Delhi High Court - Orders
Hakim Abdul Hameed Unani Medical ... vs Ministry Of Ayush & Anr on 27 September, 2019
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9101/2019 & CM No.37602/2019
HAKIM ABDUL HAMEED UNANI MEDICAL COLLEGE &
HOSPITAL, THROUGH ITS DIRECTOR ..... Petitioner
Through: Mr. Ashok Kumar Panigrahi and
Mr.Gautam Kumar Laha, Advs.
versus
MINISTRY OF AYUSH & ANR. ..... Respondents
Through: Mr. Brajesh Kumar, Adv. for R-1.
Ms. Archana Pathak Dave, Adv. for
R-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 27.09.2019 CM No.37602/2019
1. Counter affidavit on behalf of respondent no.1 i.e. the Central Government, Ministry of Ayush (hereafter referred to as "the Central Government") has been handed over to me in court today. A copy of the same has been furnished to learned counsel for the petitioner. 1.1 To be noted, learned counsel for the petitioner says that he wishes to go ahead with the hearing of the matter and requests that his captioned interim application should be heard and disposed of.
2. The application is accordingly taken up for hearing.
3. Via this application, the petitioner seeks stay of the operation of the impugned order dated 13.07.2019, passed by the Central Government.
W.P.(C)No.9101/2019 Page 1 of 134. The petitioner avers that its application for seeking permission to admit 60 students to the Bachelor of Unani Medicine and Surgery course (in short "BUMS course") for the academic session 2019-2020 has been declined.
5. The petitioner claims that it was established as far back as in 2001. It is also averred by the petitioner that it was granted permission to conduct BUMS course with 40 undergraduate seats in 2003. It is the case of the petitioner that it was granted "conditional permission" to admit students against 40 seats in the undergraduate BUMS course for the academic session 2014-2015 and 2015-2016.
6. According to the petitioner, the dispensation of granting conditional permission continued for the academic session spanning between 2016-2017 and 2018-2019 qua the BUMS course, albeit, with the variation as to the intake. For this period, the intake was increased to 60 seats. 6.1 The petitioner is aggrieved, as indicated above, on account of denial of conditional permission to admit students to BUMS course for academic session 2019-2020.
6.2 The reason why this decision has been taken is the failure of the petitioner to remove the shortcomings and/or cure the deficiencies by the defined date i.e. 31.12.2018.
7. The record shows that the decision of the Central Government is based on the recommendations of respondent no.2 i.e. the Central Council for Indian Medicine (CCIM) and the observations of its "Hearing Committee".
8. Admittedly, the CCIM had conducted a suo motu inspection between 25.03.2019 and 26.03.2019 followed by a second inspection carried out W.P.(C)No.9101/2019 Page 2 of 13 between 03.05.2019 and 04.05.2019.
8.1 This material was evaluated by the Central Government whereupon the impugned order was passed.
8.2 In paragraph 9 of the impugned order, the Central Government has noted the following shortcomings and deficiencies which according to it violate the provisions of both the Indian Medicine Central Council (Requirements of Minimum Standard for under-graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016 (in short "RMS 2016") and the Indian Medicine Central Council Act, 1970 (in short "IMCC Act").
(i) Non-availability of required number of teaching and hospital staff.
(ii) Non-availability of essential equipments/instruments.
(iii) Non-availability of essential species of plants.
(iv) Non-availability of quality testing laboratory.
(v) Non-availability of adequate seat arrangements in teaching pharmacy.
(vi) Non-functional operation theatre.
(vii) Non-availability of clinical laboratory.
(viii) Non-availability of biometric attendance system.
(ix) Non-availability of updated website. (x) Non-availability of record of attendance of OPD/IPD patients.
9. Based on the aforesaid, the Central Government has concluded that the aforementioned shortcomings and deficiencies affect the ability of the petitioner to provide quality medical education. Accordingly, via the impugned order, it proceeded to reject the petitioner's application.
9.1 Notably, the Central Government, however, has entered a caveat in the impugned order which is that the petitioner would have time uptil 31.12.2019 to remove the shortcomings and/or cure the deficiencies so as to W.P.(C)No.9101/2019 Page 3 of 13 enable the CCIM to carry out an inspection for consideration of its application for admission of students in the undergraduate and postgraduate BUMS course qua the academic session 2020-2021.
10. The petitioner's counsel has assailed the impugned order on the following two broad grounds :
(i) First, conditional permission has been granted to other government and/or private colleges for the same course qua academic session 2019- 2020.
(i)(a) According to learned counsel, this being the position, Article 14 of the Constitution stood violated inasmuch as the same treatment was not accorded to the petitioner.
(ii) Second, the petitioner fulfilled the minimum standards required for grant of conditional permission qua academic session 2019-2020.
(ii)(a) In this behalf, reference was made to sub-regulation (3)(a) of the Regulation 3 of the RMS 2016.
(iii)(b) Besides this, reference was made to the following schedules and sub-
regulations to establish that the minimum standards prescribed therein had been achieved contrary to what was found in the impugned order.
Sr.No. Deficiency Reference to the
provision or schedule
of RMS 2016
1. Teachers Schedule-V
2. Teaching hospital Regulation 7(2)
3. Equipment (minimum of 75%) Schedule-VII
4. Herbal garden Schedule-III
5. Hospital staff Schedules-IV & VI
6. College council Regulation 9(1)
7. Website Regulation 9(2)
8. Biometric attendance Regulation 9(3)
W.P.(C)No.9101/2019 Page 4 of 13
9. Constructed area available with Regulation 5 the petitioner and with regard to availability of hospital
11. Learned counsel for the Central Government and the CCIM on the other hand resist grant of any interim order in view of the findings returned in the impugned order and the deficiencies found in the two inspections carried out by the latter i.e. CCIM.
12. Having heard learned counsel for the parties, I must in the first instance deal with the submission advanced by learned counsel for the petitioner that since conditional permission for the academic session 2019- 2020 had been granted in favour of other government and/or private colleges, the same treatment having not been accorded to it, violated Article 14 of the Constitution.
13. What is required to be noticed is that this plea has been made without reference to any specific cases. There are no averments in the petition with regard to which, if any, government or private colleges have been granted conditional permission in the same set of circumstances. 13.1 Furthermore, even if I were to assume that such conditional permissions were granted despite shortcomings and/or deficiencies having been pointed out which if not removed and/or cured would be violative of the provisions of RMS 2016 and/or the IMCC Act, cannot, to my mind, advance the cause of the petitioner.
14. It is trite to say that Article 14 of the Constitution is not meant to suffuse life into acts which are illegal or contrary to statutes and/or regulations made thereunder. Article 14 of the Constitution does not propound the concept of "negative equality" (See judgment of the Supreme W.P.(C)No.9101/2019 Page 5 of 13 Court dated 16.09.2019 rendered in Civil Appeal No.7295/2019 titled State of Odisha & Anr. V. Anup Kumar Senapati & Anr.)
15. Therefore, this submission of learned counsel for the petitioner is not sustainable and hence is rejected.
16. Insofar as the other submission is concerned, which is, that the petitioner met minimum standards, I may only point out to some of the observations made by the Hearing Committee prior to passing of the impugned order :
"iv. There are no Part time teachers available against the requirement of 10 (01 teacher of Arabic, 01 teacher to teach communication skill and 08 consultant of modern medicine) as per RMS, 2016.
It was observed that the college has 01 Arabic teacher (Mr. Arshad Khan, CCIM Code: UKL1916,) pg: 524-527/sub. and 01 communication Skill Teacher (Beenish Qhreshi-CCIM Code not available). pg: 518-523/sub. It was further informed that 08 consultants of Modern Medicine (Medical Specialist, Surgical Specialist, obstetrician and Gynecologist, Pathologist, Anesthesiologist, Ophthalmologist, Pediatrician, Radiologist, Dentist and Physiotherapist ) are also available on part time basis. The list of the Hospital staff with all relevant details is enclosed.pg: 706-756/sub.
On asking about IPD case sheets where the modern medical staff have admitted or the patients have been referred to them; these documents (i.e. IPD case sheets/documents) could not be produced. Salary details of 09 modern doctors along with other hospital staff for the months of Feb, March, April, May (pg: 1459- 1497/sub.).
It is worth noting here that the photo of Duty doctor of modern medical staff is shown at pg: 706/sub., which also shows 02 Unani doctors (Dr Shoeb, DMS & Dr Asif Khan) at S.no.02 W.P.(C)No.9101/2019 Page 6 of 13 &17) plus one Dr. Zia ur Rehman as Hospital Suptd. who is also a Unani doctor. This observation indicates towards the non- availability of required Unani OPD and regd. Clinical hospital staff for Unani hospital. ).
v. Required no. of beds is not available against the requirement of 60 beds as per RMS, 2016 It was observed that 60 beds have been purchased in the name of Hakim Abdul Hameed Unani Medical Hospital. Copies of the stock registers are not submitted, but bills have been submitted. (pg: 772-774/sub.) vi. Required no. of patient's i.e.120 patients per day in OPD is not available as per RMS, 2016 The college representatives submitted that the total number of patients who attended the OPD during the reporting period i.e. from 01.01.2018 to 31.12.2018 is 49968, which is 137 pts per day. The manually prepared copies of the OPD register of some dates are also attached herewith. OPD registers are not certified and properly maintained. Refer Annexure - 4.pg: 1301-1352/sub. Since the hospital has computerized Registration system, therefore CRC documents for the availability of patients per day in OPD at pg:996 - 1082/sub., were also examined which shows more than 120 patients per day.
Genuineness of the number of patients available in OPD could not be ascertained. The record collected in respect of OPD & IPD for the reporting is submitted herewith in a Pen drive. (pg:1215-1251/sub. for IPD and pg: 1301-1352/sub. for OPD).
vii. Required no of bed occupancy i.e. 40% is not available as per RMS, 2016 The details of bed occupancy as submitted in part-1 Performa o CCIM has been enclosed which shows that the total number of patients admitted in the IPD during the reporting period i.e. from 01.01.2018 to 31.12.2018 is 2266. The average bed occupancy is more than 44.41. The copies of the IPD register W.P.(C)No.9101/2019 Page 7 of 13 as signed by the inspection team are also attached herewith.
Refer Annexure - 5. (pg:771-771-A/sub.-) However, the complete documents showing the absolute details of bed occupancy could not be provided. But IP data for the month of March, 2019 & April 2019 has been provided.
viii. Maintenance of Record of attendance of OPD/11 1) patients is not available as per RMS, 2016 Representatives submitted that their College has installed web based software for maintaining computerized central registration system and all the data regarding OPD/IPD is maintained/collected through it. The record collected in respect of OPD & IPD for the reporting is submitted herewith in a Pen drive. (pg: 1215-1251/sub. for IPD and pg: 1301-1352/sub. for OPD).
It was observed that IPD case sheets arc not properly maintained. The handwriting on the some of the case sheets of different patients submitted in different depts. under diff. doctors is same. Investigation reports and OPD cards are not attached with the case sheets. It was accepted by the representatives.
It was also observed that the total number of OPD/IPD patients written in the submission and those found in the documents in the OPD/IPD data in pendrive are different.
xxx xxx xxx
xi. Mean availability of general and essential
equipments/instruments is 63.73% against the
requirement of 90% or more as per RMS, 2016.
(There is shortage of instruments in the departments of Dissection Hall, Physiology Laboratory, Saidla Laboratory, Labour Room, Operation Theatre, OPD section).
Representatives submitted that the college has more than W.P.(C)No.9101/2019 Page 8 of 13 90% of equipments and instruments available in the college. The copies of stock register as signed by the visitation team have been submitted. The photographs and other relevant documents are attached herewith. Copy of bills/vouchers are also enclosed. Refer Annexure-6.
Photocopies of the some old bills are submitted which are in the name of HAH Unani medical College. pg:1771-1788/sub., which are not clearly readable.
xxx xxx xxx
xiii There are No hospital Staffs available against the
requirement of 57 Hospital Staff as per RMS, 2016.
Representatives submitted a list of 80 number of hospital staff. The list is attached. The group photograph taken during visitation along with visitation team is submitted.
The copies of attendance register, salary register and biometric attendance. Biometric attendance is doubtful as mentioned earlier. Refer Annexure-8. Pg: 1421-1696/sub.
Manual attendance also shows attendance marked as P&A instead of the signatures as against the names of some staff can be seen on 1425-1444/sub.
xxx xxx xxx
xvii Operation Theatre is non-functional
Representatives submitted that the services of Karim Nursing Home are utilized for the OT as and when required, since both the hospitals belong to the same owner and are adjacent to each other. Photos are submitted. Case sheet of the LSCS done is submitted. Affidavit of the chairman, Dr. Anjum Gajdhar in this regard submitted at pg:757- 769/sub. Photos of OT have been submitted pg: 1713-1786/sub. It shows that OT is not available in HAH Unani hospital.
xviii. Clinical Laboratory is not available as per RMS, 2016 W.P.(C)No.9101/2019 Page 9 of 13 Photograph and some bills are submitted at pg: 1788-1789/sub. Representatives have submitted the copies of the clinical tests and the details of the tests done. Documents are at pg: 1790-1844/sub.
Refer Annexure-12, pg: 1791-1844/sub.
Other supporting documents like the purchase orders, bank statement for the payments made, central. Departmental stock registers are not provided. Hence availability of clinical laboratory in real cannot be ascertained.
xxx xxx xxx
xx. Updated website is not available as per RMS, 2016
The website www.hahudewas.in was logged in by the Hearing Committee, and it was found to be working. The representatives submitted that updation of the website is under process.
Refer Annexure-14. Pg: 1857-1858/sub.
xxi. There is shortcoming of Biometrics attendance System for tracking of Teaching, Hospital and Non-Teaching staff through AGBAS as per RMS, 2016 Representatives informed that the AGBAS instrument was installed by the college to collect the attendance of our staff but due to the technical issues at the CCIM side, it has stopped functioning. Copy of bill/voucher of biometric machine purchased is attached herewith. pg: 1859/sub.
It is worth noting that the documents for biometric attendance do not seem to be genuine, since there is no Check In & Check Out time mentioned on the attendance sheets. The documents for biometric attendance sheet seem to be prepared manually like the pages at pg: 1498-1500/sub.
W.P.(C)No.9101/2019 Page 10 of 13xxii. College does not have attached Hospital and showing other (Karim Nursing Home) a Modern Nursing Home as college hospital Representatives submitted that the College is having Hakeem Abdul Hameed Unani Hospital at a distance of 1&1/2 kms from the HAH College. Notarized affidavit dated 24.06.2019 in respect of possession of the Unani Hospital is also enclosed herewith. pg:757-776/sub. The affidavit reads that the Chairman of the trust Dr. Anjum has given the hospital premises and its facilities to the HAH Unani Medical college and Hospital.
It was observed that as per the photographs, the Karim Nursing home and HAH Unani hospital seem to be the same. There are lots of similarities in the two photographs.
The photographs submitted at pg: 770-C/sub. (karim Nursing home) & 770-D(HAH Unani Medical college) seem to be of same building. The photo at 770-C seems an old picture of the same building whereas the 770-D is the recent picture of same building with some renovation done on the right side. And the board of HAH Unani Medical college & hospital attached on it in place of karim Nursing home.
Representatives accepted that there are similarities in the photographs But submitted that these are two different hospitals owned by the Chairman of the Trust Dr. Anjum Gajdhar. However the facilities of OT and Gynae/Obs are utilized from the Karim hospital.
xxiii. Constructed area of hospital i.e. 2000 Sq.mt. is not available as per RMS, 2016.
Representatives submitted that constructed area of the hospital is 20,000 sq feet. The college hospital has been build W.P.(C)No.9101/2019 Page 11 of 13 before year 2003. In this regard, plan document has been submitted.
Refer Annexure-15. Pg: 770/sub.
The building plan is not verified by the Authority and as per photographs there are 03 floors of (ground, 1st and 2nd.), where as the building plan shows 4 floors."
(emphasis is mine) 16.1 A perusal of the aforesaid extract would show that there are several gaps and deficiencies which require removal and/or are required to be cured. For example, the absence of operation theatre, the maintenance of proper OPD and IPD data, the maintenance of proper biometric attendance record, the requirement to engage adequate number of staff for Unani OPD and clinical staff for Unani Hospital, etc. 16.2 The aspects, which have been adverted to hereinabove, clearly point in the direction that at least at this stage, the petitioner has failed to make out a prima facie case for staying the operation of the impugned order. 16.3 Besides this, the balance of convenience is also not in favour of the petitioner as grant of permission with the kind of deficiencies and/or shortcomings that have been brought to fore would result in doing great disservice to those candidates who would seek admission with the petitioner.
17. It is also important to note that it is not as if the Central Government has closed all avenues for the petitioner. As alluded to hereinabove, the petitioner has been granted the leeway to cure the deficiencies and/or remove the shortcomings up until 31.12.2019, for consideration of the very same request, qua the academic session 2020-2021.
18. Therefore, for all these reasons, I am not inclined to grant any interim relief at this stage. The application is accordingly, dismissed.
W.P.(C)No.9101/2019 Page 12 of 1319. Needless to say, the observations made hereinabove will not impact the merits of the writ petition.
W.P.(C)No.9101/201919. Renotify the matter on 27.11.2019.
20. Dasti under the signatures of the Court Master.
RAJIV SHAKDHER, J SEPTEMBER 27, 2019 aj W.P.(C)No.9101/2019 Page 13 of 13