Kisan Dnyanodaya Mandal Gudhe S vs Union Of India & Anr
2012 Latest Caselaw 6493 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 6647/2012

%                                              Judgment dated 06.11.2012

       KISAN DNYANODAYA MANDAL GUDHE S
       AYURVED MEDICAL COLLEGE & ANR               ..... Petitioner
                Through: Mr.Shree Prakash Sinha, Advocate

                    versus

       UNION OF INDIA & ANR                ..... Respondent

Through: Ms.Archana Gaur, Adv. for the R-1 Mr.T.K. Joseph, Adv. for the R-2

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL) CM.________________/2012 (STAY)

1. The present petition has been filed under Article 226 of the Constitution of India for issuance of an appropriate writ, order or direction for quashing the order dated 14.08.2012 passed by respondent no.1, declining permission to the petitioner no.1 for admission to the undergraduate course for the academic session 2012-13. Together with the writ petition the petitioner has filed the present application for grant of interim relief. Registry is directed to register the application.

2. It is prayed that during the pendency of the writ petition, the operation of the impugned order dated 14.08.2012, by which petitioner, college has been declined permission for admission to undergraduate course for the academic session 2012-13, may be stayed and the petitioner, college may be permitted to admit students, subject to the outcome of the instant writ

petition. In the alternate, it has been prayed that a direction be issued to the respondents to extend the cut-off date of admission from 31.10.2012 to 15.12.2012.

3. Necessary facts to be noticed for disposal of this application are that the petitioner, college is stated to be imparting education in BAMS course since the academic session 1998-1999 and since 1998-99 onwards has been granted permission by the respondents but for the academic session 2011-12 in which although the respondent No.2 recommended the case of the petitioner college to respondent No.1 but the same was declined by respondent No.1 on 02/09/2011. Even for the academic session 2012-13 the respondent No.2 i.e. CCIM has recommended the case of the petitioner college, however, vide the impugned order dated 14.08.2012 the respondent No.1 has denied permission to the petitioner college for the 2012-13 session on the ground that OPD/IPD records and case sheets were inadequately maintained and incompletely filled and therefore, it was concluded that the teaching hospital of the college does not appear to be a genuinely functional Ayurvedic hospital having a genuine IPD bed occupancy during the period of 01.01.2011 to 31.12.2011. It was further found that the shortcomings are of such a serious and fundamental nature that they adversely affect the ability of the college to provide quality medical education in terms of the provisions of the IMCC Act and the relevant regulations.

4. It has been submitted by counsel for the petitioner that the stand of the respondent no.1 is factually incorrect, which is evident from the documents placed on record. Mr.Sinha, counsel for the petitioner submits that for the academic session 2012-13, the college was visited by respondent no.2 and thereafter vide letter dated 03.05.2012 respondent no.2 recommended the case of the petitioner college for admitting 50

students for the academic session 2012-13 subject to rectification of certain deficiencies by 31.12.2012. Thereafter, the respondent No.1 vide letter dated 15.05.2012 directed the petitioner college to appear for hearing in terms of the provisions of the first proviso of Section 13A (5) of the IMCC Act, 1970. The sole objection raised by respondent no.1 was with respect to the exaggeration of the bed days occupancy in the IPD as the respondent No.1 was of the view that 43 patients admitted in the month of January, 2011 in the department of Kaya Chikitsa cannot generate 1364 bed days in 31 days. Similarly it pointed out that 8 patients admitted in the month of March in Shalya department cannot generate 257 bed days.

5. Mr.Sinha, counsel for the petitioner further submits that petitioners appeared before the Hearing Committee of respondent No.1 on 24.05.2012 and submitted its written brief as well as made oral submissions. The petitioners clarified that as per the visitation performa they had to mention the new patients admitted in the month of January, 2011 and that was 43. But the patients, who were admitted in the month of December, 2010 continued in the IPD and occupied the beds in January, 2011 and accordingly the figures were correctly mentioned. However, as there were certain other questions raised in the hearing even though the said questions were not part of the letter dated 15.05.2012.

6. Mr.Sinha, counsel for the petitioner also submits that after the hearing, the impugned order was passed on 14.08.2012, by which permission to the petitioner college for admitting students in BAMS course for academic session 2012-13 was declined on the ground that the case sheets of different department were inadequately maintained and incompletely filled, which indicates that the teaching hospital of the college does not appear to be a genuinely functional ayurvedic hospital.

7. Mr.Sinha, also submits that it is the primary duty of the respondent no.2 to prescribe minimum standards of education in Indian Medicine, but till date no norms /regulations have been framed with respect to the manner in which the IPD case sheets and discharge tickets have to be maintained and kept for inspection for subsequent years for seeking permission. It is also submitted that respondent no.2 has already granted permission to the petitioner to admit students, the respondent no.2 is an expert body and their decision cannot be brushed aside lightly by respondent no.1. Even otherwise, the stand of the respondent nos.1 and 2 is diametrically opposite which would show that there is no certainty with regard to the criteria adopted by the respondents in granting approval to the petitioner.

8. It is strongly urged before this court that primarily the objection of the respondent no.1 against the petitioner was with respect to the calculation of bed days occupancy in IPD for the month of January and March, 2011. To this objection a satisfactory reply has been given with supporting documents, and thus, the objection is not sustainable.

9. The present petition has been opposed by both the respondents. During the course of hearing, counsel for the respondent no.1 on instructions had stated that respondent no.1 was duly satisfied with the explanation rendered by the petitioner with regard to the calculation of number of patients. However, respondent no.1 has opposed this petition on the ground that on careful scrutiny of documents it appeared that the teaching hospital of the college did not appear to be a genuinely functional Ayurvedic hospital having a genuine patient load of 100 patients per day in the OPD and 40% IPD bed occupancy during the period 01.01.2011 to 31.12.2011 (the period for consideration). Counsel further contends that the college was given an opportunity of hearing by a letter of 15.05.2012, the petitioner appeared before the designated Hearing Committee in the

Department of AYUSH on 24.05.2012 and the college was instructed to make oral and written submissions and also bring valid documents and records/ proof with respect to the shortcomings for verification. Counsel next contends that the college clarified that there were 43 new patients admitted in the month of January 2011 in the department of Kayachikitsa. Only these 43 patients had not generated 1364 bed days alone but the total number of patients including old and new, which was actually 83 (43+

40), have collectively generated 1364 bed days for the month of January- 2011. The old patients were carried forward from previous month. Similarly, in the department of Shalya, 8 new patients were admitted in the month of March-2011 but 09 old cases were carried forward from the previous month to generate the bed occupancy of 257 days.

10. Counsel for respondent no.1 further submits that the representatives of the college had produced the Central OPD/ IPD register, case-sheets of the IPD patients, lab register, nursing duty register, IPD medicine dispensing/ indent register and duty roster of doctors, diet register.

11. Ms.Gaur, submits that the primary objection of the respondent no.1 for declining permission was that the petitioner did not maintain department wise IPD register, Discharge Tickets. On a query being raised, the college informed the Hearing Committee that they were not maintaining departmental IPD register but in future they would maintain it. However they were maintaining Central IPD register and bifurcating different departments in it. With regard to discharge cards of IPD patients petitioner had submitted that the discharge cards were given to the patients at the time of discharge and no such record was kept by the Hospital. It would be useful to reproduce paragraphs 3 (IV), (V) and (VI) of the counter affidavit filed by respondent no.1, which reads as under:

"(IV) During the scrutiny of Case Sheets of different department hearing committee observed that these were inadequately maintained and incompletely filled. Further, in all the case sheets taken in the record, it was found that history of present illness, past illness; family history, Systemic examination, Ayurvedic clinical variables follow up data of the patients, detail of investigation, discharge summary etc. was not recorded properly. During the examination of case sheet of Shalya Department it has been noticed that although patient was operated but no investigation made before operation and no consent was taken for the operation procedure. The representatives of the college were unable to produce the case sheets of Panchkarma during the hearing, which indicates that the data reflected in CCIM Proforma regarding the patients admitted /bed occupancy in IPD department of Panchkarma was not genuine. In the view of above mentioned shortcomings of case sheets of different department and unavailability of the case sheets of Panchkarma department it appeared that the hospital was not genuinely functional.

(V) In the view of above observation made by the hearing committee after verification of produced OPD/IPD records and Case Sheets, it appears that case sheets of different departments were inadequately maintained and incompletely filled, which indicates that the teaching hospital of the college does not appear to be a genuinely functional Ayurvedic hospital having the genuine IPD bed occupancy during the period of 01.01.2011 to 31.12.2011.

(VI) The above observations corroborated the deficiencies noticed that the college did not run a genuinely functional teaching Ayurvedic hospital having the genuine patient load of 100 patient per day in the OPD and 40% bed occupancy in IPD during the reporting period from 01.01.2011 to 31.12.2011 and therefore, the college was denied permission for the session 2012-13."

12. A short affidavit has also been filed by respondent no.2 who had earlier granted permission to the petitioner. The stand of respondent no.2 is explained in paragraphs no.12, 13 and 14 of the counter affidavit, which read as under:

"12. Insofar as the petitioner-college is concerned, it is with great respect submitted that the planned visitation of the petitioner-college was undertaken for the session 2012-2013, on 1st and 02.3.2012. It is further submitted that the Visitation Reports submitted the Visitors were scrutinized and assessed by the Executive Committee of the answering respondent, strictly in consonance with the criteria/ policy letter mentioned above, and since the petitioner-college was then assessed to conform to the relaxed criteria specified for the session 2012-13, the college was recommended for grant of permission for 2012-13 with intake capacity of 50 students in UG course vide our letter dated 03.5.2012, true copy of which has already come on record.

13.That at this juncture it is relevant to submit that the perusal of records indicated receipt of serious complaint against the petitioner-college. That it is further submitted that the answering council carried out visitation of the petitioner-college recently on 25.10.2012, in terms of the direction passed by this Hon'ble

Court vide order dated 17.10.2012, wherein, it has emerged that the petitioner-college has significant deficiencies. Infact, the attached hospital was found not to be genuinely functional. Herein, true copy of the Assessment arrived at by CCIM on the said visitation, as communicated to the Counsel, is enclosed as ANNEXURE R-1. Few photographs taken during the said visitation, which are enclosed as ANNEXURE R-2, reveal empty beds, locked departments etc., and hence the college does not appear to be in a position to impart quality education under the circumstances. As such, no infirmity is made out in the impugned order passed by Respondent-Union.

14.It is also submitted that as per policy formulated by this Council, vide our letter dated 23.10.2003, the last cut-off date for admissions is 31st of October, in the instant case being 31.10.2012. The said policy was formulated in the wake of the law laid down by the Hon'ble Apex Court in Medical Council vs. Madhu Singh & ors., reported in (2002) 7 SCC 258.

13. While opposing grant of interim relief, counsel for the respondents have relied upon an order passed by the Apex Court dated 11.01.2012 in C.A No. 274 of 2012 in Medical Council of India Vs. JSS Medical College & Anr, reported in AIR 2012 SC 726, JT 2012 (1) SC 127. The reliance has been placed on Full Bench decision in the case of Medical Council of India vs. Rajiv Gandhi University of Health Sciences, reported in (2004) 6 SCC76. Relevant portion of the order dated 11.1.2012 passed in C.A No. 274 of 2012 is reproduced below:

"10. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in

our opinion, erred in permitting increase in seats by interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. High Court ought to realize that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in very awkward and difficult situation. If on ultimate analysis it is found that the College's claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase the seats, a task entrusted to the Board of Governors and that too by interim order. In a matter like the present one, decisions on issues have to be addressed at the interlocutory stage and they can not be deferred or dictated later when serious complications might ensue from the interim order itself. There are large number of authorities which take this view and instead of burdening this judgment with all those authorities it would be sufficient to refer to a three Judge Bench decision of this Court in the case of Medical Council of India v.

Rajiv Gandhi University of Health Sciences, (2004) 6 SCC 76, in which it has been held as follows:

"14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim orders students who have been admitted in such institutions would be put to serious jeopardy, apart from the fact whether such institutions could run the medical college without following the law. Therefore, we make it clear that the High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of Section 10-A of the Medical Council Act. If interim orders are granted to those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutions."

14. I have heard counsel for the parties and considered their rival submissions. While granting interim relief, the court must satisfy itself that the petitioner has been able to make out a strong prima facie case, balance of convenience is also in favour of the petitioner and in case the interim relief so prayed, is not granted the petitioner will suffer irreparable loss.

15. Respondent no.1 has declined permission to the petitioner based on the documents, which were produced by the petitioner at the time of hearing. While counsel for the petitioner submits that it is not mandatory to maintain a department-wise IPD register, whereas it is the case of the respondent no.1, that every hospital is bound to maintain department-wise register, as patients are admitted in various departments. It is contended by counsel for the respondent no.1 that not maintaining department-wise register would only show that one register can easily be manufactured or

fabricated, but a separate register for each department if it is genuinely maintained cannot be created overnight. Thus non-maintenance of a department-wise register created a doubt in the mind of respondent no.1 that the hospital was not genuinely functional. This was coupled with the fact that the hospital did not keep any record of the discharge summary, which is also very unusual for a hospital. The scrutiny of case sheets of different departments were found inadequately maintained and incompletely filled. Another surprising fact was that the respondent no.1 found that although patient was operated but no investigation made before operation and no consent was taken for the operation procedure. The representatives of the college were unable to produce the case sheets of Panchkarma during the hearing, which indicates that the data reflected in CCIM Proforma regarding the patients admitted /bed occupancy in IPD department of Panchkarma was not genuine.

16. The counter affidavit which has been filed by respondent no.2 along with photographs, reflects a very sorry state of affairs. Although counsel for the petitioner has submitted that this surprise inspection was conducted on a holiday and thus it does not reflect a true picture, the photographs show that departments are lying locked, beds are completely empty and most of them were without mattresses. The mattresses have been folded and have been kept in a corner. Along with the counter affidavit respondent no.2 has annexed a copy of the assessment arrived at by Central Council of Indian Medicine on visitation and as communicated to their counsel. The same reads as under:

"F.No.3-3/2012 - Ay. (22)/19094 Dated: 29.10.2012. To, Mr.T.K. Joseph, Advocate Retainer, Consultant of CCIM New Delhi

It is submitted that surprise visit was conducted at Kishan Dnyanoday Mandal Gudhe's Ayurved College & Hospital Chalisgaon, Jalgaon, Maharashtra on 25th October, 2012 in compliance of the order of Hon'ble High Court of Delhi, by the visitors appointed by CCIM.

Following are the points, which come out after assessment of the report.

1. No record was provided by the college authority for total land area.

2. Other documents are also not provided by the college.

3. Only three Professors were found present on the day of visitation (Professors of Samhita, Shalakya and Swasthavritta).

4. Other facilities and equipments were not accessible due to alleged declaration of 25th October, 2012 as a holiday.

5. Library exists but no library register was available during visitation.

6. Pharmacy is not accessible, total number of medicines prepared on the day of visitation is nil.

7. Herbal garden is not accessible due to unavailability of staff.

8. OPD functional but area of OPD is not adequate.

9. Only Central OPD register is available, but departmental OPD registers are not provided.

Total OPD shown was 105 patients. In some case, the name and OPD No. are mentioned but diagnosis and other details are left blank.

10. Total No. of beds are shown as 60, but total no. of IPD on the day of visitation was nil.

11. No IPD departmental registers are provided by authorities, therefore, average attendance & bed occupancy of last 6 months could not be calculated.

12. Departments of Dravyaguna, Rognidana, Agadatantra, Swasthawritta and Principal Room, class rooms, private IPD room, RMO cabin etc were found locked.

13. IPD wards were found vacant, having not a single patient. Also the beddings on the bed are not available. No other arrangements seen in the IPD.

14. Hospital is not genuinely functional as observed on the day of visitation by the visitors."

17. In the case of Medical Council of India Vs. State of Karnataka, reported at (1998) 6 SCC 131, it has been held by the Apex Court that a medical student requires intense study, which can only be done if proper facilities are available in the college and the hospital attached to it. It has further been held that in the absence of proper facilities rejection of permission was justifiable. Para 29 of the judgment reads as under:

"29. A Medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study......."

18. In view of the observations of the Hearing Committee based on the documents produced before them, coupled with the counter affidavit filed by respondent no.2, do not inspire any confidence in favour of the petitioner. Prima facie this court is not satisfied with the explanation rendered by the petitioner for not maintaining a department-wise IPD register and also the explanations rendered by the petitioner with regard to the shortcomings which were pointed out by the respondent no.1. The inspection carried out by respondent no.2 on 25.10.2012 and the observations made after the inspection also reflects a very sorry state of affairs. The petitioner is unable to satisfy this court that this is a fit case

for grant of stay of operation of the impugned order, permitting the petitioner to admit students, subject to the final order. Accordingly, the application stands dismissed. DASTI.

W.P.(C) 6647/2012

19. List on 11.02.2013.

G.S.SISTANI, J NOVEMBER 06, 2012 ssn