Judgment:
$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
6. h December, 2018 Pronounced on:
17. h December, 2018 + W.P.(C) 7954/2017 & CM APPL. 17926/2018 SHRI RAM KRISHAN PARMHANS SHIKSHA PARISHAD Through: Mr. Raju ….Petitioner Ramachandran, Senior Advocate, Mr. Amitesh Kumar, Ms. Binisa Mohanty and Mr. Ishwar Mohanty, Advocates versus UNION OF INDIA AND ANR .....
... RESPONDENTSThrough: 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
JUDGMENTThe petitioner – Shri Ram Krishan Paramhans Shiksha Parishad % 1. – assails, by the present writ petition, order, dated 10th 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) (b) no person shall establish a medical college; or 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. to the Central Government a scheme (2) Every person or medical college shall, for the purpose of obtaining permission under sub- section (1), submit 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. In computing the time-limit specified in sub- (7) 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 the increased admission capacity have been provided or would be provided within the time limit specified in the scheme; training or accommodating (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 students likely to attend such medical college of the course of study or training by persons having recognised medical qualifications; impart proper to training 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; has obtained ‘No (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) 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) performance bank guarantees two from a to provide is in a position 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: for the establishment of medical (i) college - Rupees One crore Upto 50 seats - 51-100 seats - Rupees Twenty lakhs per ten or less seats for the establishment of the (ii) teaching hospital and its infrastructure facilities - Upto 150 beds - half crore rupees one and a 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 fully time bound provided as per programme.” facilities are requisite the 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. to be met (2) The Letter of Intent to set up a new medical college shall include a clear cut statement of preliminary requirements 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 3. facts. (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.” In the above statutory backdrop, I proceed to reconnoiter the W.P.(C) 7954/2017 Page 10 of 46 Facts 4. 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. W.P.(C) 7954/2017 Page 11 of 46 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 the Subject: Application dated 25.04.2014 of 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 the grant of permission of Government of India to start a new Ayurvedic College in seeking W.P.(C) 7954/2017 Page 12 of 46 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) (Form-4) {Regulation 6 (1) (c)} is not provided. Certified copy of NOC of State Government copy of Consent of (Form- (iii) Certified Affiliation/Concurrence of University 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 available. (vii) No document has been provided in support of Consent/undertaking of Performance Bank Guarantee of one crore from a Scheduled is not W.P.(C) 7954/2017 Page 13 of 46 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 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.” authorizing applicant the In view of the above deficiencies, it has been 2. 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. However, as per provisions under second proviso 3. 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. W.P.(C) 7954/2017 Page 14 of 46 Encl: Application in original. Yours faithfully, (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 W.P.(C) 7954/2017 Page 15 of 46 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 W.P.(C) 7954/2017 Page 16 of 46 this society vide our Letter dated 25th April, 2014. Deficiency raised by your august office are rectified as under:-
"Paramhans Shikhsha (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 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) 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 100 Bedded Hospital based on W.P.(C) 7954/2017 Page 17 of 46 Proof of Hospital Para 2(d) above refers. 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) (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) (k) All the documents have been attested by Public Notary. Two sets of the application and enclosed.
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. W.P.(C) 7954/2017 Page 18 of 46 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. W.P.(C) 7954/2017 Page 19 of 46 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 24th 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 1st to 30th April of the year. W.P.(C) 7954/2017 Page 20 of 46 4.12 The petitioner, in the circumstances, moved the High Court of Punjab and Haryana by way of CWP90762015, 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 CWP90762015, 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: am directed “I letter No.SRK/BAMS/2015-16/ dated 07.09.2015 on the subject to your to refer W.P.(C) 7954/2017 Page 21 of 46 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) 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 to consider W.P.(C) 7954/2017 Page 22 of 46 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. Authority. This issues with the approval of the Competent 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 W.P.(C) 7954/2017 Page 23 of 46 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 8th September, 2016, from the CCIM to the petitioner, referring, once again, to the following eleven perceived “shortcomings”: the application Objective to impart education about Ayurveda has ‘Consent for affiliation of University has been “1. Applicant has submitted in prescribed form-1, but not attested by the Gazetted Officer.
2. not been submitted. ‘No Objection Certificate’ of State Government 3. has been submitted, but not attested by the Gazetted Officer.
4. submitted, but not attested by the Gazetted Officer.
5. 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. 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. Photocopy of zoning plans of available sites Proof of ownership of existing hospital and W.P.(C) 7954/2017 Page 24 of 46 to make 9. Authorization letter addressed to the Bankers of the applicant authorizing the Central Government/Central Council of Indian Medicine 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: Please refer to your letter No.026-111/2016-Ay “1. dated 08-Sep 2016 2. attested by Notary Public as desired by your office:-
"The following documents are resubmitted duly (a) Copy of application(already submitted) in prescribed Form 1 duly attested (b) Objective Ayurveda duly attested. (c) Copy of ‘No Objection Certificate’ of State of Haryana duly attested. education impart to about W.P.(C) 7954/2017 Page 25 of 46 (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 to Manager Central Bank of India Railway Road Mohindergarh for making independent enquiry regarding the financial track record, in original. (j) provide performance Bank Guarantee in favour of the Central Council of Indian Medicine, New Delhi duly signed and attested.” of Undertaking letter addressed Copy to 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 21st and 22nd September, 2016 and submit a report. W.P.(C) 7954/2017 Page 26 of 46 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 W.P.(C) 7954/2017 Page 27 of 46 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 5th May, 2017” and “the observations made by the Hearing Committee” following thereupon. The said tabular statement may be reproduced thus: “ Deficiencies communicat ed 06.04.2017 i. on Submissions made representatives on 05.05.2017 by the Observation made by the hearing committee The The college Hearing committee W.P.(C) 7954/2017 Page 28 of 46 in society/ trust does not have objective to impart education Ayurveda discipline as per Regulation 6 (1) (a). The applicant has submitted objective on written their letter head which is not registered in society Act. ii. Visitors have observed that is no there concept of departmental OPD/IPD computerized OPD/IPD registration system available. Records OPD/IPD not available not of that field representatives stated the society does not have the objective to impart education the in field of medical science that include all types of pathy/method of treatment in the of medical science. We accept that the society does not have objective to impart to education to Ayurveda discipline as per Regulation 6 (1) (a) at the time of hearing but we will the same in future. The representatives stated that we have functional hospital. We accept that we did had computerized OPD/IPD registration system at time of visitation CCIM but have computerized OPD/IPD registration system include college not the we the that that does observed college representatives have accepted the not society have objective to impart education in Ayurveda discipline as per Regulation 6 (1) (a) at the time of hearing. that Hearing committee observed the college representatives have accepted that the college does not have computerized OPD/IPD registration system at time of CCIM visitation. Hearing Committee also observed that has the purchased & is college the W.P.(C) 7954/2017 Page 29 of 46 and even does not correlate with available documents. Further, the IPD data as submitted by the Applicant shows that the No.IPD pt. admitted and No.of bed days occupied are same, which seems impractical. In view of it these, appears that the applicant does not have functional hospital concerned systems in specified the relevant notified MSR Regulations. of the sheets unable at time of hearing and we are submitting the required documents to prove it. The college representatives further stated that we are submitting case of Balroga. Prasuti tantra and Shalakya along with Central OPD/IPD register. We accept that we to are produce Lab. Investigation Register, Kay- Chikisa IPD case sheets and OPD/IPD registers and Shalya IPD register/case sheets, Panchkarma IPD register/case sheets, Doctors duty/attendance/sal ary record before the hearing committee as we forgot to bring the above mentioned record. The college representatives also stated that we are unable to produce any record except web based central can that maintaining web based central registration for the patients w.e.f. 2 January,2017. The be record checked at www.Finprod- techno.com/admissi Hearing on. committee further observed the college representatives could not produce investigation lab register, kay- chikitsa IPD sheets and OPD/IPD register/case sheets, and Shalya IPD register/case sheets. Hearing Committee also observed that the college representatives were unable produce duty/attendance/sal ary record of the hospital staff. Hearing committee further observed that there are few discrepancies in the central OPD register like Date is not mentioned at many placed in the OPD register. In the register registration to W.P.(C) 7954/2017 Page 30 of 46 OPD/IPD registration post 31 December 2016 at the time of hearing. for it in data No.11650 appears after 11747 after No.registration 14115 13703, appears of Central OPD register and OPD drug dispensing register the of April month 2016 does not Ongoing match. IPD through the case sheets is observed. The IPD case sheets are not duly filled. Sections like duration of illness the history, present duration of chief complaints, family history, past history are filled. Systemic examination, vitals like and Respiratory Rate is not mentioned in case sheets. Case sheets of Patient Janki OPD No.52990 and IPD No.totally 2834 blank. Dose of drugs not appropriate in case sheets. There is no record any investigation which is carried out, in the not BP is is of W.P.(C) 7954/2017 Page 31 of 46 case sheets. Overall observation of the Hearing Committee: After examining the detailed records of the college and as per the representatives of the college, it may be inferred that: i. The college / society does not have objective to impart the oral and written reply submitted by 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: in Ayurveda discipline and “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 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 W.P.(C) 7954/2017 Page 32 of 46 5. 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.” 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. W.P.(C) 7954/2017 Page 33 of 46 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 CM179262018, 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 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.” to have been approved by 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 W.P.(C) 7954/2017 Page 34 of 46 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 W.P.(C) 7954/2017 Page 35 of 46 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. W.P.(C) 7954/2017 Page 36 of 46 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 SCC427and para 26 of Ritesh Tewari v. State of U.P., (2010) 10 SCC677 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. W.P.(C) 7954/2017 Page 37 of 46 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. W.P.(C) 7954/2017 Page 38 of 46 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 W.P.(C) 7954/2017 Page 39 of 46 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 W.P.(C) 7954/2017 Page 40 of 46 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 W.P.(C) 7954/2017 Page 41 of 46 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
... RESPONDENTSNo.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. W.P.(C) 7954/2017 Page 42 of 46 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. W.P.(C) 7954/2017 Page 43 of 46 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 10th August, 2017, relates to W.P.(C) 7954/2017 Page 44 of 46 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, W.P.(C) 7954/2017 Page 45 of 46 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. DECEMBER17 2018 dsn C. HARI SHANKAR, J W.P.(C) 7954/2017 Page 46 of 46