A.B. Chaudhari, J.
1) These writ petitions have been finally heard in view of the orders of the Apex Court. In WP Nos. 7336/2012 and 7337/2012 issue Rule. Rule heard forthwith.
2) In all these writ petitions,(except Writ petition No.7336/2912) petitioners/the private management and colleges run by them, have put to challenge respective orders made by the Government of India, Ministry of Health and Family Welfare, Department of AYUSH of various dates by which it was decided not to grant permission to all these Ayurved colleges for taking admissions to B.A.M.S./postgraduate courses for the academic year 2011-2012 on the ground that there were shortcomings and deficiencies of serious and fundamental nature adversely affecting quality of medical education and standard of the colleges.
3) In Writ Petition No.7336/2012, the petitioners are the students of 1st Year B.A.M.S. Course of Ayurved College, run by a trust.
4) By Civil Application No.10004/2012 in WP No. 7590/2011 and CA No.4014/2012 in WP No.7595/2011, the applicants, seek intervention in the respective writ petition. The applicants are allowed to intervene. CAs disposed of.
FACTS:
5) The petitioners/management are running their respective Ayurved colleges within the territorial jurisdiction of this Bench. These colleges are being run even before the provisions of the Amending Act No.58/2003 came into force effective from 07.11.2003. All the colleges, including the existing, were compulsorily required to obtain permission under Section 13A of the Amending Act, i.e. after Chapter II-A to The Indian Medicine Central Council Act, 1970 (for the sake of brevity the IMCC Act, 1970, was brought into force. A scheme, as prescribed, was required to be submitted by such medical college to the Central Government and the Central Government was supposed to refer the scheme to the Central Council for its recommendations. The Central Council, in turn, was required to re-submit the same to the Central Government with recommendations within six months of its receipt. Thereafter, the Central Government, upon consideration of the scheme and the recommendations of the Central Council was supposed to make an order either of approval or disapproval of the scheme and consequently, either refuse or grant permission.
6) All the colleges in these writ petitions had accordingly submitted their respective Schemes to the Central Government within the time stipulated, about which, there is no dispute. It is also not in dispute that after receipt of the Scheme, the Central Government granted conditional approvals to the schemes in each academic year till last academic year, viz. 2010-2011, but rejected the same for the academic year 2011-2012 by the orders, which are impugned in these petitions.
SUBMISSIONS:
7) In support of the writ petitions, the learned Sr.Counsel Shri V.J.Dixit, Shri V.D.Hon with Shri P.B.Shirsath; Shri V.D.Salunke, Shri M.D.Adhav; Shri S.R.Ganbavale; Shri Mukul Kulkarni and Shri V.S.Bedre made the following submissions -
8) That, the amended provisions of Chapter II-A of IMCC Act, 1970, could not be made applicable to the colleges existing before the amendment, that too with retrospective effect and, therefore, the minimum standards and the rigours thereof spoken of by the Government would not apply to such colleges.
9) In accordance with provisions of sub-section(6) of Section 13A of IMCC Act, 1970, since the permissions were not refused or granted within a period of one year, a legal fiction is created and, therefore, it will have to be presumed that deemed permission stood granted to these colleges. Whether or not conditional approval of permission in the earlier academic years was granted would make no difference. In the first place, there cannot be any conditional approval and secondly, drawing of a legal fiction cannot be prevented by such conditional approvals.
10) In accordance with Section 22 of the IMCC Act, 1970 (as amended), it was for the Central Council to frame regulations or guidelines, which admittedly have not been framed, and, therefore, in the absence thereof, prescribing the minimum standards by the Central Government, through various communications itself is illegal. Earlier Regulations were published on 02.10.2006, which are the Regulations of the year 2006.
11) In the alternative, all the colleges ought to have been given two years' time, vide Regulation 5(f) to remove the deficiencies, if any, and, therefore, abrupt denial of permission in the academic year 2011-2012 `is arbitrary.
12) The Karnataka High Court has taken a view that though the deficiencies were removed in the next academic year, it should be deemed that they have been removed with reference to the earlier academic year.
13) The conduct of the Central Government, in not putting to challenge some of the interim orders made by this Bench or the principal Bench, before the Supreme Court in the matter of grant of admissions for the academic year 2011-2012, is suspicious and deserves to be taken note of by this Court.
14) Per contra, learned Counsel appearing for the respondents opposed the writ petitions, inviting our attention to the submissions filed by the Central Government, Department of AYUSH in all these cases and some of the judgments and orders referred in those submissions, and argued that the deficiencies pointed out by the Central Government in the impugned orders are not of trivial nature, but they are serious and do not go hand-in-hand with the minimum required standards for medical education. There cannot be any compromise with the standard on the medical education in the country; and if the impugned orders are carefully perused, it would be seen, according to the counsel for the respondents, that these are well-reasoned orders, giving the exact data in each case and, therefore, in the writ jurisdiction, this Court should not examine the factual aspects. At any rate, according to learned Counsel for the respondents, the findings recorded by the Central Government in the impugned orders have not been shown to be factually incorrect or wrong anywhere in the averments set out in the writ petitions. The counsel for the respondents urged this Court to peruse the various orders placed on record along with affidavit in reply filed by Central Government.
CONSIDERATION:
15) We have heard learned Counsel for the rival parties at length. We have perused the records and proceedings in these cases. Undoubtedly, by amendment of IMCC Act, 1970 in relation to the Indian Medicine, the said Act went into somewhat major changes for laying-down minimum standards of medical education. It is not necessary for us to repeat, what the Scheme of the Amendment Act is. It would be profitable to quote para 27 of the Judgment of the Supreme Court in the case of Bihar State Council of Ayurvedic and Unani Medicine Vs. State of Bihar and Ors. Reported in 2007 (12) SCALE 644
"27. The amendment brought about in the Indian Medicine Central Council Act, 1970 in 2003 by introduction of Sections 13A 13B and 13C are the provisions for continuance of the institution which has not obtained prior permission of the central Government and, therefore, time limit of three years has been provided under Section 13C to regularize the institution's affairs as required under the Act by seeking permission of the Central Government. Insertion of Section 13A in the 1970 Central Act in the year 2003 has regulated the opening of an indigenous medical college. The non-obstante clause clearly indicates that a medical institution cannot be established except with the prior permission of the Central Government. Under Section 13B, any medical qualification granted by the colleges established without the prior permission of the Central Government is not a recognized medical qualification. The reasonable reading of Section 13C(1) puts the existing colleges at part with the new colleges as both of them are required to seek permission within three years from the commencement of the Amending Act. The phrase `on or before' has made it clear that the existing colleges are also required to seek permission and there is no exemption. Section 13C(2) further provides that the medical qualification granted by existing colleges whose establishment has not been recognized by the Central Government, the medical qualification would not be a recognized qualification. Similar requirement is to be fulfilled by the new medical colleges opened, i.e. to seek permission of the Central Government for the medical qualification to be recognized qualification. Thus, new colleges or existing colleges cannot any more grant a recognized qualification without the sanction of the Central Government. Section 13C(2) does not say that the effect of non-permission by the Central Government to the existing colleges after the Amending Act came into force would render the medical qualification already granted by the existing colleges before the insertion of Sections 13A, 13B and 13C in 2003, unrecognized. The whole spectrum of the amendment brought about by introducing Sections 13A, 13B and 13C indicates that it has an application from the date they have been introduced by an amendment in the 1970 Central Act. The effect of the amendment brought about is clear to us that all the medical colleges which are in existence or the medical colleges which have to be established should compulsorily seek permission of the Central Government within the period provided and on failure to get the permission of the Central Government the medical qualification granted to any student of such medical college shall not be a recognized medical qualification for the purposes of the 1970 Act. The established colleges are also required to seek permission of the Central Government for the medical qualification to be recognized medical qualifications, but it would not mean that the already conferred medical qualification of the students studied in such previously established medical colleges would not be a recognized medical qualification under the 1970 Act."
16) From reading of the pronouncement made by the Supreme Court above, we find that the provisions of the Amending Act or the minimum standards required thereby, have to be applied even to the existing colleges and as a result, the submission about retrospectivity must loose its force, since the Supreme Court has categorically held that if the existing colleges are fully covered by virtue of the amended provisions of the said Act. Further, the time limit of three years has been provided for regularizing the affairs of the institutions from the commencement of the Amending Act even for the existing colleges, and that is an answer to the submissions about grant of further time made before us. We, therefore, reject the submissions in the light of the said Supreme Court Judgment about retrospectivity as well as time limit and the application of minimum standards by virtue of the amended provisions of the Act. Apart from that Regular 5(f) of the Regulations, 2006, provides for time of two years, effective from the date when the said Regulation 2006 came into force, i.e. 02.10.2006 and, therefore, the time limit of even two years expired in 2008.
17) Section 13A(6) of the IMCC Act, 1970 reads thus:
"13A(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."
18) The Counsel for the petitioner, on the basis of provisions contained in Sub-Sections (6) and (7) of Section 13A, strongly contended before us to apply the legal fiction for grant of deemed approval/permission. Reliance is placed on the decision of the Supreme Court in the case of Modern School Vs. Shashi Pal Sharma and Ors. 2007 AIR (SCW) 6523; Ramesh Chandra Sharma Vs. Punjab National Bank and Anr. AIR 2007 SC (Supp) 284; and State of U.P. Vs. Singhara Singh and Ors. AIR 1964 SC 358.
19) To test the submissions about drawing of legal fiction, it would be appropriate to quote Section 13A(8) of the Amending Act. We quote sub-section (8) of Section 13A, as follows:
"13A(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, viz:-
(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 programme drawn to impart proper training to students likely to attend such medical college or the course of study or training by persons having recognized medical qualifications;
(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."
20) It is clear from the reading of sub-section (8) that the Central Council can pass an order approving to grant or granting permission upon compliance of factors named in sub-section(8), viz. Factors (a) to (g). Thus, only after satisfaction about the existence of the factors mentioned in (a) to (g), the Central Government can grant permission as per sub-section (4). In order to raise the legal fiction about deemed permission or deemed approval, it must be shown to the satisfaction of the Court that the factors, spoken of in sub-section(8) required to be complied with, do exist in the particular medical college or that there is no violation of the provisions of the Act, or Regulations or the prescribed minimum standards. That we think is the Terra firma for raising a legal fiction in accordance with canons of interpretation of statutes.
21) In the case of Ishikawajma-Harima Heavy Industries Ltd. Vs. Director of Income Tax reported in (2007) 1 Scale 140, the Supreme Court held in para 36 thus:
"36. A legal fiction, as is well known, must be construed having regard to the purport and object of the Act for which the same was enacted."
22) In the case of Calcutta Municipal Corporation Vs. Anil Ratan Banerjee – AIR 1995 SC 659, the Apex Court stated thus in para 2.
"2. So far as the deemed sanction of the twelve storeyed building applied for an August 24, 1987 is concerned, it cannot be deemed to have been sanctioned on the expiry of thirty days by virtue of Section 319 of the Bengal Municipal Act for the reason that no such permission could have been actually granted under the law then in force in the said area, having regard to the width of the road abutting the respondents' plot and other relevant circumstances. The Division Bench has itself recognized that the deemed permission cannot be inconsistent with the relevant rules and regulations. No deemed permission can be conceived of which is inconsistent with the relevant rules and regulations."
23) In the case of Commissioner of Municipal Corporation Shimla Vs. Prem Lata Sood and Ors. (2007) 11 SCC 40, the Apex Court stated thus in para 44:
"44. There cannot be any doubt whatsoever that an owner of a property is entitled to enjoy his property and all the rights pertaining thereto. The provisions contained in a statute like the 1994 Act and the building bye-laws framed thereunder, however, provide for regulation in relation to the exercise and user of such right of an owner of a property. Such a regulatory statute must be held to be reasonable as the same is enacted in public interest. Although a deeming provision has been provided in sub-section (1) of Section 247 of the 1994 Act, the same will have restricted operation. In terms of the said provision, the period of sixty days cannot be counted from the date of the original application, when the building plans had been returned to the applicant for necessary clarification and/or compliance with the objections raised therein. If no sanction can be granted, when the building plan is not in conformity with the building bye-laws or has been made in contravention of the provisions of the Act or the laws, in our opinion, the restriction would not apply despite the deeming provision."
24) In our opinion, taking into consideration the purport and the object of the Amending Act of 2003 and the above legal principles and in the wake of the further fact that the Central Government found serious deficiencies, that too in contravention of the factors set out in sub-section (8) of Section 13A of IMCC Act, 1970, it would be impossible to raise a legal fiction, as contended. The decisions cited by the Counsel for the petitioners thus have no application.
25) It is not in dispute that conditional approvals were granted by the Central Government every year till the academic year 2010-2011 and in all these conditional approvals, it was mentioned that the colleges were expected to remove all the deficiencies. The submission that these conditional approvals would not obstruct the drawing of legal fiction, does not appeal to us since every year, there is action on the part of the Central Government in pointing out the deficiencies and granting conditional approvals for taking care of the interest of the students. The Central Government cannot be blamed for any inaction and we see from the conditional approvals that there has been application of mind. The next submission that there could be no conditional approval, is clearly faulty inasmuch as sub-section (5) of Section 13A empowers the Central Government to grant approval with such conditions as are found necessary. At any rate, when there is power to grant final approval, it must be presumed that there is power in the Central Government to grant conditional approval as well.
26) With reference to Section 22 of the IMCC Act, 1970, we find that the Central Council is empowered to prescribe the minimum standards of education in Indian medicine. That was done in the year 2006 by bringing the Regulations of the year 2006 and now we are told that fresh Regulations of 2012 have also been gazetted. We find the communications issued by the Central Government, specifying the minimum standards of education and the last such one dated 18th March, 2011, after framing the Regulations of 2006, from time to time, are only amplifying the Regulations of 2006 and that was also done in consultation with the Central Council, as is evident from the letters/communications. It is, therefore, idle to contend that the Central Council did not bring the Regulations as required by Section 22 and or that the Central Government does not have authority to issue communications every year. As is clarified, the Central Government merely reiterated the minimum standards by issuing such communications/letters, one of which is dated 18th March, 2011. We agree with the stand taken by Central Government in that behalf and we do not find any fault with the said action.
27) We have perused the judgment rendered by Karnataka High Court, produced before us. We do not think that the said judgment lays down any ratio; and at any rate, the deficiencies of the year 2011-2012 cannot be said to have been waived or defused merely because permission in the next academic year has been granted.
Even before us, the counsel for the petitioners argued that in some cases, the Central Government has granted permission for the academic year 2012-2013 and, therefore, following the said decision of the Karnataka High Court (cited supra), the said permission for the academic year 2012-2013 should also be applied for the last academic year 2011-2012 and these petitioners should be granted relief. We do not agree. We cannot think of evaporation of the deficiencies pointed out in the year 2011-2012, about which findings have been recorded by the Central Government in each of the cases and they having not been shown to be perverse or illegal, even if the Central Government granted permission for the next academic year 2012-2013. In this behalf, it would be appropriate to note that the adverse findings have been recorded in each case by the Central Government. We have gone through the findings recorded by the Central Government in each case carefully. We have carefully considered the submissions made by the Senior Advocate Shri Dixit, who took us through the inspection report of the CCIM. We do not agree with him that the Central Government could not have referred to the documents or materials to find out the correctness of the observations in the inspection reports. The government heard each college representative, perused the voluminous records and then recorded the findings. The petitions nowhere specifically show how these findings of facts are wrong. It is not necessary to repeat and reproduce those findings in the judgment lest the same should burden this judgment. We are fully satisfied that the findings recorded by the Central Government are appropriate, based on the materials placed before the Government and not only that in some cases the documents placed before the Government, were found to be fabricated or after-thought. It is interesting to note from the reading of the writ petitions that none of the observations about these serious deficiencies, found by the Central Government, have at all been countered by the factual data or otherwise and that is another reason why we do not find any reason to find any fault with the findings of facts recorded by the Central Government.
28) The last submission that the Central has acted suspiciously in not challenging the interim orders in some cases, has been made only for being rejected. No data has been placed before us in the first place and secondly, same is not relevant for deciding these writ petitions before us. At any rate, there is no foundation in the form of pleadings in any of these petitions for raising such contentions and in the absence thereof, we do not wish to entertain the same.
29) As stated above, Writ Petition No.7336 of 2012 is filed by the students. Needless to say, it must meet the same fate since it is a dependent petition on the petitions filed by the private management/colleges.
30) In the result, we find no merit in these writ petitions. Consequently, we make the following order.
ORDER
Writ Petition Nos.7590/2011; 7336/2012; 7592/2011; 7593/2011; 7595/2011; 7596/2011; 7597/2011; 7598/2011 7337/2012 and 7854/2011, are dismissed. Rule stands discharged in all the Writ petitions. Costs made easy.