IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE12H DAY OF DECEMBER201321ST AGRAHAYANA, 1935 WA.No. 1690 of 2013 () IN WP(C).12542/2013 -------------------------------------------- AGAINST THE ORDER
IN WP(C) 12542/2013 of HIGH COURT OF KERALA APPELLANT/PETITIONER: --------------------- PANKAJA KASTHURI AYURVEDA MEDICAL COLLEGE, KATTAKKADA, THIRUVANANTHAPURAM-695572, REPRESENTED BY THE MANAGING DIRECTOR DR. J.
HAREENDRAN NAIR. BY ADVS.SRI.GEORGE POONTHOTTAM SRI.T.R.RAVI RESPONDENT(S): ------------- 1. UNION OF INDIA REPRESENTED BY THE UNDER SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE (DEPARTMENT OF AYUSH) BLOCK B, GPO COMPLEX, INA NEW DELHI-110023.
2. CENTRAL COUNCIL OF INDIAN MEDICINE --- DELETED6165, INSTITUTIONAL AREA, JANAKPURI NEW DELHI-110058. R2 DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER
DT.12.12.2013 IN I.A.1097/13 IN WA169013. R BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON1212-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.1690 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of December 2013 JUDGMENT
K.T. Sankaran J., The appellant, Pankaja Kasthuri Ayurveda Medical College, provides under graduate courses in Ayurveda from 2002 onwards. For conducting under graduate courses or post graduate courses in Ayurveda, permission from the Department of AYUSH under the Ministry of Health and Family Welfare, Government of India, is necessary. Before granting permission, the Central Council of Indian Medicine (C.C.I.M.) would conduct an inspection at the College in order to ensure whether the requirements for running a College are satisfied. Permission would be granted for one year, which is required to W.A. No.1690 of 2013 :2: be renewed every year. It is submitted that the appellant College runs the under graduate courses since 2002 without any break and that permission was being granted on the basis of inspection of C.C.I.M. every year.
2. The appellant applied to the Department of AYUSH on 26.4.2010 for granting permission to commence post graduate course in the College in two specialities namely Kayachikitsa and Shalyatantra. It would appear that the said application dated 26.4.2010, was not granted by AYUSH. The appellant made a second application dated 25.4.2012 for commencing post graduate courses in the above disciplines. The inspection team of C.C.I.M. conducted an inspection at the hospital and submitted an evaluation report to AYUSH. Based on that evaluation report, the Department of AYUSH rejected the application as per Ext.P6 order dated 25.4.2013, which was challenged by the appellant in W.P.(C) No.12542 of 2013. The W.A. No.1690 of 2013 :3: learned Single Judge dismissed the Writ Petition, which is under challenge in this Writ Appeal filed by the writ petitioner.
3. The learned Single Judge dismissed the writ petition mainly on the ground that the court cannot substitute its wisdom and judge whether a particular institution fulfils necessary criteria for being eligible to conduct classes in a particular discipline. The learned Single Judge also held that the decision of the Central Government is not a perverse decision and that there is no scope for interference in the matter under Article 226 of the Constitution.
4. In the Writ Appeal, the appellant produced Annexure A1 dated 27.9.2013, by which the appellant was granted permission to continue the under graduate course for the academic year 2013-14. Annexure A1 indicates that the C.C.I.M. had carried out the inspection on 1.7.2013 and 2.7.2013 in the appellant College to ascertain whether they W.A. No.1690 of 2013 :4: satisfy relevant criteria for granting permission. The inspection team of C.C.I.M. made an evaluation report that the appellant College satisfies the required criteria. Based on that evaluation report, the department of AYUSH, Government of India granted permission to the appellant College to run under graduate courses for the year 2013-14.
5. The learned counsel for the appellant submitted that for under graduate course and post graduate course, different criteria have been fixed on different aspects. It is submitted by the learned counsel for the appellant that going by Annexure A1, it can be seen that the appellant fulfils the criteria for post graduate course as well, the evaluation having been made for the relevant period which is relevant for consideration for post graduate course as well. For the sake of convenience, the details given in Annexure A1 under the head "Details regarding the functioning of the Hospital" are extracted below: W.A. No.1690 of 2013 :5: "Details regarding the functioning of the Hospital Required Available Short comings Total number of OPD88 - Total number of patients attended OPD from 1st Jan 2012 to - 18.7.2012 16400 32915 Total number of patients attended OPD from 19.7.2012 to 31.12.2012 19920 for 60 24620 seats 33200 for 100 seats Total number of patients OPD from 1st Jan 2012 to 31st Dec 2012 Up to 60 UG57535Intake 36320 Up to 100 UG Intake 49600 Average attendance of patient in OPD per 1.1.2012 to 18.7.2012 100 per day 200 day [Total No. of Patients attended OPD/Total No. of working days (164 from 19.7.2012 to 31.12.2012 Up to 60 UG1481.1.2012 to 18.7.2012) & 166 from Intake 120 19.7.2012 to 31.12.2012] Up to 100 UG Intake 200 Average attendance of patient in OPD per day for the year Up to 60 UG1742012 intake 109 * Note:-(100 is for 6.5 months and 120 is for remaining 5.5 Up to 100 UG months) Intake 146 Total number of Beds 01.01.2012 to 18.07.2012 01:02 135 19.07.2012 to 31.12.2012 01:01 Additional beds for PG PG-Students:Bed ratio is 1:4 for 01:04 Clinical Subjects as per PG Regulations 16th March 2012 Total number of patients admitted from 1st Jan 2012 to 31st Dec - 1840 2012 Total number of Bed days occupied from 1st Jan 2012 to 31st - 35327 Dec 2012 Average Bed occupancy Number of bed days occupied x 100 40% for UG & 70.67% Number of beds x No. of working days 50% for PG (i) Before MSR Notification (Jan to July) = % (calculated on 100 beds) 79.44% (ii) After MSR notification (Aug&Sep)= % (calculated on 60/100 beds) 61.91% (iii) Mean Bed occupancy = % Number of deliveries performed from 1st Jan 2012 to 31st Dec Nil 2012 W.A. No.1690 of 2013 :6: "Details regarding the functioning of the Hospital Required Available Short comings Total Number of Panchakarma procedures from 1st Jan 2012 to 3142 31st Dec 2012 Total number of operations done from 1st Jan 2012 to 31st Dec 14 2012 Total number of patients treated by Kshar Sutra from 1st Jan. 11 2012 to 31st Dec. 2012" 6. It is relevant to note here that the reason for rejection of the application submitted by the appellant for commencement of post graduate course, as stated in Ext.P6 are mainly the following: "Remarks: i. College fulfills the criteria of required eligible teachers for starting new PG courses. ii. College does not fulfils the criteria of genuinely functional hospital having the genuine patient load of 100 patients per day in the OPD and 50% bed occupancy during the period of consideration i.e., 1/1/2012 to 30/6/2012. WHEREAS, in view of the above observations of the Hearing Committee based on submissions made by the college during hearing and the visitation report of C.C.I.M. as in para W.A. No.1690 of 2013 :7: above, it is found that as per the approved norms for the processing of 13A applications received in April, 2012 for the session 2013-14 session as mentioned in para 4 above, the college is not fulfilling the genuinely functional Ayurvedic Hospital, with minimum 100 patients per day in OPD and 50% bed occupancy in IPD for proposed two new PG courses as applied." 7. When the discrepancy of the details of evaluation as seen from Ext.P6 and Annexure A1 was brought to our notice, we passed an interim order dated 12.11.2013. For the sake of convenience, paragraphs 2 to 5 of the said interim order are extracted below: "2. The learned counsel for the appellant submitted that the appellant College runs under-graduate courses from 2002 onwards and permission to conduct the courses is being granted for every academic year. The learned counsel submitted that based on Annexure A1 dated 27.9.2013 (No.R- 17011/96/2013-EP(IM-1) of the Government of India, W.A. No.1690 of 2013 :8: Ministry of Health and Family Welfare, Department of AYUSH, New Delhi, permission was granted for intake of 50 students for under-graduate courses in the appellant College for the academic year 2013-14. That order was passed, based on the inspection reports. In Annexure A1 dated 27.9.2013, it is noted that the average attendance of patients in O.P.D. per day for the period from 1.1.2012 to 18.7.2012 was 200, as against the requirement of 100 per day. It is also noted therein that the average attendance of patients in O.P.D. for the period from 19.7.2012 to 31.12.2012 was 148, as against the requirement of 120 for the intake of 60 students. The average attendance of patients in O.P.D. per day for the year 2012 was 174, as against the requirement of 109 for the intake of 60 students. In Annexure A1, it is also noticed that the average bed occupancy was 70.67%, as against the requirement of 40% for U.G. and 50% for P.G. On a perusal of Annexure A1, it would appear that the appellant College would satisfy the requirement of average bed occupancy, not only for U.G. course, but also for P.G. course.
3. However, the request for permission to start P.G. courses in two disciplines was rejected as per Ext.P6 order dated 25.4.2013 (F.No.R.14011/13/2012-EP (IM-1) of the Government of India, Ministry of Health and Family Welfare, Department of AYUSH, New Delhi, which was W.A. No.1690 of 2013 :9: challenged by the appellant in W.P.(C) No.12542 of 2013. The learned Single Judge dismissed the Writ Petition. In the Writ Appeal, the appellant challenges the judgment in the said Writ Petition.
4. In the Writ Appeal, the appellant has produced Annexure A1 referred to above. It is submitted that the average requirement of O.P.D. and I.P.D. is almost the same for under-graduate course as well as P.G. course. The College is also the same. It is submitted that if that is so, Annexue A1 can be safely relied on to consider whether the appellant satisfies the requirements for starting P.G. course in the academic year 2013-14 since the period during which the requirement was to be satisfied was from 1.1.2012 to 30.6.2012. That period is also covered by Annexure A1.
5. In the facts and circumstances mentioned above, we are of the view that the first respondent can be directed to look into the matter urgently, in the light of Annexure A1. If the first respondent finds that Annexure A1 can be relied on to consider whether the appellant satisfies the basic requirements to start the P.G. course, nothing in the judgment of the learned Single Judge or the pendency of the Writ Appeal would prevent them from passing appropriate orders. The first respondent is directed to do this exercise on or before 25.11.2013, since the last date for admission would W.A. No.1690 of 2013 :10: be 30.11.2013. Based on the orders to be passed by the first respondent on or before 25.11.2013, the Writ Appeal will be considered on the merits. It is submitted by the learned counsel for the appellant that whenever required, a representative of the appellant will always be ready to appear before the first respondent." 8. In compliance of the said interim order, the first respondent issued Annexure A2 order, in which it is stated thus in the concluding portion: "4. In view of the order dated 12.11.2013 of the Hon'ble High Court of Kerala at Ernakulam, in W.A. No.1690 of 2013, I am directed to say that, it has been decided by the Central Government that the Annexure A1 submitted by the petitioner college in above Writ Appeal cannot form the basis to consider the basic requirements to start the P.G. courses, under Section 13A of the IMCC Act, 1970 in compliance of the Hon'ble Court Order.
5. However, second proviso to sub-Section (5) of Section 13A of the IMCC Act does not prevent any person or medical college whose schemes has not been approved by the Central Government to submit a fresh scheme for permission of the Central Government in subsequent year in W.A. No.1690 of 2013 :11: accordance with the schedule prescribed for receipt and processing of the applications under Regulations "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." We are of the view that the first respondent did not properly consider the matter, as directed in the interim order dated 12.11.2013.
9. On a perusal of Ext.P6 and Annexure A1, it can be seen that the requirements of bed, requirements of bed occupation, requirements of the number of outpatients and inpatients have been satisfied for the relevant period by the appellant for commencement of post graduate course as well. The same inspection agency, viz. C.C.I.M. conducted inspection and submitted evaluation report to AYUSH based on which Ext.P6 order and Annexure A1 order were issued. On a perusal of these orders, it can be seen that the details furnished W.A. No.1690 of 2013 :12: therein by C.C.I.M. are contradictory and irreconcilable. Therefore, the first respondent was not justified in saying that Annexure A1 was with respect to under graduate course and therefore it can be relied on. So long as the first respondent does not find any illegality or irregularity in the inspection report submitted by C.C.I.M. before issuing Annexure A1 order, that evaluation report cannot be stated to be irrelevant for any purpose. The factual figures stated in Annexure A1 and relied on by the first respondent cannot be stated to be unreliable, when it comes to the question of granting permission for post graduate course. Annexure A1 shows that a fresh look into the matter was required on the part of the first respondent to consider the application submitted by the appellant for commencement of post graduate course. However the first respondent refused to do so only on hyper technical grounds, as seen from Annexure A2. W.A. No.1690 of 2013 :13:
10. It is true that in the matter of ascertaining whether the requirements for running a college or commencement of a course have been satisfied, the Court cannot substitute its wisdom to the report of the evaluation made by expert agencies. But when it is shown that the same expert agency had submitted two contradictory and irreconcilable reports in respect of physical requirements for the same period, the Court cannot refuse to exercise its jurisdiction under Article 226 of the Constitution of India. We are of the view that the appellant is entitled to successfully challenge Ext.P6 order. The first respondent passed Annexure A2 order in compliance of the interim order passed by us. We find that Annexure A2 order is unsustainable for the reasons mentioned above and therefore it is necessary to quash Annexure A2. For the aforesaid reasons, the Writ Appeal is allowed, the judgment of the learned Single Judge is set aside and Ext.P6 W.A. No.1690 of 2013 :14: order dated 25.4.2013 (F.No.R.14011/13/2012-EP(IM-1) and Annexure A2 order dated 25.11.2013 (F.No. R-14011/13/2012- EP(EP-IM1) passed by the first respondent, are quashed. The first respondent shall pass fresh orders on the application dated 25.4.2012 submitted by the appellant, as expeditiously as possible and in accordance with law. It is made clear that it is not necessary for the appellant to submit a fresh application and the first respondent shall re-consider the application dated 25.4.2012. Sd/- K.T. SANKARAN, (JUDGE) Sd/- M. L. JOSEPH FRANCIS, (JUDGE) dl/