Punjab-Haryana High Court
Dayanand Ayurvedic College vs The Union Of India And Others on 10 October, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.13843 of 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: OCTOBER 10 , 2012
Dayanand Ayurvedic College, Jalandhar
.....Petitioner
VERSUS
The Union of India and 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. Rajiv Atma Ram, Sr.Advocate with
Mr. Nikhil Chopra, Advocate,
for the petitioner.
Mr. S. S. Sandhu, Senior counsel with
Mr. Amandeep Singh Gill, Central Govt.Counsel
for UOI.
Mr. Ashok Tyagi & Mr.T.K.Joseph, Advocates,
for respondent No.2.
*****
RANJIT SINGH, J.
The petitioner-College has approached this court to impugn the order passed by the respondent-Union of India, whereby the college has been denied permission for making admission to BAMS Course with 50 seats in academic year 2012-2013. The respondent-Union of India has, however, allowed period upto 31.10.2012 to remove the shortcomings observed during the inspection as mentioned in the impugned order. The petitioner CIVIL WRIT PETITION NO.13843 of 2012 :{ 2 }:
college, however, would contest the same by urging that there is no basis of this finding and accordingly has not only challenged the impugned order but has raised a challenge to the show cause notice issued to the Institution as well.
Giving the background and history, the petitioner college has averred that it is being granted approval by Central Council of Indian Medical (for short "CCIM") as well as the respondent-Union of India every year. Reference is made to a denial of approval to the college ordered for the year 2008-2009. At that time also, the college had approached this court through CWP No.15429 of 2009 when notice of motion was issued and the college was permitted to participate in the counselling. While the writ petition was pending, the permission came to be granted. Thereafter, college has been receiving the approval from the Department of AYUSH as well as CCIM for academic Sessions 2008-2009, 2009-2010, 2010-2011 and 2011-2012.
The CCIM has now carried out inspection for grant of permission for academic sessions 2012-2013 and gave favourable recommendations on 30.3.2012. The case was accordingly submitted but the show cause notice followed. The reasons communicated in the show cause notice are that department of Kaya Chikitsa for the month of June has shown that 7 patients generated 673 bed days, whereas 15 patients in months of July, August, September are shown to have generated 660, 685 and 756 bed days, respectively. Show cause notice further mentions that 12 patients generated 468 bed days in October, whereas 16 patient generated 505 bed days in CIVIL WRIT PETITION NO.13843 of 2012 :{ 3 }:
December. It is alleged in the show cause notice that data appears to be excessively exaggerated.
The petitioner college submitted reply attaching therewith photo copies of complete IPD files, total number of bed days and IPD attendance register from January to December, 2011. The college was then afforded opportunity of personal hearing on 26.4.2012. The respondent-Union of India instead of considering the deficiency as pointed out in the show cause notice confronted the petitioner college with questions pertaining to everything else in the Institution. In this manner, the respondents required production of following original documents:-
"(i) OPD, IPD registers.
(ii) Case sheets of IPD patients.
(iii) Discharge tickets of IPD patients
(iv) Load register
(v) Nursing duty register
(vi) IPD medicine dispensing register
(vii) IPD diet register
(viii) IPD duty roster
The petitioner prayed for time to produce these
documents. This request was duly noticed. Another communication to the same effect was given by the petitioner on 26.4.2012. The petitioner also represented to Under Secretary, Department of AYUSH followed by a reminder on 16.5.2012. But without affording any further opportunity, the petitioner college was denied permission mainly on the ground that the original documents were not submitted CIVIL WRIT PETITION NO.13843 of 2012 :{ 4 }:
and, hence, no verification of the deficiency with regard to bed days and genuineness of the attached record of hospital could be done.
The petitioner college claims to the oldest Ayurvedic Medical College in India. Statedly, the college was set up in the year 1898. Reference is made to the inspection carried out by CCIM for the current academic session 2012-2013 on 27/28.1.2012, which recommended continuation of permission/recognition granted to the petitioner college. Union of India, however, has viewed it differently and has issued show cause notice dated 14.6.2012 to the petitioner college alleging that record in regard to in patients in the department of Kaya Chikitsa had not been properly maintained. The college submitted a detailed reply and statedly attached photo copies of the record therewith. The impugned order, as per the college, still passed on the ground that the original record was not produced at the time of hearing. The petitioner on this count would allege that the college was not afforded adequate and reasonable opportunity to produce the original record for which it had prayed for time, which apparently is not granted. As per the college, the impugned order primarily has, therefore, been passed for non-production of the original record, and on that basis it is found that the college is not having genuinely functional hospital.
The petitioner college accordingly has approached this court pleading that there is no basis for this finding. It is stated that the college and the hospital have been existing for more than a century. Even after promulgation of 1970 Act, the college has been granted permission year after year. It is further stated that the photo CIVIL WRIT PETITION NO.13843 of 2012 :{ 5 }:
copies of the requisite record was produced with the reply to the show cause notice and if there was any doubt in this regard, the petitioner college ought to have been granted time to produce the original. Denial thereof, pleads the college, has resulted in violation of principles of natural justice. It is further urged that the order proceeds only on the basis of one Department, i.e. Kaya Chikitsa. Even if all the in patients of Kaya Chikitsa Department are excluded, still the hospital would have much more than the requisite percentage of bed occupancy to show, which as per the norms is 40%. It is further averred that the college is required to have only 60 beds (instead of 100 beds) hospital with 40% bed occupancy, which would work out to be 8760, whereas the college has bed occupancy of 26562. It is pointed out that the norms for maintaining particular record in a particular manner have been framed for the first time and the colleges are required to comply with the same by 31.12.2014. Accordingly, it is pleaded that the impugned action of the respondent- Union of India is not only contrary to IMCC Act, 1970, but is arbitrary and is violative of Regulations framed besides being in violation of principles of natural justice.
While issuing notice of motion, the court noticed the fact that CCIM had recommended the continuation of permission/ recognition of the college, but the Union of India had declined permission primarily on account of bed occupancy in one of the department of the hospital as shown being excessive and appeared exaggerated. The submission made by the counsel that even if this department is totally excluded from consideration, the petitioner CIVIL WRIT PETITION NO.13843 of 2012 :{ 6 }:
college would still satisfy the requirement of minimum norms so far as 40% of the bed occupancy is concerned. It is also noticed that these observations were made without giving opportunity to produce the original record. The interim order accordingly was passed permitting the college to participate in the counselling by way of interim measures.
Reply is filed on behalf of the respondent-Union of India. It is stated that the college is denied conditional permission for admission for academic session 2012-2013 due to non-fulfillment of one of the basic eligibility conditions. In the reply, however, it is not disputed that requirement of genuinely functional hospital with a minimum 40% bed occupancy in IPD is the norm. Reference is then made to the discrepancies which were observed in the visitation report of CCIM and the submissions that were made by the petitioner college during the course of hearing and accordingly the permission has been denied by the respondent-Union of India.
The respondent-Union of India has not in any manner differed with the reasons given in the show cause notice to observe that the Data provided in the department of Kaya Chikitsa to show the bed days generated during the months from June to December was found excessively exaggerated. As per the answering respondent, college representative could not produce original OPD/IPD registers, pathology register, medicine indent register, doctors and nursing registers etc. against the deficiency communicated in respect of department of Kaya Chikitsa. Accordingly, it is urged that hearing committee could not cross-check CIVIL WRIT PETITION NO.13843 of 2012 :{ 7 }:
the data from the original registers. Reference is then made to the fact that hearing committee randomly checked 11 case sheets which revealed certain irregularities, like no improvement was mentioned therein while describing temperature and pulse records. Various others irregularities and inconsistencies were noticed. Even the follow up patient's condition and time of discharge were not mentioned. In some of the case sheets, no diagnosis was found recorded when the patients were discharged without any relief. Accordingly, it is stated that the hearing committee could not verify the hospital data and the inconsistencies as no original record and registers were shown.
The answering respondent has also given the detailed background of the case of consideration of a college for all these years. It is pointed out that the petitioner college is an existing college and had applied for requisite permission of the Central Government in terms of Section 13C of IMCC Act, 1970 for conducting BAMS course with an intake capacity of 50 seats. The Central Government decided to grant conditional permission to all the colleges which had applied in compliance to Section 13C for academic session 2007-2008 and this decision was communicated to the petitioner college as well, but was subject to the rectification of the deficiencies by 31.3.2008 for grant of permission for the next session. The petitioner college was then visited by CCIM on 24.1.2008 which did not recommend the application for approval.
Still, the college was afforded opportunity of hearing and the college could not substantiate their claim and accordingly was not granted CIVIL WRIT PETITION NO.13843 of 2012 :{ 8 }:
permission to fill up 50 seats at UGC level for academic year 2008- 2009. As has been averred by the petitioner, perhaps the college was granted permission for this session as well after it had then approached this court through a writ petition.
The CCIM then conducted inspection of the college on 16.2.2009 and agreed to recommend the grant of permission to the petitioner college. The Government had then granted conditional permission to the petitioner college for session 2009-2010. The college was also required to rectify the indicated deficiencies by 31.10.2009 failing which, the permission as granted was liable to be withdrawn.
The CCIM has verified that the deficiencies have been rectified by means of suo-motu inspection. The CCIM then conducted inspection of the college on 10.2.2010 with a view to re-assess the available facilities and did not recommend the continuation of the permission to the petitioner college. The petitioner college was then also granted opportunity of hearing to clarify the position regarding the deficiencies and thereafter the college was granted conditional permission for academic session 2010-2011. The college was again required to rectify the deficiencies by December, 2010, ofcourse subject to the condition that failure could lead to withdrawal of the recognition. In this background, inspection of the college was again conducted on 18/19.4.2011 and CCIM recommended to the respondent-Union of India to grant permission to the petitioner college. The Government had then granted conditional permission to the college for session 2011-2012 with certain stipulations contained CIVIL WRIT PETITION NO.13843 of 2012 :{ 9 }:
in letter dated 27.7.2011. Thereafter suo-motu inspection of the college was conducted on 27/28.1.2012, which is in issue. This time again CCIM has recommend grant of conditional permission but on examination of the visitation report and after grant of opportunity of personal hearing, the answering respondent has declined the permission on the grounds which are already noticed.
It is pleaded that the question whether the college is fulfilling the infrastructure requirement, including genuinely functional attached teaching hospital with minimum requirement of bed occupancy is a verifiable facts and this as per the answering respondent cannot be adjudicated by this court.
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 course of study or training or to increase the admission capacity in any existing course of study or training including a post graduate course 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.
CIVIL WRIT PETITION NO.13843 of 2012 :{ 10 }:
Three new Sections i.e., 13A, 13B and 13C have been inserted which would now 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 course 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, training, hospital or other facilities to ensure proper functioning of Medical College or for conducting the new course 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 Centals Government, thus, is required to examine whether the CIVIL WRIT PETITION NO.13843 of 2012 :{ 11 }:
proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer 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 course 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.
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 Vs. State of Bihar and Ors., AIR 2008 SC 595 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 12 }:
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 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 13 }:
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, 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;
CIVIL WRIT PETITION NO.13843 of 2012 :{ 14 }:
(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 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 15 }:
norms or standards have been prescribed by the Central Council. A letter of permission 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 Governments were also requested to ensure that all the existing ASU Colleges conform to the minimum standards laid down in the relevant CCIM CIVIL WRIT PETITION NO.13843 of 2012 :{ 16 }:
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 adverse 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 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 17 }:
requisite teaching staff;
(ii) The concerned college must have an attached teaching hospital with requisite bed strength of 100 beds for UG course 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 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 18 }:
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 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 19 }:
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 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.
While responding to the submissions on merits, it is stated that on the basis of deficiencies noticed, an opportunity of hearing was given to the college by issuing a show cause notice clearly directing the college to bring along and submit all possible oral and written submissions with valid documents, proof in original to substantiate their claim against all the deficiencies and shortcomings during the hearing and also to bring such supporting documents with respect to deficiencies of OPD/IPD like attendance registers of the doctors and hospital staff and data-wise OPD and IPD registers, the case sheets of all the patients, discharge tickets of IPD patients, lab register, nursing duty register, IPD medicine register, IPD diet register and IPD duty roster of doctors for the whole year 2011. Still, the petitioner college failed to substantiate his claim against the deficiencies and hence the college was denied permission. The CIVIL WRIT PETITION NO.13843 of 2012 :{ 20 }:
action is accordingly justified on these counts.
Though in the reply filed by the answering respondent, number of judgments have been reproduced to highlight the scope of interference by this court which is in issue as are raised in the present petition, but in my view that may not require any examination in detail as there is no dispute with the proposition that this court cannot substitute its own findings or opinion in the place of expert body which has to carry out inspection and then make its recommendations for the competent authority to decide. That perhaps is not the core issue which is being agitated by the petitioner in the present writ petition. Here the petitioner seeks indulgence of the court in the decision making process inasmuch as it pleads violation of the principle of natural justice and denial of fair hearing to them to substantiate their case before the present adverse decision was taken against the petitioner college. In addition, the plea also appears to be that the decision making authority has arrived at a decision ignoring the relevant consideration and even if what is held against the petitioner college is accepted, the petitioner college still would fulfill the minimum norms to satisfy the grant of permission which aspect has clearly been ignored by the decision making authority, i.e., the Central Government. Whether these submissions will fall within the purview of examination by this court, thus, would be a question and not that what should be or be not the parameters for this court to interfere in the decision taken by the expert body.
I find that the petitioner college has not in any manner challenged the power and jurisdiction of the answering respondent-
CIVIL WRIT PETITION NO.13843 of 2012 :{ 21 }:
Union of India to consider and grant sanction for continuing the course. 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 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 Ayurvedi 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 22 }:
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 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. Telecom Regulatory Authority of India, 74 (1998) DLT 282; Dr.H.Mukherjee v. UOI AIR 1994 SC 495 and State of Kerala vs. A.Lakshmikutty (1986) 4 SC 632".
Let us first 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 23 }:
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 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 1174 (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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 24 }:
can be noticed and are as under:-
".......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 first 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 course 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.13843 of 2012 :{ 25 }:
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, Vs. Secy. of State for the Environment, (1986) 1 All ER 199".
In L.Chandra Kumar Vs. Union of India, AIR 1997 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 Vs. 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 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 CIVIL WRIT PETITION NO.13843 of 2012 :{ 26 }:
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 Vs. Union of India. Similar view would emerge from All India Council for Technical Education Vs. 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 nor 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 defined and the same is as has been clearly noticed above.
That being the clear field for this court to tread, let us now examine whether the challenge raised by the petitioner would fall within the purview of jurisdiction of this court to judicialy review the impugned order.
The denial of fair opportunity of hearing and violation of principle of natural justice on that count is the first ground advanced CIVIL WRIT PETITION NO.13843 of 2012 :{ 27 }:
by the counsel for the petitioner college to impugn the decision of the respondent-Government. The show cause notice indeed was issued to the petitioner college. The petitioner had submitted its reply and along with the same, had attached various documents but in a photostat form. Once the petitioner was asked to produce the original thereof, petitioner prayed for time to comply with the same, but no further opportunity was granted and the decision was made and conveyed to the petitioner college. The justification on the part of the respondent- Union of India, which can appear from the record is that the requirement to produce the original documents and the nature of these documents had been reflected in the show cause notice and as such the petitioner was not justified in either not bringing the record or not annexing the same with the reply to the show cause notice. The apparent plea is that once the documents required for examination in original have been specified in the show cause notice, the petitioner was put to sufficient notice in this regard and as such grant of further opportunity would not show denial of fair hearing to the petitioner college. Concededly, the petitioner college has been declined this permission only on the ground that the bed occupancy by number of patients as disclosed could not be verified from various documents, which were needed for examination before arriving at any valid decision.
Here let us understand the attributes of fair hearing to see if the order would suffer in any manner on this count. For years on, the Anglo-American Courts have applied two principles of natural justice, though the concept cannot be reduced to these two principles CIVIL WRIT PETITION NO.13843 of 2012 :{ 28 }:
alone. These are very kernel of the problems of the administrative justice. These two well known and understood principles are:
(i) No one should be made a judge in his own cause which otherwise is known as rule against bias;
(ii) Hear the other party or the rule of fair hearing, or the rule that no one should be condemned unheard.
In the instant case, on the basis of the nature of challenge, one is concerned with the second rule relating to fair hearing. The rule of fair hearing would include a right to notice, time, place and nature of hearing, legal authority under which hearing is to be held and the statement of specific grounds. The other attributes would also include right to present case and evidence, right to rebut adverse evidence etc. One need not further go into the effect of breach of natural justice to see if order passed thereafter would be void or voidable. In any case, there are some fundamental disagreements on this aspect. Sometimes, it is felt that the party aggrieved may waive its right and, thus, it may be a voidable. As per Professor Vaid, however, the rules of natural justice must have the effect of producing void decisions. Keeping these parameters in view, let us see if the petitioners were given fair hearing in this case.
The grounds of denial of opportunity to produce the material, i.e., the evidence and sufficiency of time would be the apparent plea to plead violation of principle of natural justice. There would not have been much harm if another opportunity had been granted to the petitioner to bring the original documents for which they had sought time.
CIVIL WRIT PETITION NO.13843 of 2012 :{ 29 }:
No doubt, the petitioner college had faultered in not taking along the original documents as this requirement was projected in the show cause notice, but still in order to ensure fairness there could not have been much harm if yet another opportunity had been so granted. No doubt, the decision making process on this count may appear to be as per the principle of natural justice, but to an extent, the fair right of hearing may be seen wanting in this case on this count.
I would have still ignored this aspect noticing that the petitioner also had been responsible to an extent in not taking these documents despite knowing the requirement, but for the fact that the plea of the counsel is that this deficiency is based only on the admission in one department of the hospital, i.e. Kaya Chikitsa. The counsel would dare Union of India to exclude the complete intake of patients and the bed occupancy generated in this department of the hospital and then see if the petitioner college would qualify the minimum norms of bed occupancy of 40% as is laid down in the Statute. In this regard, the counsel for the petitioner has referred to the fact that this is the only deficiency noticed and pointed out in the show cause notice.
In ground 13 (i), the petitioner has given in detail the formula and methodology which is followed while calculating the bed occupancy as is given in Annexure P-3. The formula is the total number of bed days occupied multiplied by hundred divided by total number of beds multiplied by 365. Since the requirement is of 100 bed hospital, multiplying this figure with 365 days would show that CIVIL WRIT PETITION NO.13843 of 2012 :{ 30 }:
100% bed occupancy to be 36500. The total bed occupancy shown by the petitioner college is 26562. Out of this bed occupancy shown in Kaya Chikitsa Department is 6949. Excluding this figure from the figure of total bed occupancy, the bed occupancy of the petitioner college would be 19630. This multiplied by 100 and divided by 36500 would still give 54% bed occupancy. The plea accordingly is that even if the total bed occupancy shown in Kaya Chikitsa Department is excluded, still the petitioner college would fulfill the norms of 40% bed occupancy as it can still show bed occupancy of 54%.
The respondent-Union of India could be expected to answer this averment made in the petition. I find that no satisfactory answer is forthcoming to this potent argument, which cannot be ignored lightly. After all, the only objection raised is regarding the doubts of bed occupancy in one of the department, i.e. Kaya Chikitsa in the petitioner's hospital. If by even excluding this figure the petitioner still would fall within the minimum norms required for continuing the recognition, then perhaps the petitioner college can plead that it's cause and case has not been validly considered and some very valid ground and reasons have been totally ignored while passing the impugned order.
In the reply, it is not disputed that the norm of bed occupancy is 40%. Rather this is referred to as one of the basic condition for considering the case of grant of conditional permission. It is also true that this percentage of bed occupancy should come out of genuine load of patients, which can only be verified by the hearing committee on the basis of cross-verification of original records. Since CIVIL WRIT PETITION NO.13843 of 2012 :{ 31 }:
the show cause notice was limited to the bed occupancy shown in the department of Kaya Chikitsa, the petitioner hospital would be fair in submitting that it could not be taken by surprise to produce any other material than what was disclosed in the show cause notice. Obviously, the petitioner college is not seen pleading shyness to produce all the records. It had prayed for opportunity even to produce the relevant original records, photostat of which had been statedly annexed with the reply to the show cause notice. The ground to deny this permission is not that total bed occupancy shown by the petitioner institution is exaggerated. This observation is only concerning the Kaya Chikitsa Department of the Hospital. If by excluding the total bed occupancy of this department, the petitioner is seen to have fulfilled the minimum norms of 40% bed occupancy, then it was a relevant consideration for the respondent- Government to keep in mind before taking a decision.
The respondent could still have replied to this assertion of the petitioner contained in para 13(i) of the writ petition, but I find that this plea has not been responded at all and has, thus, not been explained or answered in any satisfactory manner. If the reason is to doubt the total bed occupancy shown by the hospital on account of some exaggeration in one of the department, then the petitioner in fairness should have been put to such notice and asked to produce the entire record if any such doubt was being entertained. Still, the respondent-Union of India could seek production of the entire record by putting the petitioner college to notice. The college was willing to produce the original record as was required, but that opportunity was CIVIL WRIT PETITION NO.13843 of 2012 :{ 32 }:
not allowed. The cumulative effect in my view is that the petitioner college has not been given a fair hearing and as such the decision to deny permission may call for some review by the respondent-Union of India. I am quite aware and conscious of the limits of jurisdiction to interfere with the order of administrator.
The cause of interference in this case is due to the infirmities in the decision making process and not in the decision as such.
In view of the above findings, I am not going into the aspect whether the respondent-Government could go beyond the observation made in the show cause notice to seek production of the records or not. Prima-facie, the decision to grant permission or to continue permission rests with the Government and it has to take that decision only after satisfying itself about the infrastructure and facilities. The issue also is to be examined and viewed in the background that this is not a new college or a new course, but is a case of continuing of sanction which after considering some of these parameters had earlier been granted for different year after year.
I am not in any manner willing to convey that once the permission had been granted to continue the course in a particular session previously, such sanction has to continue. In this regard, I will find substance in the submissions made on behalf of the respondent-Union of India that while it was necessary and desirable to stop admission to Medical Colleges where the staff, infrastructures, facilities did not come up to even those relaxed norms for grant of sanction under Section 13C, the mechanism of CIVIL WRIT PETITION NO.13843 of 2012 :{ 33 }:
granting provisional conditional permission was used to force the medical colleges to improve their standards. The conditional permission as such is a mechanism adopted by the Union of India not to close the existing Medical Colleges, but still they have to come up with the requisite norms for which the Government would be fully entitled to carry out the inspections and checks to its satisfaction. In that regard, this court would have hardly any role to play. Whether the colleges have come up to these standards would have to be considered and decided by the expert body, which is meant for this purpose. There is no dispute that the courts are neither equipped nor have any expertise or technical knowledge to substitute its own view in the place of the views of technical statuary bodies, who have been given the responsibility to ensure maintenance of the standards in the Medical Education or other such fields.
In view of the above, I would dispose of this writ petition with direction to the respondent-Union of India to afford one more time bound opportunity to the petitioner college to produce the original records and consider the request of the petitioner college in the light of submissions made by it that it would still fulfill the minimum norms of bed occupancy even if the total bed occupancy shown in respect of Kaya Chikitsa Department is excluded. It may not be taken to mean that I am conveying in any manner that the respondent-Union of India cannot seek further information from the petitioner college, but if it is so required and desired, it would be appropriate and essential for the Government to specify that requirement specifically to the petitioner college, so as to ensure CIVIL WRIT PETITION NO.13843 of 2012 :{ 34 }:
adherence to the principle of natural justice. Till any further decision is taken by the respondent-Union of India, the interim arrangement and order passed by this court shall continue. If finally, the respondent-Government decides to continue the permission, then the case of students admitted to the course in session 2012-2013 shall be accordingly regularised. In case of any adverse order, it will be open for the petitioner to take any remedial measure in accordance with law.
October 10, 2012 (RANJIT SINGH ) ramesh JUDGE