Bombay High Court
Shiva Trusts Sharadchandraji ... vs The Union Of India And Others on 14 December, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11772 OF 2016
Shiva Trust's
Sharadchandraji Pawar Homeopathic
Medical College and Hospital,
Shiva Trust Campus, Wadala Mahadev,
Tq.Shrirampur, District Ahmednagar,
through its President
Dr.Balasaheb Shivajirao Pawar,
age: 49 years, Occ: Social Service,
R/o G-57, N-4, CIDCO,
Aurangabad, District Aurangabad. Petitioner
Versus
01 The Union of India,
through its Secretary,
Ministry of Ayurvedic, Yoga,
Neturopathy, Unani, Siddha and
Homeopathy (Ayush),
at Ayush Bhavan, B Block,
GOP Complex, New Delhi.
02 The Central Council of Homeopathy,
through its Secretary,
at Jawaharlal Neharu Bhartiya
Chikichsa Yavam Homeopathy,
Anusandhan Bhavan, 61-65,
Institutional Area Opposite
D Block, Janakpuri, New Delhi.
03 The Maharashtra University of
Health Sciences, Dindori Road,
Mhasrool, Nashik, Tq. & Dist.Nashik,
through its Registrar.
04 The Competent Authority and
Commissioner, State Common
Entrance Test Cell, Maharashtra
State, Mumbai, 305,
Government Polytechnic Building,
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Kherwadi, All Yawarjang Marg,
Bandra (East), Mumbai.
05 The State of Maharashtra,
through its Secretary,
Medical Education and Drugs
Department, Mantralaya,
Mumbai. Respondents
Mr.V.D.Hon, Senior Counsel i/by Mr.A.D.Shinde, advocate for the
petitioner.
Mr.S.B.Deshpande, Assistant Solicitor General for Respondent
No.1.
Respondents No.2 and 3.
Mr.C.A.Jadhav, advocate holding for Mr.S.B.Bhosale, advocate for
Mr.Murar V. Deshpande, advocate for Respondent No.4.
Mr.M.B.Bharaswadkar, A.G.P. for Respondent No.5.
CORAM : R.M.BORDE &
SANGITRAO S. PATIL, JJ.
DATE : 14th December, 2016
ORAL JUDGMENT (Per R.M.Borde, J.):
Heard. Rule. Rule made returnable forthwith and
heard finally by consent of learned Counsel for respective parties.
2 Petitioner is praying for issuance of writ of certiorari or
writ or direction in the nature of writ of certiorari to quash and set
aside the impugned communication dated 17.11.2016 issued by
Respondent No.1-Union of India, thereby refusing permission to
petitioner-Institution to admit students for Ist year of B.H.M.S.
course during the academic year 2016-17.
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3 The petitioner-Institution operates Homeopathy College
and intake capacity of the College is 100 students. The Institution,
for the first time, was granted permission by the Central
Government to start new College with intake capacity of 100
students under Section 12A of the Homeopathy Central Council
Act, 1973 (for short, "the Act of 1973"), for the academic year 2015-
16. The permission accorded to admit the students was
conditional subject to fulfillment of requirements specified in
paragraph 5 of the order, which reads thus:
The College administration will ensure
that sufficient qualified teachers in all the
Under Graduate Department are in position as
per HCC (MSR), 2013 before the admission of
the students in the above mentioned UG
courses is made, under intimation to the
Central Government and CCH.
(i) that, the applicant shall fulfill all the
relevant requirements of infrastructure for
teaching and training facilities as specified in
the Homeopathic Central Council (Minimum
Standard Requirements of Homeopathic
Colleges and attached Hospitals) Regulation,
2013.
(ii) that, before inspection by CCH regarding
the matter for consideration of permission for
academic year 2015-16 for the proposed new
college, the college shall appoint all the
consented teachers
(Lecture/Reader/Profession) in the relevant
Departments.
(iii) Further to obtain the permission for the
next Academic year i.e. 2016-17 to take
admissions in the above said permitted
courses, the college shall fulfill all the
requirements of the HCC Act, 1973 and the
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relevant Regulations made thereunder.
(iv) The applicant shall fulfill all the relevant
provisions of Regulations namely
"Establishment of New Medical College, opening
of new Higher course of study or training and
increase of admission capacity by a medical
college Regulations, 2011".
(v) The College has also to submit the
requisite performance bank guarantee of
Rs.2.00 Crores (1 Crore for 50 UG admissions
and 20 Lakhs per every additional 10
admissions) to have 100 seats as specified
under section 6(1)(g) of notified Regulations,
2011.
4 Clause (iii) of paragraph 5 of the communication dated
15.10.2015, mandates the Institution to obtain permission for the
next academic year i.e. 2016-17 for admitting students, after
fulfilling all requirements of Homeopathy Central Council Act, 1973
and relevant Regulations made thereunder.
5 In observance of the stipulation put in paragraph 5(iii)
of the order dated 15.10.2015, petitioner-Institution tendered an
application seeking permission for admitting students in the next
academic year i.e. 2016-17. The expert body i.e. Central Council of
Homeopathy caused inspection of the College and recommended to
the Central Government to accord permission to petitioner-
Institution to admit students for Ist or IInd year B.H.M.S. Course
for the academic year 2016-17, subject to appointment of Readers
in Departments of Anatomy, Pharmacy, Pathology and F.M.T.,
besides ensuring appointment of Professors, Readers and
Lecturers in Departments of Surgery, Obstetrics and Gynecology.
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The permission letter further directs that the College needs to
appoint additional teachers/consultants of Modern Medicine like
Ophthalmologist, Paediatrician and Dentist. It is further
stipulated that the College needs to establish Departments of
Surgery, Obstetrics and Gynecology with all prescribed equipments
and other teaching material. It is also mentioned that the College
needs to provide photocopying and internet facilities in its Library.
6 The Central Government, after receipt of
recommendations from the Central Council of Homoeopathy,
caused inspection of the facilities provided by the College and took
a decision not to permit the petitioner-Institution to admit
students. The order dated 17.11.2016, to that effect, has been
communicated to the petitioner-Institution. The observations
made by the Inspection Team have been recorded on consideration
of submissions of the petitioner. Detailed reasons have been
recorded in the order imposing prohibition on the Institution to
admit students. After presentation of instant petition, this Court,
upon hearing respective parties, refused to grant interim relief and
passed a detailed order on 28.11.2016. In paragraphs no. 4, 5 and
6 of the order, following observations have been made:
4 The Inspection Committee, in its report of
inspection, has concluded as follows:-
(i) OPD and IPD of the hospital were totally
not functional.
(ii) It is evident that OPD/IPD data was
fabricated and not correlating each other.
(iii) Hence, the College is not fulfilling the
specified requirement under HCC
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Regulations (MSR-2013) especially in
terms of Hospital OPD and IPD which are
not functional.
5 The deficiencies conveyed to the
petitioner, the submissions of the petitioner
and the observations of the Hearing Committee
are recorded in paragraph No.6 of the
impugned order. The overall observations of
the Hearing Committee are :-
(a) At present, the college is having a
Principal and Professor in Physiology and
Bio-chemistry and Pharmacy but no
Professor in Repertory. Although the
college is claiming for 12 guest faculties,
only 2 are verified as guest faculty from
their attendance register and salary
record.
(b) At present, the existence of
Homoeopathic hospital is doubtful.
There is no separate SMO room, Staff
Nurse, Dressing Room and Medicine
dispensing room.
[c] OPD of the hospital is doubtful.
[d] MoU with super specialty hospital is not
in stamp paper and it is not signed by the
notary.
[e] There is disparity in the IPD and OPD
patient figure when cross checked with
the central register and IPD medicine
dispensing register.
6 In view of the shortcomings and
deficiencies mentioned in paragraph No.7 of the
impugned order, which violate the provisions of
the HCC Act and the relevant regulations and
are of such a serious and fundamental nature
that they adversely affect the ability of the
College to provide quality medical education in
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terms of the provisions of the HCC Act and the
relevant regulations, the petitioner is denied
permission to admit the students to B.H.M.S.
Course for the academic year 2016-2017.
7 Aggrieved by the order, refusing to grant interim relief,
petitioner-Institution approached the Hon'ble Supreme Court by
presenting Special Leave Petition [C] No.35095 of 2016. The SLP
was taken up for consideration by the Hon'ble Supreme Court on
30.11.2016 and following order was passed:
"After arguing the matter for some time,
Mr.H.A.Ahmadi, learned senior counsel seeks
leave to withdraw this special leave petition
reserving liberty for the petitioner to approach
the High Court with an application for re-
inspection.
The special leave petition is dismissed as
withdrawn with liberty prayed for.
We express no opinion as to the merits of
the contention which petitioner proposes to
raise before the High Court in the proposed
application."
8 We have heard learned Counsel for respective parties.
According to the learned Senior Counsel appearing for the
petitioner, since the expert body i.e. Central Council of
Homoeopathy has recommended the Central Government to accord
permission in favour of the College to admit students, the Central
Government ought not to have taken any adverse decision.
9 It is the contention of the petitioner that the expert
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body i.e. Central Council of Homoeopathy is constituted under the
Central Act with the responsibility of maintaining operational
standards and judging the infrastructure and facilities available for
imparting professional education. Since the expert body has
issued favourable recommendation, the Central Government ought
not to have adopted a different view overlooking the
recommendations of the Central Council of Homoeopathy.
10 Learned Assistant Solicitor General, appearing for
Union of India, strenuously contended that the observations of the
expert body, in the inspection report, are merely of
recommendatory character. The expert bodies are appointed only
to aid and assist the Central Government to arrive at a decision
and the recommendations of the expert body, constituted under
the Central Act, are not binding on the Central Government. It is
further contended that looking to the tenor of the recommendatory
letter forwarded by the Central Council of Homoeopathy, it is seen
that there are deficiencies in the facilities available with the
petitioner-institution and as such, the Central Government was
justified in making further investigation in the matter and causing
inspection of the facilities available in the petitioner-institution and
adopting a different view.
11 As has been recorded above, since initial permission
granted in favour of the petitioner-institution was conditional one
and permission letter itself stipulates tendering of an application
for continuation during the next academic year, the Institution is
required to fulfill the norms and conditions specified in Section
12A of the Homoeopathy Central Council Act, 1973 (for short, "the
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Act of 1973"). Regulation No.3 of the Homoeopathy Central
Council (Minimum Standards of Requirement of Homoeopathic
Colleges and attached Hospitals) Regulations, 2013 provides for
fulfillment of minimum standard requirements. Those are quoted
below:
3 Fulfillment of minimum standard
requirements-
(1) The college and attached hospital(s) shall
fulfill the minimum standards requirements of
infrastructure and teaching and training
facilities referred to in the regulations 4 to 13.
(2) For exposure of the students in the
clinical field and to understand the depth of
operative surgery and operative Gynecology or
Obstetrics as well as management in critical
illnesses, a college shall have a Memorandum of
Understanding with a reputed nearby located
super-specialty hospital (of modern medicine)
with all required facilities of operation theatre,
labor room, Intensive Care Unit and other
required facilities for the management of critical
patients.
(3) In case an attached hospital of a college
does not have the facilities to handle operation
theatre and other critical patients, the students
of such a college can be deputed under the
strict supervision of concerned teaching facility
of the college for the required exposure in the
said field to the attached super specialty
hospital.
(4) The existing colleges and their attached
hospitals established under section 12A of the
Act and those colleges and their hospitals
established prior to the 28th January, 2003 and
recognized by the Central Council of
Homoeopathy shall fulfill the minimum
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standards requirements of infrastructure
teaching and training facilities referred to in
these regulations by the 31st December, 2014 for
consideration of grant of permission for
undertaking admissions in the coming
academic years.
(5) If a college fulfills the requirement by 31 st
December, 2014 as per these regulations, it
shall be granted permission to undertake
admissions for a period not exceeding five years
during which the college shall not be inspected,
except for random checks on receipt of any
complaint, or otherwise as deemed necessary
either by the Central Government or by the
Central Council of Homoeopathy.
The Central Council shall visit the college
suo moto three months before the expiry of
permission.
(7) The conditional permission shall be
granted only to those colleges which are
fulfilling at least the requirement of teachers as
specified in Schedule-IV, the requirement of
functional hospital as specified at sub-
regulation (2) of regulation 7 and availability of
equipment as specified in schedule-III for each
academic year 2013-14 and 2014-15 on the
basis of the separate inspections to be carried
out by the Central Council of Homoeopathy
after the 15th May, 2013 for the academic year
2013-14 and after the 31st December, 2013 for
the academic year 2014-15.
(8) Such conditional permitted colleges or
those colleges which have been denied
permissions during the academic year 2013-14
and/or 2014-15, will be required to fulfill the
requirements as specified in these regulations
by the 31st December, 2014.
(9) All the existing colleges, which are not
able to achieve full compliance of the
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requirement as specified in these regulations by
the 31st December, 2014, shall be denied
permission from academic year 2015-16
onwards and action as envisaged under section
19 of the Act shall be initiated against all such
colleges apart from rejection of their
applications under sections 12A, which have
been under consideration by way of conditional
permissions or denials.
12 The Institution is expected to adhere to the minimum
standard requirements and in view of sub-section (4) of Section
12A of the Homoeopathy Central Council Act, 1973, the Central
Government is invested with the powers. The Central Government
may, after considering the scheme and the recommendations of the
Central Council under sub-section (3) and after obtaining, where
necessary, such other particulars, as may be considered necessary
by it from the person or medical institution concerned, and having
regard to the factors referred to in sub-section (7), either approve
with such conditions, if any, as it may consider necessary or
disapprove the scheme and any such approval shall constitute as a
permission under sub-section (1).
13 Learned Assistant Solicitor General, appearing for
Union of India, strenuously contends that role of the Central
Government is not merely to accord approval to whatever
recommendations those are made by the Homoeopathy Central
Council, but the Central Government is entitled to cause further
inspection and call for particulars and may take an independent
decision, after adopting such procedure, as it may deem
appropriate. It does appear that the Central Government has
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passed an order disapproving the scheme in exercise of powers
conferred under sub-section (8) of Section 12A of the Act of 1973
and has communicated the Medical Institution accordingly.
14 Learned Senior Counsel, appearing for the petitioner,
strenuously contends that the Institution is functional since last
one year and the deficiencies, those have been pointed out by the
expert body i.e. Central Council of Homoeopathy, have been
removed. It is further contended that the Institution is in a
position to demonstrate that certain observations made in the
order issued by the Central Government are either incorrect or
uncalled for.
15 Since the petitioner contends that the deficiencies have
been totally removed and the Institution is functional since last one
year, we deem it appropriate to exercise the powers conferred
under Article 226 of the Constitution of India and to issue
directions to the Central Government to cause inspection or to
make further inquiry within stipulation of sub-section (4) of
Section 12A of the Act of 1973 and may take appropriate decision.
The Hon'ble Supreme Court in SLP (c) No.35095 of 2016, has
granted liberty to the petitioner to approach this Court with an
application for re-inspection and in view of the order passed by the
Hon'ble Supreme Court, we deem it appropriate to direct
Respondent No.1 to cause further inspection to be made or to
make further inquiry within contemplation of sub-section (4) of
Section 12A of the Act of 1973 and after giving an opportunity of
hearing to the petitioner to pass an order. The process of hearing
and taking appropriate decision shall be completed within a period
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of two weeks from today. It is clarified that the Central
Government may take appropriate decision in accordance with the
provisions of law and considering merits of the proposal of the
petitioner.
16 Rule is made absolute in above terms. There shall be
no order as to costs.
Pending Civil Applications, if any, do not survive and
stand disposed of.
(SANGITRAO S. PATIL) (R.M.BORDE)
JUDGE JUDGE
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