Delhi High Court
Shri Ram Krishan Parmhans Shiksha ... vs Union Of India And Anr on 17 December, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 6th December, 2018
Pronounced on: 17th December, 2018
+ W.P.(C) 7954/2017 & CM APPL. 17926/2018
SHRI RAM KRISHAN PARMHANS SHIKSHA
PARISHAD ....Petitioner
Through: Mr. Raju Ramachandran,
Senior Advocate, Mr. Amitesh
Kumar, Ms. Binisa Mohanty
and Mr. Ishwar Mohanty,
Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Vikas Singh, Sr. Adv. with
Mr P.S. Singh and Mr.Zeeshan
Ansari, Advocates for the
Respondents.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
1. The petitioner - Shri Ram Krishan Paramhans Shiksha Parishad
- assails, by the present writ petition, order, dated 10 th August, 2017,
issued by the Ministry of Ayurveda, Yoga and Naturopathy, Unani,
Siddha and Homeopathy (AYUSH) (Respondent No. 2 herein),
whereby the application, of the petitioner, for permission to start a
new Ayurveda college, with 100 seats, and to confer BAMS degrees,
on the basis thereof, for the academic session 2017-18, has been
rejected.
W.P.(C) 7954/2017 Page 1 of 46
2. Statutory regime
2.1 It is necessary, at this point, to allude to the statutory regime,
relevant for the purposes of the present controversy.
2.2 Section 13A of the Indian Medicine Central Council Act, 1970
(hereinafter referred to as "the IMCC Act") provides for grant of
permission for establishment of new medical colleges/courses, and
reads thus:
"13A (1) Notwithstanding anything contained in this
Act or any other law for the time being in force -
(a) no person shall establish a medical college;
or
(b) no medical college shall -
(i) open a new or higher course of study or
training, including a post-graduate course of study
or training, which would enable a student of such
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 a 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.
W.P.(C) 7954/2017 Page 2 of 46
Explanation 2 - For the purposes of this section,
"admission capacity", in relation to any course of
study or training, including postgraduate course of
study or training, in a medical college, means the
maximum number of students as may be fixed by
the Central Government from time to time for
being admitted to such course or training.
(2) Every person or medical college shall, for the
purpose of obtaining permission under sub- section (1),
submit to the Central Government a scheme in
accordance with the provisions of sub-section (3) and the
Central Government shall refer the scheme to the Central
Council for its recommendations.
(3) The scheme referred to in sub-section (2) shall be
in such form and contain such particulars and be
preferred in such manner and accompanied with such fee,
as may be prescribed.
(4) 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 college
concerned, and thereafter, it may -
(a) if the scheme is defective and does not
contain necessary particulars, give a reasonable
opportunity to the person or medical college
concerned for making a written representation and
it shall be open to such person or medical college
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 (8) and submit it
to the Central Government together with its
recommendations thereon within a period not
exceeding 6 months from the date of receipt of the
reference from the Central Government.
W.P.(C) 7954/2017 Page 3 of 46
(5) The Central Government may, after considering
the scheme and recommendations of the Central Council
under sub-section (4) and after obtaining, where
necessary, such other particulars as may be considered
necessary by it from the person or medical college
concerned and having regard to the factors referred to in
sub-section (8), either approve the scheme with such
conditions, if any, as it may consider necessary or
disapprove the scheme and any such approval shall
constitute as a permission under sub-section (1):
Provided that no scheme shall be disapproved by the
Central Government except after giving the person or
medical college concerned a reasonable opportunity of
being heard:
Provided further that nothing in this sub-section shall
prevent any person or medical college who scheme has
not been approved by the Central Government to submit a
fresh scheme and the provision of this section shall apply
to such scheme, as if such scheme had been submitted for
the first time under sub-section (2).
(6) 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 college
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.
(7) In computing the time-limit specified in sub-
section (6), the time taken by the person or medical
college concerned submitting the scheme, in furnishing
any particulars called for by the Central Council, or by
the Central Government shall be excluded.
W.P.(C) 7954/2017 Page 4 of 46
(8) The Central Council while making its
recommendations under clause (b) of sub-section (4) and
the Central Government while passing an order, either
approving or disapproving the scheme under sub-section
(5), shall have due regard to the following factors,
namely:-
(a) whether the proposed medical college or the
existing medical college 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 22;
(b) whether the person seeking to establish a
medical college or the existing medical college
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, accommodation, training, hospital
or other facilities to ensure proper functioning of
the medical college 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 college or course of study or training
or 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
program drawn to impart proper training to
students likely to attend such medical college of
the course of study or training by persons having
recognised medical qualifications;
W.P.(C) 7954/2017 Page 5 of 46
(f) the requirement of manpower in the field of
practice of Indian medicine in the medical college;
(g) any other factors as may be prescribed.
(9) Where the Central government passes an order
either approving or disapproving the scheme under the
section, a copy of the order shall be communicated to the
person or medical college concerned."
2.3 Section 36 of the IMCC Act empowers the Central Council of
Indian Medicine (hereinafter referred to as "the CCIM") to make
Regulations, with the previous sanction of the Central Government,
for various purposes. In exercise of the powers so conferred, the
CCIM framed the Establishment of New Medical College, Opening of
New or Higher Course of Study or Training and Increase of
Admission Capacity by a Medical College Regulations, 2003
(hereinafter referred to as "the 2003 Regulations"), which came into
effect on 16th March, 2004. Regulation 4 of the 2003 Regulations
requires every person, intending to establish a medical college, to
submit a scheme, along with an application in Form-1. The authorities
to whom such application is to be submitted, and the eligibility, of an
applicant, to make such an application, are governed by Regulations 5
and 6 of the 2003 Regulations, which read thus:
"5. Authority to whom the Scheme and application
is to be submitted-
Applications and schemes under regulation 4 shall
be submitted to the Secretary to the Government of India,
Department of Ayurveda, Yoga and Naturopathy, Unani,
Siddha and Homoeopathy (AYUSH) as per the schedule
annexed to the regulations."
W.P.(C) 7954/2017 Page 6 of 46
6. Eligibility for making an application -
(1) For making an application under sub-
regulation (1) of Regulation 4, a person or a
medical college shall be eligible if, -
(a) his one of the objectives is to impart
education about Ayurveda or Siddha or
Unani Tibb;
(b) owns or possesses on lease of ninety
nine years, a suitable single plot of land,
measuring not less than ten acres if the
proposal is for admitting up to fifty students,
and not less than fifteen acres, if the
proposal is for admitting up to one hundred
students, and undertake to establish the
medical college in the said plot of land;
(c) has obtained 'No Objection
Certificate' in Form 4 from the concerned
State Government for establishing a new
medical college at the proposed site;
(d) has obtained a 'Consent of Affiliation'
in Form 5 for establishing a new medical
college from a University established under
any Central or State statute;
(e) owns and manages a hospital in Indian
medicines containing not less than one
hundred beds with necessary facilities and
infrastructure;
(f) has not already admitted students in
any class or standard or course or training of
the proposed medical college; and
(g) is in a position to provide two
performance bank guarantees from a
W.P.(C) 7954/2017 Page 7 of 46
Scheduled Commercial Bank valid for a
period of five years in favour of the Central
Council of Indian Medicine, New Delhi as
follows:
(i) for the establishment of medical
college -
Upto 50 seats - Rupees One crore
51-100 seats - Rupees Twenty
lakhs per ten or less seats
(ii) for the establishment of the
teaching hospital and its infrastructure
facilities -
Upto 150 beds - rupees one and a
half crore
Additional beds - rupees 10 lakh per
10 or less beds
Exemption: The above condition shall
not apply to the persons who are State
Governments/ Union Territories if
they give an undertaking to provide
funds in their plan budget regularly till
the requisite facilities are fully
provided as per the time bound
programme."
2.4 Regulation 9 of the 2003 Regulations specifically requires the
order, passed by the Central Government under Section 13A(9) of the
IMCC Act to "clearly indicate the preliminary requirement about
setting up of buildings, infrastructural facilities, medical and allied
equipments, faculty and staff before admitting the first batch of
W.P.(C) 7954/2017 Page 8 of 46
students". The said Regulation 9 of the 2003 Regulations was, inter
alia, amended, by the Establishment of New Medical College,
Opening of New or Higher Course of Study or Training and Increase
of Admission Capacity by a Medical College (Amendment)
Regulations, 2013 (hereinafter referred to as "the 2013 Regulations")
to read as under:
"9. Permission Order.
(1) The Central Government on the recommendation
of the Central Council shall issue a Letter of Intent to set
up a new medical college or open new course or increase
intake capacity with such conditions or modifications in
the original proposal as may be considered necessary.
(2) The Letter of Intent to set up a new medical college
shall include a clear cut statement of preliminary
requirements to be met in respect of buildings,
infrastructural facilities, medical and allied equipment,
faculty and staff before admitting the first batch of
students.
(3) The Letter of Intent to open new course or increase
intake capacity shall include a clear cut statement of
preliminary requirements to be met in respect of
buildings, infrastructural facilities, medical and allied
equipment, faculty, staff and obtaining the permission or
conditional permission for existing under-graduate and/or
postgraduate courses.
(4) The Letter of Permission shall be issued after the
above conditions and modifications specified in sub-
regulations (2) and (3) are accepted and the performance
bank guarantees for the required sums are furnished by
the person and after receiving the recommendations of
the Central Council of Indian Medicine.
W.P.(C) 7954/2017 Page 9 of 46
(5) The formal permission shall be include a time
bound programme for the establishment and expansion of
the medical college and the hospital facilities and it shall
also define annual targets as may be fixed by the Central
Council to be achieved by the person to commensurate
with the intake of students during the following years.
(6) The permission to establish a medical college and
admit students shall be granted initially for a period of
one year and shall be renewed on yearly basis subject to
verification of the achievements of annual targets. It shall
be the responsibility of the person to apply to the Central
Council of Indian Medicine for the purpose of renewal
six months prior to the expiry of the initial permission.
This process of renewal of permission shall continue till
such time the establishment of the medical college and
expansion of the hospital facilities are completed and a
formal recognition of the medical college is granted.
However, admissions shall not be made at any stage
unless the requirements of the Central Council are
fulfilled. The Central Government shall at any stage
convey the deficiencies to the applicant and provide him
an opportunity and time to rectify the deficiencies.
(7) The Central Council may obtain any other
information from the proposed medical college as it
deems fit and necessary.
(8) The order passed by the Central Government under
sub-section (9) of section 13A of the Indian Medicine
Central Council Act, 1970 shall clearly indicate the
preliminary requirements about setting up of buildings,
infrastructural facilities, medical and allied equipment,
faculty and staff before admitting the students of first
batch and subsequent batches."
3. In the above statutory backdrop, I proceed to reconnoiter the
facts.
W.P.(C) 7954/2017 Page 10 of 46
4. Facts
4.1 The petitioner is registered under the Haryana Registration and
Regulation of Societies Act, 2012. It was granted initial registration in
1983-84 and was granted a new registration number on 9th May, 2013.
Clauses 2 and 3 of the Memorandum of Association of the petitioner,
read as under:
"2) The Society shall establish, maintain and run
schools, colleges, coaching centres, technical educational
institutes as polytechnic, engineering colleges, law
colleges, management institutions and universities to
promote education, it shall set up libraries and hostels and
shall give assistance to poor and helpless students.
3) For the purpose of giving adequate medical
relief/aids to the oppressed and needy people, the society
shall establish acquire and maintain hospitals health
centres, nursing homes maternity homes family planning
centres and medical laboratories. It shall bring awareness
among the society and its members in respect of
protection against fatal diseases like AIDS and other
contagious diseases and shall help the people affected by
such diseases."
4.2 The writ petition impresses that the aforesaid objectives of the
petitioner clearly indicated that, among its objectives was the aim of
running educational institutions and colleges, which included
colleges/institutions to impart education through Ayurveda.
4.3 On 25th April, 2014, the petitioner submitted an application, to
Respondent No. 2, for grant of permission to open the afore-named
college at Digrota, and to start a BAMS course therein, with 100 seats,
from the session 2014-2015.
4.4 Respondent No. 2 responded, vide communication dated 24th
July, 2014, stating that the application of the petitioner had been
examined in terms of the relevant regulations under the IMCC Act,
and was found to be deficient in various respects. Eleven deficiencies
were pointed out in the said communication, which may be
reproduced as under, as much would turn thereon:
"No. R. 12011/33/2014-EP (IM-I)
Government of India
Ministry of Health and Family Welfare
Department of Ayurveda, Yoga and Naturopathy,
Unani, Siddha and Homeopathy (AYUSH)
To
The Secretary,
Sh. Ram Krishan Paramhans Shiksha Parishad
(Regd),
Diwan Colony,
Railway Road,
Mohindergarh-123029, Haryana
Subject: Application dated 25.04.2014 of the
Secretary, Shri Ram Krishan Paramhans Shiksha
Parishad (Regd), Diwan Colony, Railway Road,
Mohindergarh-123029, Haryana to start a new
Ayurvedic College in the name and style of "Shri Ram
College of Medical Science and Research" VPO
Digrota, District Mohindergarh, Haryana-123024
with 100 seats in BAMS course under section 13 A of
the IMCC Act, 1970 - reg.
Sir,
I am directed to refer to your application dated
25.04.2014 seeking the grant of permission of
Government of India to start a new Ayurvedic College in
the name and style of "Shri Ram College of Medical
Science and Research", VPO Digrota, District
Mohindergarh, Haryana-123024 with 100 seats in BAMS
course and to say that your application has been
examined in terms of Relevant Regulations under the
IMCC Act, 1970 and it has been observed that the
application is having the following deficiencies as per
eligibility criteria specified in Sub- Regulation (1) of
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 a
Medical College Regulations, 2003" read with
amendment Regulations of 2013 of CCIM:
(i) Application fee (Demand Draft of ₹ 3.50
lakh in favour of the CCIM, N. Delhi) as per
Regulation 8 (a) is not provided.
(ii) Certified copy of NOC of State Government
(Form-4) {Regulation 6 (1) (c)} is not provided.
(iii) Certified copy of Consent of
Affiliation/Concurrence of University (Form-
5){Regulation 6 (1) (d) } is not provided.
(iv) 100 bedded hospital of Indian System of
Medicine (Ayurveda Hospital) with necessary
facilities and infrastructure for the last one year
{MSR Regulation of 2012} is not available.
(v) One of the objectives of the Society/Trust to
impart education in Ayurveda/Unani Tibb/Siddha
{Regulation 6 (1) (a)} is not available.
(vi) Proof of ownership of hospital is not
available.
(vii) No document has been provided in support
of Consent/undertaking of Performance Bank
Guarantee of one crore from a Scheduled
Commercial Bank valid for a period of five years
{Regulation 6 (1) (g)}
(viii) No document has been provided in support
of undertaking that no students admitted in any
class or standard or course or training of the
proposed medical college {Regulation 6(1)(f)}
(ix) No document has been provided in support
of Authorisation letter addressed to the bankers of
the applicant authorizing the Central
Government/Council of Indian Medicine to make
independent enquiries regarding the financial track
record of the applicant.
(x) Two sets of application are not submitted.
(xi) No document has been attested by Gazetted
officer."
2. In view of the above deficiencies, it has been
concluded that the applicant does not fulfil the eligibility
criteria as specified under Regulation 6(1) of the
"Establishment of New Medical College, Opening of New
or Higher Course of Study or Training and Increase of
Admission Capacity by a Medical College Regulations,
2003" read with amendment Regulations of 2013 of
CCIM. Therefore, the application of the Secretary, Shri
Ram Paramhans Shiksha Parishad (Regd.), Diwan
Colony, Railway Road, Mohindergarh-123029 Haryana
to start a new Ayurvedic College in the name and style of
"Shri Ram College of Medical Science and Research"
VPO Digrota, Distt. Mohindergarh, Haryana-123024 with
100 seats in BAMS course may not be considered and is
returned.
3. However, as per provisions under second proviso
to Sub-section 5 of the IMCC Act, 1970, you may apply
afresh with all pre-requisite as required under the
relevant Regulations of the IMCC Act and CCIM norms
from 1st to 30th April of any year.
Yours faithfully,
Encl: Application in original.
(JASMINE JAMES)
Under Secretary to the Government of India"
(Emphasis Supplied)
The communication concluded that, in view of the above deficiencies,
the petitioner did not fulfill the requisite criteria entitling it to grant of
permission to establish the college, under Regulation 6(1) of the 2003
Regulations as amended in 2013. The application of the petitioner
was, therefore, returned as unworthy of consideration.
4.5 Despite Respondent No.2 having rejected the petitioner's
request for grant of permission to establish a college as
aforementioned, Essentiality Certificate/NOC was granted by the
Deputy Secretary (Health) in the Medical Education and Research
Department, Government of Haryana, vide communication dated 8th
September, 2014. The certificate permitted establishment, by the
petitioner, of the Shri Ram College of Science and Medical Research
at Digrota, with 100 seats in the BAMS course. It further certified that
adequate clinical material, as per the norms of the CCIM, was
available with the proposed college, and that, in case the petitioner
failed to create the requisite infrastructure for the college, as per the
norms of the CCIM, and fresh admissions were stopped by the Central
Government, the State government would take over the responsibility
of the students already admitted in the college, with the permission of
the Central Government. The said Certificate required the petitioner
to, inter alia, seek affiliation from the Pt. B.D. Sharma University of
Health Sciences, Rohtak (hereinafter referred to as "BDSU").
4.6 The writ petition asserts that, consequent on receipt of the
communication dated 24th July, 2014 (supra) from the Respondent
No.2, highlighting the perceived deficiencies in the petitioner's
application, the said deficiencies were "rectified" by the petitioner,
and intimation, to the said effect, forwarded, by the petitioner, to
Respondent No. 2 vide letter dated 9th September, 2014. The said
communication merits reproduction, in extenso, thus:
"Shri Ram Krishan Paramhans Shiksha Parishad (Regd.)
Diwan Colony, Mohinder Garh
Ref. No. SRK/BAMS/2014/181 Dated: 9 Sep, 2014"
Secretary of the Govt. of India
Ministry of Health & Family Welfare
Department of AYUSH
Indian Red Cross Society Building
Red Cross Road,
New Delhi
Subject: Proposal for grant of permission to open Shri
Ram College of Medical Science &
Research at Digrota to start BAMS Course
from the session 2014-15.
Sir,
1. Please refer your letter no.R.12011/33/2014-EP
(IM-1) dated 24th Jul, 2014. Copy is attached for ready
reference.
2. Under the provision of IMCC Act, 1970, as
amended from time to time a proposal was submitted by
this society vide our Letter dated 25th April, 2014.
Deficiency raised by your august office are rectified as
under:-
(a) Processing fee Central Bank of India
Mohindergarh DD No.958889 dated 9th September,
2014 for ₹ 3,50,000/- (Rupees Three Lakh Fifty
Thousand Only) is submitted toward application
process fee.
(b) NOC Essential certificate/NOC for the
establishment of a New Ayurvedic College namely
Shri Ram College of Medical Science & Research
at Digrota (Mohindergarh) Haryana by Shri Ram
Krishan Paramhans Shikhsha Parishad
Mohindergarh has been issued vide The Principal
Secretary to Govt. of Haryana Medical Education
& Research vide their Letter No. 21/77/2013-
5HBIV dated 8th September, 2014. Copies of NOC
have already been endorsed to every stake holding
agency including CCIM and your office. However
copies of the same is enclosed at Annexure-1 for
your perusal & record.
(c) Consent (Form 5) Under the provision
regulation 6 (1) (d) of IMCC Act, 1970 as amended
from has to time is under process by our affiliating
University is Pt. B.D. Sharma University of Health
Science, Rohtak (Haryana). The consent will be
submitted shortly for your perusal & record.
(d) 100 Bedded Hospital based on the
inspection report of the Team of experts, the
society owns and manages 100 bedded Hospital.
This has been certified in the NOC vide Para 2 of
letter issued by Govt. of Haryana copy attached at
Annexure 1 refers.
(e) Objectives of Society It is pertinent to
mention here that the Society has been serving in
the field of education since 1983 with a motive to
impart education in various fields to include to
establish, acquire and maintain Hospital, health
centre, nursing homes and school/colleges. Para 2
and 3 of the objectives of the society placed at
annexure-II refers in this connection.
(f) Proof of Hospital Para 2(d) above refers.
(g) Bank Guarantee State Bank of Patiala
Mohindergarh has been approached & requested by
submitting all necessary documents/requisite
information for issuance of Bank Guarantee which
is under their departmental process and will be
presented on or before inspection by the CCIM.
(h) Undertaking of Admission An undertaking
to the effect that no students will be admitted in
any class or standard of proposed medical college
without permission by the competent authority
including CCIM as required vide Regulation 6 (1)
(f) of IMCC Act 1970 as amended, is enclosed at
Annexure III.
(i) Authority Letter Authority Letter addressed
to State Bank of Patiala Mohindergarh to the effect
that Govt. of Haryana/India and CCIM are
authorised to make any independent enquiries
regarding financial track record of the Society
Annexure IV refers.
(j) Two sets of the application and enclosed.
(k) All the documents have been attested by
Public Notary.
3. In view of the above deficiency has been rectified/
justified, you are requested to process the proposal at the
earliest date convenient to you.
Sd/-
Secretary
Shri Ram Krishan Paramhans Shiksha Parishad
Diwan Colony, M.Garh
Copy to:-
Central Council of Indian Medicine
61-65 Institutional Area Opp. D Block
Janakpuri New Delhi, -110058."
4.7 Respondent No.2 responded vide letter dated 24th September,
2014, pointing out that its earlier communication, dated 24th July,
2014, had returned the application of the petitioner, and did not seek
any compliance or rectification of the deficiencies pointed out therein.
It was further underscored, in the said response, that there was no
provision allowing Respondent No. 2 to accept any proposal beyond
the prescribed period, i.e. 1st April to 30th April of the year, as was
provided in the 2003 Regulations. Inasmuch as the revised application,
of the petitioner, had been submitted on 9th September, 2014, it was
stated that the application could not be accepted and was, therefore,
returned. Liberty was, however, reserved, to the petitioner, to apply
afresh with all prerequisites as per the 2003 Regulations and the
applicable norms of the CCIM, between 1st and 30th April of any year.
4.8 It appears that, thereafter, on 1st October, 2014, an "expert
committee" constituted by the BDSU inspected the petitioner's
institution and carried out physical verification of the feasibility and
infrastructure of the proposed college, regarding the proposal to start
the first year BAMS course with 100 seats for the session 2015-2016.
On the basis of the said inspection, the Registrar of the BDSU wrote,
on 30th October, 2014 to the petitioner, again granting consent for
affiliation of the proposed college, with 100 seats, to be established at
Digrota, subject to grant of permission, by the Central Government,
under Section 13A of the IMCC Act.
4.9 Clearly, therefore, the University, to which the petitioner was
required to affiliate the college proposed to be set up by it, expressed
its consent to such affiliation, and the State Government of Haryana
had also expressed its consent to the establishment of the proposed
college at Digrota.
4.10 The petitioner, therefore, again wrote, to Respondent No. 2, on
1st November, 2014, requesting for permission to start the
aforementioned college, enclosing, therewith, the NOC issued by the
Government of Haryana and the consent for affiliation issued by the
affiliating University i.e. BDSU.
4.11 Vide communication dated 14th November, 2014, which was a
verbatim reproduction of the earlier communication dated 24 th
September, 2014 (supra), Respondent No. 2 again rejected the
petitioner's requests for setting up of the College at Digrota,
reiterating that there was no provision allowing the respondent to
accept such a proposal beyond the scheduled period of 1 st to 30th April
of the year.
4.12 The petitioner, in the circumstances, moved the High Court of
Punjab and Haryana by way of CWP 9076/2015, for issuance of a
direction, to the respondents, to consider the petitioner's proposal for
setting up a college, as submitted on 25th April, 2015.
4.13 Even while the said writ petition was pending, notice having
been issued therein, the petitioner addressed a fresh communication,
dated 20th April, 2015, to Respondent No. 1, requesting it to consider
the petitioner's proposal for establishment of the College for the
academic session 2015-2016. This was followed by a reminder dated
18th June, 2016.
4.14 On finding no response forthcoming from Respondent No. 1,
the petitioner re-approached the High Court of Punjab and Haryana by
way of CWP 9076/2015, for issuance of a direction, to Respondent
No. 1, to consider the petitioner's request for setting up the
aforementioned College for the academic session 2015-2016, as the
proposal had been submitted during the prescribed window period of
1st April to 30th April of the year. The High Court disposed of the writ
petition vide order dated 17th June, 2015, with a direction, to the
respondent, to consider the petitioner's application, if it had been
moved between 1st and 30th April, 2015.
4.15 Respondent No.1 again rejected the petitioner's application vide
communication dated 30th October, 2015, which deserves to be
reproduced, in extenso, thus:
"I am directed to refer to your letter No.
SRK/BAMS/2015-16/ dated 07.09.2015 on the subject
cited above enclosing therewith a copy of your letters
18.06.2015 and 12.08.2015 and to state that on examining
the copy of receipt of courier provided with the letter
dated 12.08.2015, it is found that the receipt of the
courier is dated 20.04.2015, with consignor sender as Shri
Ram Krishan Parmhans Shiksha Parishad, M'Garh and
consignee (recipient) as Secretary to Government.
Ministry of Health and Family Welfare, Department of
Ayush, Red Cross Building, New Delhi 110 001'. You
might be aware that the Ministry of Ayush (previously as
Department of Ayush) is placed at the addressed
mentioned in each letter of the Ministry since 3rd
November, 2012 and your application in the year 2014
was also submitted at this address and a no of
communications have been made at this address by
yourself.
2. The Hon'ble High Court disposed of your CWP
No. 90786 of 2015 on 17.05.2015 with the directions to
respondent no 2 (M/o AYUSH) to consider the
application of the Petitioner, if any moved in between
01.04.2015 to 30.04.2015 to open Ayurveda College to
start BAMS course for the academic session 2015-16. In
fact, the said order was passed one month after the said
submission of application and then it becomes difficult to
understand that how the Petitioner/Applicant perceived
such prediction one month in advance. It shows that the
Applicant managed a receipt from some courier agency to
show that he had already applied within the stipulated
period as per the Court's order and therefore, the
applicant could not submitted the track record of courier,
acknowledgement and receipt of courier by the Ministry
to substantiate his claim for receiving it by the Ministry.
Further, it is again difficult to understand that when a
person comes from such a long distance to Delhi and
instead of submitting the application in person, he prefers
to send it by a nearby courier service in Delhi.
3. Since you could not provide any substantial
documentary evidence in support of your claim for
submitting the application to the Ministry within the
stipulation period as per Court's direction mentioned
above, your request cannot be considered at this state and
your letter dated nil received on 01.07.2015 in the
Ministry alongwith Demand Draft of ₹ 3.5 lakh bearing
no. 344662 dated 20.06.2015 is returned herewith in
original.
4. However, you may apply afresh with all pre-
requisites as required under the relevant Regulation of the
IMCC Act and CCIM norms from 1st to 30th April of any
year."
5. This issues with the approval of the Competent
Authority.
Yours Faithfully
Sd/-
(Jasmine James)
Under Secretary to the Government of India"
4.16 The petitioner replied to the aforementioned communication,
dated 30th October, 2015, vide its letter dated 10th November, 2015,
submitting that it had only requested, vide its letter dated 20th April,
2015 (supra), for consideration of its proposal to set up a college from
the academic session 2015-2016, instead of 2014-2015, as had earlier
been applied. It was also submitted, in the said communication that,
owing to the lapse of time that had occurred, it was not possible for
the petitioner to provide the track record of the movement of the letter
dated 20th April, 2015 (supra).
4.17 The above request, for consideration of the application
submitted by the petitioner on 20th April, 2015, was reiterated in yet
another communication, from the petitioner to the respondent, dated
11th January, 2016.
4.18 On 28th April, 2016, the petitioner submitted a fresh proposal,
seeking permission to open the College at Digrota for the academic
session 2016-2017. This resulted in a communication, dated 8 th
September, 2016, from the CCIM to the petitioner, referring, once
again, to the following eleven perceived "shortcomings":
"1. Applicant has submitted the application in
prescribed form-1, but not attested by the Gazetted
Officer.
2. Objective to impart education about Ayurveda has
not been submitted.
3. 'No Objection Certificate' of State Government
has been submitted, but not attested by the Gazetted
Officer.
4. 'Consent for affiliation of University has been
submitted, but not attested by the Gazetted Officer.
5. Photocopy of zoning plans of available sites
indicating their land use has not been submitted.
6. Certified copy of the title deeds of the total
available land as a proof of ownership has not been
submitted.
7. Proof of ownership of existing hospital and
distribution of beds has not been submitted.
8. Certified copy of undertaking regarding not
admitted students in any class or standard or course or
training purpose has not been submitted.
9. Authorization letter addressed to the Bankers of the
applicant authorizing the Central Government/Central
Council of Indian Medicine to make independent
enquiries regarding the financial track record of the
applicant has not been submitted.
10. Undertaking to provide performance, bank
guarantees from a Scheduled Commercial Bank in favour
of the Central Council of Indian Medicine, New Delhi
has not been submitted.
11. Enclosures are not attested by a Gazetted Officer. "
The petitioner was requested to "comply with" - which, presumably,
meant to "rectify"- the said "shortcomings" within 10 days of
issuance of the said letter.
4.19 The petitioner responded on 12th September, 2016, resubmitting
the documents evidencing compliance/rectification, by the petitioner,
of the aforementioned shortcomings. The said letter reads thus:
"1. Please refer to your letter no. 026-111/2016-Ay
dated 08-Sep 2016
2. The following documents are resubmitted duly
attested by Notary Public as desired by your office:-
(a) Copy of application(already submitted) in
prescribed Form 1 duly attested
(b) Objective to impart education about
Ayurveda duly attested.
(c) Copy of 'No Objection Certificate' of State
of Haryana duly attested.
(d) Copy of 'Consent of Affiliation' of Pt. B.D.
Sharma University of Health Sciences Rohtak duly
attested.
(e) Copy of zonal plan of available sites
indicating land use duly attested.
(f) Copy of Registration Deed of land in the
name of Shri Ram Krishan Paramhans Shiksha
Parishad (Regd.) duly attested.
(g) Shri Ram Hosptial Digrota is running since
01 Feb, 2014. The Hospital has an agreement for
bio-waste management with M/s Maruti Bio
Medical waste plant Bhiwani. A copy of agreement
renewed w.e.f. 2 May, 2016 to 31 Mar, 2017 is
attached duly attested. Distribution of beds is also
attached duly attested.
(h) Undertaking regarding not admitting the
students without permission of CCIM, duly signed
and attested.
(i) Authority letter addressed to Manager
Central Bank of India Railway Road Mohindergarh
for making independent enquiry regarding the
financial track record, in original.
(j) Copy of Undertaking to provide
performance Bank Guarantee in favour of the
Central Council of Indian Medicine, New Delhi
duly signed and attested."
4.20 Following on the above communication, the CCIM, vide letter
dated 19th September, 2016, constituted an expert committee of three
members, to visit the petitioner's college on 21 st and 22nd September,
2016 and submit a report.
4.21 Consequent on the visit of the aforementioned team of experts
of CCIM, Respondent No.1 wrote, on 5th April, 2017, to the petitioner,
stating that the visiting team of experts had observed that the proposed
college did not fulfill the following pre-requisites:
(i) The petitioner did not "have object to impart education in
Ayurveda discipline as per the regulation 6(1)(A) and had
submitted the objective written on its letter head, "which is not
registered in Societies Act".
(ii) "Visitors have observed that there is no concept of
departmental OPD/IPD. Computerized OPD/IPD registration
System not available. Records of OPD/IPD not available and
even does not correlate with available documents. Further, the
IPD data as submitted by the petitioner shows that no. of IPD
pt. admitted and no. of bed days occupied are same, which
seems impractical. In view of these, it appears that the petitioner
does not have functional hospital of concerned system as
specified in the relevant notified MSR Regulations."
The petitioner was, in these circumstances, granted an opportunity of
hearing, as contemplated by Section 13A(5) of the IMCC Act, to
present its case and clarify the position and to show cause why its
application be not rejected.
4.22 It is an admitted position that the petitioner was, in fact, heard
by the "Hearing Committee" of Respondent No. 1 on 5th May, 2017,
on which occasion written submissions were also furnished by the
petitioner. The petitioner also submitted an affidavit, dated 9th May,
2017, under cover of a letter, to the effect that imparting education in
"BAMS (Ayurveda)" was one of the objectives of the petitioner
society.
4.23 Vide the impugned communication, dated 10th August, 2017,
Respondent No. 1 again rejected the petitioner's application for
establishment of the aforementioned Ayurveda college at Digrota,
holding that the petitioner "could not produce sufficient
documents/evidence to substantiate their claim of having functional
hospital and society's objective to impart education in Ayurveda
discipline, as required as per the notified relevant regulations", and
was not, therefore, "fulfilling the basic eligibility and criteria as per
Regulation 6 of the 2003 Regulations to start new college for UG-
BAMS" course with 100 seats. It was also noted that the CCIM had
also disapproved the scheme and recommended for not issuing letter
of intent, to the petitioner, to start a new Ayurveda college.
4.24 The impugned communication also contains a tabular statement
constituting the "deficiencies communicated on 6th April, 2017", "the
submissions made by the representatives on 5 th May, 2017" and "the
observations made by the Hearing Committee" following thereupon.
The said tabular statement may be reproduced thus:
"
Deficiencies Submissions Observation made
communicat made by the by the hearing
ed on representatives committee
06.04.2017 on 05.05.2017
i. The The college Hearing committee
society/ trust representatives observed that the
does not have stated that the college
objective to society does not representatives have
impart have the objective accepted that the
education in to impart society does not
Ayurveda education in the have objective to
discipline as field of medical impart education in
per science that Ayurveda discipline
Regulation 6 include all types as per Regulation 6
(1) (a). The of pathy/method (1) (a) at the time of
applicant has of treatment in hearing.
submitted the field of
objective medical science.
written on We accept that the
their letter society does not
head which is have objective to
not registered impart to
in society education to
Act. Ayurveda
discipline as per
Regulation 6 (1)
(a) at the time of
hearing but we
will include the
same in future.
ii. Visitors The college Hearing committee
have representatives observed that the
observed that stated that we have college
there is no functional hospital. representatives
concept of We accept that we have accepted that
departmental did not had the college does not
OPD/IPD computerized have computerized
computerized OPD/IPD OPD/IPD
OPD/IPD registration system registration system
registration at the time of at the time of
system not CCIM visitation CCIM visitation.
available. but we have Hearing Committee
Records of computerized also observed that
OPD/IPD OPD/IPD the college has
not available registration system purchased & is
and even does at the time of maintaining web
not correlate hearing and we are based central
with available submitting the registration for the
documents. required documents patients w.e.f. 2
Further, the to prove it. The January,2017. The
IPD data as college record can be
submitted by representatives checked at
the Applicant further stated that www.Finprod-
shows that we are submitting techno.com/admissi
the no. IPD case sheets of on. Hearing
pt. admitted Balroga. Prasuti committee further
and no. of tantra and Shalakya observed that the
bed days along with Central college
occupied are OPD/IPD register. representatives
same, which We accept that we could not produce
seems are unable to lab investigation
impractical. produce Lab. register, kay-
In view of Investigation chikitsa IPD sheets
these, it Register, Kay- and OPD/IPD
appears that Chikisa IPD case register/case sheets,
the applicant sheets and and Shalya IPD
does not have OPD/IPD registers register/case sheets.
functional and Shalya IPD Hearing Committee
hospital of register/case sheets, also observed that
concerned Panchkarma IPD the college
systems register/case sheets, representatives
specified in Doctors were unable to
the relevant duty/attendance/sal produce
notified MSR ary record before duty/attendance/sal
Regulations. the hearing ary record of the
committee as we hospital staff.
forgot to bring the Hearing committee
above mentioned further observed
record. that there are few
discrepancies in the
The college central OPD
representatives also register like Date is
stated that we are not mentioned at
unable to produce many placed in the
any record except OPD register. In the
web based central register registration
OPD/IPD no. 11650 appears
registration post 31 after 11747 after
December 2016 at registration No.
the time of hearing. 13703, 14115
appears data of
Central OPD
register and OPD
drug dispensing
register for the
month of April
2016 does not
match. Ongoing
through the IPD
case sheets it is
observed. The IPD
case sheets are not
duly filled. Sections
like duration of
illness in the
present history,
duration of chief
complaints, family
history, past history
are not filled.
Systemic
examination, vitals
like BP and
Respiratory Rate is
not mentioned in
case sheets. Case
sheets of Patient
Janki OPD No.
52990 and IPD No.
2834 is totally
blank. Dose of
drugs is not
appropriate in case
sheets. There is no
record of any
investigation which
is carried out, in the
case sheets.
Overall observation of the Hearing Committee:
After examining the detailed records of the college and as
per the oral and written reply submitted by the
representatives of the college, it may be inferred that:
i. The college / society does not have objective to impart
to
education to Ayurveda discipline as per regulation 6 (1) (a)
ii. The OPD data seems to be manipulated hence
unreliable.
iii. IPD is non functional."
4.25 Paras 9 and 10 of the impugned communication, thereafter,
conclude as under:
"9. Whereas, in view of the above observations of the
hearing committee based on submissions made by the
college during hearing as in para 8 above and the
recommendations and visitation report of the CCIM
referred in para 3 above, it can be understood that the
above said Trust does not have the objective to impart
education in Ayurveda discipline and functional
Ayurveda hospital as specified in the notified relevant
regulations, which violate the provisions of the IMCC act
and the relevant regulations and is of such a serious and
fundamental in nature that they adversely affect the
ability of the proposed college to provide quality medical
education in terms of the provisions of the IMCC act and
the relevant regulations. The college representatives were
given opportunity of hearing to present the case, but they
could not produce sufficient documents / evidences to
substantiate their claim of having functional Ayurveda
hospitals which is not only, required to have at the time
of application but is required to be functional one year
before making an application for running an Ayurveda
College. Hence, the Applicant is not fulfilling the basic
eligibility criteria as per the Regulation 6 of the
regulation namely the Establishment of New Medical
College, Opening of New or Higher Course of Study or
Training and Increase of Admission capacity by a
Medical College Regulations, 2003 read with the
amendment regulations of 2013, to establish a new
Ayurveda college.
10. Now therefore, in view of the shortcoming and
deficiency particularly about the non availability of
functional Ayurveda hospital and objective to impart
education in Ayurveda discipline, which are essential pre
requisite to make application and to establish a new
Ayurveda college in terms of the provisions of the IMCC
act and the relevant regulations therefore, it has been
decided not to issue letter of intent to the secretary, Shri
Ram Krishan Parmhans Shisksha Parishad, Diwan
Colony, Railway Road, Mohinder Garh, Haryana to start
a new Ayurveda College in the name of Shri Ram
College of Medical Science &Research at Digrota, Distt.
Mohindergarh, Haryana with 100 seats in BAMS course
from the Academic session 2017-18 under section 13 A
of the IMCC Act, 1970. Hence, the Applicant / Scheme
dated 28.04.2016 of the Applicant for the above purpose
is disapproved."
5. Assailing the said decision, the petitioner is before this Court, in
the present proceedings, which seek to invoke Article 226 of the
Constitution of India.
6. Rival Stands
6.1 Detailed arguments were advanced by learned senior counsel
Mr. Raju Ramachandran, appearing for the petitioner and Mr. Vikas
Singh appearing for the respondent.
6.2 Mr. Ramachandran sought, first, to rely on Section 13A (6) and
(7) of the IMCC Act, to urge that, as the petitioner had submitted its
scheme for approval to Respondent No 1 on 29th April, 2016, at the
expiry of the period of one year from the said date, the scheme was
deemed to be approved, and that its rejection, on 10th August, 2017,
had no meaning. Mr. Ramachandran drew my attention to the
following tabular statement, contained in para 22 of CM 17926/2018,
filed by the petitioner in these proceedings, which indicated how the
said provision operated in the present case. These facts, Mr.
Ramachandran submits, could not be disputed, and effectively
concluded the case in favour of his client. Reliance was placed, by Mr.
Ramachandran, in this context, on the judgement of the High Court of
Gujarat in Parul University v. U.O.I., 2017 SCC Online Guj 77,
which dealt with sub-section (5) of Section 12 of the Homoeopathy
Central Council Act, 1973, which is in pari materia and in haec verba
with sub-section (6) of Section 13A of the IMCC Act, reading, as it
does, thus:
"(5) Where, within a period of one year from the date of
submission of the scheme to the Central Government
under the subsection (2), no order is communicated by the
Central Government to the person or the 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 the sub-section (1) shall also be deemed to
have been granted."
Admittedly, this decision, of the High Court of Gujarat, holds that, on
the expiry of one year from the date of submission of the scheme for
establishment of the college, the scheme is deemed to be approved.
Mr. Ramachandran also points out that the Special Leave Petition,
preferred against the above decision of the High Court of Gujarat was
also dismissed, by the Supreme Court, vide order dated 5th February,
2018.
6.3 On merits, Mr. Ramachandran points out that the application of
the petitioner was rejected only on two grounds, i.e., firstly, that the
petitioner did not "have objective to impart to education to Ayurveda
discipline as per Regulations 6(1)(a)" and that the said objective had
been submitted, by the petitioner, on its letterhead "which is not
registered in Societies Act" and (ii) that "there is no concept of
departmental OPD/IPD computerised OPD/IPD registration system
not available", that the "records of OPD/IPD... does not correlate
with available documents" and that "the no. of IPD pt. admitted and
no. of bed days occupy the same, which seems impractical", thereby
making it appear that the petitioner "does not have functional hospital
of concerned systems specified in the relevant notified MSR
Regulations".
6.4 Mr. Raju Ramachandran submitted that, in thus rejecting the
petitioner's application, the impugned order proceeded in ignorance of
the communication dated 12th June, 2017, from Respondent No. 1 to
Respondent No. 2 (i.e. from the Ministry of AYUSH to the CCIM)
conveying the decision of the Central Government, to relax the
Minimum Standard Requirements (MSRs) for processing cases of
Ayurveda, Siddha, Unani and colleges for grant of permission under
Section 13A/13C of the IMCC Act, for the academic session 2017-
2018. Mr. Ramachandran points out that, among the relaxations,
enumerated in the said letter, was the following:
"(ii) The requirement of web based computerized
central registration system for maintaining the records of
patients in Out Patient department and In Patient
Department of the Hospital as a measure of relaxation,
will not be insisted upon for the academic session 2017-
18."
6.5 Apropos the objectives of the petitioner-society, Mr. Raju
Ramachandran drew my attention to its Memorandum of Association
(MOA). Among the aims and objectives of the petitioner-society, as
enumerated in the said MOA, was, Mr. Ramachandran pointed out,
the following:
"2. The society shall establish, maintain and run
schools, college, coaching centres, technical educational
institutes as polytechnic, engineering colleges, law
colleges, management institutions and universities to
promote education. It shall set up libraries and hostels
and shall give assistance to poor and helpless students."
This objective, Mr. Ramachandran would contend, was broad enough
to satisfy the mandate of the law.
6.6 Mr. Ramachandran also pointed out, in this context, that, on 5th
May, 2017, the petitioner had written to Respondent No.1, specifically
stating that the objectives of imparting education in the field of
medical science which included all types of pathy/methods of
treatments, and that the petitioner was more than capable to impart
education in the field of Ayurveda.
6.7 For these reasons, Mr. Raju Ramachandran would contend, the
impugned decision of Respondent No.1 to reject the petitioner's
prayer for approval, to set up the college at Digrota, was vitiated.
6.8 Arguing per contra, Mr. Vikas Singh, learned Senior counsel,
appearing for Respondent No.2, submitted that the period of one year,
for the purposes of Section 13A(6) of the IMCC Act, would be liable
to be reckoned from September, 2017, as the application, as initially
submitted, was defective and clarifications, in that regard, had been
provided by the petitioner only in September, 2017.
6.9 Besides, Mr. Singh would contend, it would not be in public
interest to allow a medical college, which did not possess the requisite
facilities or infrastructure, to commence functioning. This Court,
exercising jurisdiction under Article 226 of the Constitution of India,
Mr. Singh would submit, has also to keep in mind the paramount
consideration of public interest, while examining whether to grant
relief, in a particular case, or not. For this proposition, Mr. Singh
would place reliance on para 24 of Rajasthan State Industrial
Development and Investment Corporation v. Subash Sindhi Co-
operative Housing Society, Jaipur, (2013) 5 SCC 427 and para 26 of
Ritesh Tewari v. State of U.P., (2010) 10 SCC 677.
6.10 On merits, Mr. Singh submits that the MOA of the petitioner
did not contain any specific mention of any objective to impart
education in Ayurveda.
6.11 For these reasons, Mr. Singh would contend that the writ
petition is liable to be dismissed.
7. Analysis
7.1 The facts of the case, and the submissions advanced at the bar,
throw up, clearly, the following distinct issues, for decision:
(i) whether, by operation of sub- section (6) of Section 13A
of the IMCC Act, approval, by Respondent No. 1, to the
petitioner's scheme for setting up the college at Digrota, could
be deemed to have been granted, and
(ii) whether the decision, of Respondent No. 1 to reject the
petitioner's application for approval to set up the college, was
legally sustainable.
7.2 Issue (ii) would, in turn, involve two aspects, i.e., (a) whether
the petitioner had the "object to impart education in Ayurveda
discipline as per Regulation 6(1)(A), and (b) whether the petitioner
had the "concept of departmental OPD/IPD and a functional hospital
with the said facilities.
7.3 It is also obvious that, if issue (i), i.e. the issue of "deemed
approval" is decided in favour of the petitioner, issue (ii) may not
continue to remain of significance.
7.4 In this context, I deem it appropriate to address, first, the
submission, of Mr. Vikas Singh, that, even if this Court were to find,
by applying sub-section (6) of Section 13A of the IMCC Act, to the
facts of the present case, that the petitioner was entitled to regard
approval, to its scheme for setting up the Ayurveda College at
Digrota, to be deemed to have been granted, it would not proceed to
issue a writ of mandamus on that basis, given the overriding
consideration of public interest. Mr. Singh has sought to emphasise
the fact that we are dealing with an institution seeking to impart
medical education and that, therefore, the Court is required to be
mindful of the deleterious consequences that could ensue, were such
an institution be, so to speak, unleashed on the public, without the
requisite infrastructure or facilities.
7.5 I find it difficult to subscribe to the above argument, as
enunciated by Mr. Singh. There can be no doubt about the fact that a
writ court, exercising jurisdiction under Article 226 of the
Constitution of India, has always to act in public interest. Equally,
however, the legislature, while legislating, does so under the authority
conferred on it by the Constitution, which has been given by us to
ourselves, and there is a predominating presumption, known to law,
that the legislature always acts in public interest. While enacting sub-
section (6) in Section 13A of the IMCC Act, the legislature was well
aware of the fact that it was dealing with grant of approval to the
scheme for setting up and establishing medical colleges. Even so, if
the legislature thought it appropriate to craft, into the legislation, a
provision for "deemed approval", it cannot constitute part of the
judicial function, of any court, to refuse to apply the said provision,
even where the facts merit its application, on some perceived notion
of "public interest". The court cannot claim superiority, as a sentinel
of the public interest, than the legislature. Respect to the legislative
edict, by the judiciary, is at all times not only desirable but imperative
and, therefore, this Court would be required to assess the applicability,
to the petitioner, of sub-section (6) - and, in its company, sub-section
(7) - of Section 13A of the IMCC Act, as they stand. If the said
provisions, as applied to the case of the petitioner, lead to the
conclusion that approval, to the scheme propounded by the petitioner
and submitted to Respondent No. 1, for establishment of the
Ayurveda College, is deemed to be granted, the benefit thereof has
necessarily to be extended to the petitioner.
7.6 Proceeding, now, to sub- sections (6) and (7) of Section 13A of
the IMCC Act, in my view, the stand of the petitioner, as vocalised by
Mr. Ramachandran, notes the fact that, by the letter dated 24th July,
2014, the application, dated 25th April, 2014, of the petitioner, was
rejected. To my mind, the letter is categorical and unambiguous, in
this respect. It clearly states that the application, dated 25th April,
2014, of the petitioner "has been examined in terms of Relevant
Regulations under the IMCC Act", and goes on to "conclude that (the
petitioner) does not fulfil the eligibility criteria as specified under
Regulation 6(1) of the 2003 Regulations", as amended in 2013. In
view thereof, the petitioner's application was returned. Moreover, the
communication permitted the petitioner to apply afresh, under the
proviso to sub- section (5) of Section 13A of the IMCC Act. The
reference, here, is, apparently, to the second proviso of the said sub-
section, which reads thus:
"Provided further that nothing in this sub-section shall
prevent any person or medical college whose scheme has
not been approved by the Central Government to submit
a fresh scheme and the provision of this section shall
apply to such scheme, as if such a scheme had been
submitted for the first time under sub-section (2)."
This provision, and the tenor of, is, again, unmistakable and
unequivocal. It contemplates an applicant submitting a fresh scheme,
once the scheme submitted earlier has not been approved by the
Central Government. If such a fresh scheme is submitted, the proviso
ordains that the scheme would have been deemed to have been
submitted for the first time. The grant of liberty, by Respondent No. 1,
in the afore-extracted communication, dated 24th July, 2014, to the
petitioner, to apply afresh, under the second proviso to Section 13A(5)
of the IMCC Act, clearly indicates that the application, submitted by
the petitioner on 25th April, 2014, stood rejected, by the communiqué
dated 24th July, 2014. Respondent No.1, in fact, reiterated this
position, in its communication dated 24th September, 2014 (supra), in
which it was pointed out that the earlier communication dated 24th
July, 2014, did not call upon the petitioner to remove any deficiencies,
or rectify any defects, but, instead, returned the petitioner's
application, reserving liberty to the petitioner to re-apply during the
prescribed window, i.e. 1st to 30th April of any year.
7.7 The submission, of Mr. Ramachandran, that, by operation of
sub- section (6) of Section 13A of the IMCC Act, approval, for
establishment of the college at Digrota, by the petitioner, was deemed
to have been granted cannot, therefore, sustain, and is accordingly
rejected. As I have found, on facts, that there has been no infraction,
by the respondents, of the time-period stipulated in Section 13A(5) of
the IMCC Act, it is not necessary to refer to the decision in Parul
University (supra), on which Mr. Ramachandran placed reliance.
7.8 Proceeding, then, to the impugned order, dated 10th August,
2017, Mr. Ramachandran points out, correctly, that, as against the
various "deficiencies" perceived, in the petitioner's establishment, and
in its application, by Respondents No. 1 and 2 in their earlier
communications, the impugned communication cites only two
grounds, for opining that the petitioner did not fulfil the basic
eligibility criteria, required to be fulfilled in order to permit to
establish the college, i.e. (i) that the petitioner "does not have
objective to impart education to Ayurveda discipline as per
Regulations 6(1)(a)", and the said objective, as submitted by the
petitioner on its letterhead, was not sufficient, and (ii) that the visiting
team of the CCIM had observed that there was no departmental
OPD/IPD or computerised OPD/IPD registration system available,
and that the records of the OPD/IPD did not correlate with the
available documents. Doubt was also cast on the IPD data as
submitted by the petitioner, as the number of patients admitted was
equal to the number of bed days occupied. On this basis, it was opined
that the petitioner did not have a functional hospital, as required by
the MSR Regulations.
7.9 Inasmuch as the first objection relates to Regulation 6(1)(a) of
the 2003 Regulations, it would be appropriate to examine the said
provision. The said sub-Regulation, though inelegantly worded, reads
thus:
"6. Eligibility for making an application. - (1) For
making an application under sub-regulation (1) of
regulation (4), a person or a medical college shall be
eligible if, -
(a) his one of the objectives is to impart
education about Ayurveda or Siddha or Unani/
Tibb;"
7.10 Mr. Ramachandran has referred me to Clauses 2 and 3 of the
Memorandum of Association of the petitioner which, in his
submission, were sufficient to fulfil the mandate of the above
requirement. I regret that I am unable to agree. There is no reference,
in either of the said clauses - which stand reproduced in para 4.1
(supra) - indicating that the petitioner had any objective of imparting
education in Ayurveda. Indeed, somewhat strangely, there is no
reference to Ayurveda in the entire Memorandum of Association of
the petitioner. The submission, of Mr. Ramachandran, that the
objectives of the petitioner, as set out in its Memorandum of
Association, met with the requirement of Regulation 6(1)(a) of the
2003 Regulations cannot, therefore, pass muster. Learned counsel for
the respondent is correct in submitting that Regulation 6(1)(a) of the
2003 Regulations required the person or the medical College, seeking
approval/permission for establishment, to have, as one of its
objectives, imparting of education about Ayurveda. No such objective
is to be found, in the Memorandum of Association of the petitioner.
7.11 I am also unable to accept the affidavit, dated 9th May, 2017,
submitted by the petitioner, avowing that one of its objectives was
imparting of education in Ayurveda, as sufficient to meet the
requirement of Regulation 6(1)(a) of the 2003 Regulations, especially
in view of the fact, already noted by me hereinabove, that the
Memorandum of Association of the petitioner was totally silent
regarding Ayurveda, or imparting of any education in Ayurveda. The
requirement of having, as one of its objectives, imparting of education
about Ayurveda, is the very first requirement stipulated in Regulation
6(1) of the 2003 Regulations and has, therefore, necessarily to be
accorded primacy. The legislature has included the requirement which
a purpose, and it is not for Courts to frustrate the intent of the
legislature by undermining the said requirement. Ayurveda is an
ancient science, and single-minded dedication and devotion to
propagation of the said science, and imparting of education therein, is
of the essence, before permission, to set up an educational institution
for the said purpose, could be accorded. Where the Memorandum of
Association of the petitioner made no reference, whatsoever, to
Ayurveda, the decision, of Respondent No. 1 to reject the petitioner's
application, for establishment of a college imparting education in the
said science, cannot be regarded, in any manner, as arbitrary, or
deserving of interference by this Court under Article 226 of the
Constitution of India.
7.12 The second objection to the petitioner's application, as reflected
in the impugned communication dated 10 th August, 2017, relates to
the OPD/IPD facilities available with the petitioner. Where issues
involving medical education and medical colleges are concerned, the
court is necessarily required to tread with caution. There is,
undoubtedly, substance in Mr. Singh's submission that the court
should not be privy to a decision, whereby medical education would
be imparted by an institution lacking the requisite infrastructure.
Neither, it is equally well settled, is it the duty of the court to sit in
appeal over the decision, of the respondent, regarding the availability,
or non-availability, of the requisite infrastructure, with the petitioner.
7.13 It is not necessary, however, for me to examine, in any greater
detail, the objection, of the respondents, to the availability (rather non-
availability) of requisite OPD/IPD facilities with the petitioner, in
view of my finding, hereinabove, that the requirement of Regulation
6(1)(a) of the 2003 Regulations, fulfilment of which is a sine qua non
for an applicant to be eligible to establish a medical college, was not,
in fact, fulfilled, in the case of the petitioner.
Conclusion
8. In view of the above discussion, I am unable to find any
infirmity, in the impugned order dated 10th August, 2017, as issued by
Respondent No 1, or the rejection, of the petitioner's application for
permission to establish the Ayurveda College at Digrota, thereby.
9. Needless to say, this would not inhibit the petitioner from
applying afresh, for the said purpose. Any such application, if made,
would, obviously, be considered by the respondents in accordance
with the provisions of the IMCC Act and the 2003 Regulations, as
amended.
10. Subject to the above, the writ petition is dismissed, with no
order as to costs.
C. HARI SHANKAR, J
DECEMBER 17, 2018
dsn
