Central Council of Indian Medicine Vs. Mannam Ayurveda Co-operative - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 12TH DAY OF AUGUST 2013 21ST SRAVANA, 1935 WA.No. 1701 of 2012 () IN WP(C).19420/2012 -------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 19420/2012 of HIGH COURT OF KERALA APPELLANT(S)/RESPONDENT NO.2: ----------------------------- CENTRAL COUNCIL OF INDIAN MEDICINE, 61-65, INSTITUTIONAL AREA, JANAKPURI NEW DELHI - 110058 REP. BY ITS SECRETARY SRI.VAIDYA PREM RAJ SHARMA BY ADV. SRI.K.T.THOMAS RESPONDENT(S)/PETITIONERS/RESPONDENT NOS.1 : -------------------------------------------- 1. MANNAM AYURVEDA CO-OPERATIVE MEDICAL COLLEGE M.S.M P.O, PANDALAM, PATHANAMTHITTA 68 501 REPRESENTED BY ITS MANAGING DIRECTOR DR.K.THULASEEDHARAN NAIR.

2. KMCT AYURVEDA COLLEGE, (RUN BY KUNHITHARUVAL MEMORIAL CHARITABLE TRUST) MANASSERY KOZHIKODE KERALA 67 602 REPRESENTED BY ITS TRUSTREE DR. K.M.NAVAS.

3. PARASSINIKKADAVU AYURVEDA MEDICAL COLLEGE, PARASSINIKKADAVU 67 563 REPRESENTED BY THE DIRECTOR PROF. E.KUNHIRAMAN.

4. AHALIA AYURVEDIC MEDICAL COLLEGE, ELIPPARA, KOZHIPPARA P.O, PALAKKAD DISTRICT REPRESENTED BY A.G AJITH PRASAD, TRUSTEE AHALIA INTERNATIONAL FOUNDATION.

5. P.N. PANICKAR SOUHRUDA AYURVEDA MEDICAL COLLEGE PARAKKALAI, KANHANGAD, KASARAGOD DISTRICT REPRESENTED BY ITS CHAIRMAN K.P.KUNHIKANNAN.

6. PANKAJA KASTURI AYURVEDA MEDICAL COLLEGE KATTAKKADA, THIRUVANANTHAPURAM 69 572 REPRESENTED BY THE MANAGING DIRECTOR DR.J.HAREENDRAN NAIR. -2- WA.No. 1701 o”

7. UNION OF INDIA, REPRESENTED BY THE UNDER SECRETARYU TO GOVERNMENT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE (DEPARTMENT OF AYUSH) IRCS BUILDINGS, 1, RED CROSS ROAD NEW DELHI 11 001.

8. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH & FAMILY WELFARE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 69 001.

9. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS THIRUVANANTHAPURAM, KERALA-69”

10. KERALA UNIVERSITY OF HEALTH SCIENCES MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O THRISUR DISTRICT, REPRESENTED BY THE REGISTRAR. R7 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R10 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH R1 TO R6 BY SRI.GEORGE POONTHOTTAM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2012, THE COURT ON 12-08-2013 DELIVERED THE FOLLOWING: MANJULA CHELLUR, C.J & A.M.SHAFFIQUE, J.

---------------------------------------------- W.A.No. 1701 of 2012 ---------------------------------------------- Dated this the 12th day of August, 2013 JUDGMENT Manjula Chellur, C.J.

W.A.No.1701 of 2012 is filed against the interim order dated 12.9.2012 in W.P(C).No.19420 of 2012. Writ petitioners are the Ayurveda Medical Colleges conducting Bachelor of Ayurveda Medicine and Surgery (BAMS) course with affiliation from the University apart from obtaining approval and consent from other authorities including the Central Government.

2. For the academic year 2012-2013, Government of India issued orders permitting the writ petitioners to admit 50 students each. The above said orders were issued between 4.5.2012 and 6.7.2012. When things stood as stated above, modifications of parameters on various aspects of Indian Medicine Colleges by the Indian Medicine Central Council (Minimum Standards Requirements of Ayurveda College and attached Hospitals) Regulations, 2012 (for short, 'Regulations, 2012') were notified on 18.7.2012. According to the writ WA.1701/12 2 petitioners, they have infrastructure facilities required for more than the intake of 50 students, therefore, the respondent authorities were not justified in refusing to modify the intake from 50 students to 60 students when repeated requests were made by the writ petitioners. Hence, they approached the learned Single Judge seeking the following reliefs: "i. issue a writ of mandamus directing the 4th respondent to allot students to the petitioner colleges in terms of the minimum intake as prescribed in Ext.P5; ii. issue a writ of mandamus directing the 1st respondent to issue revised orders of permission as regards the intake for the academic year 2012- 13 in tune with the intake as provided in Ext.P5. iii. issue a writ declaring that in the light of the Regulations regarding the intake provided through Ext.P5, the petitioners are entitled to admit 60 students for the BAMS course from the academic year 2012-13 treating the permission granted as the one for 60 students in view of the prescription of intake provided through the Regulations. iv. pass such other order or direction as this Court may deem fit and proper in the interest of justice." 3. The stand of the respondent authorities, who are appellants before us, is that the Regulations 2012 postulate the WA.1701/12 3 standards for various purposes and objects including enhancement of intake which are applicable only from the session of 2013-14, therefore, the petitioners were not entitled to take protection under Regulations, 2012 for admissions in the academic year of 2012-13. After obtaining permission to take a particular intake as indicated in the applications in accordance with the relevant provisions applicable for the academic year 2012-13, the petitioners are not justified in asking application of Regulations, 2012 which were not even in existence when the applications came to be submitted for the academic year 2012-13 as they are only prospective in nature.

4. In W.P(C).No.19420 of 2012 the learned Single Judge, opining that Regulations, 2012 have come into force with effect from 19.7.2012, proceeded to hold that the petitioners were entitled to admit 60 students for the academic year 2012-2013. Aggrieved by the same, the appellant Council filed the Writ Appeal.

5. According to the writ petitioners, Regulations 2012 have come into force on 18.7.2012 and the admissions start in August of every year. Normal procedure to submit application is before 30th April of that year. Having inspected the infrastructure available before March, 2012 and when the new WA.1701/12 4 scheme comes in July, 2012, there was no impediment for the Council and other authorities to permit the writ petitioner's Colleges to increase the intake from 50 to 60. It is further contended, when infrastructure was for more than 50 intake, it is sufficient for 60 students without further inspection whatsoever. Therefore, by operation of law, 50 intake has to be read as 60. In the old scheme, based on the orders issued by the Government of India, intake was fixed.

6. So far as the stand of the appellants and other authorities, Regulations 2012 are prospective and unless inspection is conducted to know the factual situation whether minimum standard requirement in accordance with norms and procedures is undertaken or not, no such enhancement of intake could be granted.

7. From the material on record and the documents, it is discernible that, Central Council of Indian Medicine is established under the Indian Medicine Central Council Act of 1970. The said Act came to be amended in 2002 by introducing Chapter II-A with effect from 28.1.2003. By virtue of this amendment, requirement and mandate came to be introduced with reference to establishment of medical institution or WA.1701/12 5 continuance of existing institution who intends to open a new or higher course of study or enhancement of the capacity of admission. To achieve systematic development, regulated education and training in various practices of medicine like Ayurveda, Unani and Siddha by Ordinance, 2003, the Act came to be repealed by Indian Medicines and Central Council Act of 2003. Three new sections, i.e., Section 13A, 13B and 13C of the IMCC Act were introduced. These provisions relate to requirement of prior permission and the consequences in the absence of such permission. With the amendment of 2003 the entire scenario that existed prior to 7.11.2003 was changed.

8. The Central Council of Indian Medicine, with the approval of Central Government, postulated Indian Medicine Central Council (Permission to Existing Medical Colleges) Regulations, 2006 which contemplates procedure required to start new Medical College or enhancement of intake capacity etc. From time to time, many changes were brought into effect introducing average annual bed occupancy, required infrastructure for Post Graduate Ayurvedic Education etc. After amendment in 2003, as many as 252 applications from existing Colleges were received in November, 2006. WA.1701/1”

9. When these applications were taken up for scrutiny, several representations were received from the State Government as also Colleges requesting to grant them time for compliance of deficits. Then it was decided not to take any action against the existing Colleges so far as penal provisions of Section 13 for the academic year 2007-08. This was done because of the undertaking that full complement of teaching and non-teaching staff infrastructure facilities etc would be complied with within the time frame. This was brought to the notice of the Central Council of Indian Medicine and other authorities by the Government of India. However, one more year was extended for upgrading to the prescribed norms, but still deficiencies continued. The State Government was requested to ensure that all existing Ayurveda, Sidha and Unani (ASU) Colleges conform to the minimum standards atleast from the academic year 2008-09 onwards. Intimation was sent to the State Government and the Universities advising them to put admission process for the academic year 2008-09 on hold till such time the Colleges concerned obtained the requisite permission of the Central Government in terms of the Act. However, before even compliance with the requirements WA.1701/12 7 for granting permissions under the Act, some State Governments had gone ahead with the admissions. Having regard to the perception regarding poor standard of existing ASU Colleges, the Central Government repeatedly has been requesting the State Governments to initiate remedial action, only with a view to pre-empt adverse action in terms of the Act. Persistent requisitions were sent to the State Governments to take action to increase the necessary posts or to fill up vacant posts and to set up necessary infrastructures.

10. When number of Colleges were not qualified for permission on the basis of strict interpretation of the IMCC Act and Regulations, taking a realistic view, in order to avoid adverse impact on the quality of medical education a decision was taken to give permission subject to condition that shortcomings and deficits would be removed within the stipulated time. The decision was taken to restrict the qualifying criteria only to two of the basic requirements for a Medical College, i.e., availability of teaching staff and the status of the teaching hospital. In spite of this, the result was not very desirable, therefore, condition for permission came to be lowered for the academic years 2008-09, 2009-10 and WA.1701/1”

2010. 11. The requirement of fully functional hospital with a minimum bed strength of 100 or 150 with atleast 80% of the full complement of teaching and non-teaching staff was stipulated with a time frame of two years. This, according to appellant authority, was only to encourage and force the Medical Colleges to improve their standard.

11. As contended by appellants, from the academic year 2011-12, full requirement norms came to be adopted. There were complaints of irregularities and corrupt practices against the inspection team as well. This led to CBI jointly with the Department of AYUSH to conduct surprise checking in 16 Colleges selected at random. The outcome revealed deficits so far as infrastructure, beds and medicines. In some Colleges materials were locked in rooms and in other Colleges, the attached teaching hospitals suffered grave inadequacies. Some Colleges were found maintaining fabricated records. Manipulation was apparent in many Colleges recommended by Central Council of Indian Medicine for grant of permission for the academic year 2010-11. The Department felt the need of taking minimum remedial steps of cross checking the claim of the Colleges and report or recommendation to Central Council WA.1701/12 9 of Indian Medicine by bringing on record that some norms under which the Colleges will have to produce the complete records before the concerned Hearing Committee. This came to be announced as early as in March, 2011. The norms required for the academic year 2011-12 in all the ASU Colleges came to be communicated to all the concerned including the petitioners Colleges by 18th March, 2011 from the Department of AYUSH to the Secretary, Central Council of Indian Medicine. Time was extended with a condition that the norms have to be completed on or before 31.10.2011. The procedure to be adopted for the academic year 2011-12 was intimated well in advance to all concerned including the petitioners. This was published on website on 18.3.2011 followed by another one on 21.3.2011. All Colleges were aware of the process of inspection to verify the status of compliance of a particular Medical College. Thus, the information was well within the knowledge of the Colleges concerned.

12. The question is, with the introduction of Regulations, 2012 notified on 18.7.2012 whether the petitioners were entitled for enhancement of intake capacity as contended by them without adhering to the provisions under the statute and WA.1701/12 10 the regulations made thereunder. On this controversy, we have to see both facts and the law of the land. In the case of P.Mahendran and others v. State of Karnataka and others [(1990)1 SCC 411], Their Lordships had an occasion to consider a similar issue. Learned counsel for the appellant Council placed reliance on paragraph 5 of the above decision to contend that every statute or statutory regulation is prospective unless it is expressly or by necessary implication made to have retrospective effect. Paragraph 5 of the said decision is relevant, which reads as under: "5. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is WA.1701/12 11 anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter." 13. Reliance is placed on K.P.Sudhakaran and another v. State of Kerala and others [(2006)5 SCC 386.wherein their Lordships held that if a statutory rule is made without providing any exceptions, there is no possibility to carve out exceptions to such rule by judicial interpretation and according to the learned counsel for the appellant, the interim order of the learned Single Judge is nothing but judicial interpretation which is impermissible as held in the above case. In the light of WA.1701/12 12 the above law, we have to see the effect of Regulations, 2012 whether it is prospective or retrospective.

14. With the Regulations, 2012 coming into force, certain procedures are prescribed. Regulations 3(1) to 3(4) prescribe the minimum standard requirements as conditions for granting conditional permission which read as under: "3. Minimum Standard Requirements.- (1) The Ayurveda colleges established under section 13A of the Act and existing Ayurveda colleges under section 13C of the Act and their attached hospitals shall fulfill the minimum standards requirements of infrastructure and teaching and training facilities referred to in the regulations 4 to 11 by the 31st December, 2014 for consideration of grant of permissions for undertaking admissions in the coming academic years. (2) If a college fulfills the requirement by the 31st December, 2014 as per these notified regulations, it shall be granted permission to undertake admissions for a period not exceeding five years during which the college shall not be inspected, except for random checks on receipt of any WA.1701/12 13 complaint, or otherwise as deemed necessary either by the Central Government or by the Central Council of Indian Medicine. The Central Council shall visit the college suo moto three months before the expiry of permission. (3) The conditional permission shall be granted only to those colleges which are fulfilling at least the requirement of teachers as specified in the Schedule-V, the requirement of functional hospital as specified at sub- regulation (2) of regulation 7 and availability of equipment as specified in the Schedule-VII for each academic year 2013-14 and 2014-15 on the basis of the separate inspections to be carried by the Central Council of Indian Medicine after the 28th February, 2013 for the academic year 2013-14 and after the 31st December, 2013 for the academic year 2014-15. Such conditionally permitted colleges or which have been denied permission during academic year 2013-14 and/or 2014-15, will be required to fulfill the requirements as specified in these WA.1701/12 14 regulations by the 31st December, 2014. (4) All the existing colleges, which are not able to achieve full compliance of the requirement as specified in these regulations by the 31st December, 2014, shall be denied permission from academic year 2015-16 onwards and action as envisaged under section 21 of the Act shall be initiated against all such colleges apart from rejection of their applications under sections 13A or 13C, which have been under consideration by way of conditional permission or denials." 15. None of the petitioners Colleges have placed before the Court the factual situation that only after prior approval of the Central Government, there could be enhancement of seats. Undoubtedly, the Central Council of Indian Medicine is the apex body constituted under the Act and the Act requires the Central Council of Indian Medicine to ensure that the Medical Colleges imparting education in the Indian System of Medicine maintained and conformed to the requisite standards. In this context, the Central Council of Indian Medicine has made minimum standard requirements for Ayurveda Medical Colleges WA.1701/12 15 which cannot replace the requirement of IMCC Act. Sections 19 and 20 of the IMCC Act empowers the the Central Council of Indian Medicine with the powers to inspect Medical Colleges and make a report regarding the available infrastructure facilities and also standard of education. Sections 19 and 20 of the IMCC Act read as under: "19. Inspectors at examinations.- (1) The Central Council shall appoint such number of medical inspectors as it may deem requisite to inspect any medical college, hospital or other institution where education in Indian medicine is given, or to attend any examination held by any University, Board or medical institution for the purpose of recommending to the Central Government recognition of medical qualifications granted by that University, Board or medical institution. (2) The medical inspectors shall not interfere with the conduct of any training or examination, but shall report to the Central Council on the adequacy of the standards of education including staff, equipment, accommodation, training and other facilities prescribed for giving eduction in Indian medicine or on the sufficiency of every WA.1701/12 16 examination which they attend. (3) The Central Council shall forward a copy of any such report to the University, Board or medical institution concerned and shall also forward a copy with the remarks of the University, Board or medical institution thereon, to the Central Government.

20. Visitors at examinations.- (1) The Central Council may appoint such number of visitors as it may deem requisite to inspect any medical college, hospital or other institution where education in Indian medicine is given or to attend any examination for the purpose of granting recognized medical qualifications. (2) Any person, whether he is a member of the Central Council or not, may be appointed as a visitor under this section but a person who is appointed as an inspector under section 19 for any inspection or examination shall not be appointed as a visitor for the same inspection or examination. (3) The visitors shall not interfere with the conduct of any training or examination, but shall report to the President of the Central Council on the adequacy of the WA.1701/12 17 standards of education including staff, equipment, accommodation, training and other facilities prescribed for giving education in Indian medicine or on the sufficiency of every examination which they attend. (4) The report of a visitor shall be treated as confidential unless in any particular case the President of the Central Council otherwise directs: Provided that if the Central Government requires a copy of the report of a visitor, the Central Council shall furnish the same." 16. Whether the arguments raised by the appellants are sustainable in view of the Act as well as the Regulations that are applicable is to be seen. Respondents 1 and 2 authorities in the Writ Petition are duty bound to accord permission and discharge other functions in strict adherence to the procedure contemplated. The decision of the Central Government was within the stipulated time, approval and disapproval were clearly intimated and there was no delay. Depending upon the availability of infrastructure and standard of education, conditional permission was granted or denied for the session 2012-13. WA.1701/1”

17. The present regulation does not permit any College which has intake capacity of 50 seats to increase upto 60 automatically. The aspirant Colleges can increase admission capacity by adhering to the procedure under Section 13A of the IMCC Act, so also Regulations made thereunder for increasing admission capacity. Unless the norms are complied with, no such enhancement in the intake capacity would come. It has to be applied for in the light of Section 13A and consequences of non-compliance are indicated at Sections 13B and 13C of IMCC Act, which reads as under:

13. . Permission for establishment of new medical college, new course of study, etc.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force,- (a) no person shall establish a medical college; or (b) no medical college shall- (i) open a new or higher course of study or training, including a postgraduate 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 WA.1701/12 19 (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. Explanation 2.- For the purposes of this section, "admission capacity", in relation to any course of study or training, including post-graduate course of study or training, in a medical college, means the maximum number of students as may be fixed by the Central Government from time to time for being admitted to such course or training. (2) Every person or medical college shall, for the purpose of obtaining permission under sub-section(1), submit to the Central Government a scheme in accordance with the provisions of sub-section (3) and the Central Government shall refer the scheme to the Central Council for its recommendations. (3) The scheme referred to in sub-section WA.1701/12 20 (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 six months from the date of receipt of the reference from the Central Government. (5) The Central Government may, after considering the scheme and recommendations WA.1701/12 21 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 whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme as if such scheme had been submitted for the first time under sub- section(2). (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 WA.1701/12 22 submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted, and, accordingly, the permission of the Central Government required under sub- section(1) shall also be deemed to have been granted. (7) In computing the time-limit specified in sub-section (6), the time taken by the person or medical college concerned submitting the scheme, in furnishing any particulars called for by the Central Council, or by the Central Government, shall be excluded. (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 WA.1701/12 23 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 recognised 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. WA.1701/12 24 (9) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or medical college concerned. 13B. Non-recognition of medical qualifications in certain cases.- (1) Where any medical college is established without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college shall not be deemed to be a recognised medical qualification for the purposes of this Act. (2) Where any medical college opens a new or higher course of study or training including a post-graduate course of study or training without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college on the basis of such study or training shall not be deemed to be a recognised medical qualification for the purposes of this Act. (3) Where any medical college WA.1701/12 25 increases its admission capacity in any course of study or training without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall not be deemed to be a recognised medical qualification for the purposes of this act. 13C. Time for seeking permission for certain existing medical colleges.- (1) If any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or before the commencement of the Indian Medicine Central Council (Amendment) Act, 2003, such person or medical college, as the case may be, shall seek, within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of section 13A. (2) If any person or medical college, as the case may be, fails to seek permission under sub-section (1), the provisions of section 13B shall apply, so far as may be, WA.1701/12 26 as if permission of the Central Government under section 13A has been refused." 18. Section 13A of the IMCC Act is not dispensed with by introducing Regulations, 2012. In other words, Regulations, 2012 does not allow any person to take admission without complying with the norms contemplated under Section 13A of the IMCC Act. Sub-section (5) of Section 13A of the IMCC Act clearly indicates, the Central Government has power to give conditional permission referred to above. As already discussed above, prior to introduction of Regulations, 2012, Regulations, 2006 were in existence and sub-regulation (4) of Regulation 8 is relevant, as these regulations specifically cover various aspects while giving permission to existing Medical Colleges. Sub Regulation (4) of Regulation 8 of the Indian Medicine Central Council (Permission to Existing Medical Colleges Regulations 2006) says that: "inspections for the purpose of sub- Regulation (2) shall be conducted suo motu by the Central Council during the last quarters of the twelve month period of the academic year concerned and the reports shall be submitted to the Central Government." WA.1701/1”

19. As on the date of granting permission to the petitioners Colleges, the IMCC Act, including Sections 13B and 13C of the said Act and also Regulations, 2006 covering permission to existing Medical Colleges were in force. The Central Government and the Central Council of Indian Medicine are bound by these Regulations and the IMCC Act. The counter affidavit clearly indicates detailed order regarding approval and disapproval by the Central Government and the reasons were communicated to the petitioners for the academic year 2012-13. There was no delay on the part of any of the authorities including the Central Government in communicating the decision to the Colleges concerned. Regulations, 2012 referred to conditional permissions being granted only to those Colleges which fulfil atleast minimum requirement of teachers.

20. Reading of regulation (3), it clarifies the position that inspection has to be done by the Central Council of Indian Medicine at a given point of time and further indicates that they are applicable for the academic years 2013-14 and 2014- 15. Unless the Colleges, who aspire to enhance the admission capacity, applied under Section 13A of the IMCC Act and Regulations made thereunder which were in force, there is no WA.1701/12 28 justification in the claim of the petitioners that there is automatic enhancement of intake from 50 to 60 in the light of Regulations, 2012. Regulations, 2012 were published on 18.7.2012. Various provisions referred to above clearly indicate, for which academic year the Regulations are applicable. Regulations, 2012 clearly indicates, the Colleges having conditional permission could be inspected by the Central Council of Indian Medicine, therefore, there is no automatic replacement of provisions of Section 13A of the IMCC Act. The Regulations do not replace provisions of the IMCC Act, especially Section 13A, 13B and 13C. It is not the case of petitioners Colleges that they had applied for enhancement of intake capacity under Section 13A of the IMCC Act and the Regulations made thereunder as per schedule, unless there is a statutory provision to increase intake capacity under the Act without applying for grant of permission by the Central Government to enhance intake capacity under the IMCC Act, so also, Regulations, 2003 meant for increase in admission capacity, they were not entitled for such enhancement. Unless the norms prescribed are followed by which the Central Government is entitled to grant permission to increase intake WA.1701/12 29 capacity, no other authority including State Government or University is entitled to enhance the intake capacity in any of the ASU Colleges. If any increase in admission capacity is made in violation of the provisions of the IMCC Act and relevant Regulations, such enhanced admissions are not valid. The correspondence establishes that each and every order issued by the Department of AYUSH was approved by concerned ministry. Therefore, the contention of the petitioners that for the Session 2012-13, the orders issued by the Department were only administrative in nature, therefore, they are entitled for automatic enhancement of intake capacity by virtue of Regulations, 2012 cannot be accepted.

21. Regulations, 2012, no doubt, resulted in relaxing earlier norms having regard to various aspects, including the difficulties faced by Colleges, but this does not lead to propriety of the petitioners Colleges to increase admission capacity automatically, if they have the infrastructure and other facilities as contemplated in Regulations, 2012. Unless the intake capacity is enhanced in accordance with the procedure contemplated, they are not entitled for such enhanced intake capacity. Compliance of norms and other conditions including WA.1701/12 30 infrastructure facility, faculty etc. can be ascertained only by an inspection as indicated above. As on the date of inspection team visiting the petitioners Colleges, Regulations, 2003 and Section 13A of the IMCC Act were very much in force. Therefore, for the academic year 2012-13, if 50 intake capacity is granted, it is in accordance with those provisions that existed as on the date of inspection. Only on the recommendation of the Central Council of Indian Medicine, the Central Government would grant approval. Therefore, in the absence of inspection to consider minimum standard requirements as indicated in Regulations, 2012, by mere introduction of Regulations, 2012, there is no automatic permission for these petitioners Colleges or any other College to enhance the admission capacity. It is nobody's contention that the petitioners had submitted applications under the provisions of Section 13A of the IMCC Act for enhancement of capacity. The process of increase in admission capacity commences with the no objection certificate of the State Government followed by affiliation of the University, documentary evidence to substantiate financial resources, availability of staff, performance bank guarantee of 50 lakh in case of admission capacity increases 51 to 100 and WA.1701/12 31 so also other requirements have to be complied with. How processing of applications under Section 13A of the IMCC Act would be undertaken is clarified in the schedule. In the absence of compliance of such requirement, Regulations 2012 though published on 18.7.2012 prior to the approval by the Central Government communicated to some of the Colleges would not in any way empower either the State Government or the Colleges to increase the capacity of intake from 50 to 60. In the light of the above observations, it is clear that the infrastructure available was inspected before March, 2012 and the new Regulations came to be notified in July, 2012. If some of the petitioners Colleges had infrastructure more than indicated under Regulations, 2012, unless there is inspection by the inspecting team commenced with application for enhancement of intake capacity as stated above, no such enhancement automatically would enure to the benefit of the petitioners. It is not in respect of one requirement it has to be considered as indicated in the schedule but various factors have to be considered.

22. In the light of the law laid down by the Apex Court, the provisions of regulations, the real intention in bringing WA.1701/12 32 Regulations, 2012 and when they become applicable, it is very clear. Therefore, none of the petitioners Colleges were entitled for intake of 60 in the place of 50 without applying for the same.

23. Learned Single Judge in all the matters granted interim relief based on the claim of the petitioners in the interlocutory applications. Claiming that they have standard requirements notified earlier which would be sufficient parameters for intake of 60, they sought interim direction. In support of this, they contended that they had entered into agreement with the Government to surrender 50% of the seats to the Government and only balance 50% has to be utilised by the College. By virtue of interim relief granted by the learned Single Judge, the writ petitioners Colleges were allowed enhancement of 10 seats and writ petitioners Colleges who had the approval were entitled for additional 5 seats each. Further, there was a direction to the fourth respondent in the Writ Petition to allow candidates to the additional Government seats (5 seats in each College).

24. So far as granting of interim relief, Their Lordships in the case of Medical Council of India v. JSS Medical WA.1701/12 33 College & another [AIR (2012) 2 SCC 726.at paragraph 10 dealt with such controversy which reads as under: "10. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. High Court ought to realise that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in very awkward and difficult situation. If on ultimate analysis it is found that the College's claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine any thing more destructive of the rule of law than a direction by the court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase the seats, a task WA.1701/12 34 entrusted to the Board of Governors and that too by interim order. In a matter like the present one, decisions on issues have to be addressed at the interlocutory stage and they cannot be deferred or dictated later when serious complications might ensue from the interim order itself. There are large number of authorities which take this view and instead of burdening this judgment with all those authorities it would be sufficient to refer to a three Judge Bench decision of this Court in the case of Medical Council of India v. Rajiv Gandhi University of Health Sciences, (2004) 6 SCC 76.(AIR 200.SC 2603), in which it has been held as follows: "14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim orders students who have been admitted in such institutions would be put to serious jeopardy, apart from the fact whether such institutions could run the medical college without following the law. Therefore, we make it clear that the High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of Section 10-A of the Medical Council Act. If interim orders are granted to WA.1701/12 35 those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutions." 25. There is yet another unreported decision of a Division Bench of High Court of Karnataka in W.A.Nos.4514 of 2009 and 495-534 of 2010 dated 28.7.2011. Paragraph 8 of the said decision is relevant, which reads as under: "8. The learned Counsel Mr.Shashikanth appearing for the first respondent brings to our notice that even for the academic year 2011-12 the CCIM has not recommended to grant permission for admission of the students as per the letter dated 07.05.2011 from Under Secretary to the Government of India(AUYUSH). Therefore, as on today from this letter we note that in the 14 departments of the first appellant-college though the minimum requisite teaching staff is 35, eligible teachers are not available i.e., atleast one teacher in each of the 14 departments to have a genuinely functional teaching hospital. However, we are not concerned with any of the academic years except the academic year 2008-09. But since 2008-09 till date what the factual position is, as stated above is borne on record. Since the eligible criterion can be decided only based on a factual situation and CCIM is the authority, which is meant for making WA.1701/12 36 necessary inspection and reporting the factual situation to recommend permission to be granted provided the standards required under the concerned enactment are complied with, has not recommended the permission till date which ultimately led to the order at Annexure H would only indicate that after taking into consideration the factual situation available as on the date of Annexure-H the authority was justified in rejecting the permission. With these observations in view of the above facts, we are of the opinion nothing remains for us to consider in the present appeal. Accordingly, appeal filed by first appellant college is dismissed." 26. Reading of the above decision it is very clear, increase in intake capacity is to be submitted in prescribed format which has to be submitted within the time schedule followed by inspection of the same. Unless factual situation is available as on the date of inspection followed by recommendation by the Council to the Government of India, there cannot be automatic enhancement of intake capacity.

27. In the light of the foregoing discussions and reasons, we are of the opinion, none of the writ petitioners in WP(C). No.19420 of 2012 are entitled for enhancement of seats from WA.1701/1”

50. to 60 automatically by virtue of Regulations, 2012. The procedure for such enhancement has to be followed and approved as contemplated under the statute and regulations. Accordingly, the Writ Appeal is allowed. MANJULA CHELLUR, CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE vgs