Point of Law: Regulation no.9 provides for requirements of college which prescribes that there shall be a minimum teaching faculty as per Schedule-IV for the course.

ORDER :

1. In this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 12.1.2021 which has the effect of reducing the sanctioned intake of the institute of the petitioner namely; B.G. Garaiya Homeopathy College from 100 seats to 50 seats.

2. The facts in brief are as under:

* The Petitioner is a public trust. It inter alia runs a college in the name of B. G. Garaiya Homoeopathy College (“College” for short). The College is engaged in imparting education in the discipline of Homoeopathy at the level of graduation leading to the qualification of B.H.M.S. The College was established in the academic year 2012-13 with the intake capacity of 100 seats.

* The College submitted the requisite details in the manner and within the time frame prescribed by the Respondent Nos. 1 & 2 for extension of permission for the academic year 2020-21.

This is not in dispute.

* Thereafter, the College received from Respondent No. 1 the hearing notice dated 19th October, 2020. Vide this notice the College was called upon to render its explanation in writing in respect of the deficiencies alleged therein against the College and avail the opportunity of hearing before the Designated Hearing Committee of Respondent No. 1 on the date stipulated therein.

* The College, thereupon, submitted its written submission supported by the documents dealing with the deficiencies alleged against it and also made oral submissions before the Designated Hearing Committee of Respondent No.1.

* Thereafter, the College was served with the impugned order dated 12th January, 2021 passed by Respondent No.1. Vide this order the intake of the College for the academic year 2020-21 was reduced to 50 seats from 100 seats.

3. Mr. Dhaval Dave, learned seniour counsel appearing with Mr. Udit Vyas states that the impugned order passed by Respondent No.1 is wholly unsustainable. He submits as under:

a. The impugned order is a non-speaking order. No reasons are assigned for reducing the intake of the College from 100 seats to 60 seats.

b. Realizing the aforesaid fatal lacuna in the impugned order, Respondent No. 1 attempted to supply reasons to the impugned order by filing an affidavit in reply. However, it is impermissible to supply reasons to the order for sustaining the order. (Hindustan Petroleum Corporation V/s Darus Shapur Chenai & Ors. (2005) 7 SCC 627 – Paragraphs 24 to 27.)

c. Without prejudice to the aforesaid, even if the deficiencies which are referred to in the affidavit-in-reply of Respondent No. 1 as the reasons to support the impugned order are read as part of the impugned order, it is not possible to sustain the impugned order. This is evident from the following.

d. The first deficiency alleged against the College is with regard to the noncompliance of Employees Provident Funds and Miscellaneous Provisions Act, 1952 and ESI Act, 1942. However, the former Act is applicable provided there are employees having salary less than Rs. 15,000/.The College has no such employee. The later Act is not applicable in Gujarat to the educational institutions. Besides this, the concerned authorities under both the Acts have never found the College in breach. This apart, this deficiency, even if exists, is of rectifiable nature. Hence, does not warrant denial of extension of permission partially by way of reduction of intake.

e. The second deficiency alleged against the College is with regard to in all one teacher named Dr. Mahesh Rathod who was found to be ineligible as he was above the age limit of 40 years on the date of his appointment. However, this teacher was not declared ineligible on this ground in the academic years 2014-15 to 2019-20. The age limit of 40 years at the time of initial appointment prescribed vide Schedule VII of MSR 2013 appears to be directory in nature. Else, these appointments would have been objected to while considering the College for extension of permission for the earlier academic years. (Page