Acharya Gyan Ayurved College vs Department Of Ayush & Ors.
2010 Latest Caselaw 5431 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 30th November, 2010.

+                             W.P.(C) No.7634/2010
%

ACHARYA GYAN AYURVED COLLEGE          ..... PETITIONER
               Through: Mr. Ambar Qamaruddin, Advocate

                                      Versus

DEPARTMENT OF AYUSH & ORS.                ..... RESPONDENTS
                 Through: Mr. Virender Sood & Mr. Anshuman
                           Sood, Advocates for R-1.
                           Mr. T.K. Joseph, Advocate for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                         Yes

2.       To be referred to the reporter or not?            Yes

3.       Whether the judgment should be reported           Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, an Ayurvedic Medical College, claims to have been

granted permission in the year 2002 for imparting education in Bachelor of

Ayurvedic Medicine and Surgery (BAMS) Course. The permissions in

favour of the petitioner to admit students were granted from year to year till

the year 2009. The petitioner, as required applied for permission to admit

students in the current academic year 2010-11 also and the College and

attached Hospital of the petitioner was inspected by the respondent No.2

Central Council of Indian Medicine (CCIM) constituted under the provisions

of The Indian Medicine Central Council Act, 1970. Pursuant to the said

inspection, a deficiency / show cause notice dated 6 th August, 2010 was

given by the respondent No.1 to the petitioner. The only deficiency pointed

out in the said notice was of shortage of two faculty members. The petitioner

submitted a reply to the said show cause notice and was also given a hearing.

After the hearing, the respondent No.1 conducted inspection on 30th August,

2010 of the petitioner‟s College and attached Hospital and thereafter made

an order dated 20th September, 2010 refusing permission to the petitioner to

admit students in the current academic year. In the order dated 20th

September, 2010, besides the ground of shortage of faculty, several other

grounds on the basis of inspection on 30th August, 2010 were also stated for

denying the permission.

2. The petitioner filed WP(C) No.7424/2010 in this Court challenging

the order dated 20th September, 2010. Finding that no show cause notice /

deficiency notice with respect to the deficiencies noticed in the inspection on

30th August, 2010 had been given and the petitioner had had no opportunity

of hearing with respect thereto, the said writ petition was allowed vide order

dated 1st November, 2010 and the writ petition was directed to be considered

as a representation of the petitioner to the respondent No.1 and the

respondent No.1 was directed to pass a fresh order after giving a hearing to

the petitioner.

3. The respondent No.1 thereafter passed order dated 10th November,

2010 (impugned in this writ petition) again denying permission to admit

students in the current academic year to the petitioner.

4. The respondent No.1 in the order dated 10th November, 2010 has

concluded that the College has a full complement of required faculties.

However, the permission has been denied to the petitioner on the grounds:

(i) That in the surprise inspection on 30th August, 2010, it was

found that there were no medicines or any signs of regular use

of wards; most of the wards were locked; some of the wards

were opened in front of the visiting team; all the wards had lot

of dust on the floor, no bed sheets on mattresses, no blanket etc.

clearly suggesting that the wards were not in use since long.

(ii) There was no hospital staff namely nursing staff, Panchakarma

attendant, ward boy etc. in the Panchakarma section.

(iii) There was no record room, hospital superintendent room,

matron room, medicine store, hospital office, hospital canteen,

laundry etc.

(iv) That the petitioner has been unable to substantiate its claim

during the hearing of having a genuinely fully functional

Ayurvedic Hospital.

(v) That the records of IPD patients produced by the petitioner

were doubtful and could not be backed by records of X-ray,

Pathological and Clinical investigation done in the Hospital.

(vi) Serious inconsistencies were found in the IPD registers

produced by the petitioner and it was not found to indicate

when the individual patient was admitted and when he was

discharged and whether he was referred to any other Hospital or

not.

(vii) The petitioner could not produce any document related to the

case sheet of the IPD patients and which case sheet is supposed

to be the basic document required to be prepared by the

Hospital.

(viii) There was not a single nursing staff in the Hospital.

The respondent No.1 thus concluded that the petitioner did not meet

the minimum eligibility conditions stipulated in Regulation 5(1)(d) of the

Indian Medicine Central Council (Permission to Existing Medical Colleges)

Regulations, 2006.

5. The petition came up before this Court on 15th November, 2010 when

this Court was of the opinion that the petitioner had not placed before this

Court any material to show that the reasons given in the impugned order

were incorrect. The petitioner sought time to file an additional affidavit.

However, considering that the admissions for the current year were

underway, by way of abundant caution, notice was also issued and the

respondent directed to file counter affidavit, both to the petition as well as

the additional affidavit to be filed by the petitioner. The petitioner has since

filed an additional affidavit and the respondent has filed a counter affidavit.

Since it was told that today is the last date for admission as per the

prescribed schedule, arguments have been heard.

6. The counsel for the petitioner at the outset has drawn attention to

Section 13-C of the Indian Medicine Central Council Act, 1970 which

makes the procedure laid down in Section 13-A applicable for permission to

admit students by Medical Colleges established before the commencement

of the Indian Medicine Central Council (Amendment) Act, 2003. Thereafter

attention is invited to Section 13-A(5) of the Act which is as under:-

"(5) The Central Government may, after considering the Scheme and recommendations of the Central Council under sub-section (4) and after obtaining, where necessary,

such other particulars as may be considered necessary by it from the person or medical college concerned and having regard to the factors referred to in sub-section (8), either approve the Scheme 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):

Provided that no Scheme shall be disapproved by the Central government except after giving the person or medical college concerned a reasonable opportunity of being heard."

7. On the basis of the aforesaid, it is argued that the inspection dated 30 th

August, 2010 conducted by the respondent No.1 itself and on the basis of

which the impugned order is based was illegal and the only Body

empowered to inspect and submit a report is the respondent No.2 CCIM and

the respondent No.1 is to thereafter only act on the basis of report of the

respondent No.2 CCIM. It is contended that the report of the respondent

No.2 CCIM does not contain the deficiencies as found by the respondent

no.1 in the inspection on 30th August, 2010. The respondent No.2 CCIM in

the report of its inspections on 27th/28th January, 2010 had against the

Columns "Hospital OPD" and "Hospital IPD" recorded "Satisfactory. Intake

capacity should be increased". Similarly against the Column "Hospital in

General", it was written "Satisfactory".

8. The counsel for the petitioner relies on the judgment dated 9 th January,

2009 of a Division Bench of the High Court of Bombay in W.P.(C)

No.3512/2008 titled Hindustani Education Society Vs. Union of India &

Ors. laying down that the Central Government (respondent No.1 herein)

after considering the report of the CCIM can either approve a Scheme or

disapprove it and that the Central Government is not expected to send its

own team to assess for itself whether the Institution / College complies with

the requirements. It was held that that task is to be performed by the CCIM

and the Central Government can only approve or disapprove the Scheme and

the question of sending their own team for assessing whether a particular

Institution / College has the infrastructure as required under Section 13-A of

the Act does not arise. It was thus held that the procedure adopted by the

Central Government of sending its own team was not in consonance with the

provisions of the Act.

9. In the present case the inspection by the Central Government was

prior to the first order dated 20th September, 2010 of refusal which was

challenged in the earlier writ petition aforesaid. The petitioner at the time of

disposal of the earlier writ petition did not contend that the findings on the

basis of the inspection by the Central Government were not to be considered

or that the said inspection was illegal. The petitioner was rather satisfied that

an opportunity of being heard was given with respect to the findings based

on the inspection by the Central Government‟s team. In my view, the

petitioner in this second round of litigation, after availing of the hearing with

respect to the said inspection is not entitled to contend that the said

inspection itself was illegal. No such right was reserved by the petitioner to

itself at the time of disposal of the earlier writ petition. Besides the

aforesaid, as per the Act and the Regulations, the decision to grant the

permission or to not grant the permission is to be of the Central Government.

Section 13-A(5) (supra) does not require the Central Government to take a

decision only by considering the recommendations of the CCIM; the same

expressly permits the Central Government to take the decision "after

obtaining, where necessary, such other particulars as may be considered

necessary by it from the person or Medical College concerned and having

regard to the factors referred to in Sub-section (8)". In my opinion,

obtaining of "particulars as may be considered necessary" would include

obtaining such particulars by carrying out its own inspection. The said

words cannot be given a narrow interpretation so as to confine the scope

thereof to obtaining information only in writing from the College.

Moreover, by reference to Sub-section (8) which lays down the parameters

to which the CCIM is to have regard, the Central Government has been

empowered to consider the matter qua each and every parameter. The

Central Government cannot be said to be a slave to the inspection by the

CCIM. CCIM under the Act is merely a recommendatory body and a

recommendatory body can never be deemed to deprive the authority vested

with the power to take decision from exercising such power to the hilt. There

is nothing whatsoever in the Act to show that the Central Government in

which the power to take the decision is vested is deprived from making any

enquiry or investigation as it may deem necessary for the purpose of taking

the said decision.

10. The Division Bench of this Court in Dr. Ashok K. Mittal v. University

of Delhi ILR (1996) 2 Del 489 held that where the Governing Body of the

college was the appointing and the deciding authority, no error could be

found in its decision while considering the report of the Selection

Committee, to re-advertise the post. The Supreme Court in M.P. Rural

Agriculture Extension Officers Association v. State of M.P. (2004) 4 SCC

646 also held that the Pay Commission even though an expert body, it was

still open to the State to accept or not to accept its recommendations. A

Single Judge of this Court in Union of India v. Telecom Regulatory

Authority of India 74 (1998) DLT 282 in relation to the Telecom

Regulatory Authority of India Act, 1997 held that to hold the

recommendations of the Regulatory Authority to be binding on the licensing

authority i.e. the Government would amount to changing the basic structure

of the Telegraph Act and to putting the Government under the control of the

Regulatory Authority thereby curtailing, restricting and circumscribing the

power of the Government. The Division Bench in other petitions relating to

TRAI, in MTNL v. TRAI 84(2000) DLT 70 did not differ therefrom. In

relation to UPSC also, in Dr. H. Mukherjee v. UOI AIR 1994 SC 495, it

was held that Government as appointing authority has absolute power to

approve or disapprove list of recommendations. It was further held that the

Government can take into consideration the developments subsequent to the

selection made by the UPSC and to hold otherwise would not be in public

interest and may lead to serious complications if the Government is enjoined

to act notwithstanding serious matters having come to its notice subsequent

to the recommendation made by the UPSC. Another Division Bench of this

Court in Sethi Auto Service Station v. DDA 129 (2006) DLT 139 also held

that if the recommendatory body is not the final authority to take the

decision, merely because some favourable recommendations are made at

some level of decision making process, that will not bind the superior or

higher authority. Recently in Lakhwinder Singh v. UOI (2008) 7 SCC 648

also, assessment of the Selection Board was held to be purely

recommendatory in character and the power of the appointing authority to

accept or vary the recommendation of the Selection Board was held to be

implicit. Even the recommendations of the High Court for appointment of

District Judges were in State of Kerala v. A. Lakshmikutty (1986) 4 SCC

632 held to be not binding though the circumstances in which the State could

differ were laid down.

11. I am therefore, with respect, unable to agree with the judgment (supra)

of the Bombay High Court. The counsel for the respondent no.1 also informs

that notice in the SLP preferred thereagainst has been issued.

12. The next question which arises is whether else there is any other error

capable of interference with the order impugned. The lacunas attributed to

the petitioner are serious. In the face thereof, the petitioner cannot be said

to be equipped to train future doctors. A hospital is a necessary appendage

to a Medical College and without a Hospital with the sufficient number of

patients, no expertise can be gained by the students of the Medical College.

I had during the hearing enquired form the counsel for the respondent No.1

whether any photographs of the inspection on 30 th August, 2010 were taken.

The counsel under instructions has handed over the file of the respondent

No.1 relating to the petitioner and which contains the CD of the photographs

of inspection. From a perusal of the said photographs, it cannot be said that

the findings in the impugned order are without any basis whatsoever. The

counsel for the petitioner of course from the documents filed with the

additional affidavit has sought to argue that the respondent No.1 has

misconstrued the records of the petitioner. However, this Court in writ

jurisdiction cannot launch into an enquiry as the petitioner would want this

Court to undertake. This Court is not to sit in appeal over the decision of the

Government. Moreover, this Court would not substitute its opinion over that

of the experts in the respondent no.1 who have taken the decision.

13. The Supreme Court in The Dental Council of India v. Subharti

K.K.B. Charitable Trust (2001) 5 SCC 486 held that it is the function of the

Central Government under Section 10A of the Dentists Act, 1948 to accord

approval for establishing Dental College and the jurisdiction of the Court to

interfere with discretion exercised by expert bodies is limited. The Division

Bench of this Court in Dental Council of India Vs. Integrated Education

Development Organization (2000) 56 DRJ 283 also held that the question

whether or not a technical College should be granted permission to admit

students and to start classes has to be left to the concerned authority

constituted for such purpose and the High Court sitting in extraordinary

jurisdiction under Article 226 of the Constitution normally ought not to

interfere as such a matter does not lie in the province of the Court; the power

to interfere exists only when the decision suffers from mala fide and

arbitrariness and is unjust, unfair or unreasonable. No such case is made out

in the present case. Reliance in this regard can also be placed on the recent

judgment in Dr. Basavaiah Vs. Dr. HL Ramesh 2010 (7) SCALE 529

reiterating that the Courts have a very limited role particularly when no

malafide has been alleged against the experts and that it would normally be

prudent, wholesome and safe for the Courts to leave the decisions to the

experts. It was further held that as a matter of principle the Courts should

never make an endeavour to sit in appeal over the decision of the experts.

14. The counsel for the petitioner in the hearing on 15 th November, 2010

had also contended that the very fact that the petitioner had been granted

permission for the last so many years showed that the petitioner had a

functional hospital and ward and the finding of the respondent no.1 of

petitioner not having functional hospital is obviously erroneous. No merit

was found in the said argument also. The legislature having provided for

yearly permission, the enquiry for each year is independent and no fault can

be found with such enquiry on the basis of permission in earlier years.

15. No case for interference is made out. The petition is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 30th November, 2010 „gsr‟..