Patna High Court
B. N. M. Homoeopathic Medical College ... vs The Union Of India & Ors on 22 June, 2017
Author: Sharan Singh
Bench: Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20353 of 2016
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B. N. M. Homoeopathic Medical College and Hospital, Saharsa
(Bihar), through its Principal Dr. Upendra Prasad Yadav, Son of
Late G.P. Yadav, Resident of Gautam Nagar, Gangjala, P.S.
+District-Saharsa.
.... .... Petitioner/s
Versus
1. The Union of India through the Secretary, Ministry of AYUSH,
AYUSH BHAWAN, B-Block, G.P.O. Complex, INA, New Delhi-23.
2. The Secretary, Ministry of Ayurveda, Yoga and Naturopathy,
Unani Siddha and Homeopathy, Ayush Bhawan, B-Block, G.P.O.
Complex, INA, New Delhi- 110023.
3. The State of Bihar through its Principal Secretary, Department
(Health & FW), Department of Health, Vikas Bhawan, New
Secretariat, Patna.
4. The Director, Desi Chikitsa, Health Department, Govt. of Bihar,
Patna.
5. The Secretary, Central Council of Homeopathy, 61-65,
Institutional Area, Opp. "D" Block, Janakpuri, Delhi- 10058.
.... .... Respondent/s
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Appearance :
For the Petitioner/s :Mr. Sanjay Kumar, Adv.
For the Respondent/s :Mr. S.D. Sanajy, ASG
:Mr. Tuhin Shankar, CGC
:Mr. Ashok Kr. Sinha, Sr. Adv.
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
ORAL JUDGMENT & ORDER
Date: 22-06-2017
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The present writ application, under Article 226 of the
Constitution of India, has been filed seeking quashing of the
letter, dated 10.10.2016, issued by the Ministry of Ayurveda,
Yoga and Naturopathy, Unani, Siddha and Homoeopathy, New
Delhi (in short "AYUSH"), whereby, the Department of
AYUSH has refused to grant conditional permission in favour of
B.N.M. Homoeopathic Medical College and Hospital, Saharsa
(Bihar), the petitioner, for running UG (BHMS) course, with 50
seats for the academic session 2016-17,.
2. This application has been filed on behalf of the
said B.N.M. Homoeopathic Medical College and Hospital,
Saharsa (Bihar) (hereinafter referred to as the "College"),
through its Principal. It is the claim of the petitioner that the
College, in question, was established in the year 1973 and it
fulfills all the necessary conditions, which are essential for grant
of permission to undertake admissions to the said UG (BHMS)
course for the concerned academic session 2016-17.
3. The fact, which is not in dispute, is that the said
decision of Department of AYUSH is based on an inspection
report submitted by the Central Council of Homoeopathy, New
Delhi (hereinafter referred to as the "CCH"), on the basis of
the inspection of the College done on 18.07.2016. The report
of the CCH is of the same day on which, the inspection was
held. The status of the College, as reported by the CCH in its
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report, is being reproduced hereinbelow:-
"Reader not appointed in
Anatomy, Physiology, Pathology, FMT,
Practice of Medicine, Obs./Gyn. And
Community Medicine. Lecturer not
appointed in Organon of Medicine. Only
Pathologist is available against the
requirement of teachers of consultants
of modern medicine in various specialty
in addition to teaching staff. X-ray and
USG not available. MoU with Super
specialty Hospital not available.
Surgeon, Anesthetist, Obs./Gyn.,
Radiologist, Pathologist, House
Physician, X-ray Technician, Nursing
Staff I/c, Yoga Expert, Physiotherapist
and Dietician not appointed in the
Hospital. Lab Technician in Physiology
and Lab Attendant not appointed.
Bicycle Ergometer in Physiology,
Computer with accessories, Photographs
of 05 Philosophers of Homoeopathy and
HPI in Pharmacy not provided. Only 02
Computers and 02 Software available in
Repertory against the requirement of 05
each. License for Alcohol/Spirit not
available. Not recommended for
admission in BHMS Course during
2016-17."
4. A counter affidavit has been filed on behalf of the
Department of AYUSH, bringing on record the entire report
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submitted by the CCH, based on inspection of the College
carried out by the CCH on 18.07.2016.
5. Learned counsel, appearing on behalf of the
petitioner, has drawn my attention to the said report to
demonstrate that the inspection team had found at least 1
Professor working in each of the Departments. He has
submitted that under the Regulations, each Department must
have a teacher of the rank of Professor or Associate Professor
(Reader). According to him, on the basis that there was no
person of the rank of Associate Professor/Reader found working
in the College, the CCH ought not to have held the College
deficient on that count. He has submitted that both, the CCH
and the Department of AYUSH, have failed to duly appreciate
Schedule-IV of Minimum Teaching Staff for Degree Course,
2013, prepared under sub-Regulation (7) of Regulation 3, sub-
Regulation (1) and (2) of Regulation 9, sub-Regulation (1) of
Regulation 11 and proviso to Regulation 12, in order to
strengthen his contention.
6. On perusal of the said Schedule-IV, I find that it
specifies the Minimum Teaching Staff for Degree Course.
Learned counsel for the petitioner is right in his submission that
the requirement is of having 1 Professor or 1 Associate
Professor/Reader in each of the Departments, namely,
Anatomy, Physiology, Pathology, Forensic Medicine &
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Toxicology, Practice of Medicine, Obstetrician & Gynecology and
Community Medicine. He has submitted that it is not the case
either of the CCH or Department of AYUSH that the College, in
question, is not having Professors in the said Departments.
7. Learned senior counsel, appearing on behalf of
the CCH, drawing my attention to the status of the College on
the basis of inspection done by it and as reported to
Department of AYUSH, has submitted that there are several
other insufficiencies reflected in the inspection report and the
CCH rightly refused to recommend the College for grant of
permission for undertaking admissions in UG (BHMS) course
during academic session 2016-17.
8. Mr. S.D. Sanjay, learned Addl. Solicitor General,
appearing on behalf of the Union of India, has submitted that
the decision of the Department of AYUSH is based on what was
reported by the CCH on the status of the College on the basis of
inspection held by an inspecting team, constituted by the CCH.
He has also submitted that there being deficiencies, as reported
in the inspection report, of serious nature, the impugned
communication, dated 10.10.2016, needs no interference by
this Court.
9. What is apparent on the basis of materials
available on record is that in course of inspection, the inspecting
team found at least 1 Professor working in each of the
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Departments, as indicated above. Schedule-IV to the
Regulations clearly provides that there should be 1 Professor or
1 Associate Professor/Reader in each of the Departments. In
such circumstance, holding the College, in question, to be
deficient in the matter of maintaining minimum teaching staffs
of the rank of Associate Professor/Reader for the said degree
course, in the academic session 2016-17, by the CCH and
Department of AYUSH, in my view, is contrary to the statutory
provisions. It seems that the CCH and the Central Council
missed to appreciate that each Department required, under the
regulations, either 1 Professor or 1 Associate Professor/Reader
in each of the Departments, in terms of Schedule-IV for
satisfying the requirement of minimum teaching staffs.
Apparently, therefore, the consideration is based on something,
which did not exist. Deficiency at least to this extent, as
pointed out by the CCH, was incorrect. For better clarity
relevant portion of the Inspection Report, showing teaching
staff in the College, is being reproduced hereinbelow:-
TEACHING STAFF (under Graduate & Post Graduate)
(Enclose a list of teachers duly attested by the
Principal/Director and authenticated by the Inspectors/Visitors
showing their Name, Qualification, Designated, whether FT/GF,
Department, Registration Number.)
Department Number of Teachers in position
For BHMS Course For MD (Hom) Courses
PROFESSOR READER/ LECTURER/ PROFESSOR/ LEC-
ASSOCIATE ASSISTANT READER TURER
PROFESSOR PROFESSOR
FT GF FT GF FT GF
Anatomy 1 - - - 1 - -
Physiology 1 - - - 1 - - -
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Organon of 1 - 3 - - - - -
Medicine
Pharmacy 1 - 2 - 1 - -
Materia Medica 2 - 2 - 1 1 - -
Pathology & 1 - - - 1 - - -
Microbiology
Forensic Medicine 1 - - - 1 - - -
& Toxicology
Practice of 2 - - - 1 - - -
Medicine
Surgery 1 - 1 - 1 - - -
Obstetrics & 1 - - - 1 - -
Gynecology
Community 1 - - - 1 - - -
Medicine
Repertory 1 - 1 - 1 1 - -
Pediatrics - - - - - - - -
Psychiatry - - - - - - - -
TOTAL 14 - 09 - 09 4 - -
10. The impugned communication, therefore, cannot
sustained and is set-aside on this limited ground that the
decision is based on irrelevant considerations. The letter, dated
10.10.2016, is, accordingly, set-aside.
11. The matter is remanded back to the Department of AYUSH, Govt. of Bihar, with a direction to take a decision afresh based on the entire materials, which are there in the inspection report, submitted by the CCH, and without being influenced by the final recommendation made by the CCH. It is made clear that the Department of AYUSH will be free to take into account other deficiencies as pointed out by the CCH in the said inspection report, dated 18.07.2016, for the purpose of taking a decision afresh.
12. It has also been pointed out that the academic session 2016-17 is almost over and any decision, which can be taken by the Department of AYUSH, can be taken only for the next academic session 2017-18. Learned counsel, appearing on Patna High Court CWJC No.20353 of 2016 dt.22-06-2017 8/9 behalf of the petitioner, in reply, has submitted that the College has already taken admission of students for the academic session 2016-17. The Court fails to understand the circumstance under which the College took admission of students for the academic session 2016-17, when it did not have the permission under the Regulations to undertake admission.
13. This application is, accordingly, allowed, but with the observations as above.
14. Considering the urgency of the matter, since academic session 2017-18 is also going to begin very soon, I direct the Secretary, Department of AYUSH to take a final decision, in the light of the present order, within a period of two months from today.
15. It will be open to the competent authority to get the inspection of the College done for the purpose of grant of permission to undertake admissions for the academic session 2017-18, but in no event there will be delay in decision taking process.
(Chakradhari Sharan Singh, J.) Praveen-II/-
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