Application For Opening Of New Medical College Must Be Accompanied By Consent Of Affiliation & NOC: Gujarat High Court

The Gujarat High Court has held that a 'No Objection Certificate' as well as Consent of Affiliation are mandatory at the time of making an application under the National Commission for Indian System of Medicine Act, 2020 in order for a Trust to open a new Medical College. Justice Aniruddha Mayee stated:

"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."

The Petitioner herein had challenged the order passed by the Ministry of AYUSH and the National Commission for Indian System of Medicine rejecting the Petitioner's application for permission to open a new Ayurvedic college with an intake of 60 seats in the 'BAMS Course' from academic year 2022-23.

The Bench noted that the affiliation came to be rejected for want of Consent of Affiliation from the State Government in 2021. Subsequently, a fresh application was made to the Respondents with the relevant approvals, though after the deadline for submission of applications.

The Petitioner had argued that nowhere in the procedure and the application there was a stipulation that the submission of the necessary approval was mandatory at the time of submission of the application for new Ayurvedic College. Further the proviso to Section 29(3) of the Act provides for an opportunity to rectify defects before the application is rejected. For instance, in the Royal Medical Trust v. Union of India and another, the Supreme Court had held that it was not the college's fault that he was constrained by the non-issuance of the Consent of Affiliation.

Per contra, the Respondent authorities submitted that all the applications must clear the eligibility criteria like application fee, NOC and the Consent of Affiliation of the University. Only those applications which are complete are taken for further consideration. Further, applications of institutions akin to the instant college were scrutinised under 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, where the documents listed above were required. The proviso to Section 29(3) would not be applied to the college, as requested.

Regulation 7 recommends the forwarding of only eligible applications to the Central Council for further consideration of the scheme and the ineligible and incomplete application are rejected and returned to the Applicant.

Perusing Section 29 and regulation 7, Justice Mayee remarked:

"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 contention that Regulation 7 could not override the provisions of Section 29 was a wrong contention. Section 29(2) specifically provided for the submission of scheme which envisaged the list of documents. Further, Section 29 would imply the scheme which was forwarded after scrutiny under Regulation 7 to the Central Council and the time limit in the proviso would apply. However, in the instant case, the application of Petitioners was itself rejected on scrutiny under Regulation 7 and therefore, there was no question of applicability of the provisions of Section 29(3) of the Act. The High Court rejected the reliance on Royal Medical Trust since the facts of the case were not applicable to the instant case.

Keeping in view the factors, the High Court rejected the petition.

Case No.: C/SCA/13473/202

Case Title: INNER VISION EDUCATION AND CHARITABLE TRUST v/s UNION OF INDIA

Citation: 2022 LiveLaw (Guj) 380

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