Shri Dhanwantry Educational Society Ayurvedic College and Vs. Panjab University Sector 14 Chandigarh and Others - Court Judgment

Civil Writ Petition No.8697 of 2009 (O&M) :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 20 , 2012 Shri Dhanwantry Educational Society, Ayurvedic College and Dabur Dhanwantry Ayurvedic Hospital, Sector 46-D, Chandigarh .....Petitioner VERSUS Panjab University, Sector 14, Chandigarh & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1

Whether Reporters of local papers may be allowed to see the judgement?.”

2. To be referred to the Reporters or not?.”

3. Whether the judgment should be reported in the Digest?.

PRESENT: Mr.Amar Vivek, Advocate, for the petitioner (in CWP No.8697 of 2009).Mr.Rajiv Atma Ram, Senior Advocate with Mr.Arjun Pratap Atma Ram, Advocate, for the petitioner (in CWP No.17592 of 2010.

Mr.Gurminder Singh, Advocate, for the petitioner (in CWP No.16219 of 2012).Mr.Sukhdeep S.Sandhu, Advocate, Central Government Standing Counsel, for the Union of India.

Ms.Anu Chatrath Kapur, Advocate, for respondent No.2.

Mr.Atul Arya, Advocate, for Mr.Deepak Sibal, Advocate, for Panjab University.

Mr.Sanjay Kaushal, Senior Advocate with Mr.A.P.Setia, Advocate, for Chandigarh Administration.

Mr.Ashok Tyagi, Advocate, for CCIM.

**** Civil Writ Petition No.8697 of 2009 (O&M) :2: RANJIT SINGH J.

This order will dispose of Civil Writ Petition Nos.8697 of 2009 (Shri Dhanwantry Education Society, Ayurvedic College and Dabur Dhanwantry Ayurvedic Hospital, Sector 46-B, Chandigarh Versus Panjab University & others).17592 of 2010 (Shri Dhanwantry Education Society, Ayurvedic College and Dabur Dhanwantry Ayurvedic Hospital, Sector 46-B, Chandigarh Versus The Government of India, New Delhi & otheRs.and 16219 of 2012 (Shri Dhanwantry Education Society, Ayurvedic College and Dabur Dhanwantry Ayurvedic Hospital, Sector 46-B, Chandigarh Versus Union of India & otheRs.The facts have been taken from all the writ petitions, which mainly are common with little difference.

Shri Dhanwantry Education Society, which is a duly registered Society under the Societies Registration Act, 1860, is running an Ayurveda College and Hospital in Chandigarh.

It is a self- financed unaided professional College.

It is statedly recognised by Central Council of Indian Medicine (for short “CCIM”.).The College is imparting BAMS CouRs.Degree to the students.

The petitioner- College is affiliated to the Panjab University, which conducts the examinations for the petitioner-College.

(It appears the University has withdrawn affiliation).As per the norMs.the petitioner-College has to obtain permission not only from CCIM and Union of India to carry on conducting the studies of BAMS CouRs.but has also to get sanction from the University with which it is affiliated for grant of degrees for the courses run by the petitioner-Institution.

Though the petitioner- College claims to be running since 1977, but somehow or the other, Civil Writ Petition No.8697 of 2009 (O&M) :3: the College has got into trouble either with the University or with the Union of India for continued grant of permission for running the BAMS CouRs.and the hospital.

Almost every year, the petitioner- College has been approaching this Court and has been able to run the couRs.by virtue of the interim orders passed by this Court.

Therefore, there is some substance in the submissions made by the counsel appearing for the Union of India, when he submits that the College has failed to fulfill the requisite norms or standards expected from it, but still has been able to manage and run the couRs.by virtue of courts' orders from year after year.

It is in this background that while hearing CWP No.16219 of 2012 filed by this College for issuing an appropriate writ for quashing the show cause notice dated 20.4.2012 and consequential impugned order dated 16.7.2012 denying permission to the College for taking admission of BAMS CouRs.with 50 seats in academic year 2012-13 that the earlier writ petitions pending before this court, were called up for hearing with this petition.

Therefore, CWP Nos.8697 of 2009, 17592 of 2010 and 16219 of 2012 are being disposed of together through this common order.

In all the writ petitions, issue is concerning the deficiencies noticed in the hospital, which is functioning and the deficiencies in the staff that has led to passing of the order declining permission to the College, which orders are made subject matter of challenge in these petitions.

Undoubtedly, the College has been able to make admissions for all these years as per the interim directions passed by this court.

Otherwise, the deficiencies indeed were noticed Civil Writ Petition No.8697 of 2009 (O&M) :4: in various aspects by the inspection team during the inspection, which was conducted either by the CCIM/Union of India or by the Panjab University with which this College is affiliated.

The petitioner-College indeed has approached this court year after year and the present process had begun in the year 2009 when Panjab University had barred the College to make further admissions for BAMS CouRs.for Session 2009-10.

A show cause notice was issued to the petitioner-College for disaffiliation of the College from the University on the allegation of non-fulfillment of CCIM norMs.The plea raised by the College in CWP No.8697 of 2009 was that the CCIM had found the College to have fulfilled the conditions as per the communication dated 14.4.2009 and the issuance of a show cause notice and the decision of the Syndicate of the Panjab University to bar the College to make admissions was accordingly challenged on the ground of it being illegal, arbitrary and malafide.

Additional prayer made in the said writ petition was that the same allegations, which were formed the basis of the impugned show cause notice and the order, were under challenge in another writ petition (CWP No.6745 of 2006).earlier filed by the college, where operation of the order had been stayed.

It was accordingly pleaded that the very basis on which the University had earlier barred the College from making admission in the year 2006 was stayed and the matter was subjudice and so the University could not invoke and impose the same condition on the petitioner-College for the year 2009, which was under challenge in CWP No.8697 of 2009.

Perusal of the pleadings as made in Writ Petition No.8697 Civil Writ Petition No.8697 of 2009 (O&M) :5: of 2009 would show that in the year 2003, the Chandigarh Administration had fixed the fee structure for the Colleges at `85,000/- for BAMS Course.

The Syndicate of the Panjab University had, on the other hand, decided to approve the BAMS CouRs.at the fee of `65,000/- including the security, which action was questioned by the petitioner-College by filing a petition before this court.

It was also alleged in the said writ petition that CCIM had permitted the petitioner to admit 50 students for BAMS CouRs.for Session 2002-03, but respondent No.1, i.e., Panjab University had arbitrarily reduced the number of seats from 50 to 40 for Session 2002-03 and Session 2003-04.

The petitioner-College had accordingly filed CWP Nos.16889 of 2001 and 11911 of 2003 challenging the action of the University.

It is stated that both these writ petitions were disposed of and the petitioner-College was allowed to admit 50 students.

In CWP No.8697 of 2009, reference is made to the amendment of the provisions of India Medial Council Central Act, 1970 (IMCC Act for short).It is alleged that Ayurveda Colleges in the country are to be monitored by CCIM as per these amended norMs.As per these revised norMs.no teacher below Post Graduation qualification could teach the degree couRs.without obtaining the PG qualification.

Three years time was allowed to the existing faculty members to upgrade their qualifications.

Many teachers working with the petitioner-College failed to fulfill the aforesaid requirement.

One of the teacher was Dr.Naresh Goyal, who happened to be brother of prominent syndicate member of the Panjab University, namely, Civil Writ Petition No.8697 of 2009 (O&M) :6: Mr.Ashok Goyal.

It is alleged that because of this, the University authority became inimical towards the petitioner-Institution.

The Fee Fixation Committee considered the case of the petitioner and allowed the petitioner to charge the same tuition fee as was approved by the Syndicate for Session 2003-04.

The petitioner claims to have submitted a detailed account statement before the Fee Fixation Committee to show that the College could viably run the CouRs.if annual fee was `1.30 lacs per student from 42 students, which included 8 NRI seats, which incidentally had been done away with.

The Syndicate in its meeting held on 22.3.2006 further directed the petitioner-College to grant Punjab Government Pay Scale to its teachers alongwith other admissible allowances on or before 10.5.2006, failing which admission to BAMS CouRs.in the College for the Session 2006-07 was not to be allowed.

This action was challenged through CWP No.6745 of 2006 and the operation of this order was stayed.

The writ petition was allowed.

On 9.10.2007, the petitioner-College received an intimation from the University to advertise posts of Principal, Professors and Readers etc.in 2-3 leading NewspapeRs.which statedly was done on 24.10.2007.

The petitioner-College had received three applications for the post of Principal, which were from the existing staff.

Petitioner requested the University to send its nominee but to no avail.

While this was going on, CCIM declined to grant permission to the petitioner-College for the Session 2007-08 on the ground that the College did not have sufficient number of teacheRs.The College appears to have filed yet another Writ Petition Civil Writ Petition No.8697 of 2009 (O&M) :7: No.14822 of 2008 before this court, wherein the College gave an undertaking to employ fresh teacheRs.Thereafter, this court had granted permission to the College.

The said writ petition is also pending before this court, but has not been called as it was not in notice of the court while hearing of these petitions was ordered.

On 1.2.2008, the petitioner-College granted regular permission to its officiating Principal to work as a regular Principal.

The University, however, did not approve the action of the College.

The petitioner-College has posed itself as such a college in the North India which conducts campus placement.

It is stated that the team of the petitioner-College has even visited Rajasthan, U.P.and Delhi etc.for recruitment of teachers with proper qualifications.

The respondent-University, however, has been objecting to the method of campus placement initiated by the petitioner.

The University wants the petitioner-College to recruit teachers through public advertisement.

As per the College, there is hardly any College which impart PG qualification in Ayurveda due to which the petitioner is unable to employ any teacher with PG qualification from this region.

Pleading this as a background, the petitioner-College would submit that the University cannot force the petitioner to pay higher pay scale to teachers in the absence of revision of fee structure.

The College has even challenged the jurisdiction of the University in this regard on the ground that this power to recommend the College for making admission lies with CCIM.

CCIM on its part had carried out a surprise inspection of the College on 4.2.2009.

At the same time, a team headed by a Civil Writ Petition No.8697 of 2009 (O&M) :8: Syndicate member also reached the premises.

It is alleged that during the inspection, there was a lot of scuffle and this led to dispute between the members of two inspection committees.

Chairman of the University team is alleged to have used un-parliamentary and filthy language.

This was reflected in the Newspaper reports.

The University, in this background, restrained the petitioner-College from making further admission on 22.3.2009, besides issuing notice to disaffiliate the College as it was not fulfilling the norms laid down by CCIM.

On learning about the same from the Newspaper report, the petitioner submitted an application for supply of inspection report.

The University, however, did not supply any inspection report if prepared.

The petitioner, therefore, made an application under the Right to Information Act when the inspection report signed by the Chairman of the Committee, which had carried out inspection on 4.2.2009, was supplied.

As per the petitioner, CCIM had favourably recommended the case of the petitioner-College to the Government of India subject to the condition that the College shall be able to recruit 35 teachers by September/November 30, 2009.

On the date of report, 31 teachers were found on the rolls of the College.

In the meantime, the petitioner received an impugned order directing the College not to make any further admission for Session 2009-10.

The petitioner otherwise was yet to respond to the show cause notice.

On 16.5.2009, the petitioner received a communication from the University for it to file reply to the show cause notice.

The petitioner submitted the reply on 21.5.2009.

The Coordinator of the admission Civil Writ Petition No.8697 of 2009 (O&M) :9: of Chandigarh Administration informed the College on 11.5.2009 that in the absence of affiliation from the University, the petitioner-College shall not be allowed to conduct admission to BAMS CouRs.for the then current session.

Similar letter was given to the petitioner by the Coordinator of the Centralized Medical Council, Chandigarh Administration on 22.5.2009.

The petitioner wrote to the said authorities alongwith the report of the CCIM, but they insisted on affiliation from the Panjab University.

The petitioner accordingly had filed CWP No.8697 of 2009.

This Court by way of interim order stayed the operation of the show cause notice dated 31.3.2009 and the order dated 29.4.2009 by passing a detailed order on 29.5.2009, which reads as under:- “This civil writ petition has been filed under Article 226/227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing Annexure P-5 dated 31.3.2009.

Challenge has also been made to Annexure P-9 (collectively) dated 29.4.2009 i.e.an order of Syndicate of Panjab University, Chandigarh.

As an interim measure, prayer has also been made for issuance of directions to the respondents to permit the petitioner-College to admit the students for Session 2009-2010 to BAMS Ayurvedacharya CouRs.in terms of Communication dated 14.4.2009 (Annexure P-8) passed by the Central Council of Indian Medicine (for short, `CCIM’).in pursuance of inspection carried out on 4.2.2009.

Learned counsel contends that the University in 2006, raised certain issues.

The petitioner filed Civil Writ Petition No.6745 of 2006.

Order dated 19.5.2006 (Annexure P-4) was passed in the said petition and the Civil Writ Petition No.8697 of 2009 (O&M) :

10. : same reads as under:- “Notice of the application to the non-applicants for July 11, 2006.

Notices Dasti only.

In the meantime, operation of the order Annexure P-11 appended with the main petition, shall remain stayed till further orders.”

Learned counsel has asserted that the order of stay is still effective.

Conduct of the University is such that till date, neither reply to the writ petition has been filed not application for vacation of stay has been filed.

On those very issues, the impugned orders viz.

Annexure P-5 and P9 have been passed at this juncture where-under the petitioner has been barred from making admissions to 1st year of BAMS CouRs.for 2009-2010 Session.

Learned counsel contends that inspection of the Institution was carried out by the CCIM on 4.2.2009.

Incidentally, the Inspection Team of the University also carried out inspection on the same day.

Be that as it may, in Annexure P-5 dated 31.3.2009 (one of the impugned orders).the following has been observed:- “AND WHEREAS the Committee submitted its report to the Panjab University which was unanimously accepted by the Syndicate in its meeting held on 21.3.2009 and it was resolved to issue notice on Shri Dhanwantry Ayurvedic College Chandigarh as to why the College may not be disaffiliated as the college has consistently failed to comply with the conditions imposed by the Central Council of Indian Medicine and the Panjab University, Chandigarh.

This has been approved by the Senate at its meeting held on 28.3.2009.

The Faculty of Medical Sciences, Panjab University Civil Writ Petition No.8697 of 2009 (O&M) :

11. : in its meeting held on 26.3.2009 have taken a serious view of the prevailing conditions in the College and have taken a decision not to allow admission in your College for the session 2009- 2010 till the CCIM, AYUSH and Panjab University, Chandigarh grant permission to the same.

The Syndicate and Senate have also taken a serious view of the malfunctioning in the College, especially in matter of appointment, payment of salary to the staff, changing the name of the hospital, indulging in commercial activities despite directions/instructions given to the College by the University from time to time and even for violating the undertaking given to the University.

It has further been decided not to allow admission for the session 2009-2010 without getting permission from Central Council of Indian Medicine, Delhi, Secretary, AYUSH, Govt.

Of India and the Panjab University, Chandigarh after complying with the conditions imposed by the competent authorities.

not THEREFORE, you are called upon to show cause under Regulation 11.1(5) given at page 160, P.U.Cal.

Vol.I, 2007 as to why the College be not disaffiliated from the University.

Your reply must reach this office within 15 days from the date of issue of this show cause notice.”

Emphasis added.

Learned counsel has drawn the attention of the Court towards Annexure P-9 to contend that considering that on merits, the CCIM would grant recognition, the Civil Writ Petition No.8697 of 2009 (O&M) :

12. : stand has been changed which indicates a biased attitude.

Annexure P-9 (relevant portion) reads as under:- “XXII.

The recommendation of the Syndicate contained in Item 36 on the agenda was read out, viz- 36 That Shri Dhanwantry Ayurvedic College & Hospital, Sector 46, Chandigarh, be warned not to make admissions to B.A.M.S.FiRs.year until permission is granted by the University.”

Learned counsel further contends that serious prejudice has been caused in so much as Annexure P-5 is only by way of show cause notice.

All the documents including the observations recorded by the Inspection Team were not supplied.

After repeated demands, the same have been supplied and the petitioner has responded only recently by way of filing reply dated 21.5.2009.

Without hearing the petitioner, however, Order Annexure P-9 has been passed which indicates that the issue has been prejudged and final decision taken without considering the reply to the show cause notice (Annexure P-5).Learned counsel contends that the CCIM has already considered the case of the petitioner and recommended to the Government of India that the petitioner-College be given permission to take admissions in the CouRs.for Session 2009-2010.

In this regard, reference has been made to Annexure P-8 dated 14.4.2009.

Learned counsel further contends that since Annexure P-5, relevant portion whereof has been extracted above, shows that the University took a stand to the effect hat the College had failed to comply with the Civil Writ Petition No.8697 of 2009 (O&M) :

13. : conditions imposed by the CCIM, even the Panjab University is not giving affiliation.

not that CCIM has given affiliation, the Panjab University cannot possibly have any objection.

The parameters invoked for permission by CCIM and the University are more or less similar.

Learned counsel has pointed out that perusal of the report, Annexure P-11, makes an unfortunate reading in so much as malicious act has been attributed even to CCIM, which is a statutory body created under a central Act.

Notice of motion for 31.7.2009.

In the meantime, operation of Annexure P-5 and P- 9 shall remain stayed.”

While the functioning of the College and the Hospital was continued under the interim directions passed by this court as reproduced above, the process for inspection for grant of continued time to grant permission for the Session 2010-11 reached.

The inspection of the petitioner-college was carried out by CCIM, but no decision was being conveyed.

The petitioner-college then filed CWP No.17592 of 2010 seeking permission to make admission to BAMS 1 t Year CouRs.for Session 2010-2011.

The plea as raised was that the objection raised by the CCIM was regarding the shortage of staff as 13 higher faculty was found working against the requirement of 20 higher faculty.

CCIM had subsequently given another report whereby on a request received from the petitioner-college Director of Ayurveda was required to furnish information in regard to the existing teaching staff as per the proforma of the CCIM after verification.

In the verification report, it was stated that there are 32 eligible teachers Civil Writ Petition No.8697 of 2009 (O&M) :

14. : working in the college.

Still no order was passed by the Government in regard to the permission which the college had sought.

Notice was issued to the respondents and the petitioner-institution was permitted to participate in the counselling with a direction that the petitioner- college be allocated students which ofcouRs.was subject to the final outcome of the writ petition and on the condition that if later it was found that the admission could not have been made and then the petitioner was to remain liable for the consequences in this regard.

(Emphasis added) During the pendency of this writ petition, the order was passed by the Government declining permission to the petitioner- college to admit the students because of the deficiencies that were noticed in the faculty of the College.

The petitioner college thereafter sought permission to amend the writ petition to impugn the order passed during the pendency of the writ petition.

In the amended writ petition, the petitioner-college had impugned the order dated 20.10.2010 conveyed on 26.10.2010 declining permission for admission to the petitioner-college for session 2010-11.

As per the petitioner, the impugned order was passed absolutely on frivolous and arbitrary grounds and in this regard reference is made to the recommendation made by CCIM.

The prayer accordingly was made for issuance of suitable writ, order or direction commanding the respondents to allow admission to BAMS Ist Year CouRs.Session 2010-11 in view of the recommendation made by CCIM.

Prayer was also made for quashing order dated 5.5.2010 (Annexure P-8) which was the report submitted by the committee of the University to the Civil Writ Petition No.8697 of 2009 (O&M) :

15. : Vice Chancellor, which, according to the petitioner was rendered redundant in view of the CCIM NorMs.especially so when the Panjab University did not have any notified Norms to adjudge the petitioner- college.

This writ petition alongwith earlier writ petition filed by the petitioner thereafter was adjourned from time to time.

In between, the petitioner-institution was also declined permission to make admission for session 2011-12, which was challenged through CWP No.18034 of 2011.

This writ petition, however, was disposed of by passing a short order alongwith some other connected writ petitions.

Main order was passed in CWP No.17757 of 2011 (Mai Bhago Ayurvedic College & Hospital Versus Union of India & others).decided on 1.11.2011.

This court had directed fresh inspection of the colleges on the ground of change in the regulations laying down eligibility conditions for grant of continued sanction for BAMS Courses, reference to which in detail is made in later portion of this judgment.

The petitioner had to file yet another writ petition to impugn the show cause notice issued on 20.4.2012 and consequential impugned order passed on 16.7.2012 when the petitioner college was denied permission to take admission to BAMS couRs.with 50 seats in academic year 2012-13.

Notice of motion in this case was issued and during the couRs.of hearing of this petition, it was pointed out before the court that the petitioner college has been admitting students after obtaining interim orders from this court year after year and none of the earlier writ petitions so filed had been finally decided.

Accordingly, directions were issued to put up all Civil Writ Petition No.8697 of 2009 (O&M) :

16. : the writ petitions for hearing together so that the complete picture before this court is available to consider the deficiencies as pointed out while declining permission to the petitioner college starting from the year 2008 onwards.

Except for session 2011-12 where the writ petition filed by the petitioner was disposed of with the bunch of other writ petitions with the lead order being in Mai Bhago's case (supra).other writ petitions filed by the college were pending.

This court had allowed the writ petitions directing the Union of India as well the CCIM to carry out fresh inspection of the petitioner colleges in order to ensure that minimum standard norms as revised vide circular dated 18.3.2011 issued by the Central Government have been complied with and made available by these colleges subject to the observations and expectations noticed earlier.

The court further directed that if it was found that the said infrastructure facilities were made available before the commencement of the academic session 2011-12, then necessary permission was to be accorded for the said session.

If the colleges were found lacking in terms of the requisite infrastructure facilities, the competent authority was at liberty to refuse permission.

The competent authority was also to consider the desirability of permitting the petitioner college to make adhoc/temporary arrangement against the reserved posts in order to ensure that the interest of the students was not jeopardized and the revised minimum standard norms laid down and circulated by letter dated 18.3.2011 were also complied with.

However, this time no interim relief has been granted to the petitioner college and that is how the college has pressed for the decision in this case which has Civil Writ Petition No.8697 of 2009 (O&M) :

17. : led to listing of all these petitions pending before this court since 2009 onwards.

ISSUES REQUIRING CONSIDERATION In CWP No.8697 of 2009, the petitioner had prayed for setting aside the communication dated 31.3.2009 where the respondent-Panjab University had barred the college from taking admission to the college in BAMS CouRs.for session 2009-10.

The main ground was that the CCIM had found the petitioner to have fulfilled the norms and the conditions.

The decision of the Syndicate conveyed to the petitioner college was, thus, termed as illegal and arbitrary besides being malafide.

The petitioner-college was primarily aggrieved against the fixation of fees.

Reference is made to some tussle which had taken place during the inspection by the team constituted by the University and the CCIM.

The petitioner could admit the students in view of the interim order passed by this court on 29.5.2009, which has been reproduced above in entirety.

This writ petition has remained pending and was shown as part heard on 13.1.2010.

During the pendency of this writ petition, the counsel appearing for the petitioner college pointed out before the court that CCIM had conducted a fresh inspection and the report was awaited.

This was so stated before the court on 25.2.2010.

In the meantime, the respondent-University had also filed an application to conduct the inspection of the petitioner-Institution as per the rules.

The counsel appearing for the petitioner did not raise any objection for the University to conduct the inspection.

The only concern expressed by the counsel for the petitioner was that the inspection be Civil Writ Petition No.8697 of 2009 (O&M) :

18. : carried by team of InspectORS.who are duly qualified.

The prayer made in the application moved by the University was accordingly allowed on 13.3.2010.

The inspection was carried out and the report was submitted.

This court gave liberty to the University to examine the report and communicate the deficiencies to the petitioner- institution.

The petitioner was given liberty to respond to the report of the committee and was to remove the deficiencies to permit the University to proceed further with the matter.

The University was also given liberty to proceed on the basis of inspection report vide order passed by the court on 25.5.2010.

It is thereafter that the writ petition was listed before another bench after change of roster and the case was sent back to be placed before the same bench it being part heard.

The case was released from being part heard on 22.9.2011 and in the meantime the writ petition No.17592 of 2010 had also been filed.

In this writ petition, the order under challenge was denial of permission to the petitioner-college to admit students.

The petitioner, thus, could admit the students in terms of the interim order passed by the court as is noticed above.

This writ petition also remained pending and was amended as well, when CWP No.18034 of 2011 was filed again to challenge the permission to the petitioner- college to admit students after inspection for session 2011-12.

This writ petition was disposed of alongwith other connected writ petitions as already noticed.

The situation for the college has not changed and the college is again before the court when permission to admit the students is declined for session 2012-13.

The only change, however, is that this time there is no interim order in favour of the petitioner- Civil Writ Petition No.8697 of 2009 (O&M) :

19. : college.

These issues raised in these writ petitions, thus, require adjudication now.

DISCUSSION ON MERITS It is, thus, noticed that petitioner-college has not been found fulfilling the norms and conditions either by the University or by the Union of India and continuously is being denied permission to admit the students since 2009 onwards.

Every time, the petitioner has been able to admit the students under the interim orders passed by the court for all these years except for session 2012-13.

Different counsel have appeared for the petitioner in these three writ petitions.

Mr.Amar Vivek has appeared in CWP No.8697 of 2009, whereas senior counsel Mr.Rajiv Atma Ram has argued CWP No.17592 of 2010.

Mr.Gurminder Singh is the counsel who has addressed arguments in CWP No.16219 of 2012.

Mr.Amar Vivek while appearing in CWP No.8697 of 2009 has mainly confined himself to point out the reasons for which the college could not fulfill the norms of faculty.

In fact, litigation does not seem to be anything new for the petitioner-college.

The petitioner has already challenged the decision of the Syndicate whereby it had approved the BAMS CouRs.at `65,000/- including security.

The action under challenge was also whereby the number of seats were reduced from 50 to 40.

The revised norms had required that no teacher below the Post Graduation qualification could teach the degree couRs.without obtaining PG qualification.

Three years time was given to the teachers to acquire this post graduation qualifications and it is alleged that the University had taken this Civil Writ Petition No.8697 of 2009 (O&M) :

20. : action to raise objections only because brother of one Syndicate member could not be continued as he was unable to acquire post graduation qualification within the stipulated period.

It is, otherwise, almost a conceded position that the requisite faculty was not available with the petitioner-Institution at that time and even the college was unable to even appoint a Principal with a requisite qualification.

The CCIM had refused to grant permission to the petitioner college on the ground that the college was not having sufficient number of teacheRs.The college had then filed Civil Writ Petition No.14822 of 2008 and on giving an undertaking, the permission to admit the students was allowed and this writ petition is also statedly pending.

Thus, counsel appearing for Government is not off mark when he states that the petitioner college has been able to make admission only by virtue of these interim orders passed by this court year after year, but otherwise the college has always been found to be deficient in fulfilling the requisite norMs.The nature of deficiencies being whatever these are.

The issues as raised by the petitioner college would require examination in the light of the legal position and at least if it is found that the petitioner college is yet to fulfill the norMs.then it should not No.be further permitted to make admission so far as session 2012-13 is concerned.

It would, therefore, be appropriate fiRs.to consider the nature of challenge raised in the CWP No.16219 of 2012 and then see if there would be a justification to interfere in the earlier order passed whereby the college has been able to continue to take admissions under the interim directions passed by this court.

Civil Writ Petition No.8697 of 2009 (O&M) :

21. : LEGAL POSITION AS APPLICABLE Before the grounds of challenge made in this writ petition are noted, it would be appropriate to make a brief mention to the legal position that would govern the consideration in these cases.

The legal position in this regard was considered in detail by this court while deciding CWP No.13843 of 2012 (Dayanand Ayurvedic College, Jalandhar Versus The Union of India and others).decided on 10.10.2012 and accordingly, reference thereto can be made here for ease of its understanding and assimilation.

The relevant observations in regard to legal position that would emerge from the stands as reflected in such like cases as noted in Dayanand Ayurvedic College's case (supra) is as under:- “The reference is then made to the Indian medicine Central Council Act (for short “IMCC Act”.).which provides for constitution of a Central Council Of Indian Medicine i.e.CCIM and for systematic development, regulation of education, training in and practice of Ayurveda, Unani and Siddha (ASU) systems of medicines in India.

The Act statedly was amended in the year 2002 when a new Chapter IIA was inserted.

The amended Act came into force from 28th January, 2003, which has made the prior permission of the Central Government incumbent upon a person who intends to establish a medical institution for or an existing medical college intending to open a new or higher couRs.of study or training or to increase the admission capacity in any existing couRs.of study or Civil Writ Petition No.8697 of 2009 (O&M) :

22. : training including a post graduate couRs.of study or training.

Yet another amendment was made in Chapter IIA of the Act in 2003 and a similar provision in regard to allopathic medical education is incorporated.

Three new Sections i.e., 13A, 13B and 13C have been inserted which would not regulate the grant of permission by the Central Government for new ASU Medical Colleges, higher courses of study and increases in admission capacity.

Section 13B has introduced a kind of penal provision that any college starting such a couRs.without prior permission would not be recognised.

As per Section 13C, all existing Medical Colleges as well as Colleges which have started higher courses of study and that Colleges which had increased admission capacity would also have to seek permission from the Central Government within a stipulated period of three years from the commencement of the Amended Act i.e.by 6.11.2006.

Reference is also made to the role of CCIM while making recommendation that what parameters and consideration have to be kept in view while making such recommendations.

Apparently, CCIM is to see that the Institution is in a position to offer the minimum standard of medical education as prescribed by the Central Council under Section 22.

It is also to see the financial recourses of the institution intending to open such college, the facilities in respect of staff, equipments, accommodation, Civil Writ Petition No.8697 of 2009 (O&M) :

23. : training, hospital or other facilities to ensure proper functioning of Medical College or for conducting the new couRs.of study or training.

In the reply, reference is also made to those factORS.which the Cental Government is required to keep in mind while approving or disapproving the recommendations made by the Central Council in terms of the amended provisions of the IMCC Act.

The Central Government, thus, is required to examine whether the proposed medical college or the existing medical college seeking to open a new or higher couRs.of study or training, would be in a position to offer minimum standards of medical education as prescribed by the Central Council under Section 22.

Whether such colleges have adequate financial resources and facilities in respect of staff, equipment, accommodation, training, hospital or other facilities to ensure proper functioning of the medical college or to conduct the new couRs.as the case may be.

In addition, the Government is also required to see whether the college has adequate hospital facilities, having regard to the number of students, who are likely to be admitted and that whether the College has made proper programme to impart proper training, besides any other factor, that may be prescribed in addition to the requirement of manpower in the field of practice of Indian Medicine.

Civil Writ Petition No.8697 of 2009 (O&M) :

24. : Reference is made to the requirement on the part of college, which is to submit the requisite schemes (application) in such form with such particular and manner as may be prescribed.

The view of Hon'ble Supreme Court which had the occasion to analyse the provisions of Sections 13A to 13C of the IMCC Act in the case of Bihar State Council of Ayurvedic and Unani Medicine versus State of Bihar and Ors., AIR 200.SC 59.is referred in the reply.

The court has considered the amendment brought in the IMCC Act in the year 2003.

It is noticed that these provisions for continuance of the institution which has not obtained prior permission of the Central Government are provided time limit of three years under Section 13C to regularize the Institution's affairs as required under the Act by seeking permission of the Central Government.

Section 13A has regulated the opening of an indigenous medical college.

As is held by the Court, medical institution cannot be established except with the prior permission of the Central Government.

As per Section 13B, any medical qualification granted by the colleges established without the prior permission of the Central Government is not a recognized medical qualification.

It has also been observed that the existing colleges are at par with the new colleges as both of these are required to seek permission within three years from the commencement of Civil Writ Petition No.8697 of 2009 (O&M) :

25. : the Amended Act in terms of Section 13C(1) of the Act.

Section 13C(2) provides that medical qualification granted by existing colleges would not be a recognized qualification of an existing college, whose establishment has not been recognized by the Central Government.

This is also the requirement for opening a new medical college.

Thus, new colleges or existing colleges cannot any more grant a recognized qualification without the sanction of the Central Government.

Ofcourse, it is held that this will not have any affect on the medical qualification already granted to the existing colleges before the insertion of Section 13A to 13C.

These provisions have an application from the date these are introduced and this aspect has been clarified by the Supreme Court in the judgment.

All the medical colleges, thus, have to seek permission of the Central Government within the period provided and on their failure to get this permission, the medical qualification granted to any student shall not be recognised medical qualification.

Section 36 of IMCC Act empowers the Central Council to make regulations with the previous sanction of the Government.

Such regulation may include the form of scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fees payable with the scheme.

These regulations can be in regard to standards of staff, equipment, Civil Writ Petition No.8697 of 2009 (O&M) :

26. : accommodation, training and other facilities for education in Indian Medicine.

Section 22 of the Act, as already referred to, authorise the Central Council to prescribe minimum standard of education in Indian Medicine, required for granting recognised medical qualifications by the Universities, Boards or Medical Institutions in India.

Reference is then made to the regulations made by the Central Council of Indian Medicines, namely, Indian Medical Central Council (Permission to Existing Medical Colleges).Regulations, 2006.

These regulations were notified on 10.10.2006.

The eligibility criteria prescribed for the existing colleges in Regulation 5(1) of the said Regulations is as under:- “(1) A person or an existing medical college shall be eligible for making an application under regulation 3 if- (a) the medical college and its attached hospital are suitably located preferably in a single plot, but which may consist of two plots reasonably close to each other on land which is owned by the applicant or has been taken on lease for a period of at least thirty yeaRs.(b) permission of the concerned State Government has been obtained at the time of establishment of the medical college and the permission continues; (c ) affiliation from a University established under any Central or State Act has been obtained at the time of establishment of the medical college and the affiliation Civil Writ Petition No.8697 of 2009 (O&M) :

27. : continues; (d) the applicant owns and manages a fully functional hospital in the system of Indian Medicine concerned with a minimum of one hundred beds for under graduate courses and one hundred and fifty beds for post-graduate courses which conforms to the norms relating to minimum bed strength and bed, occupancy for In-patients and to the number of Out-patients; (e) the medical college has appointed at least eighty per cent of the teaching and non-teaching staff as may be specified by the Central Council and these staff are in position on a regular basis; (f) the college undertakes to reduce the deficiency of teaching and non-teaching staff within a period of two years in two equal steps; and (g) subject to the exceptions made in this regulation, the college conforms to the other minimum standards of education as may be specified by the Central Council”.Regulation 8 of these Regulations talks of issue of matter of permission, which is also to be granted by Central Government after considering the recommendations of the Central Council.

This Regulation also makes a provision for issuing directions to remove deficiencies in the letter of permission relating to any matter on which norms or standards have been prescribed by the Central Council.

A letter of permission Civil Writ Petition No.8697 of 2009 (O&M) :

28. : directing rectification of deficiencies is to be held valid only after expiry of period specified for the rectification of deficiencies.

As per this regulation, inspections shall be conducted suo motu by the Central Council during the last quarters of twelve months.

In their reply, it is further disclosed that after the amendment of the IMCC Act, 252 applications from the existing colleges/Institutions were received by the stipulated date in November, 2006.

All these applications were taken up for consideration.

Subsequently, however, on the basis of representations received from the State Governments and the colleges, it was decided that no action would be taken against the existing colleges under the provisions of Section 13C during the academic year 2007-2008 and the colleges would ensure that the full complement of teaching and non-teaching staff, infrastructure and other facilities in terms of relevant CCIM Regulations would be available before the start of academic year 2008-2009.

The Government, accordingly, through letter dated 1.5.2007 informed the Central Council and all State Health Secretaries, AYUSH Secretaries/ CommissioneRs.Registrar of the Universities, which had applied for grant of requisite permission.

All the existing colleges, thus, were given extension for another year to upgrade themselves to the levels prescribed by the CCIM Regulations.

The State Civil Writ Petition No.8697 of 2009 (O&M) :

29. : Governments were also requested to ensure that all the existing ASU Colleges conform to the minimum standards laid down in the relevant CCIM Regulations with respect to teaching staff, infrastructure etc.before the colleges were permitted to make admission for the year 2008- 2009.

Despite the above, some of the State Governments had gone ahead with the admissions even before the process of granting permission under Section 13C was completed.

The Central Government had been requesting the State Governments to initiate remedial measures to ensure compliance of the provisions of the Statute.

Taking into consideration that very large number of colleges could not fully qualify for permission on the basis of a strict interpretation of IMCC Act, the respondent- Government had taken a realistic view that the shortcomings and deficiencies, being remediable and if the adveRs.impact on the quality of medical education is not seen, then the colleges be given permission subject to condition that these shortcomings and deficiencies are removed within a stipulated time frame.

Taking realistic view, though the existing colleges have serious deficiencies and shortcomings, the Central Government insisted on vary basic requirements for the medical colleges to apply and these were (i) the availability of teaching staff and (ii) the status of teaching Civil Writ Petition No.8697 of 2009 (O&M) :

30. : hospital.

Even though a lowering of the bar in this manner was not very desirable but still a conscious decision was taken to ignore the other attributes.

Thus, for academic years 2008-09, 2009-10, 2010-11, the lowered threshold for grant of conditional permission was as follows:- “(i) The college concerned must have eligible teaching faculty of at least 80% of the full complement of the requisite teaching staff; (ii) The concerned college must have an attached teaching hospital with requisite bed strength of 100 beds for UG couRs.or 150 beds in the case of PG colleges, with the relaxation for the Unani colleges in the year 2010-11 to have minimum 50 bedded hospital; (iii) The annual average attendance in the Out Patient Department of the attached hospital should be at least 100 patients per day and (iv) The annual average bed occupancy in the In- Patient Department in the attached hospital should be at least 40 per cent.

The aforesaid lowered norms had been uniformly applied to all the applicants under section 13C (existing college) and also applied to the case of new applications under section 13A during the years 2008-09 to 2010-11 and new colleges established under section 13A”.Even the requirements of a fully functional hospital with minimum bed strength of 100 or 150, as the Civil Writ Petition No.8697 of 2009 (O&M) :

31. : case may be, and at least 80% full complement of teaching and non-teaching staff, with the stipulation that the college concerned undertakes to make good the deficiencies in two yeaRs.are prescribed in Regulations, 2006.

It is in this background that the colleges were given permission irrespective of their status in terms of various other standards and criteria laid down in CCIM Regulations.

The mechanism of granting conditional permission was, thus, invoked primarily to use and to goad the medical colleges to improve their standards.

It is also disclosed that there had been complaints of levelling allegations of irregularities and corrupt practices against the inspecting team of CCIM.

In the wake of such complaints in general, the Central Bureau of Investigation jointly with the Department of AYUSH conducted surprise checks of 16 Colleges selected randomly.

The shocking factual position statedly has then surfaced.

It was found that hospital equipments, like beds, medicines etc.were found stashed in a locked room where they were gaining dust.

The attached teaching hospital suffered grave inadequacies and discrepancies and could not be taken as genuinely functional teaching hospitals.

Noticing that there had been foul play, the department felt compelled to take remedial steps to cross check the claim of the colleges vis-a-vis report/ recommendations of CCIM by framing Civil Writ Petition No.8697 of 2009 (O&M) :

32. : norms under which the college will have to produce the complete record before the hearing committee.

Reference is then made to the norms for the academic year 2011-2012 in regard to the existence of an attached functional teaching hospital conforming to the norms of average attendance in the OPD and average bed occupancy in IPD.

The college concerned must have at least 90% of the required teaching faculty including 40% of higher faculty (Professor + Reader) and at least one teacher in each department of higher faculty.

Noticing that the process of communicating the decision for the academic year 2011-2012 would spill over beyond July, 2011 as originally envisaged, but could be completed on or before 31.10.2011, letters dated 18.3.2011 and 29.7.2011 were initiated.

This was communicated to all the Ayurveda, Unani and Siddha Medical Colleges and these communications were also placed on the Website of the Department of AYUSH, New Delhi.

The inspection/visitation team by CCIM or a Central Team were considered appropriate to verify the status of compliance of a particular medical college cannot be a never ending process and there has to be a reference date based on the decision for particular academic year.

The norMs.which are adopted for academic year 2012- 2013, are the same as were laid down for the year 2011- 2012 and were also communicated well in time.

Thus, it is Civil Writ Petition No.8697 of 2009 (O&M) :

33. : stated that all the medical colleges are duty bound to ensure that they conform to the requirement of the Act, Regulations and the CCIM Norms..........”

Having noticed the legal position in brief, let us not take up the grounds of challenge in the petitions.

SUBMISSIONS ADVANCED IN CWP NO.16219 OF 201.Mr.Gurminder Singh appearing in above Civil Writ Petition has raised number of pleas to impugn the action of the Union of India and has even gone to the extent of challenging the powers of Government of India to pass order of the nature of impugned order ignoring the recommendations of the CCIM.

Reference is made to the amendments carried out in the Act on 7.11.2003, whereby CCIM has become a Recommendatory Body and final decision in regard to establishment or continuation of an Ayurvedic College is to be taken by the Central Government.

Reference is made to Section 13C inserted on 7.11.2003.

As per this, any person wanting to establish college is to seek within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of Section 13A.

Reliance is placed on the provisions of Section 13A(6).which provides that where, within a period of one year from the date of submission of the scheme to the Central Government, no order is communicated by the Central Government to the person or the medical college submitting the scheme, then such scheme shall be deemed to have been approved by the Central Government in form in which it was submitted.

This section further provides that the permission of the Civil Writ Petition No.8697 of 2009 (O&M) :

34. : Cental Government required under sub-section(1) shall also be deemed to have been granted.

By virtue of the provisions of Section 13C, the persons who have established a medical college or any medical college has opened a new or higher couRs.of study or training or increased admission capacity, such college or a person 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.

Relying on these provisions, it is averred that the petitioner Institution being an existing institution with intake capacity of 50 students in order to comply with the statutory requirements under Section 13C of the Act submitted an application on the prescribed proforma to respondent No.1, i.e.Government of India, on 4.11.2006.

As per the petitioner, the Government did not communicate any decision on the aforesaid application within a period one year from the date of submission of the application.

The counsel accordingly would urge that by operation of law as envisaged under Section 13A(6).the college of the petitioner stood recognized as no order was communicated by the Government.

It is further pleaded that CCIM had granted permission to the petitioner college for academic session 2006-07 and for session 2007-08 as was conveyed through letter dated 1.5.2007 to all the existing medical colleges.

So, the petitioner college was recognized and approved in accordance with law and no infirmity would remain for continuation of the same.

In this background, the show cause notice issued on 30.6.2008 with reference to the application dated Civil Writ Petition No.8697 of 2009 (O&M) :

35. :

4. 11.2006 requiring the petitioner college to show cause in regard to various deficiencies for declining the permission granted is termed as futile and illegal.

It is stated that the scheme submitted by the petitioner college stood approved due to the deeming provisions contained in Section 13A(6) and this show cause notice is termed as having been issued in violation of the law.

As is stated in the petition, the permission for academic session 2009-10 was conveyed on 6.8.2009 subject to the outcome of CWP No.8697 of 2009, reference to which has already been made above.

The permission for academic session 2010-11 was denied through a communication dated 20.10.2010, which decision was challenged by filing CWP No.17592 of 2010 where also interim order saved the petitioner college, reference to which has already been made above.

Similarly, permission for academic session 2011-12 was again refused despite CCIM being a statutory body having recommended the grant of permission.

This decision was challenged by filing CWP No.18034 of 2011, which was disposed of on 1.11.2011 (Annexure P-11 with CWP No.16219 of 2012) by way of a short order, the main order being in CWP No.17757 of 2011, reference to which has already been made above.

Pursuant to the directions passed by this court in CWP No.18034 of 2011, CCIM did pay a visit to the college on 10/11/2.2012 and submitted a report on 11.4.2012.

The CCIM has recommended to the Government for grant of conditional permission to the college for 50 students to BAMS CouRs.for academic session 2012-13.

Still, the petitioner college was served a notice dated Civil Writ Petition No.8697 of 2009 (O&M) :

36. :

20. 4.2012 requiring the petitioner college to explain why permission for admission to BAMS CouRs.should not be declined for session 2012-13.

The petitioner claims to have submitted a comprehensive reply on 3.5.2012 and appeared before the hearing committee as well.

It is alleged that the members of the hearing committee were having inadequate qualification to conduct the hearing, one of the member was stated to be only a Homeopath and other was a very junior Rung officer in Ayurveda, whereas the visitation team consisted of senior professORS.It is alleged that there is no provision to constitute or appoint hearing committee and it is not prescribed under the Act.

As per the petitioner, CCIM is duly constituted under the statutory scheme.

The hearing committee statedly asked questions, which were not relevant to the points raised in the show cause notice and, thus, the petitioner would plead that the procedure prescribed and the order passed is without any jurisdiction.

It is also alleged that the hearing, as granted, was not fairly conducted and was done in a prejudicial manner with predetermined views.

The respondent-Government has declined the permission to the petitioner college for taking admission to BAMS CouRs.for 50 seats vide order dated 16.7.2012.

The petitioner would claim that its hospital is best fully functional hospital in Northern India and the recommendation of CCIM will bear testimony to the same.

It is averred that as per the record, 53.75% bed occupancy was shown by the college during the random checking of the IPD cases.

The report of the CCIM is based on the visit of the team and is totally contradictory to the findings Civil Writ Petition No.8697 of 2009 (O&M) :

37. : given by respondent No.1-Government, which is given while sitting in the office at Delhi.

Accordingly, the petitioner has filed this petition to challenge the order declining permission on various grounds.

The fiRs.ground, as already noticed, is based on the deeming provisions of Section 13A(6).It is also urged that CCIM, being a statutory body, has always allowed the permission to the college and there is no provision under which the respondent-Union of India can exercise jurisdiction in the matter of grant of permission to Ayurvedic College.

It is stated that the permission is to be granted in accordance with the recommendations of the CCIM.

Relying on Entry 66 of List1 of Schedule 7 relating to Higher Education, it is urged that it is for an expert body to ensure and determine the standards in medical education.

It is, therefore, stated that the statuary body alone can adjudge the college on the basis of infrastructure, faculty and training at the time of establishment/setting up of higher courses by the college.

Central Government, as per the petitioner, is to consider the scheme as also the recommendation and is only to approve or disapprove the scheme.

It is urged that the Central Government would not have power to inspect or objectively assess the merits of the scheme in the absence of any inspection by it to support the same.

It is urged that the Central Government cannot take refuge under the provisions of Sections 13A and 13C to pass the impugned order, which is meant only for establishment of a new college.

It is also stated that the requirement is only to fulfill minimum standards of education in Indian medicine and there are no notified norms requiring the petitioner to have 40% bed occupancy of Civil Writ Petition No.8697 of 2009 (O&M) :

38. : indoor patient (IDP).In support of the contention, some judgments have also been relied upon.

Respondent-Union of India has responded by filing a short reply.

This reply is short only by name, but otherwise runs into as many as 109 pages.

Giving reasons as to why permission sought by the college has been refused, it is stated that the permission was declined due to non-fulfillment of one of the basic eligibility condition for having a genuinely functional hospital with a genuine load of patients with a minimum of 100 patients per day on an average in OPD and 40% bed occupancy in IPD.

This is stated to be violative of mandatory provisions of the IMCC Act.

It is stated that examination of the report submitted by the visitation team of CCIM revealed that the petitioner college has not submitted the complete information to the visitors with respect to the documentation of the hospital functioning i.e.with respect to ITP register, IPD case sheets, OPD register, Doctors duty register, Nurses duty roster etc.Certain discrepancies were noticed during the hearing, which are as under:- “(a) In Kayachikitsa department of the IPD, 11 patients were admitted in the month of February, 2011 which had generated 519 bed days occupied for only 28 days and in the month of April, 16 patients generated 677 bed days occupied for only 28 days.

These IPD bed occupancy figures were found to be un-realistic and exaggerated at prima-facie.

(b) In the Central IPD Register and case sheets of Shalya Department, there was no OPD Registration Civil Writ Petition No.8697 of 2009 (O&M) :

39. : number.

Case sheet showed that generated bed days in the Department of Shalya was not authenticated.

(c ) OPD No., IPD not and Bed not of the patients were not mentioned in the laboratory Register.

(d) OPD Registration No., date of admission, date of discharge, diagnosis, name of the Department and remarks were not mentioned in the IPD Register.

(e) Departmental IPD Register was not maintained by the college.

The representatives agreed that they were not maintaining the Departmental IPD Register.

(f) Name of Doctors mentioned in IPD Register did not match with doctors of concerned Department.

(g) The patients of Shalya Department in the lab Register for the month of July did not match with the tests prescribed in the case sheet.

The representatives agreed that in Lab Register, OPD/IPD/ bed no.was not mentioned.

(h) The college was found to be not maintaining the Laboratory Register and case sheets properly.

(i) The case sheet of patient Kusum Gupta in Shalya Department for the month of July, indicating the tests performed like Hb%, FBS, PPBS done.

But in lab Register, no any record was found for the patient.

It corroborated that neither the case sheets were genuine not the Lab Register was genuinely maintained.

(j) Patients namely Mr.A.K.Panigrahi admitted Civil Writ Petition No.8697 of 2009 (O&M) :

40. : on8.1.2011, Mr.Arjana admitted on 31.12.11 and Mrs.Nirmala Devi admitted on 31.12.11 were discharged on same date and same thing was found to be repeated in records which showed that the records were not genuine.

(k) No paper of investigation was found attached in case sheet either of their own laboratory or from outside.

(l) No OPD slip/receipt was attached in any IPD case sheet, as the patients are referred for admissions in IPD from the OPD on the OPD slips by the consultants.

No any other document was found attached in case sheet with any advise for admission.

No discharge slip was found attached in any case sheets.

It further confirmed that case sheets were manipulated and not genuine.

(m) In TRP (Temperer, Pulse, Respiration) chart, nobody (Doctor/Nurse) had signed in case sheets.

It proved that the case sheets were very casually filled and may not be genuine.

(n) While counting the total number of bed days occupied in IPD, one extra day was counted for each patient in every Department.

The representative agreed that IPD bed occupancy was calculated wrongly.

(o) In the Department of Shalya, a case of abscess patient named Anil Kumar was admitted on 4.7.2011 and discharged on 10.8.2011.

How can a simple abscess patient stay in IPD for more than one month?.

It showed Civil Writ Petition No.8697 of 2009 (O&M) :

41. : that the case sheets were not genuine and exaggerated data was made to increase the bed occupancy.

(p) Patient, in SHALYA Department, named Anil Kumar, was not prescribed any Ayurvedic medicine.

(q) OPD number was not reflected in IPD sheets.

It created doubt about the genuine functionality of the Hospital.

(r ) In follow up sheets, no where it was mentioned about the repeat of medicine or any new medicine was prescribed.

It created doubt about the medicine prescribed was continuing till recorded.

(s) The representative could not produce the Register for Radiology.

(t) Signature was not available in most of follow sheet in IPD cases.

(u) In the patient name Gurupreet Singh, IPD no 14563, ligation of pile was done by KsharSutra Therapy on the day of admission that is 6.7.2011, and he was discharged on 6.7.2011 as per patients request.

But follow up sheet was filled up even after 6.7.2011 up to 19.7.2011 which proved that the IPD case sheet was manipulated.

(v) OPD and IPD Dispensing medicine register was not available.

The representatives told that the medicines were dispensed only to the IPD patients free of cost.

But the representative could not produce even medicine IPD Register.

Civil Writ Petition No.8697 of 2009 (O&M) :

42. : (w) In laboratory Register, sl.not receipt no is there, but OPD not IPD not bed no where not available.

(x) In the Central OPD Register, for the month of March, 2011, it was observed that the total number of patient in OPD was 7696, which was obtained by deducting the serial not of Registration nos., i.e.752189 to 759885.

But it was found that total number of patients in all Departments for the month of March, was 4866 (Kayachikitsa-1134+Shalya 670+Shalakya 754 + Prasuti & Stri Roga 715+ Bal Roga-235+ Panchakarma 918+ Swasthyarakshan 440=4866 which proved that OPD documents were manipulated and fabricated.”

On the basis of deficiencies and discrepancies as noticed and referred to above, it was observed that the hospital data and other irregularities show that the teaching hospital of the college did not appear to be a genuinely functional Ayurveda Hospital having a genuine patient load of 100 patients per day in OPD and 40% IPD in bed occupancy during the period 1.1.2011 to 31.12.2011.

Reference is then made to various amended provisions of the IMCC Act and the enabling poweRs.which not are conferred on the various authorities.

Section 36 of IMCC Act is referred, which empowers the CCIM to make regulations with respect to certain matteRs.like the particulars to be given of the form of scheme or the manner in which the scheme is to be preferred.

It also relates to the couRs.and period of study and practical training to be undertaken, the subjects of examination and standards of proficiency to be Civil Writ Petition No.8697 of 2009 (O&M) :

43. : obtained in any University, board or medical institutions for grant of recognised medical qualifications.

This Section also makes a provision concerning the standard of staff, equipment, accommodation, training and other facilities for education in Indian medicine.

Regulations framed by virtue of power given under Section 36, for short Regulation 2006, are then referred to, which were notified in the Gazette on 10.10.2006.

As already noticed while discussing the legal position, all the colleges in existence as on 7.11.2003 and which were offering undergraduate or post graduate courses are covered by these regulations.

Regulation 5 of the Regulations is already reproduced above while making reference to the legal provision noticed in the case of Dayanand Ayurvedic College (supra).Having made reference to these legal provisions, it is pointed out that 252 applications were received from the existing colleges upto the stipulated dates in November, 2006.

From scrutiny of these applications, it was observed that large number of colleges did not have the requisite number of teaching staff and other infrastructure in conformity with CCIM regulations.

In order to ensure that the proper standards were maintained by the existing college, the answering respondent decided that all those colleges who do not fulfill the eligibility criteria will not be granted permission for academic session 2007-08 and de-recognition proceedings would be initiated against them.

However, on receipt of representation and request, the issue was reconsidered and decision was taken to grant permission to these colleges subject to the conditions that they will have Civil Writ Petition No.8697 of 2009 (O&M) :

44. : requisite number of 80% teaching staff before making admission.

It was further stipulated that the college will have to remove all other deficiencies by the end of March, 2008, failing which permission for academic session 2008-09 will not be granted.

Reference is made to a letter issued by the Government dated 30.5.2008 requesting all the State Governments to ensure that all existing ASU colleges conform to the minimum standards laid down in the relevant CCIM regulations with respect to teaching staff, infrastructure etc.before the colleges were granted permission to make admission for academic session 2008-09.

Even a letter was initiated by the Government to the State Governments and the Universities advising them to put the admission process for academic session 2008-09 on hold till such time the colleges concerned obtained the conditions required under the Act.

The State Governments were also requested to initiate remedial action to ensure that the teaching and non-teaching staff and the necessary infrastructure facilities were put in position as per section 13C due to the perception about poor state of existing Ayurveda, Siddha and Unani Colleges.

Considering that large number of colleges did not fully qualified for permission on the basis of a strict interpretation of the IMCC Act and the relevant regulations, the department took a realistic view that the shortcomings regarding deficiencies of staff, infrastructure and other facilities being remediable and which were likely to have an adveRs.impact on the provision of quality medical education, the colleges should be given permission subject to the condition that these shortcomings and deficiencies are removed Civil Writ Petition No.8697 of 2009 (O&M) :

45. : within a stipulated time frame.

Taking pragmatic view, the department decided to restrict the qualifying criteria to only two of the very basic requirements for a medical college and to apply them in a clear and transparent manner.

These were: (i) the availability of the teaching staff; (ii) status of teaching hospital.

Even though this lowering of bar was not desirable but still a conscious decision was taken to ignore all other attributes which a medical college should normally possess as per the requirement under Section 13C for grant of permission.

The requirement of academic sessions 2008-09, 2009-10 and 2010-11 were that the college concerned must have: (i) an attached functional hospital with minimum bed strength of 100 for undertaking UG CouRs.and with minimum bed strength of 150 for undertaking PG course; (ii) The strength of eligible teacher should at least be 80% of the full complement, out of which 28 teachers of total 35 for BAMS CouRs.with intake capacity of 50 students, at least have one higher faculty, i.e., Professor or Reader and one Lecturer in concerned subject for undertaking PG Courses; (iii) The average annual attendance in the OPD of attached hospital is at least 100 per day, and; (iv) The average annual bed occupancy in IPD attached hospital is at least 40% for UG college and at least 50% in the case of PG college.

Civil Writ Petition No.8697 of 2009 (O&M) :

46. : It is then pointed out in the reply that the answering respondent was faced with a new situation in which the colleges started levelling allegations against the inspecting team of CCIM and accusing them of indulging of corrupt practices.

In order to verify this aspect, the Central Bureau of Investigation conducted surprise checks of 16 colleges jointly with Department of AYUSH randomly.

The factual position revealed a shocking state of affaiRs.In one of the college, it was found that the hospital equipments, like beds, medicines etc.were found stashed in a locked room where these were gaining dust.

In other colleges, it was observed that the attached teaching hospital suffered grave inadequacy and discrepancies and could not be taken as genuinely functional teaching hospital.

The surprise inspecting team found a fabricated record maintained by the colleges.

Thus, it became apparent that there was a foul play as many of the colleges had been recommended by the CCIM for grant of permission for academic session 2010-11.

Faced with such desperate situation, the Government decided to take remedial steps to cross-check the claims of the colleges in the light of the reports/recommendations made by CCIM by laying down norms under which the college will have to produce the complete record before the hearing committee of the answering respondent.

To bring more transparency.

these norms were framed and made public in March, 2011.

The colleges were earlier given two years time to remove the deficiencies of the teaching and non-teaching staff from November, 2006.

Inspite of granting provisional permission, the Civil Writ Petition No.8697 of 2009 (O&M) :

47. : situation was found to have not shown any improvement at the desired level.

Every year the permission was granted with specific stipulation that the concerned college will remove the deficiencies by the time granted, but despite clear directions, the colleges did not meet 100% teaching staff mark and also did not achieve the required patient load in OPD or IPD.

Even after five yeaRs.many colleges, which includes petitioner college, were standing at the same cross road where they stood in November, 2006.

Thus, it is noticeable that the college has continued to get permission from academic sessions 2007-08, 2010-11 under the relaxed norms which is beyond the period of two yeaRs.Even the norms which are far less than required norms adopted for session 2011-12, which were marginally higher than the earlier norms could not be achieved by the petitioner college.

These norms for academic session 2011-12 required existence of an attached functional teaching hospital in the system concerned conforming to the norms of average attendance in the OPD and average bed occupancy in the IPD.

The colleges concerned were to have at least 90% of the required teaching faculty including 50% of higher faculty and out of total higher faculty, the college must have at least one teacher in each department.

These norms required for session 2011-12 were communicated to the all concerned including the petitioner college through a letter dated 18.3.2011 (Annexure R-4).The procedure for consideration of cases was also communicated through letter dated 21.3.2011 (Annexure R-5).These two communications were also placed on the website.

Civil Writ Petition No.8697 of 2009 (O&M) :

48. : The colleges have also been informed that the process of inspection/visitation by the CCIM or a Central Team, where considered appropriate, to verify the status of the compliance of a particular medical college cannot be a never ending process and there has to be reference date based on which the decision for particular academic year is taken.

This is particularly relevant for avoiding a set of teaching staff being counted or taken into consideration for more than one medical college.

It is in this context specifically provided in Annexure R-5 that the situation will be accessed as it prevails on the date of the inspection and no data beyond specified period will be taken into consideration.

The norms as adopted for session 2012-13 are the same as per academic year 2011-12.

In this background, CCIM team visited the petitioner college on 10/11.2.2012.

From the report of the team, it was observed that the college did not provide the OPD/IPD documentation and from this act, it appeared that the college did not have genuinely functional Ayurvedic Hospital.

This was brought to the notice of the college through a communication dated 20.4.2012, vide which randomly checked deficiencies were pointed out and college was directed to bring the complete record on the date of personal hearing.

It is conceded in the reply that CCIM had recommended for grant of conditional permission, but during the couRs.of hearing the petitioner college could not present adequate proof that their case falls within the four corners of the Act and resultantly college was denied permission for academic session 2012-13 and the order in Civil Writ Petition No.8697 of 2009 (O&M) :

49. : detail in this regard was passed, which is not impugned in the present petition.

The respondents, thus, would plead that it is bound by the provisions of the law, norms and regulations and has to keep in view the interest of the students and public at large and has to ensure better education for which the impugned decision is taken.

It is, thus, pleaded that the order under challenge is passed as per law and suffers from no infirmity of any kind.

The position that would emerge is that the petitioner college had applied for permission under Section 13C in 2006 and in view of the general order passed, all the existing Ayurvedic Colleges, the conditional permission was granted.

It was though not repeated by the Central Government, but the college by virtue of order passed could continue with admission for some next academic sessions to enable the college to fulfill the CCIM NorMs.During session 2010-11, the petitioner college was denied the conditional permission on 6.10.2010.

The college was granted time to fulfill the CCIM norms by 31.12.2010, so that CCIM could carry out inspection in January/February, 2011.

The college was also granted conditional permission subject to it having valid affiliation from the Panjab University.

It is pointed out that the Panjab University has withdrawn the affiliation in 2010.

Unless and until the college is affiliated with an University, the permission to make admission cannot be granted.

Accordingly, the permission for session 2010-11 was declined.

The college was not found fulfilling the eligibility criteria of genuinely functional hospital with minimum 40% bed occupancy.

It is conceded that the CCIM had recommended grant of conditional permission, but Civil Writ Petition No.8697 of 2009 (O&M) :

50. : the Government while examining the recommendation required the petitioner college to submit requisite documents during the hearing.

The hearing committee examined the photo copies as submitted by the petitioner college, especially those of Central OPD Register, IPD Register, case Sheets, Lab.

Register, Diet Register, IPD Medicine Indent Register, IPD Medicine Dispensing Register, Duty Roster- Nurses , Attendance of hospital staff, Attendance of Teaching Staff/OPD DoctORS.The documents, like OPD RegisteRs.Departmental IPD RegisteRs.Discharge Tickets/Card, Panchkarma Procedure Records, O.T.Register, Labour Room Records were not submitted for verification.

The perusal of the documents indicated that no Central OPD number was mentioned, no bed number was mentioned in any of the case sheet, no copy of the discharged-ticket was attached with the case record, no diagnosis is mentioned in the Central IPD Register, Case Sheet as on 31.7.2010.

On the basis of this observation, the hearing committee reached a conclusion that the teaching hospital could not be taken as genuinely functional.

It was, thus, concluded that hospital is not genuinely functional Ayurvedic Hospital and the permission sought was denied for session 2011-12.

In the reply, reference is also made to number of judgments passed by the different courts in support of the contentions and the powers that are available for acting in such like situation and accordingly the impugned order is justified.

From the grounds of challenge as raised in the petition, it is noticed that the petitioner has even challenged the power of the Central Government to pass an order and even jurisdiction of the Civil Writ Petition No.8697 of 2009 (O&M) :

51. : Government is challenged.

It is urged that CCIM recommendations are binding on the Central Government.

During the couRs.of hearing this challenge was not pressed with same ferocity as was initially urged and was addressed in a diluted form to say that the CCIM recommendation cannot be lightly ignored.

The submission that the deeming provision would come to the rescue of the petitioner college for continued permission to run the BAMS CouRs.is required to be rejected upon being so noticed.

The Central Government has duly explained the same.

In fact, it is to help the colleges that the general decision was taken to give time to the colleges to justify the norms prescribed.

A large number of applications were received from existing colleges for continuing with the admission and, therefore, the Government had taken a general decision to permit these colleges to have a breathing time to remove the deficiencies in the faculty and the functioning of hospital and accordingly a general communication to all these institutions was addressed on 1.5.2007.

The petitioner college concedes to have received this communication, but still it is pleaded that no order was conveyed and so deeming provision would come to its rescue.

This is a misconceived approach and a misleading one too.

Reliance on the deeming provision to say that no decision in regard to the permission as sought was communicated to the petitioner college to seek support of deeming provisions contained in Section 13A(6).in this background as explained can not receive any appreciation from the Court.

Such approach can not be expected from an institution which is claiming itself to be discharging a social obligation, like running a Civil Writ Petition No.8697 of 2009 (O&M) :

52. : hospital for good of the public at large.

The other issue which will arise for consideration would relate to power of the Central Government to evolve a procedure of hearing the colleges even after recommendation made by the CCIM.

Initially, the counsel for the petitioner was quite vehement in his approach to submit that the CCIM recommendations are final and the Government thereafter has to approve or disapprove the permission which is sought and nothing more can be done in this regard by the Government.

To this an extent, the counsel has challenged the power of the Central Government to constitute a hearing committee and to afford a hearing to the representative of a college to pass decisions which are impugned in the present writ petitions.

I can not subscribe to this line of reasoning pursued by the counsel for the petitioner.

Conceded position is that CCIM is a body which makes recommendations.

If it is a body which has to make recommendations, how can it be urged that a body which is a recommendatory body can make binding recommendations, which are still termed as recommendations for the decision making authority.

Invariably, it is noticed that the colleges, like the petitioners have been approaching this court with a grievance that Central Government has been passing the order in violation of principles of natural justice inasmuch as no opportunity of hearing was provided or the hearing which was provided was not fair and just or reasonable.

The courts have been interfering in such like matters by ensuring that if any adveRs.order is passed, it must be so passed Civil Writ Petition No.8697 of 2009 (O&M) :

53. : after following the principles of natural justice, especially the one relating to fair hearing.

The hearing even if provided but is not found to be fair have been a reason for this court to interfere in some of the cases.

In this background, the objection raised by the petitioner college would seem out of tune with the principle of law and at least would not impress me.

It is not appropriate for this court to hold that the Central Government can take a decision on the basis of some recommendation made by recommendatory body and it has no power to hear the party likely to suffer from any adveRs.order, if made.

The procedure of hearing the party before passing an order on the basis of a recommendation is to ensure that the principles of natural justice are adhered to and would not in any manner violate any of the provisions of the statute or principle of law to call for interference on that count.

I am, thus, not at all impressed with the line of submissions pursued by the counsel for the petitioner.

Equally untenable appears to be the challenge made by the petitioner to the powers of the Central Government to pass an order on the basis of a recommendation made by the CCIM.

This issue had been considered by this Court in Dayanand Ayurvedic College, Jalandhar (supra).Though in that case, the counsel appearing for the petitioner clearly did not raise any challenge to the power and jurisdiction of the Union of India to consider and grant the sanction for continuing the couRs.of BAMS CouRs.of study by the college therein.

Incidentally, the learned senior counsel, who had appeared in Dayanand Ayurvedic College, Jalandhar (supra).Civil Writ Petition No.8697 of 2009 (O&M) :

54. : namely, Mr.Rajiv Atma Ram, is the counsel representing the petitioner college in CWP No.17592 of 2010 and has not raised any such submission on the lines as is pursued by the counsel appearing in a writ petition No.16219 of 2012.

In any case, this court in Dayanand Ayurvedic College, Jalandhar (supra) has considered this issue in the light of various judgments cited before the court to conclude that the recommendations made by CCIM cannot be considered as binding on the part of the Government to take a decision.

The relevant observations made in this regard in Dayanand (supra) can be noted here and are as under:- “Apparently, the plea also is not that once the CCIM recommends the grant of sanction, the said recommendation would be binding in any manner on the respondent-Government to grant the sanction.

In any event, if that is the line of submission though not pursued before me, then it would not impress me in any manner.

The issue whether the recommendation by any recommendatory body would have any binding affect on the decision making authority is not in any fluid situation and is fairly very settled.

The very nature of the body being entitled to make recommendation would show that these are only recommendations which could be accepted or could be rejected or differed with as well.

However, the fact that some recommendatory body as per the requirement of Statute has made some recommendation, then that recommendation is one of the Civil Writ Petition No.8697 of 2009 (O&M) :

55. : relevant material which ought to be taken into consideration by the decision making authority and if the decision making authority in any manner wishes to differ with it, it has to be on some basis and reasons which may be open to a judicial scrutiny, as it would then affect the decision making process and not the decision as such.

The reference made by the counsel appearing for Union of India to the unreported judgment in the case of Acharya Gyan Ayurvedic College Versus Department of Ayush & Ors., W.P.( C) No.7634 of 2010, decided on 30.11.2010 which has considered the nature of recommendation made by recommendatory body would in my view has rightly considered this issue and has held that decision to grant the permission or not to grant the permission has to be of the Central Government and the Government may not be required to take a decision only by considering the recommendations of CCIM.

The Central Government being a decision making authority could obtain any other information besides the recommendatory observations made by the CCIM and it cannot be bound by such a recommendation alone or as made by the CCIM.

Number of judgments in this regard can be noticed where the decision making authority could differ with the report of the recommendatory or the selection committees to take a Civil Writ Petition No.8697 of 2009 (O&M) :

56. : different view and in this regard number of decisions are noticed in the unreported judgment of the Hon'ble High Court of Delhi in Acharya Gyan Ayurved College (supra).These may be just noticed in the passing here for the purpose of reference alone:- Dr.Ashok K.

Mittal v.

University of Delhi ILR (1996) 2 Del 489; M.P.Rural Agriculture Extension Officers Association v.

State of M.P.(2004) 4 SCC 646.Union of India v.

TeleCo.Regulatory Authority of India, 74 (1998) DLT 282.Dr.H.Mukherjee v.

UOI AIR 199.SC 49.and State of Kerala versus A.Lakshmikutty (1986) 4 SC 632”.Let us fiRs.clearly understand the parameters for this court to interfere in the decision taken by the administrative bodies.

It is well settled that judicial review generally speaking is not directed against a decision but is against the decision making process.

Thus, the courts in such cases may not interfere in the decision as such, but can examine the decision making process adopted by the authorities to arrive at the decision which is challenged before the court.

On what all grounds the court would exercise such jurisdiction can be noticed in brief.

As has been held that when a statute gives discretion to an Administrator to take a decision, then scope of judicial review is limited.

The courts can interfere only if the order is contrary to law, or where Civil Writ Petition No.8697 of 2009 (O&M) :

57. : relevant factors were not considered, or when irrelevant factors were considered.

The courts may also interfere if the decision is such which no reasonable person would take.

These principles known as Wednesbury principles are well understood and recognised principles in regard to scope of interference in the decision taken by the Administrator.

Lord Greene in the case known as Wednesbury case has held long ago in 1948 that when a statute gave discretion to an Administrator to take a decision, the scope of judicial review would remain limited.

He further held that interference was not permissible unless one or the other of the following conditions were satisfied- namely that the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have take.

These principles have been consistently followed in U.K.and in our country as well to judge the validity of administrative action.

Lord Diplock in Council for Civil Service Unions v.

Minister fro the Civil Service, (1984) 3 WLR 117.(HL) summarized the principle of judicial review of administrative action as based upon one or the other following conditions viz.

illegality, procedural irregularity and irrationality.

His observations in this regard can be noticed and are as under:- Civil Writ Petition No.8697 of 2009 (O&M) :

58. : “.......Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review.

The fiRs.ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'.

That is not to say that further development on a case by case basis may not in couRs.of time add further grounds.

I have in mind particularly the possible adoption in the future of the principle of `proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community....”

Certain observations in regard to power of judicial review are also found made in the case of R.V.Hillingdon L.B.C., ex p Puhlhofer, (1986) 1 All ER 467.

Lord Brightman, who spoke for the Court, was at pains to observe by saying:- “Mylords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act of 1977”.The Court further observed “although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the act or abused their powers or otherwise acted perversely, I think Civil Writ Petition No.8697 of 2009 (O&M) :

59. : that great restraint should be exercised in giving leave to proceed by judicial review”.The remedy of judicial review was described as a discretionary remedy, which should be made use of to monitor the action of the local authorities under the Act save in exceptional cases.

It is also observed that the grounds on which the courts will review the exercise of administrative discretion is the abuse of power e.g.Bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense- unreasonableness verging on an absurdity.

In this regard, see Notthinghamshire County Council, versus Secy.

of State for the Environment, (1986) 1 All ER 199”.In L.Chandra Kumar versus Union of India, AIR 199.Supreme Court 1125, the Hon'ble Supreme Court has observed that no doubt under the constitutional power of judicial review of action of the State or its authorities is unfettered but restraint should however be hallmark of judicial review.

The Court in W.B.Housing Board and others versus Brijendra Prasad Gupta and otheRs.(1997) 6 Supreme Court Cases 207, has held that the Courts normally do not interfere in the policy matter of the State and if, however, the policy so formulated is against the mandate of the Constitution for any statutory provision, it can certainly be tested on the principles of judicial review.

As observed by the Hon'ble Civil Writ Petition No.8697 of 2009 (O&M) :

60. : Supreme Court, when an Act falls within the policy of State, which has been formulated for the benefit of poor and needy, it can not be faulted, the Court should stay its hands and need not examine the details minutely with magnifying glass to find some fault here and there, unless there are allegations of malafides.

An over all view is to be taken of the matter and this portent weapon of judicial review can not be used indiscriminately”.Thus, nothing new, different or revolutionary is the ratio of law in the judgment, which has been referred to and relied upon by the counsel for the respondent- Union of India, i.e., CWP No.15759 of 2012 titled RVC Medical Trust, the Educational Agency of RVS Homoeopathic Medical College, Trichy Road, Sulur, Coimbatore versus Union of India.

Similar view would emerge from All India Council for Technical Education versus Surinder Kumar Dhawan, (2009) 11 SCC 726.which is primarily reiterating the well known principle of interference in administrative action/decision as has been noted above.

The counsel for the Union of India is justified in urging that the courts are neither equipped not have the academic or technical background to substitute themselves in place of statutory professional technical bodies and to take decisions in academic matters involving standards and quality of technical education.

The scope of interference is well understood and well Civil Writ Petition No.8697 of 2009 (O&M) :

61. : defined and the same is as has been clearly noticed above”.Thus, there is no scope of accepting the plea of the petitioner college that the respondent-Union of India is bound by any recommendation made by CCIM or that the recommendation made by CCIM would have any binding affect on the Government for it to either approve or to disapprove the permission as sought.

As already held, the Government while taking a decision on the basis of recommendation so received can afford an opportunity of hearing to the affected parties and can call for record for its examination.

The reasons which led to this procedure being adopted have clearly been revealed in the reply.

What was revealed during the surprise check by CBI and the team of AYUSH is a revealing and a shocking state of affair.

If the Government, in order to improve the standard of medical education, has decided to introduce certain measures, then these should be encouraged and should be permitted to be implemented strictly.

It is noticed that the Government has acted quite fairly in the entire situation and finding that the colleges may need some time to provide for infrastructure has given sufficiently long time to the colleges, like the petitioner but they have not shown much endeavour to improve.

Year after year, the petitioner college has been taking admission under the interim directions passed by this court.

The college never made any effort to call for decision in these petitions and every year was rest content by approaching the court and working on the oxygen provided by the interim ordeRs.To an extent, this court has also been obliging the Civil Writ Petition No.8697 of 2009 (O&M) :

62. : petitioner without realizing the full effect of the implication and the reason for which the college must improve the standards and fulfill the norms though a diluted one to seek continuation of the BAMS Course.

It is only when the present petition is filed in the year 2012 that whole situation really dawned on the court to notice that the college has been functioning on the basis of interim orders passed since 2006 or even earlier to that.

At least, the petitions which were pending were accordingly called for and have been taken up for decision now.

The court at present is in a great predicament.

What to do for all those courses which have run since 2008 onwards?.

If any haRs.order is passed, it may affect the large number of students, who have been admitted in these courses and may have either qualified or have continued for all these yeaRs.Sending the students out may lead to a serious prejudice to the lives of those students who have been admitted as per the interim directions passed by this court.

I am clear in my mind that the college does not deserve any sympathy as it has not been able to fulfill the norms even till date.

That is why, no interim order is passed in CWP No.16219 of 2012 and, hence, the college has not been able to make admission for academic session 2012-13.

Unfortunate, it would be to notice that the University has withdrawn the affiliation as well.

Though it may sound haRs.at this stage to interfere in the admission made for academic sessions 2008-09, 2009-10 and 2011-12, as for session 2010-11 the college has valid permission which is also due to confusion of order passed in a large number of petitions, but no case apparently is Civil Writ Petition No.8697 of 2009 (O&M) :

63. : made out for grant of permission to the college for making admission for session 2012-13.

The submission that college is fulfilling the norms cannot be accepted.

I would outrightly reject the submission made by the petitioner college making allegations of malafide against the respondent-Union of India.

The respondent-Union of India, in my view, is performing its statutory duty and it owes an obligation to none other but public large.

It is responsibility of the Union of India to ensure that the college fulfills the entire norms though a diluted one before it is granted permission to run the course.

I am quite conscious of the compassionate plea made by the counsel for the petitioner that if permission is not granted for academic session 2012-13, the college may not be able to function.

That cannot be and should not be a reason which should weigh with the court to arrive at any decision which is to be a just decision.

What is required to be seen is whether the college has been able to fulfill the requisite norms or not and permission can only be granted if the college has fulfilled these diluted norms as laid down statutorily.

The perusal of the show cause notice (Annexure P-13) issued on 20.4.2012 would show that on examination of the relevant provisions of the Act and Regulation, it was observed that the college was not fulfilling the following basic eligibility conditions:- “(i) In Kayachikitsa department in the month of February, 11 patients generated 519 days and in the month of April, 16 patients generated 677 days.

(ii) In department of Shalya, in the month of July, 5 patients generated 278 bed days.

Civil Writ Petition No.8697 of 2009 (O&M) :

64. : (iii) in the department of Panchkarma, in the month of February, 14 patients generated 652 bed days, 20 patients generated 669 bed days and 11 patients generated 807 bed days, shows that data regarding bed occupancy is suspicious and fabricated.”

The college accordingly was directed to bring along the record, which was disclosed in the show cause notice and has given an opportunity to make all possible oral as well as written submissions.

The documents which were required are as under:- “1.

Similarly, the supporting documents with respect to the deficiency of OPD/IPD may be attendance register of the doctors and hospital staff, the date wise OPD and IPD registeRs.the case sheets of all the IPD patients, discharge ticket/cards/summary of IPD patients, the lab registers and records of the lab findings, nursing duty registeRs.IPD medicine dispensing registeRs.IPD medicine indent registeRs.IPD diet register, IPD duty rosters of Doctors for the whole concerned year (2011) which may help to assess that the college is having genuinely functional hospital.”

It is only after affording opportunity of hearing in this manner and after examining the issue in detail that the impugned order dated 16.7.2012 is passed.

The shortcomings conveyed by the hearing committee are duly noticed in the impugned order.

The submission made by the representative of the college is also noticed and then the observation of the hearing committee are recorded in Civil Writ Petition No.8697 of 2009 (O&M) :

65. : the impugned order, which would show that the order has been passed ensuring full transparency and there was no reason or a cause for either the hearing committee of the respondent-Union of India to pass any order to the prejudice of the petitioner college, which has been wrongly and misconceivedly urged in the petition.

The fiRs.shortcoming as noticed was that the department of Kayachikitsa had shown that 11 patient generated 519 days in the month land 16 patients had generated 677 days in the month of April.

The answer by the hearing committee was that certain new patients did generate the bed days and it is not only that the old patients did so.

The hearing committee had randomly examined the case sheet of 5 patients of Shalya Department.

The representative of the college was asked to show OPD and IPD registers for cross verification.

It was observed that there is no OPD registration number in the case sheet.

The hearing committee also observed that no date of admission, date of discharge, diagnosis, name of the department, remarks etc.were mentioned in the register.

The representative responded by saying that they were not aware of the proforma.

The representative also conceded that the departmental IPD register was not maintained by the College.

Similarly, the bed days as generated in other departments of the hospital were examined in this manner.

In the department of Shalya, where 5 patients had generated 278 bed days, in the department of Panchkarma, 14 patients had generated 652 days, 20 patients had generated 669 days and 11 patients generated 807 bed days.

After considering the record, as noticed in detail in the impugned order, the Civil Writ Petition No.8697 of 2009 (O&M) :

66. : over all observation as made by the hearing committee are as under:- “In view of the above observations about the hospital data and other irregularities/inconsistencies, it appears that the teaching hospital of the college does not appear to be a genuinely functional Ayurvedic hospital having the genuine patient load of 100 patients per day in the OPD and 40% IPD bed occupancy during the period 01.01.2011 to 31.12.2011.

In view of the observation made by Hearing Committee the aforesaid mentioned college does not have genuine functional teaching hospital having the genuine patient load of 40% IPD bed occupancy and 100 patients per day in OPD.”

The committee thereafter decided that in view of the shortcomings and deficiencies particularly about the non-availability of genuinely functional hospital with genuine patient load of 40% bed occupancy in IPD and 100 patients per day in OPD are of a serious and fundamental nature being in violation of the provisions of the IMCC Act and the Regulations and, thus, these adversely affect the college to provide quality medical education in terms of the provisions of the Act.

The respondent-Government, therefore, decided to de cline the permission to the petitioner-college for making admission to 50 seats in BAMS CouRs.for academic session 2012-13.

The submission made by the counsel for the petitioner Civil Writ Petition No.8697 of 2009 (O&M) :

67. : that the bed days were generated by the new patients which had visited the hospital and not only the old patients as was construed is one aspect, but what apparently has weighed with the Government is the reason that the documentation which was examined in detail would indicate that the patient load and bed days occupancy may be a created one and is not a genuine and is shown only but is not supported by the related documents.

The view, therefore, has been formed that the college is not having a functional hospital as per the norms laid down in the Act and the Regulations.

This court can only have a say and can examine the decision making process.

The decision as such would not be amenable to a jurisdiction of this court on the ground that a different decision ought to be taken on the facts as pleaded and noticed.

That would be appreciation of factual position which this court in exercise of writ jurisdiction may not exercise.

I do not find any fault in the decision making process which would call for interference.

The submission that the hearing committee consisted of persons who were not expert is just noticed to be rejected.

The representative of the college which had appeared, in my view, would not have any jurisdiction to challenge the competency of the team constituted by the Union of India to afford an hearing.

Mr.Sandhu, appearing for the Union of India, otherwise has explained this on the basis of instructions received from the respondent-Union of India.

It is stated that earlier, the hearing was provided by the Secretary to the Department, but subsequently, a decision was taken to afford an hearing by a person, who have to examine the record which is to be Civil Writ Petition No.8697 of 2009 (O&M) :

68. : summoned in this case.

As per Mr.Sandhu, only to ensure fairness in the hearing that decision has been taken to detail a person from a different department as a member of the hearing committee, so that no prejudice is caused at the time of hearing on the basis of some personal views carried by a person who may be expert in the field.

It is in this background that hearing in the case of Ayurveda is given by a person of Homeopath Department, whereas the case of Homeopath College is heard by a person belonging to different departments, which may be from Ayurveda.

I find this reason to be quite plausible.

Otherwise also, I have not been able to appreciate this line of submission on the part of college to challenge the very committee which has afforded hearing to the petitioner college.

There is some substance in the submission made by the counsel for the Union of India when he states that the hearing is meant to examine the documents and for that purpose, no expertise in the field would be needed.

I find the reasoning to be totally justified and would reject this part of submission as made by the counsel for the petitioner.

I am, thus, clear in my mind that there is no merit in CWP No.16219 2012 and accordingly would dismiss this petition.

The challenge raised in CWP No.8697 of 2009 and CWP No.17592 of 2010 is also not made out on merits.

In CWP No.8697 of 2009, the prayer was against the University where it has found certain deficiencies in the faculty of the college.

Subsequently, the University has withdrawn the affiliation of the college also.

The college has survived on the basis of interim protection granted by this court.

If the petitioner college still has not been able to make up the Civil Writ Petition No.8697 of 2009 (O&M) :

69. : deficiencies in regard to faculty, it cannot be permitted to continue the classes even if the couRs.has advanced for all these yeaRs.I am conscious of the fact that the students, who were admitted in the year 2008-09 would not be on the verge of completing the couRs.or may have even completed their course, but equally important is for the court to see that the deficiencies which were noticed in the faculty or other deficiencies which are found in the college and the hospital are removed, so as to ensure that the college produces the good doctors in the field.

The challenge in CWP No.17592 of 2010 was to the denial of permission to admit students for session 2010-11.

On the basis of recommendation made by CCIM though there may be a contrary recommendation made by the Panjab University.

Plea is that such recommendation of the University would be rendered redundant.

I am not prepared to accept this position as a purely correct position as has been canvassed before me.

Considering the fact that the students admitted in the year 2009-10 or 2010-11 have continued with the study for considerable period, I am not inclined to cancel such admission at this stage as ultimately it would prejudice the students and students alone and may not result in much harm or prejudice to the college as such, but such permission has to be on the basis of satisfaction which the University must not make in regard to the faculty engaged by the college.

It may need a mention here that the college had been granted a provisional permission to admit the students subject to the condition that it would fulfill the deficiencies in the faculty engaged by the college.

Let, fresh inspection be conducted by the Panjab University especially in regard Civil Writ Petition No.8697 of 2009 (O&M) :

70. : to the faculty engaged by the college and in regard to the other deficiencies as noticed and submit a fresh report before the Union of India so far as challenge in these two writ petitions are concerned.

On the basis of this report, the Union of India would be at liberty to pass a fresh order in accordance with law.

The Union of India can then consider the report and consider the case of the petitioner college for all the said years with some sympathy considering that the career of students is linked with it.

If any adveRs.order is still passed and if the petitioner college still feels aggrieved against the same, it may take any appropriate action in accordance with law.

These two Civil Writ Petition Nos.8697 of 2009 and 17592 of 2010 are accordingly disposed of in the above terMs.Civil Writ petition No.16219 of 2012 is, however, dismissed.

There shall be no order as to costs.

November , 2012 ( RANJIT SINGH ) ramesh JUDGE