NOC, Consent of Affiliation Mandatory along with Application for Opening New AYUSH Medical College: Gujarat HC

Ahmedabad: Denying relief to a Trust willing to open an AYUSH medical college, the Gujarat High Court has recently stated that it is mandatory for the application form to be accompanied with a "No Objection Certificate" and Consent of Affiliation to be granted permission for opening an AYUSH institute under the National Commission for Indian System of Medicine Act, 2020.

Although the counsel for the Trust had contended that NOC and Consent of Affiliation were not mandatory documents, the HC bench comprising of Justice Aniruddha Mayee disagreed with the contention as it relied on the application form itself that mentions those two documents under the List of Enclosures.

Therefore, rejecting the argument, the bench noted, "Therefore, the submission of No Objection Certificate as well as Consent of Affiliation was mandatory as per the list of enclosures and the applicant had to submit the same along with the application form. Admittedly in the present case at the time of submitting the application on the last date of submission i.e. 31.10.2021, the petitioners herein have not submitted the said two documents. Hence, the said argument also has to be rejected."

After setting up an AYUSH Educational Institute, the concerned Public Trust had applied seeking permission for the institute with an intake capacity of 60 seats in BAMS Couse for the academic year 2022-2023. The Trust had also applied before the Gujarat Health Department on 12.10.2021 seeking a No Objection Certificate for opening the new Ayurvedic College. Accordingly, the Government issued the NOC on 30.10.2021. Meanwhile, it had also applied before the Ayurvedic University seeking its affiliation. However, the application got rejected on 30.10.2021 because of lack of NOC from the Government. Following this, a new application had been made.

Since 31.10.2021 was the last date for application for opening of new AYUSH colleges, the Trust had submitted its application for starting the new Ayurvedic Medical College and Hospital with an intake of 60 seats for imparting education in Ayurvedic Medicine for the degree of BAMS for the academic year 2022-23.

The court noted that the concerned application got rejected for the want of consent of affiliation of the concerned University. After receiving the consent of affiliation from the Gujarat Ayurvedic University on 27.01.2022, the petitioner Trust forwarded the same to the respondents. However, the Medical Assessment and Rating Board for Indian System of Medicine clarified that since their application was already rejected and returned back on 21.12.2021, the consent of affiliation dated 27.01.2022 cannot be accepted at such a later stage.

Thereafter, the Trust preferred an appeal under Section 29(5) read with Section 24(3) of the Act challenging the rejection of their application and prayed for relief. However, after considering the matter, the authorities denied giving any relief to the new College. Similar applications were rejected by the Ministry of AYUSH and Government of India as well. Finally, the petitioner Trust approached the High Court bench and prayed for relief.

It was argued by the petitioner Trust that nowhere in the procedure and the application, there was stipulation that the submission of the necessary approval was mandatory at the time of submission of the application for new Ayurvedic College. The counsel for the Trust further submitted that even if it is accepted that the approvals from the State Government as well as from the University were mandatory, still the Proviso to Section 29(3) of the Act provides for an opportunity to rectify the defects before rejecting the scheme seeking permission to start a new college and Section 29 (3) Act provides maximum three months time to decide the application for permission to open new college. At this outset, he relied upon the judgment in the case of Royal Medical Trust Versus Union of India and another and the HC order in the case of Special Civil Application No.10523 of 2018.

Referring to these orders, the counsel for the Trust pointed out that in the case of Royal Medical Trust (supra), the Hon'ble Supreme Court had held that since the college was not at fault but was constrained due to the delay on the part of the university regarding non-issuance of the Consent of Affiliation, the application of the college ought to have been considered.

On the other hand, the Government authorities placed reliance on Regulation 7 of the Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations, 2019 and contended that as per the said Regulation, the respondents scrutinize all the applications on the basis of the eligibility criteria like application fee, No Objection Certificate of the State Government and Consent of Affiliation of the University etc. and only those applications which are eligible and complete in all respect are taken for further consideration and ineligible and incomplete applications are rejected and returned.

It was further argued on behalf of the respondent authorities that on the date of scrutiny of the application, it was noted that the application of the concerned Trust was lacking the necessary consent of affiliation from the concerned University and therefore, in terms of Regulations 7, the application of the Trust came to be rejected and the same was returned to the petitioners. Although the consent of affiliation had been sent by email, it came much later after the rejection of the application of the petitioners, they submitted.

The counsel for the government authorities further submitted that application forms are scrutinized as per the Regulation 7 whereas the application form complete in all respects is assessed under Section 29 of the Act as a scheme. Relying on Section 29(2) of the Act which provides for submission of a scheme, he further submitted that proviso to Section 29 (3) of the Act is applicable to the scheme as submitted by the new college and not to the application form which is assessed under Regulation 7.

After taking note of the contentions, the bench perused the Section 29 and Regulation 7 and noted, "In the present case since the application form of the petitioners was rejected and returned under Regulation 7, there was no question of assessing the scheme of the petitioners herein under Section 29(2) and (3) of the Act. The Regulation 7 has to be read in conjunction with Section 29(2) and 3 of the act. The said Regulation is in the aid of Section 29(2) and (3)."

"Therefore, the contentions of learned Senior Advocate Mr.D.C. Dave that Regulation 7 cannot override the provisions of Section 29 of the Act has to be rejected since Section 29(2) specifically makes a reference to the Regulations for submission of scheme as specified. The proviso to Section 29 provides for three months time to consider the scheme so submitted by the applicant. The scheme as envisaged under Section 29 would mean the scheme which is forwarded after scrutiny under Regulation 7 to the Central Council and the time limit in the proviso would apply to such a scheme as submitted," it further noted.

"In the present case, the application of the petitioners was itself rejected on scrutiny under Regulation 7, and therefore, there is no question of applicability of the provisions of Section 29(3) of the Act. Thus, the reliance placed upon the proviso to Section 29(3) of the Act by the learned Senior Advocate is misplaced cannot enure any benefit to the petitioners," further read the judgment.

The HC bench also rejected the reliance placed upon the Supreme Court order as it noted that the order had no application in the facts and circumstances of this case.

Finally referring to the argument that it was not mandatory to submit the No Objection Certificate from the State Government as well as the Consent of Affiliation along with the application form at the time of making application for establishment of new medical college, the bench observed, "The said argument is also not tenable for the reason that the application form also has a list for enclosures which is to be submitted by the applicant."

Perusing the list for enclosures, the bench rejected the plea as it observed,

"Therefore, the submission of No Objection Certificate as well as Consent of Affiliation was mandatory as per the list of enclosures and the applicant had to submit the same along with the application form."

To read the order, click on the link below.

https://medicaldialogues.in/pdf_upload/gujarat-hc-185601.pdf

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