Dhanwantri Ayurvedic Medical ... vs Uoi And Anr
2011 Latest Caselaw 6059 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Decided on : 12.12.2011

+           W.P.(C) 8351/2011 & C.Ms. No.18882-83/2011

IN THE MATTER OF
DHANWANTRI AYURVEDIC MEDICAL COLLEGE AND HOSPITAL & ANR.
                                        ..... Petitioners
                  Through : Mr. Sudhir Nandrajog, Sr. Adv. with
                  Mr. Yeeshu Jain, Adv.

                  versus

UOI AND ANR                                    ..... Respondents
                        Through : Mr. Himanshu Bajaj, Adv. for R-1.
                        Mr. T.K. Joseph, Adv. for R-2.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. The present petition is filed by the petitioners praying inter alia for

quashing of the order dated 25.10.2011 passed by respondent No.1/UOI

denying grant of permission to the petitioner/Institution for admitting

students to the 50 seats in the BAMS (UG) Course for the academic year

2011-12, along with the inspection report dated 28/29.9.2011 prepared

by the Central team appointed by respondent No.1/UOI based on which,

the petitioner/Institution was denied permission.

2. When this matter came up for admission on 28.11.2011, at the

request of counsel for respondent No.1/UOI, the case was adjourned to

7.12.2011, on which date also at the request of counsel for the

petitioners, the matter was adjourned and renotified for today.

3. Today, learned Senior Advocate appearing for the petitioners states

that a perusal of the impugned order dated 25.10.2011 passed by

respondent No.1/UOI shows that the Hearing Committee, that had heard

the petitioner and had been constituted by respondent No.1/UOI,

comprised of experts from the stream of Unani medicine, whereas the

course in question relates to the stream of Ayurveda. It is submitted that

Section 9 of the Indian Medicine Central Council Act, 1970 (in short 'the

Act') requires that the Central Council should constitute separate

committees for the streams of Ayurveda, Siddha and Unani, and as the

course in question is related to the stream of Ayurveda, a committee with

experts from the Unani stream could not have been called upon to give a

hearing to the petitioner.

4. In response to the aforesaid objection, learned counsel for

respondent No.1/UOI submits that the expert team that had visited the

petitioner/institution and conducted the inspection therein had comprised

of members/experts from the Ayurveda system of medicine and it was

they who had noted the irregularities in the petitioner/institution, which is

why there is no reason that a hearing could not have been granted to the

petitioner by experts from the Unani steam of medicines as they only had

to see if the explanations furnished by the petitioner/institution for the

alleged shortcomings, were satisfactory.

5. It is submitted by the counsel for respondent No.2/Central Council

of Indian Medicine (CCIM) that the provisions of Section 13A Chapter II A

of the Act under the heading 'Permission for establishment of new medical

college, new course of study etc.', require the CCIM to undertake an

inspection of the concerned medical college and submit its report to the

Central Government, together with the expert's recommendations, and

only thereafter is a decision taken in that regard. He submits that in the

present case, though respondent No.2/CCIM had declined to visit the

petitioner/Institution on account of its past deficiencies which had not

been made good by the petitioner for the year 2010-11, respondent

No.1/UOI had gone ahead and got an inspection of the

petitioner/Institution conducted on its own, which is not permissible under

the Act. In support of the aforesaid submission, he relies on a judgment

of a Division Bench of the Bombay High Court passed in

WP(C)No.3512/2008 entitled 'Hindustani Education Society, Ausa &

Anr. vs. UOI & Ors.', upheld by the Supreme Court by an order dated

25.2.2011 passed in Special Leave to Appeal (Civil) No.16162/2009

entitled 'UOI & Ors. vs. Hindustani Education Society Ausa & Anr.'.

6. In view of the aforesaid position, learned Senior Advocate for the

petitioner states that the petitioner is not averse to an inspection, which

may be directed to be conducted by respondent No.2/CCIM for it to, in

turn make recommendations to respondent No.1/UOI, based on which a

decision may be taken by respondent No.1/UOI. The aforesaid suggestion

made by the learned Senior Advocate for the petitioners seems to be

reasonable, particularly, in view of the fact that the request of respondent

No.1/UOI addressed to respondent No.2/CCIM to inspect the premises of

the petitioner for the academic year 2011-12 had been turned down by

respondent No.2/CCIM vide letter dated 23.08.2011, which fact was never

brought to the knowledge of the petitioner/institution.

7. In view of the aforesaid position, the impugned order dated

25.10.2011 is quashed, and with the consent of the counsels for the

parties, the present petition is disposed of with the following directions :-

i). Respondent No.2/CCIM shall constitute a committee under

Section 9 of the Act and as per its rules and regulations to

visit and inspect the petitioner/institution and make

recommendations to respondent No.1/UOI thereafter.

ii). Respondent No.2/CCIM shall ensure that an inspection of the

petitioner/institution is conducted on or before 31.12.2011.

iii). Recommendations made by respondent No.2/CCIM shall be

forwarded to respondent No.1/UOI within one week from the

date of receiving comments from the expert committee.

iv). On the basis of the aforesaid recommendations, respondent

No.1/UOI shall take a decision within a period of two weeks

from the date of receipt thereof, for grant of permission to the

petitioner in respect of BAMS (UG) Course, and intimate the

decision taken to the petitioner within one week from the date

of taking such a decision.

8. In case the petitioner is aggrieved by the order that may be passed

by the respondents, it shall be entitled to seek its remedies in law.

Learned Senior Advocate appearing for the petitioner submits that if the

order passed by the respondent No.1/UOI is favourable to the

petitioner/Institution, then it should be permitted to induct students for

the BAMS (UG) Course for the Academic Year 2011-12. Learned counsel

for respondent No.1/UOI opposes such a plea and while stating that no

such indulgence can be granted to the petitioner, he relies on an order

dated 20.12.2011 passed in LPA No.899/2010 entitled 'Acharya Gyan

Ayurved College vs. Department of Ayush & Ors.', to submit that in

similar circumstances, having regard to the directions of the Supreme

Court that the cut-off date for admission of students is 30th October,

2011, which was extended to 30th November, 2011 for the year in

question in exceptional circumstances, no such permission as sought, was

granted to the appellant therein. It is clarified that the petitioner shall

await the order to be passed by respondent No.1/UOI and in the event

the petitioner initiates proceedings to challenge such a decision or to seek

consequential relief, then its claim to induct students for the BAMS (UG)

Course for the academic year 2011-12, shall be a subject matter of

consideration in the said proceedings.

9. The petition is disposed of with the aforesaid order, along with the

pending applications, while leaving parties to bear their own costs.

                                                       (HIMA KOHLI)
DECEMBER 12, 2011                                          JUDGE
sk