Delhi High Court
Buddhi Vidhatajan Kalyan Samiti vs Union Of India & Anr on 15 December, 2016
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: November 30, 2016
Judgment delivered on: December 15, 2016
+ W.P.(C) 10099/2016 & CM 39983/2016
BUDDHI VIDHATAJAN KALYAN SAMITI
..... Petitioner
Through: Mr. Joginder Sukhija and Mr. Nikunj Saluja,
Advs.
versus
UNION OF INDIA & ANR
..... Respondents
Through: Mr. Rajesh Gogna, CGSC with
Ms. L. Gangmei, Adv. for R1/UOI.
Mr. Kundan Kr. Mishra, Mr. Ajay Kumar and
Mr. Ashutosh Mishra, Advs. for R2.
+ W.P.(C) 10129/2016 & CM No. 40121/2016
MAA TRIMUKHA SIKSHA PRASAR SAMITI KHARIPURA, MEHGAOUN
..... Petitioner
Through: Mr. Joginder Sukhija and Mr. Nikunj
Saluja, Advs.
versus
UNION OF INDIA & ANR
..... Respondents
Through: Mr. Rajesh Gogna, CGSC with
Ms. L. Gangmei, Adv. for R1/UOI.
Mr. Kundan Kr. Mishra, Mr. Ajay Kumar and Mr.
Ashutosh Mishra, Advs. for R2.
W.P.(C) 10099/2016 and connected matter Page 1 of 52
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. As the issues involved in both these writ petitions being identical, the same are being
decided of by this common order.
Facts in Writ Petition(Civil) No. 10099/2016:-
2. The present petition has been filed by the petitioner seeking the following reliefs:-
―It is, therefore, most humbly prayed that this Hon'ble Court may kindly be
pleased to issue an appropriate writ/Directions/Orders in the nature of
certiorari or otherwise thereby quashing the Order dated 28.9.2016 passed
by the respondent No.1, whereby which proposal of the petitioner to start
bachelor of homeopathic medicine and surgery (BHMS) course in the
academic year 2016-17 in a new college under the name and style of B.V.
Homeopathic medical college and hospital with intake capacity of 100
students per year has been disapproved.
This Hon'ble Court may kindly be pleased to issue an appropriate
writ/Directions/Orders in the nature of mandamus or otherwise thereby
directing Respondents to grant permission to the petitioner to start Bachelor
of Homeopathic Medicine and Surgery (BHMS) Court in the academic year
2016-17 in a new college under the name and style of B.V. Homeopathic
Medical College and Hospital with intake capacity of 100 students per year.‖
3. It is averred in the writ petition that the petitioner is a Society registered under the
Societies Registration Act. After its incorporation, in order to start a new Homeopathic
college, the petitioner society had established a Homeopathic hospital in the name and style
of Budhi Vidhata Homeopathic Hospital, Chattarpur, Madhya Pradesh. The said hospital is
a 25 bedded hospital and has got 18 doctors and 5 departments. It is averred, on an average
1107 patients avail the said hospital's facilities in OPD per month and on an average 1107
patients in IPD. On December 23, 2014, after establishing the hospital facilities for the
OPD and IPD patients, the petitioner Society approached Government of Madhya Pradesh
for grant of No Objection Certificate to start a Homeopathic College in the District of
Chattarpur. On June 4, 2015, the Government of Madhya Pradesh granted No Objection
Certificate to the petitioner to establish a new Homeopathic College in the name of B.V.
Homeopathic Medical College and Hospital, village Khabndora, Devpur Tiraha NH-75
Chatrarpur, Madhya Pradesh. Accordingly, the petitioner on June 6, 2015 approached the
Madhya Pradesh Medical Sciences University seeking grant of affiliation, in order to start
the said Homeopathy College.
4. According to the petitioner, the College was inspected by the University on June 30,
2015 and No Objection Certificate was issued to the petitioner by the University on July 14,
2015. After seeking No Objection Certificate, the petitioner Society on April 29, 2015
applied to respondent No.1 for permission to start a new Homeopathy College in the name
and style of B.V. Homeopathic College and Hospital. It is the case of the petitioner, the
respondent No.2 inspected the infrastructure and facilities of the said college on September
18, 2015. The respondent No.1 issued a Letter of Intent dated December 18, 2015 in favour
of the petitioner thereby intimating that it is willing to grant permission for 100 seats
Homeopathy College. It is the case of the petitioner that petitioner was intimated to comply
with seven queries raised in the letter of intent dated December 18, 2015. The petitioner
Society after complying with the queries raised in the letter of intent submitted relevant
records with the respondent No.2. It is the case of the petitioner, that at the stage of letter of
permission the respondent No.2 again inspected the College on March 28, 2016 and after
being fully satisfied, it recommended respondent No.1 to permit the petitioner to run a new
Homeopathy College and Hospital for 100 seats. Despite recommendation of the
respondent No.2, the respondent No.1 delayed granting permission to the petitioner and in
utter disregard to the rights of the petitioner again inspected the college on July 12, 2016.
After inspection, on August 16, 2016 the respondent No.1 issued a notice of hearing to the
said college, thereby asking the said college to appear before the designated Hearing
Committee on August 30, 2016 to present its case with respect to the shortcomings pointed
out in its inspection report.
5. It is the case of the petitioner that it submitted a detailed reply on August 29, 2016
along with relevant documents to the respondent No.1. It is stated that the representative of
the petitioner appeared before the Hearing Committee on August 30, 2016 and relied upon
the contents of the documents submitted vide letter dated August 29, 2016. It is the case of
the petitioner that the representative of the petitioner gave satisfactory answer to all the
queries raised by the Hearing Committee thereby establishing that the said college fulfils all
the norms as per Homeopathy Central Council (Minimum Standards requirements of
Homeopathy College and attached Hospital) Regulations, 2013 (for short Regulations of
2013). Despite fulfilling the norms by the said college, the respondent No.1 passed
impugned order dated September 28, 2016 whereby the proposal of the petitioner to start a
Homeopathic Medical College, Chattarpur, Madhya Pradesh with 100 seats was
disapproved.
6. The respondents 1 and 2 have filed their separate counter-affidavit(s). The case of
the respondent No.1, in its counter-affidavit is that the Central Council of Homeopathy
(Central Council in short) has been constituted by the Government of India under the
provision of Homeopathy Central Council Act, 1973 (Act of 1973 for short) for maintaining
the Central Register of Homeopathy and the matters connected therewith. The Central
Council has been vested with the powers under Section 20 of the Act of1973 for prescribing
minimum standards of education in Homeopathy, required for granting recognized medical
qualification by University, Board or Medical Institution in India. Under the provision of
Section 33 of the Act of 1973, the Central Council has been authorized to make Regulations
with previous sanction of the Central Government to carry out the purpose of the Act and
the Central Council with the previous sanction of the Central Government has framed many
regulations including 1) The Homeopathy (Minimum Standard of Education) Regulations,
1983 (as amended up to 2002) 2) Homeopathy Central Council (Minimum Standards
Requirement of Homeopathic Colleges and attached Hospitals) Regulations, 2013 (for short
Regulations of 2013. In terms of the Regulations of 1983, the Central Council has laid
down minimum requirement norms and standards in terms of teaching and hospital staff,
accommodation, equipment's and training hospital and other facilities with the previous
sanction of the Central Government. The 2013 Regulations are in supersession of the 1983
Regulations.
7. It is the case of the respondent No.1 that it received proposal dated April 30, 2015
from the petitioner to start a new B.V. Homeopathic Medical College with 100 seats in
BHMS course under Section 12A of the Act of 1973. The same was considered in the
Ministry and was forwarded to Central Council on May 28, 2015 for conducting inspection
of the college and making their recommendation/report with regard to availability of
infrastructure and the staffing position in accordance with the provision of the Act of 1973
and Regulations made there under. The Central Council inspected the petitioner's
Institution on September 18, 2015 and forwarded the Inspection Report to the respondent
No.1 on November 3, 2015. The Executive Committee of the Central Council in its
meeting held on November 5, 2016 considered the report of the inspection and
recommended to allow admission of 100 students in BHMS course for the session 2016-17.
After careful consideration of the scheme and taking into consideration of the visitation
report, the recommendation of the Central Council, the Ministry issued a Letter of Intent
dated December 18, 2015 to the petitioner's College with subject to rectification of
following conditions before visitation by Central Council for consideration of the matter for
issuing Letter of Permission for the academic session 2016-17:-
(i) That the applicant shall fulfil all the relevant requirements of
infrastructure for teaching and training facilities as specified in the
Homeopathic Central Council (Minimum Standard Requirement of
Homeopathic Colleges and attached Hospitals) Regulations, 2013.
(ii) That before inspection by CCH regarding the matter for consideration of
permission for academic year 2016-17 for the proposed new college, the
college shall appoint all the teachers (Lecture/Reader/Professor) in the
relevant Departments.
(iii) That applicant shall fulfil all the relevant provisions under the HCC Act,
1973.
(iv) The applicant shall fulfil 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 Crore as specified under the Section 6(1)(g) of notified
Regulation 2011, failing which the letter of Intent may be withdrawn.
(vi) That the applicant shall provide OPD data from October 2014 to
September 2015.‖
8. It is averred that the Central Council inspected the petitioner College at Letter of
Permission (LoP) stage on March 28, 2016. The Executive Committee of the Central
Council in its meeting held in April, 2016 wherein the Executive Committee considered the
report of inspection of the College and Hospital and recommended for issue of LoP for 100
intake capacity in BHMS degree course. The respondent No.1, the Ministry vide order
dated June 3, 2016 made a surprise visit to the College and Hospital on July 12, 2016 and
submitted the report on July 18, 2016. The inspection report submitted by the Central
Council and the inspection report of the visitation team of the respondent No.1 i.e Ministry
was examined and observed that the petitioner is not fulfilling all the criteria as per the
Regulations of 2013 as the college does not have the required hospital staff, non teaching
staff, bed occupancy, IPD, clinical laboratory, equipment in college, library, Central
Registration Section, Operation Theatre and Minimum per day average number of patients
in OPD during last one calendar year as per provisions sub-Regulations (2) Regulation 7 of
the Regulations of 2013. According to the respondent No.1, the aforesaid deficiencies
contradicts the report of the Central Council. The Council has been asked to furnish
justification and to take action on the Inspectors who had reported dubiously.
9. It is the case of the respondent No.1 that an opportunity of hearing was given to the
petitioner on August 30, 2016 and the deficiencies were communicated to the College. The
submissions were made by the College at the time of hearing by the Hearing Committee and
the Committee examined all the submissions and documents of the college in terms of the
Act of 1973 and the Regulations of 2013. The observation note prepared by the Hearing
Committee was submitted to the Competent Authority, who disapproved the permission for
starting a new Homeopathic Medical College by the petitioner. The decision of the
Competent Authority was communicated to the petitioner on June 10, 2016.
10. The respondent No.2 filed its short reply wherein, they have narrated the facts, which
have already been noted above.
Facts in Writ Petition(Civil) No. 10129/2016:-
11. The present petition has been filed by the petitioner seeking the following reliefs:-
―It is, therefore, most humbly prayed that this Hon'ble Court may kindly be
pleased to issue an appropriate writ/Directions/Orders in the nature of
certiorari or otherwise thereby quashing the Order dated 17.10.2016 passed
by the respondent No.1, whereby which proposal of the petitioner to start
bachelor of homeopathic medicine and surgery (BHMS) course in the
academic year 2016-17 in a new college under the name and style of Maa
Trimukha Homeopathic medical college with intake capacity of 60 students
per year has been disapproved.
This Hon'ble Court may kindly be pleased to issue an appropriate
writ/Directions/Orders in the nature of mandamus or otherwise thereby
directing Respondents to grant permission to the petitioner to start Bachelor of
Homeopathic Medicine and Surgery (BHMS) Court in the academic year
2016-17 in a new college under the name and style of Maa Trimukha
Homeopathic Medical College with intake capacity of 60 students per year.‖
12. It is the case of the petitioner that on April 29, 2015 it approached the Government of
Madhya Pradesh for grant of No Objection Certificate to start a Homeopathic College in the
District of Chattarpur under the name and style of Maa Trimukha Homeopathic Medical
College. During the same time, the petitioner applied to the respondent No.1 for permission
to start a new Homeopathic College. On May 24, 2015 the petitioner entered into a
Memorandum of Understanding/Agreement with the Poorna Nursing Home Gwalior Road,
Bhind so as to run the Homeopathic Medical College. On June 06, 2015 the Government of
Madhya Pradesh granted No Objection Certificate to the petitioner to establish a new
Homeopathic College. On July 14, 2015 the said College was inspected by the Madhya
Pradesh University of Medical Sciences, Jabalpur and No Objection Certificate to the
petitioner was issued by the University. It is the case of the petitioner that the College and
the Hospital are equipped with requisite infrastructure, facilities and instruments. The
respondent No.2 inspected the infrastructure and facilities of the said college on February 5,
2016. Pursuant to inspection, the respondent No.1 issued a Letter of Intent dated March 17,
2016 in favour of the petitioner thereby intimating that it is willing to grant permission for
60 seats Homeopathy college.
13. It is the case of the petitioner that on July 14, 2016 the respondent No.1 inspected the
said college and prepared a report and the same was not provided to the petitioner. On
September 23, 2016, the respondent No.1 issued a notice of hearing to the said college
thereby asking the said college to appear before the designated Hearing Committee on
October 3, 2016 to present its case with respect to the shortcomings pointed out in its
inspection report. It is the case of the petitioner that it submitted a detailed reply dated
October 3, 2016 along with the relevant documents to the respondent No.1. The
representative of the petitioner appeared before the Hearing Committee on October 3, 2016
and relied upon all the contents and documents submitted vide letter dated October 3, 2016.
It is the case of the petitioner that the representative of the petitioner gave satisfactory
answers to all the queries raised by the Hearing Committee thereby establishing that the
said college fulfils all the norms as per the Regulations of 2013. The petitioner's case is
despite fulfilling all the norms by the said college, the respondent No.1 passed the
impugned order dated October 17, 2016 whereby the proposal of the petitioner to start the
Homeopathic Medical College with 60 seats was disapproved.
14. The respondent No.1 filed a counter-affidavit wherein apart from the legal
submissions, as already recorded above, it is the case of the respondent No.1 that it received
proposal dated April 29, 2015 from the petitioner to start a new Homeopathy College,
Hospital and Research Centre with 60 seats in BHMS course under Section 12A of the Act
of 1973. The said application was listed in the Ministry and was forwarded to the Central
Council on May 28, 2015 for conducting inspection of the College and making their
recommendation/report with regard to the availability of the infrastructure. The Central
Council inspected the applicant Institution on February 5, 2016 and forwarded the
inspection report to the respondent No.1 on February 24, 2016. It is stated that the
Executive Committee of the Central Council in its meeting held on February 10, 2016
considered the report of inspection and recommended to allow admission of 60 students for
the session 2016-17. In the meantime, Ministry has taken a policy decision dated February
17, 2016 for processing the cases for issuance of Letter of Intent to the Homeopathic
Colleges in respect to the applications received under Section 12A for the establishment of
new colleges, opening of new or higher courses of study or training and increase of
admission capacity by existing Homeopathic Colleges as under:-
― i. The applications received under Section 12A of the Act, only basic
eligibility criteria specified in the Regulation 6 of the Establishment of New
Medical College, Opening of new or higher course of study or training and
increase of admission capacity by existing Homeopathic colleges.
ii. Compliance with HCC (MSR) Regulations, 2013 shall be examined at
the time of considering the matter for issuance of letter of permission (LoP).‖
15. After careful examination of the proposal and taking into consideration the policy,
the respondent No.1, Ministry issued LOI dated March 17, 2016 with subject to rectification
of following conditions before visitation by Central Council for consideration of the matter
for issuing LoP for the academic session 2016-17:-
(i) That the applicant shall fulfil all the relevant requirements of
infrastructure for teaching and training facilities as specified in the
Homeopathic Central Council (Minimum Standard Requirement of
Homeopathic Colleges and attached Hospitals) Regulations, 2013.
(ii) That before inspection by CCH regarding the matter for consideration of
permission for academic year 2016-17 for the proposed new college, the
college shall appoint all the teachers (Lecture/Reader/Professor) in the
relevant Departments.
(iii) That applicant shall fulfil all the relevant provisions under the HCC Act,
1973.
(iv) The applicant shall fulfil 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.1.2 Crore as specified under the Section 6(1)(g) of notified
Regulation 2011, failing which the letter of Intent may be withdrawn.
(vi) That the college shall rectify the bed occupancy which is 11 per day
against the requirement of 30%.‖
16. Thereafter, the respondent No.1 Ministry of Ayush made a surprise visit to petitioner
College on July 12, 2016 and submitted the report on July 20, 2016. The inspection report
submitted by the Central Council and the inspection report of the visitation team was
examined and observed that the College was not fulfilling all the criteria as per the
Regulations of 2013 as the College does not have the teaching staff, non-teaching staff,
hospital staff, OPD, IPD, bed occupancy, Central registration section, functional operation
theater and functional clinical laboratory of the Regulations of 2013. Pursuant thereto, after
giving an opportunity of hearing on October 3, 2016, the deficiencies were communicated
to the college. The submissions were made by the College at the time of the hearing and
after considering the same, the impugned order was issued to the petitioner.
17. Respondent No.2 has filed its counter-affidavit wherein they have narrated the facts,
which have already been reflected above.
18. Mr. Joginder Sukhija, learned counsel for the petitioner would make three broad
submissions. The first submission being that the impugned order issued by the respondents
is unreasoned, non-speaking one, inasmuch as, the impugned communications except giving
general reasons, does not disclose in what manner, the College/Hospital does not fulfil the
requirement of the Regulations of 2013. That apart, it is his submission that the respondent
No.1, Ministry of Ayush has no power under Section 12A of the Act of 1973 to cause
inspection of the College/Hospital. That apart, it is his submission that the final decision of
the respondent No.1 being a quasi-judicial in nature, the hearing should have been caused
by the competent authority, who had ultimately taken a decision in the case. In other words,
it is his submission that the hearing has been effected by two persons, based on whose note,
the competent authority has taken a decision, which is not tenable. Mr. Sukhija would rely
upon the following judgments:-
(i) Homeopathy Education Society vs. Union Of India W.P.(C) No. 6264/2015,
Bombay High Court;
(ii) AIR 1959 SC 308 Gullapali Nageswara Rao v. Andhra Pradesh;
(iii) AIR 2014 SC 22-42 Union of India v. Shiv Raj & Ors (and connected appeals);
(iv) AIR 1971 SC 862 M/s Travancore Rayons Ltd. v. Union of India;
(v) Narendar Prakash Kohli vs. Union of India, W.P.(C) No. 2968/2014 decided on
May 8, 2015 [2015 (220) DLT 165];
(vi) Malla Reddy Institute of Medical Sciences and anr. V. Union of India, W.P.(C) No.
7106/2015 and connected writ petition decided on September 29, 2015;
(vii) K. Raj Arora v. State Bank of India W.P.(C) No. 154/2000 decided on September 8,
2006 [2015 (10) AD (Delhi) 565];
(viii) Samir Sharma and another vs. Union of India W.P© No. 6109/2015 decided on
July 27, 2016;
(ix) Hindustan Education Society & Anr. v. UOI & Ors W.P. 3512/2008 decided by
Bombay High Court (Aurangabad Bench) on January 9, 2009.
19. On the other hand, Mr. Rajesh Gogna, learned counsel for the respondent no.1 would
justify the impugned orders dated September 28, 2016 and October 17, 2016 stating that the
impugned orders do reflect the deficiencies, which were found to be existing on inspection.
That apart, it is his case, even the show cause notice issued to the petitioners calling upon
them for a hearing also reflect the deficiencies. So, it is not a case where the petitioners
were not aware of the deficiencies, which were in existence for which a show-cause notice
was given. That apart, he would state that the impugned orders are administrative in nature
and the competent authority was within its right to rely on a note prepared by the officers,
who had given a hearing to the petitioners while passing the impugned orders. That apart, it
is his submission that the respondent No.1 being the final authority to grant permission to
an institution under Section 12A (4) of the Act was within its right to cause an inspection of
the College/Hospital to satisfy itself that the College/Hospital satisfies the requirement of
the provisions of sub-Section (7) of Section 12A of the Act and the Regulations of 2013.
He would rely upon the following judgments in support of his contention:-
(i) 2006 (10) SCC 1 Reliance Airport Developers Pvt. Ltd. V. Airports Authority of
India and ors;
(ii) 2002 (5) SCC 685 Indian National Congress (I) v. Institute of Social Welfare;
(iii) 2012 (10) SCC 353 State of Gujarat v. Gujarat Revenue Tribunal Bar Association;
(iv) 2011 (2) SCC 258 Automotive Tyres Manufacturers Association v. Designated
Authority and ors.;
(v) 2010 (2) SCC (Cr.) 1201 Assistant Commissioner, Commercial Tax Department,
Works Contract & Leasing, Kota v. Shukla Brothers;
(vi) 2015 (8) SCC 519 M/s Dharampal Satyapal Ltd vs. Deputy Commissioner of
Central Excise, Gauhati and ors;
(vii) 2013 (10) SCC 60 Manohar Lal Sharma v. MCI;
(viii) 2013 (5) SCC 252 Kalinga Mining Corporation v. Union of India;
(ix) 1989 (4) SCC 264 Ossein and Gelatine Manufacturers' Association of India v.
Modi Alkalies and Chemicals Limited and another;
20. Having heard the learned counsel for the parties, insofar as the plea of Mr. Joginder
Sukhija that the impugned orders are non-speaking is concerned, no doubt that in the
impugned orders, the respondent No.1 has broadly mentioned the Colleges/Hospitals in the
writ petitions were lacking in certain requirements. In what manner, the petitioners were
lacking in those requirements have not been mentioned or spelt out in the impugned orders;
but merely because the impugned orders does not specify so, would not make the impugned
orders bad, inasmuch as the impugned orders preceded by a show cause notice dated August
16, 2016 (W.P.(C) No.10099/2016) and September 23, 2016 (W.P.(C) No. 10129/2016)
wherein the respondent No.1 had pointed out the deficiencies, which were found on
inspection of the College/Hospital. Against those show cause notices, both the petitioners
had submitted their reply and have tried to clarify the deficiencies, which have been pointed
out by the respondent No.1. The show cause notice was followed by a hearing given by the
respondent No.1. It is thereafter that the impugned orders were passed. Mr. Sukhija may
be right that in the absence of the reasons in the impugned orders, the petitioners could not
justify/clarify the deficiencies in the writ petitions. But I note, in its counter-affidavit, the
respondent No.1 has, in detail, given its remarks against the deficiencies/submissions of the
petitioners and the observation of the Hearing Committee in the following manner:-
Writ Petition (Civil) No. 10099/2016
Deficiency conveyed Submission of the Observation of the Remarks of the
to the applicant applicant hearing committee Ministry
1. The college does The representative of The Hearing As per the
not have the required the college submitted Committee examined observations of the
Hospital staffs and that the college fulfils the Appointment and hearing committee
Non-teaching staffs. all the requirements Joining letters of the does not fulfil the
of the hospital and Hospital staff and it criteria HCC (MSR),
non-teaching staffs in was found that there 2013
accordance with are 06 doctors and
MSR - 2013. 05 other staff i.e. 11
Further to regular and 09 on
substantiate the call doctors/staff.
above the attested The Joining letter of
copies of the Principal was not
appointment letters, found in the records
attendance registers and two joining
and salary records letters of the doctors
have been submitted. and two joining
letters of other staff
were without
signature. For Non-
teaching staff, the
college has
appointed only one
Laboratory attendant
and one Librarian,
whereas 07 non-
teaching staff is
required.
The college is not
fulfilling the criteria
as per MSR
regarding the
Hospital and non-
teaching staff.
2. The College does The college The Hearing As per the
not have the bed representative Committee examined observations of the
occupancy as per submitted that the the IPD register hearing committee
HCC (MSR), 2013. hospital has been (June 2015 onwards) and inspection report
functional since where the manual of Central visitation
1.4.2015 and the bed entries are made for team the college is
occupancy average the admission of the unable to
of last year from patients in the substantiate the
01.04.2015 to hospital. The claim of fulfilling bed
05.08.2016 is total register related to occupancy.
number of patient in April 2015 and May
IPD admitted 3858 2015 was not Hence, does not fulfil
and carry forward produced during the criteria as per
patient is 4694 and is hearing with the plea HCC (MSR), 2013.
in accordance with that the register got
the MSR, 2013. ruined in the rains.
Further to Further, the number
substantiate the of patients admitted
above clarification, in IPD as per the
attested copies of register is not
IPD records have tallying with the
been submitted. information given in
Annexure 2.
Moreover, they had
no computerized
registration for IPD
patients and have
installed and started
using the software
from 29.8.2016.
(Photocopy of
computer generated
IPD card and
Discharge Summary
is attached - Page 1-
2).
The hospital is
functioning from 1
April 2015 onwards,
thus considering the
duration from 1 April
2015 - 31 December
2015 (09 months),
the bed occupancy
calculated (Total no.
Of beds occupied x
100)/(Total number
of beds x no. Of days
in 09 months) i.e.
(2168 x
100)/(25x275) =
31.53.
As the actual number
of patients admitted
in IPD during April-
May 2015 is not
available, the
percentage of bed
occupancy calculated
above may not be
correct. Thus, the
bed occupancy as per
MSR norms remains
doubtful.
3. The College does The college The Hearing Same as remark
not have a genuinely representative Committee has found given in 2.
functional IPD. submitted that the the discrepancy in
hospital has been the number of entries
functional since 1 in the IPD register
April, 2015 and the and Annexure 2. The
bed occupancy case records of few
average of last year IPD patients were
from 01.04.2015 to checked and it was
05.08.2016 is total found that Date of
number of patient in admission, date of
IPD admitted 3858 discharge, name of
and carry forward doctor under whom
patient is 4694 and is the patient has been
in accordance with admitted, diagnosis,
the MSR, 2013. signature of doctor,
Further to laboratory
substantiate the investigations etc.
above clarification, are missing.
attested copies of (Photocopy of few
IPD records have pages of IPD register
been submitted. and case sheet of
Ajay Mishra, 5yrs/M
and Shuma Soni 20
yrs/F are attached -
Page 3-15).
For Shuma Soni -
medicine prescribed
as per the computer
generated OPD
record is Silicea 200
and it has not been
mentioned that
patient has been
referred to IPD.
Further, as per IPD
case record Alumina
1M has been
prescribed.
Thus, the genuine
functioning of the
IPD is doubtful.
4. The College does The college The Hearing Same as remark
not have a genuinely representative Committee examined given in 1.
functional Clinical submitted that the the pathology
laboratory college Laboratory is investigation register
genuinely functioning which shows the
from the starting of name, age, sex and
the hospital. Further investigation done
to substantiate the for the patients.
above clarification, Proper form for
attested copies of advising
Register of investigations by the
investigation of doctors and the
patients have been reports were not
submitted. available with the
college
representatives.
In Annexure 3 and
also in the original
register, it was also
noted that blood
sugar investigation
was done for patients
aged 9,10, 14, 18
years. On asking the
college
representatives (both
doctors), the reason
for this investigation
done at this young
age remained
unanswered.
Thus, the Hearing
Committee is of the
view that there is no
functional clinical
Laboratory in the
college/hospital.
5. The college does The college The Hearing Same as given in
not have a genuinely representative Committee examined remark 1.
functional operation submitted that the the Operation
theatre. college has genuinely Theatre register. In
functioning no case record the
Operation Theatre procedure of
with all required operation, an
equipments. Further aesthesia given, etc.
to substantiate the are mentioned. In
above clarification, Annexure 4,
attested copy of O.T Authorization for
register and consent Medical and/or
forms have been surgical treatment
submitted. given by Shyam Lal
Yadav is enclosed but
the next page
regarding the details
of the patient and
investigations is
totally blank. In the
IPD case record of
this patient, the name
of the surgeon and
date of surgery is not
mentioned. For
another patient
named, Mrs.Pratibha
Trivedi, she has been
operated for boils in
axilla and the name
of surgeon mentioned
in the OT register is
Dr.Prem Lata Kohli
whereas in IPD case
record, the name of
Surgeon mentioned is
Dr.Sudheer Khare.
(Photocopy of the OT
register and IPD
case record
attached).
6. The college does The college The Hearing
not have minimum representative Committee checked
per day average submitted that the the computer
number of patients in college Hospital has generated data for
OPD during last one required per day the OPD patients.
calendar year. average number of The computerised
patients in the OPD data from April 2015
is 204 per day but - August 2015 was
since the hospital not found in the
was started on written submission by
01.04.2015, thereby the college
per day average representatives but
number of patients the number of male,
has been recorded female and child seen
from 01.04.2015 to in the OPD during
05.08.2016 is 86469 these months is
which is in mentioned on page
accordance with 47 of Annexure 5.
MSR, 2013. At the On enquiring about
date of surprise the same, the
inspection, due to representatives told
floods the number of that the entries were
patients was lesser made in register
than the other days manually which got
for obvious reasons. destroyed in the
Further to rains. Considering
substantiate the the total number of
above clarification, OPD mentioned, the
attested copies of average number of
registration records patients attending the
and Dispensing OPD is found to be
Records have been 221 per day.
submitted. As the register to
check the actual
number of patients in
OPD during April-
August 2015 is not
available and the
computer generated
data also shows
entries on few
holidays, the average
number of patients
attending OPD may
not be correct.
7. Functionality of The college The Accession `Same as remark
Library & Central representative register of Library given in 2.
registration section submitted that the was checked by the
are also doubtful. Library is functional Hearing Committee
in the college but and there are entries
since the course is of 539 books and not
not running in the 540 as claimed by the
college at present, College authorities in
the library is only their verbal and
accessed by the written submissions
teachers and the at Annexure 6. Book
hospital staff. issuing register has
Further, two persons names of 10 doctors
are appointment in and they have been
the college. There issued books from
are 540 book in the March 2016
library. And the onwards. (Page 61-
Central registration 62 and Annexure 6).
Section is also On enquiring about
functional on a the staff appointed
computerized for the Library, the
platform. Further college authorities
substantiate the claimed that they
above clarification, have appointed two
copy of library persons for the
register, attested library and the
copy of employee's Librarian has been
appointment letter appointed from
have been submitted 1.8.2016 but could
from page no.61-73 not produce the
and the hard and soft appointment letter
copies of Central for them. In written
Registration Section submission also they
are submitted have mentioned that
the attested copy of
the employee's
appointment letter is
annexed at Annexure
6 but the same has
not been found by the
Committee. The
claim of the college
authorities they they
are having central
registration section
functional on the
computerized
platform (Annexure
7) is also false as
there is handwritten
Accession register.
Thus, the genuine
functional of the
Library is doubtful.
8. Equipments in The college The Hearing Same as given in
college also not as representative Committee examined remark 1.
per HCC (MSR), submitted that the the Sock register but
2013 for 100 college has all it was found that the
students. required equipments entries are not
for 100 students in complete for all the
accordance with equipments wrt name
MSR, 2013. Further of the company from
to substantiate the where it has been
above clarification, purchased, the
copy of Stock quantity etc. It was
Register and bills not possible to
have been submitted. calculate the total
number of
equipments
purchased from the
Bills and Vouchers
attached at Annexure
8. The college
representatives also
informed that the
equipments are kept
in boxes and not
placed in respective
rooms as the college
is not running at
present.
Writ Petition (Civil) No. 10129/2016
S.No. Deficiency conveyed to the Submission of the Observation of the Remarks of the
applicant applicant hearing committee Ministry
1. The college does not have It is submitted that, The college As per the
sufficient no. of Non-teaching on the Muster roll Representative observations of the
staff to handle the 60 students of college there are submitted that, no hearing committee
capacity College as per HCC 17 Non-Teaching the Muster roll of does not fulfil the
(MSR) 2013. staff who were the college, there criteria HCC
joined in the are 17 Non- (MSR), 2013
college since June Teaching staff who
2016. None of them were joined in the
were present in the college since June
morning when the 2016. None of them
inspection was were present in the
going on. morning when the
However, they were inspection was
available in the going on. However,
afternoon. At they were available
present the college in the afternoon. At
is not running and present the college
these staffs are is not running and
related to teaching these staffs are
departments. The related to teaching
Hearing Committee departments. The
also showed the Hearing Committee
variation in the also showed the
signatures of some variation in the
of the Non- signatures of some
Teaching staff of of the Non-Teaching
the college as per staff of the college
their joining letter as per their joining
and as per their letter and as per
Attendance their Attendance
Register. Hearing Register. Hearing
Committee also Committee also
asked about the asked about the bio-
bio-metric metric attendance
attendance document of all
document of all staff. In this regard,
staff. In this the College
regard, it is representatives
mentioned that mentioned that these
these are not are not available
available with the with the
hospital/college. hospital/college.
From these
observations it may
be seen that at
present the college
is not having
sufficient non-
teaching staff.
2. The college does not have It is submitted that The College As per the
sufficient no. of teaching staff the college is representatives observations of the
to handle the 60 students having 13 regular submitted that the hearing committee
capacity College as per HCC teaching staff and 2 college is having 13 and inspection
(MSR) 2013 Guest Faculty for regular teaching report of Central
the teaching staff and 2 Guest visitation team the
purpose in 5 Faculty for the college is unable to
departments teaching purpose in substantiate the
required for the 1st 5 departments claim of fulfilling
year. However, required for the 1st bed occupancy.
none of them were year. However,
present during the none of them were Hence, does not
inspection as the present during the fulfil the criteria as
college is yet to inspection as the per HCC (MSR),
start functioning. college is yet to 2013.
start functioning.
In this regard the
Hearing Committee In this regard the
asked the Hearing Committee
documents related asked the documents
to qualifications, related to
experience, qualifications,
appointment order, experience,
joining report, appointment order,
attendance register, joining report,
Acquaintance Roll, attendance register,
Form 16 in respect Acquaintance Roll,
of these teachers. Form 16 in respect
In this regard it is of these teachers. In
submitted that this regard the
Form 16 is not College
issued to these representatives
teachers. Again submitted that Form
Hearing Committee 16 is not issued to
mentioned that 03 these teachers.
of the teachers have Hearing Committee
no continuous noticed that 04 of
experience and one the teachers i.e. Dr.
reader in Anatomy Chetan Shukla,
is not having MD in Proff. (Dept. of
concerned subject. Anatomy), Dr.
Although he is Viswanath Rastogi,
guest faculty. Proff. (Dept. of
Physiology), Dr.
Amar Nath Pathak,
Proff. (Dept. of
Organon of
Medicine) and Dr.
Virendra Tripathi,
Proff. (Dept. of
Materia Medica)
are not having
continuous teaching
experience. In case
of Dr. Virendra
Tripathi two
teaching
experiences
furnished by Shri
Ramnath Singh
Medical College
claims he was
working as Lecturer
and demonstrator
simultaneously for
same time period.
Further, the
Principal has shown
the teaching
experience of Sofia
Homeopathic
medical college as a
professor in
Pharmacy from
1.3.2013 to
25.4.2015. At the
same time he was
also joined in the
proposed college on
8.7.2014 as
principal. Thus
there is duplicity of
this teacher. One
reader in the
Department of
Anatomy is not
having M/D. in
concerned subject.
Further the college
representative failed
to produce
experience
certificate in case of
reader in
Homeopathic
Pharmacy
Department and the
experience
certificate of reader
in Materia Medica
department has a
long gap of 7 years.
Further, one
Lecturer in Anatomy
Department Dr.
Abhishek Dubey
was also found to be
shown as Lecturer
in the Department of
Anatomy of K.S.
Homoeopathic
Medical College,
Gwalior.
Thus the hearing
committee finds
only 6 teachers as
eligible.
3. The college does not have It is agreed that The College As per the
sufficient number of Hospital only 10 Hospital Representatives observations of the
staff to handle the 60 students staff were available agreed that only10 hearing committee
capacity college as per HCC on the day of hospital staff were and inspection
(MSR) 2013. The team has inspection dated available on the day report of Central
requested to produce the 14.7.2016 at 11.30 of inspection dated visitation team the
attendance register of the am. It is further 14.7.2016 at 11.30 college is unable to
hospital staffs. The team has submitted that since am. The College substantiate the
also requested to call all the there was an representatives claim of fulfilling
Hospital staffs to put their unprecedented rain further submitted bed occupancy.
signature in front of the continuously for the that since there was
Central team. Then the team last 2 days many of an unprecedented Hence, does not
observed that only 10 Hospital the hospital staff rain continuously fulfil the criteria as
staffs were actually present, could not reach the for the last 2 days per HCC (MSR),
which may be seen. However, hospital. Further, many of the hospital 2013.
as per Attendance Register, some of the staffs staff could not reach
only 2 doctors put their were also supposed the hospital.
signature. However, Medical to attend the duty in Further, some of the
Superintendent, senior 2nd shift which was staffs were also
Medical officer, RMO, starting from 1.00 supposed to attend
Surgeon, Anaesthetist, pm onwards. the duty in 2nd shift
Obstretrician/Gynaecologist, Therefore, at the which was starting
Radiologist) pathologist, time of inspection from 1.00 pm
House physician, Dispenser, only 10 hospital onwards.
Lab technician, X-ray staff were present. Therefore, at the
technician. Further, the time of inspection
hearing committee only 10 hospital
asked the reason staff were present.
for unavailability of On this, the hearing
many of the committee asked the
hospital staff reason for
including required unavailability of
number of Staff many of the hospital
Nurse, Ward boys, staff including
dispenser, Medical required number of
Officers, Lab staff nurse, ward
technician, X-Ray boys, dispenser,
Technician and X- Medical Officers,
Ray Attendant etc, Lab technician, X-
since these staff are Ray Technician and
essential for X-Ray Attendant etc,
running the hospital since these staff are
in the morning essential for
hours also. The running the hospital
Hearing Committee in the morning
also asked for the hours also. The
individual leave Hearing Committee
letters of those who also asked for the
were stated to be on individual leave
leave on the letters of those who
particular day. In were stated to be on
this regard, no leave on the
individual leave particular day. In
letters brought this regard, it was
today for mentioned that no
verification for individual leave
those hospital letters brought
staffs. today for
verification for
In this regard, as those hospital staffs.
per the Duty As per the Duty
Rosters of Medical Rosters of Medical
Officers, Nursing Officers, Nursing
and technical staff and technical staff
furnished now by furnished now by
the college the college
representatives, the representatives, the
hearing committee hearing committee
mentioned that on mentioned that on
the day of the day of inspection
inspection 05 05 Medical Officers
Medical Officers and 20 Nursing &
and 20 Nursing & Technical Staff were
Technical Staff supposed to be
were supposed to present in the
be present in the morning section and
morning section most of them found
and most of them to be signed on the
found to be signed attendance register
on the attendance now produced
register now before the Hearing
produced before the Committee.
Hearing However, except 02
Committee. Medical officers and
However, except 02 08 hospital and
Medical officers technical staff were
and 08 hospital and found in the
technical staff were morning session as
found in the certified by the
morning session as college
certified by the representatives.
college This is a disparity.
representatives. In this regard, the
This is a disparity. College
In this regard, it is representatives
submitted that these submitted that these
staff were present staff were present in
in the afternoon, the afternoon, even
even though they though they were
were assigned assigned duties in
duties in the the morning session.
morning session. Further the college
has submitted a list
of hospital staff in
which Dr. Kusum
Thomar, shown as
M.O. (page No.
258/submitted
document) was also
seen present on
16.9.2016 in
proposed K.S.
Homoeopathic
Medical College,
during the visit
conducted by one of
the hearing
committee member.
On asking the
college
representative
mentioned that they
have removed this
M.O. from proposed
Thrimukha
Homoeopathic
medical college.
However, the
attendance register
shows that the said
M.O. is still working
in this college.
The functionality of
the hospital is very
much depended
upon the presence of
essential hospital
staff. In this regard,
the absence of the
required hospital
staff as observed by
the inspection team
and inability of the
college
representatives to
justify their absence
with valid
documentary proof
such as leave letters
and duplicity of the
staff in different
institutions indicate
that the hospital is
not having the
required number of
hospital staff.
4. The College does not have the It is submitted that The College As per the
OPD as per HCC (MSR) 2013. during the time of representative observations of the
The OPDs were found locked. inspection of submitted that hearing committee
There was no name plate Central team it is during the time of does not fulfil the
indicating OPD unit of the seen that name inspection of criteria
hospital found while the team plates of various Central team it is HCC(MSR), 2013
entered the hospital. There OPD units of the seen that name
were 03 small cubicles in the Hospital were not plates of various
OPD. The name plates of fixed and they were OPD Units of the
different departments of OPK replaced after Hospital were not
like Paediatrics, Medicine, cleaning the same fixed and they were
Obs and Gyn were affixed by since there was replaced after
Dr. Jadaon himself and his heavy rain during cleaning the same
staff. Initially there were no the last few days. since there was
doctors / Staffs in the OPD The Hearing heavy rain during
area Later on, 02 persons Committee also the last few days.
claimed to be Medical Officer mentioned that the The Hearing
were found in the OPD rooms removal of the Committee also
at around 10.45 am. They name plates is not mentioned that the
were not in aprons. There understand since removal of the name
were no OPD attendants there was no rain plates is not
available in the OPD. They inside the hospital. understood since
were found writing the The Hearing there was no rain
Prescriptions in the OPD slips Committee had inside the hospital.
without maintaining any shown the video The Hearing
registers. In the Prescription clipping in which Committee had
slips the Central Registration one staff was found shown the video
number and departmental writing the clipping in which
registration number was not prescription I the one staff was found
mentioned. After writing the OPD slips without writing the
prescription, the doctor had to making any prescription in the
dispense the medicine documentation in OPD slips without
themselves as there was no any register. In this making any
pharmacist present till that regard, it is documentation in
time. The examination tables submitted that these any register. In this
were covered without dusts OPD case register regard, the College
without having any foot rests. will be recorded representatives
The team did not find any later from the submitted that these
patient in the Campus while dispensing register. OPD case register
entered into the Hospital The Hearing will be recorded
premise. Later on, the team Committee also later from the
observed sudden visits of some asked about the dispensing register.
patients in the OPD within a observation of the The Hearing
short span of time. As per Central Team on Committee also
record there were 12 OPD the statement of Dr. asked about the
patients till 12.30 pm. During Jadaon, Chairman observation of the
conversations, Dr. Jadaon of the Society that Central Team on the
admitted that on an average on an average of statement of Dr.
25-30 patients come to OPD. 25-30 patients Jadaon, Chairman
However, keeping in view the comes daily to of the Society that
non-existence of any record OPD. In this on an average of
maintained in OPD Registers, regard, it is 25-30 patients
it is hard to believe that too. submitted that the comes daily to
actual figures of OPD. In this
OPD is not known regard, the College
to him. representatives
The Hearing submitted that the
Committee also actual figures of
shown the blank OPD are not known
register of Central to him.
OPD from 9.7.2016 The Hearing
which indicated no Committee also
patients reported shown the blank
for these period. T register of Central
this, it is submitted OPD from 9.7.2016
that, from July 2016 which indicated no
onwards we are patients reported for
maintaining the these periods. To
computerized OPD this, the College
data. The Hearing representatives
Committee also submitted that, from
asked why this was July 2016 onwards
not shown to the they are
inspection team. It maintaining the
is mentioned that, computerized OPD
they were in a hurry data. The Hearing
so that the Committee also
computerized data asked why this was
could not be shown not shown to the
to them. It is inspection team.
further informed The College
that, many of the representatives
hospital staff, who mentioned that, they
was supposed to were in a hurry so
come in the that the
morning, came in computerized data
evening only. could not be shown
to them. The
College
representatives
further informed
that, many of the
hospital staff, who
was supposed to
come in the
morning, came in
evening only. ON
examination of the
computerized OPD
data it is observed
that in many places
the registration
numbers were
written as 0 and 1
and in many places
there is registration
numbers but no
names indicative of
manipulated data.
5 The college does not have the It is submitted that, The College As per the
IPD as per HCC (MSR) 2013. at the time of representative's observations of the
The team observed that there inspection it is submitted that, at hearing committee
is no sign board indicating agreed that there the time of does not fulfil the
IPD wards. The hospital was no sign board inspection it is criteria HCC
authorities affixed different indicating in the agreed that there (MSR), 2013
name plates of the hospital in IPD Wards. There was no sign board
front of the team. The wards were no patients in indicating in the
are not functional at all. The many of the wards IPD Wards. There
IPD wards were locked and and the entire were no patients in
opened in front of the team. mattress, bed sheets many of the wards
There was no patient in the were folded and and the entire
IPD of the Hospital. All the kept aside. The mattress, bed sheets
beds were lying covered with patients admitted in were folded and
dusts and cob webs without the previous days kept aside. The
having any mattresses, bed were discharged patients admitted in
sheets, necessary instruments, before the reporting the previous days
I.V. drip stands and other of the Central team. were discharged
required paraphernalia. The hearing before the reporting
Further, the team has committee also of the Central team.
observed that the IPD brought to our The hearing
registers were not maintained notice that many of Committee also
properly and entries were the patients were brought to the
made till 28/06/2016. There shown as notice of college
was no hospital staff available discharged on the representatives that
on the day of inspection in the same day in the many of the patients
IPD. The team could not Central IPD were shown as
found any specific room register. Further discharged on same
meant for SMO, store room some of the Clinical day in the Central
doctor's duty room, Case Sheets are IPD register.
obstetrician / assistant etc. without the Further some of the
There is no ambulance in the signature of Clinical Case Sheets
hospital. During treating physician are without the
conservations, Dr. Jadaon and even in cases of signature of treating
admitted that the IPD is not fever, temperature physician and even
functional since long time. chart is not in cases of fever,
Hence, the team is of the attached. The Lab temperature chart is
opinion that the IPD is not Test reports are not not attached. The
functional. attached where it Lab Test reports are
was advised to do not attached where
so. it was advised to do
so. Further, even in
the computerized
IPD register, it is
observed that in
many places the
registration
numbers were
written as 0 and 1
and I few there is no
mentioning of date
of discharge. All
these are indicative
of manipulated data
of IPD.
6. The college does not have the It is also accepted It was also accepted As per the
Bed occupancy as per HCC that the IPD entries by the college observations of the
(MSR) 2013. The IPD wards were made till representatives that hearing committee
were locked and opened in 28.06. 2016 in the the IPD entries were does not fulfill the
front of the team. There was no Central IPD made till 28.06. criteria HCC
patient in the IPD of the Register. However 2016 in the Central (MSR), 2013.
Hospital. All the beds were we are now IPD Register.
lying covered with dusts and producing the However, they have
cob webs without having any computerized IPD produced the
mattresses, bed sheets, figures of the said computerized IPD
necessary instruments, I.V. period. The figures of the said
drip stands and other required hearing committee period. The hearing
paraphernalia. Further, the also asked to show committee also
team has observed that the the original records asked to show the
IPD registers were not of the IPD duty original records of
maintained properly and rosters of doctors, IPD duty rosters of
entries were made till IPD Medicine doctors, IPD
28/06/2016. Dispensing Register Medicine
and Diet Register. Dispensing Register
In this regard, it is and Diet Register.
mentioned that we In this regard, it is
are not maintaining mentioned that we
the Diet Register. are not maintaining
the Diet Register.
In this regard, on
examination of the
Central IPD
records, even cases
of date of admission
as 21.07.2016 and
discharge of
18.07.2016 was
found. The IPD
record also indicate
11 patients were
shown as admitted
in 14.07.2016, while
the inspection team
could see none of
the patients and all
the wards were
found locked. The
patients admitted on
13.07.2016 and
shown as
discharged on
14.07.2016 were
also not found by
the inspection team.
All these indicate
the submitted
documents on bed
occupancy are fake.
7. The college does not have a It is submitted that It college As per the
genuinely functional the OT space with representatives observations of the
Operation Theatre. One room equipments are submitted that the hearing committee
was shown as meant for OT, available in the OT space with and inspection
for which name plate was hospital. However, equipments are report of Central
affixed in the presence of the it is accepted that available in the visitation team the
team. The single iron bed kept the same is not hospital. However, college unable to
in that room was found in functional. they have accepted substantiate the
very bad state with a chair that the same is not claim of fulfilling
kept on it. The bed is found functional. bed occupancy.
without any mattress, bed Hence, does not
cover etc. There were no fulfil the criteria as
requisite instruments found in per HCC (MSR),
that room. It is confirmed 2013.
that the said room is not in
use.
8. X-ray, USG, ECG these It is accepted that The college As per the
instruments were not present these instruments representatives observations of the
in the hospital. The College are not available in accepted that these hearing committee
authorities could not able to the hospital even instruments are not does not fulfil the
produce investigation reports / though separate available in the criteria HCC
relevant registers to verify. space provision has hospital even (MSR), 2013.
been made. though separate
Further MOU for space provision has
undertaking been made.
training of students
in another hospital
has been made.
9. The College does not have the It is submitted that It is submitted that As per the
functional Clinical the college posses a the college possess observations of the
Laboratory as per HCC clinical laboratory a clinical laboratory hearing committee
(MSR), 2013. There is no having the facility having the facility of does not fulfill the
pathological laboratory, Lab of different lab different lab criteria HCC
technician, Lab attendant in investigations. In investigations. In (MSR), 2013.
the hospital. this regard this regard they
photocopy of list of have submitted the
equipments and lab photocopy of list of
records. equipments and lab
records. However,
in the absence of
actual patients the
Laboratory records
appears to be
irrelevant.
10. The College does not have the As mentioned in The college As per the
Central Registration section response to point representatives observations of the
as per HCC (MSR), 2013. NO. (Iv), it is submitted that this hearing committee
One person was found submitted that these OPD case sheet will does not fulfill the
making entries of the patient OPD case sheet be recorded later criteria HCC
details in the OPD slips will be recorded from the dispensing (MSR), 2013.
without entering in any later from the register. Further
Central Registers. Then the dispensing register. since 1.7.2016
team asked him to show the Further since entries are being
Central OPD register and it 1.7.2016 entries are maintained in the
was observed that the register being maintained in form of soft copy on
was not maintained since the form of soft computer and after
09.07.2016 and kept blank copy on computer taking print out
with only date and serial and after taking from computer,
number was written. It is also print out from entries were made
found that even some serial computer, entries in central IPD
number of in between entries were made in register. Therefore
made on earlier days were central IPD some blanks were
kept blank, against which register. Therefore shown in central
nobody could provide any some blanks were OPD register at the
justification. Hence, shown in central time of inspection.
fabrication of data cannot be OPD register at the As observed against,
ruled out. time of inspection. point no. iv, the
OPD figures
appears to be
manipulated.
21. The petitioners have not made any attempt in their rejoinder-affidavits filed before
this Court to clarify/contradict the remarks of the respondent No.1 against each deficiency.
In the absence of any denial to the remarks given by the Ministry against each of the
deficiency, it must be held that the petitioners College/Hospital had not met the requirement
of the provisions of the Act of 1973/Regulations of 2013. In fact, the petitioners had only
filed in the writ petitions their reply to the show cause notices without Annexures. Even,
Mr. Sukhija did not make any strong / vociferous arguments, to contest, the conclusion of
the respondent no. 1 on deficiencies. This plea of Mr. Sukhija in this regard needs to be
rejected.
22. Insofar as the submission of Mr. Sukhija that the respondent No.1 did not have the
power to inspect the College/Hospital at the Letter of Permission stage in view of Section
12A of the Act is concerned, Section 12A of the Act reads as under:-
12A. Permission for establishment of new medical institution, new course of study, etc.-(1)
Notwithstanding anything contained in this Act or any other law for the time being in
force,--
(a) no person shall establish a Homoeopathic Medical College; or
(b) no Homoeopathic Medical College shall--
(i) open a new or higher course of study or training (including post-graduate course of
study or training) which would enable students of each course or training to qualify himself
for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or training (including the post-
graduate course of study or training),
except with the previous permission of the Central Government obtained in accordance
with the provisions of this section.
Explanation 1.--For the purposes of this section, ―person‖ includes any University or a
trust, but does not include the Central Government.
Explanation 2.--For the purposes of this section, ―admission capacity‖, in relation to any
course of study or training (including post-graduate course of study or training) in a
medical institution, means the maximum number of students as may be decided by the
Central Council from time to time for being admitted to such course or training.
(2) (a) Every person or medical institution shall, for the purpose of obtaining permission
under sub-section (1), submit to the Central Government a scheme in accordance with the
provisions of clause (b) and the Central Government shall refer the scheme to the Central
Council for its recommendations.
(b) The scheme referred to in clause (a) shall be in such form and contain such particulars
and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme from the Central Government under sub-section (2), the Central
Council may obtain such other particulars as may be considered necessary by it from the
person or the medical institution concerned, and thereafter, it may,--
(a) if the scheme is defective and does not contain any necessary particulars, give a
reasonable opportunity to the person or medical institution concerned for making a written
representation and it shall be open to such person or medical institution to rectify the
defects, if any, specified by the Central Council;
(b) consider the scheme, having regard to the factors referred to in sub-section (7), and
submit it to the Central Government together with its recommendations thereon within a
period not exceeding six months from the date of receipt of the reference from the Central
Government.
(4) 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) :
Provided that no scheme shall be disapproved by the Central Government except after
giving the person or medical institution concerned a reasonable opportunity of being heard
:
Provided further that nothing in this sub-section shall prevent any person or medical
institution whose scheme has not been approved by the Central Government to submit a
fresh scheme and the provisions of this section shall apply to such scheme, as if such
scheme had been submitted for the first time under sub-section (2).
(5) Where, within a period of one year from the date of submission of the scheme to the
Central Government under sub-section (2), no order is communicated by the Central
Government to the person or medical institution submitting the scheme, such scheme shall
be deemed to have been approved by the Central Government in the form in which it was
submitted, and, accordingly, the permission of the Central Government required under sub-
section (1) shall also be deemed to have been granted.
(6) In computing the time-limit specified in sub-section (5), the time taken by the person or
medical institution concerned in submitting the scheme, in furnishing any particulars called
for by the Central Council, or by the Central Government, shall be excluded.
(7) The Central Council, while making its recommendations under clause (b) of sub-section
(3) and the Central Government, while passing an order, either approving or disapproving
the scheme under sub-section (4), shall have due regard to the following factors, namely:--
(a) whether the proposed medical institution or the existing medical institution seeking to
open a new or higher course of study or training, would be in a position to offer the
minimum standards of medical education as prescribed by the Central Council under
section 20;
(b) whether the person seeking to establish a medical institution or the existing medical
institution seeking to open a new or higher course of study or training or to increase its
admission capacity has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment, accommo-dation, training,
hospital and other facilities to ensure proper functioning of the medical institution or
conducting the new course of study or training or accommodating the increased admission
capacity have been provided or would be provided within the time-limit specified in the
scheme;
(d) whether adequate hospital facilities, having regard to the number of students likely to
attend such medical institution or course of study or training or as a result of the increased
admission capacity, have been provided or would be provided within the time-limit
specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper
training to students likely to attend such medical institution or the course of study or
training by the persons having the recognised medical qualifications;
(f) the requirement of manpower in the field of practice of homoeopathic medicine in the
medical institution; and
(g) any other factors as may be prescribed.
(8) Where the Central Government passes an order either approving or disapproving a
scheme under this section, a copy of the order shall be communicated to the person or
medical institution concerned.‖
23. From the perusal of Sub-Sections 2, 3 and 4 of Section 12A of the Act of 1973, it is
noted that an application for obtaining permission is initially filed with the respondent No.1
Central Government, which in turn, shall refer the scheme to the Central Council, who may
obtain such other particulars as may be considered necessary by it from the person or the
medical institution concerned and the Central Government after considering the scheme and
the recommendations of the Central Council 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 or
disapprove the scheme. On the perusal of the aforesaid provisions it is revealed that Sub-
Sections 3 and 4, are similarly worded ―may obtain such other particulars as may be
considered necessary by it from the person or the medical institution concerned‖ except
that under Sub-Section 3 it is the Central Council and under Sub-Section 4 it is the Central
Government. The petitioners do not dispute the power of the Central Council to effect
inspection, even though there is no express stipulation in Sub-Section 3. In other words,
inspection is read into Section 3. If that be so, similar being the provision, i.e., Sub-Section
4, the Inspection by the Central Government must be read into it. The Inspection of a
College is one of the process for obtaining such other particulars as may be necessary from
the medical institution concerned. The power of the Central Government to cause
inspection is also clear as Sub-Section 4 of Section 12A, does not limit the power of the
Central Government only to the Scheme and recommendations of the Central Council, the
words ―after considering the Scheme and the recommendations of the Central Council
Under Sub-Section 3‖ are followed by the words ―after obtaining where necessary such
other particulars as may be considered necessary by it from the person or medical
institution concerned‖. The latter words suggest that the Central Government shall not only
consider the scheme and the recommendations of the Central Council, it may obtain "where
necessary" such other particulars as may be considered necessary from the person or
medical institution. The words "where necessary" has also relevance inasmuch as in a
given case if the particulars given in the scheme / recommendations of the Central Council
are sketchy / contradictory / amiss / dubious / not reliable etc, the Central Government shall
be within its right to itself cause an inspection and obtain particulars to satisfy itself on the
competency of the college to undertake the course. This power of the Central Government
to inspect college must not be in every case and on routine basis. It is only in a given case,
if the aforesaid parameters are met. Otherwise, the bonafide of the Central Council to cause
inspection shall be undermined. That apart under Section 12A, the Central Government is
the permission granting authority for running a Homeopathy College. An authority, which
grants permission, surely shall have the power to inspect the College for good and valid
reasons. In the case in hand, there must be reasons which actuated the respondent no.1 to
carry out the inspection. In fact, a stand has been taken by respondent no.1 in its counter-
affidavit that the visitation conducted by the team of the respondent no.1 contradicts the
observations made by the Central Council Inspection Team in respect of the petitioners
College. It is also the stand of the respondent no. 1 that the Central Council has been asked
to furnish justification and also undertake action on the Inspectors who had reported
dubiously. So, there is justification to cause inspection by the Central Government. I note
that the petitioners have not stated in their writ petitions that there is no contradiction in the
report of the Central Council and the one submitted by the Team sent by the respondent
no.1. That apart, it is noted from the replies filed by the petitioners that they have not
challenged the power / competency of the Central Government to cause inspection / make a
visit to the Institution. In the absence of any challenge, the petitioners are precluded from
agitating the issue now. That apart, there is nothing on record to show that such power was
challenged during the hearing granted to the petitioners. This submission of Mr. Sukhija is
liable to be rejected.
24. The reliance placed by Mr. Sukhija on the judgment of the Bombay High Court in
Hindustani Education Society (supra), was primarily with regard to the provisions of the
Central Council of Indian Medicine Act and the Regulations made there under, and no
attempt has been made by Mr. Sukhija to show similarity in the provisions of the two
statute / regulations. The Judgment shall not be applicable.
25. Insofar as the third submission of Mr. Sukhija that the Competent Authority has not
given a hearing, instead two others officers have given a hearing, on whose note, the
Competent Authority who was discharging the quasi-judicial function has passed the
impugned orders by relying upon the judgment of the Supreme Court in the case of
Gullapali Nageswara Rao (supra) is concerned, before I deal with the submission made by
Mr. Sukhija, it is relevant to refer and consider the judgment as relied upon by Mr. Sukhija.
In the said case, the facts as noted are that the petitioners have been carrying on motor
transport business in Krishna District for several years by obtaining permits under the
Motor Vehicles Act, 1939 in respect of various routes. The amending Act of 1956 inserted
a new Chapter, Chapter IV-A in the Act providing for the State Transport Undertaking
running the business to the exclusion, complete or partial, of all other persons doing
business in the State. Chapter IV-A provided for a machinery called the State Transport
Undertaking, defined under Section 68-A(b) as an undertaking providing road transport
service, to run the transport business in the State. In exercise of the powers conferred by
Section 68-C of the Act, one Shri Guru Pershad, styled as the General Manager of the State
Transport Undertaking of the Andhra Pradesh Road Transport, published a scheme for the
purpose of providing an efficient, adequate, economical and properly coordinated transport
service in public interest to operate the transport service mentioned therein with effect from
the date notified by the State Government. Objections were invited within 30 days from the
date of the publication of the proposal in the Official Gazette, viz., November 14, 1957. 138
objections were received. Individual notices were issued by the State Government by
registered post to all the objectors. On December 26, 1957, the Secretary to Government,
Home Department, in charge of transport, heard the objections. 88 of the objectors
represented their cases through their advocates; three of them represented their cases
personally and the rest were not present at the time of hearing. After considering all the
objections and after giving an opportunity to the objectors, their representatives and the
representatives of the State Transport Undertaking, the State Government found that the
objections to the scheme were devoid of substance. On that finding, the State Government
approved the scheme and the same was published in the Andhra Pradesh Gazette dated
January 9, 1958. The scheme was ordered to come into force with effect from January 10,
1958. The Government of Andhra Pradesh also established a Road Transport Corporation
under the Road Transport Corporations Act, 1950 called the Andhra Pradesh Road
Transport Corporation, with effect from January 11, 1958, and by its order dated January
11, 1958, the said Corporation was empowered to take over the management of the
erstwhile Road Transport Department. The said Transport Corporation is now implementing
the scheme of nationalization of bus transport under a phased programme. The petitioners,
who are plying their buses on various routes in Krishna District, apprehending that their
routes would be taken over by the Corporation pursuant to the aforesaid scheme, sought the
aid of the Supreme Court to protect their fundamental right to carry on their business
against the action of the State Government on various grounds. One of the contention
before the Supreme Court was that the State Government approving the scheme was
discharging a quasi-judicial act and therefore the Government should have given a personal
hearing to the objectors instead of entrusting that duty to its Secretary. Secondly, it is stated
that a judicial hearing implies that the same -person hears and gives the decision. But in this
case the hearing is given by the Secretary and the decision by the Chief Minister. Thirdly, it
is contended on the same hypothesis, that even if the hearing given by the Secretary be
deemed to be a hearing given by the State Government, the hearing is vitiated by the fact
that the Secretary who gave the hearing is the Secretary in charge of the Transport
Department. The Transport Department, it is stated, in effect was made the judge of its own
cause, and this offends one of the fundamental principles of judicial procedure. The
Supreme Court went into the aspect whether the State Government acts quasi-judicially in
discharging the functions under Section 68(C) of the Act. The Court held that the
Government order under Section 68(D) is a quasi-judicial act. I may only point out here
that in subsequent decisions, more particularly in the Indian National Congress-I, the
Supreme Court has culled out the following attributes for a quasi-judicial act:-
(a) a statutory authority empowered under a statute to do any act;
(b) which would prejudicially affect the subject;
(c) although there is no lis or two contending parties and the contest is between the
authority and the subject; and
(d) the statutory authority is required to act judicially under the statute, the decision of the
said authority is quasi-judicial.
26. Coming to the question, which also arose in that case whether the Secretary could
have given a hearing when the order was passed by the Chief Minister, the Supreme Court
held as under:-
―31. The second objection is that while the Act and the Rules framed
thereunder impose a duty on the State Government to give a personal
hearing, the procedure prescribed by the Rules impose a duty on the
Secretary to hear and the Chief Minister to decide. This divided
responsibility is destructive of the concept of judicial hearing. Such a
procedure defeats the object of personal hearing. Personal hearing enables
the authority concerned to watch the demeanour of the witnesses and
clear-up his doubts during the course of the arguments, and the party-
appearing to persuade the authority by reasoned argument to accept his
point of view. If one person hears and another decides, then personal hearing
becomes an empty formality. We therefore hold that the said procedure
followed in this case also offends another basic principle of judicial
procedure.‖
27. In a recent judgment in the case of Kalinga Mining Corporation (supra), on which
reliance was placed by Mr. Gogna, wherein the Supreme Court had considered the
judgment in the case of Gullapali Nageswara Rao (supra), the Supreme Court has in para
48 held as under, wherein a similar question arise.
―48. We are of the considered opinion that the conclusions reached by the
High Court cannot be said to be contrary to the established principles and
parameters for exercise of the power of judicial review by the courts. At this
stage, we may also make a reference to a submission made by Mr. Krishnan
that the High Court did not give due consideration to the grievance of the
appellant raised in the writ petition with respect to the merits because it
assumed that the appellant had attempted to bye-pass the alternative remedy
of revision available to it under Section 30 of MMDR Act read with Rules 54
and 55 of the Rules. We are of the considered opinion that the aforesaid
submission of the learned counsel is wholly misplaced. The High Court
merely noticed that the matter had been referred back to the Central
Government on a limited issue. Therefore, it was not open to the Central
Government to re-open the entire controversy. It has been observed by the
High Court that such a power would only be available to the Central
Government in exercise of its Revisional Powers under Section 30 read with
Rules 54 and 55 of the Rules. We also do not find much substance in the
submission made by Mr. Krishnan that the order dated 27th September, 2001
is vitiated as it has been passed by an officer who did not give a hearing to
the parties. This is clearly a case of an institutional hearing. The direction
has been issued by the High Court for a hearing to be given by the Central
Government. There was no direction that any particular officer or an
authority was to give a hearing. In such circumstances, the orders are
generally passed in the relevant files and may often be communicated by an
officer other than the officer who gave the hearing. The legality of
institutional hearing has been accepted in England since the case of Local
Government Board Vs. Arlidge (supra). The aforesaid judgment was quoted
with approval by this Court in Pradyat Kumar Bose (supra). This Court
approved the following passage from the speech of Lord Chancellor in the
aforesaid case:
―My Lords, I concur in this view of the position of an administrative body to
which the decision of a question in dispute between parties has been
entrusted. The result of its enquiry must, as I have said, be taken, in the
absence of directions in the statute to the contrary, to be intended to be
reached by its ordinary procedure. In the case of the Local Government
Board it is not doubtful what this procedure is. The Minister at the head of the
Board is directly responsible to Parliament like other Ministers. He is
responsible not only for what he himself does but for all that is done in his
department. The volume of work entrusted to him is very great and he cannot
do the great bulk of it himself. He is expected to obtain his materials
vicariously through his officials, and he has discharged his duty if he sees
that they obtain these materials for him properly. To try to extend his duty
beyond this and to insist that he and other members of the Board should do
everything personally would be to impair his efficiency. Unlike a Judge in a
Court he is not only at liberty but is compelled to rely on the assistance of his
staff.‖
In view of the aforesaid settled position of law, it is difficult to accept the
submissions of Mr. Krishnan that the order dated 27th September, 2001
suffers from any legal or procedural infirmity. In our opinion, the conclusions
reached by the High Court are in accordance with the settled principles of
law. Although a large number of cases have been cited by the learned counsel
for the parties on either side, but it is not necessary to consider all of them
individually as the principles with regard to observance of natural justice are
well entrenched in our jurisprudence. Undoubtedly, any decision, even if it is
administrative in nature, which causes adverse civil consequences must be
passed upon hearing the concerned parties. In our opinion, the Central
Government has fully complied with the aforesaid principle in passing the
order dated 27th September, 2001.‖
28. From the above, it is clear that in the present case, Section 12A contemplates a
decision to be taken by the Central Government with regard to the application for grant of
permission to establish a Homeopathic Medical College and in case the scheme is
disapproved by the Central Government, it necessarily has to give a reasonable opportunity
of being heard and in this case under the relevant Rules, the Minister, In-charge being the
Competent Authority, even though he has decided to disapprove the Letter of Permission on
the basis of a note given by two officers, who have given a hearing, would not vitiate such a
decision. Moreover, I note that the petitioners have subjected themselves to the jurisdiction
of the two officers. No objection with regard to the competency of such officers to give a
hearing has been taken or objected to by the representative of the petitioners. In view of the
above, this submission needs to be rejected.
29. In view of my discussion above with regard to the three broad submissions made by
Mr. Sukhija, I do not see any merit in the writ petitions. Same are dismissed.
CM. NO. 39983/2016 in W.P.(C) 10099/2016 (for Stay)
CM. NO. 40121/2016 in W.P.(C) 10129/2016 (for Stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
DECEMBER 15, 2016
ak
