The writ petition is accordingly allowed. The petitioner-Institution is permitted to

admit students to its full intake of 60 seats. There shall, however, be no order as to
costs.
———
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SCC Online Web Edition, Copyright © 2021

Page 1 Thursday, April 29, 2021

Civil Writ Petition No. 17787 of 2012

Shaheed Kartar Singh Sarabha Ayurvedic College v. Union of India

2012 SCC OnLine P&H 20209

(BEFORE RANJIT SINGH, J.)

Shaheed Kartar Singh Sarabha Ayurvedic College, Village and Post

The petitioner-College otherwise was set-up in 1998-99 and was granted no

“The College is having 38 eligible teachers against the requirement of 39 teachers.”

I have considered the rival submissions made before me.

In fact, against the minimum requirement of having 39 eligible teachers, the

The reference made by counsel for Union of India to an unreported judgement of

The writ petition is accordingly allowed. The petitioner-Institution is permitted to

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