Madhya Pradesh High Court
Indira Gandhi Memorial Homoeopathic ... vs Union Of India on 17 July, 2018
1
THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.8217 of 2016
(Indira Gandhi Memorial Homoeopathic Medical College &
Research Centre vs. Union of India & others)
Indore, dated : 17.07.2018
Shri Pavan Dwivedi, learned counsel for the petitioner.
Shri Deepal Rawal, learned ASG for the respondent No.1.
Shri Romesh Dave, learned Government Advocate for the respondent No.2 - State.
Shri M. Upadhyaya, learned counsel for the respondent No.3. Heard.
By this writ petition, under Article 226 of the Constitution of India, the petitioner is praying for quashment of order dated 04.11.2016 (Annexure-P/1), whereby respondent No.1 has denied permission for taking admission to BHMS Course with 100 UG seats under Section 12-A of the Homoeopathy Central Council Act, 1973 (in short "the HCC Act") for the academic session 2016-17.
2. The petitioner institution is conducting BHMS Course since the year of 2000. The respondent No.3 has extended the recognition of the petitioner institution for making admission in BHMS Degree Course for session 2001-02 as per communication dated 29.01.2001 and the same was continued vide order dated 26.09.2003 for session 2003-04 onwards. The newly established M. P. Medical Science University, Jabalpur has also granted affiliation for the session 2015-16 vide communication dated 26.09.2016. The intake capacity of the petitioner institution is 100 students per annum.
3. On 14.10.2016, the respondent No.1 issued notice pointing out following deficiencies :-
1. Total number of patients reported in last one year is 9000. Average patients in OPD per day are 30 against required 200.
2. CCH inspection report mentioned Bed occupancy per 2 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others) day 7-8/day and total number of patients in IPD in last one year is 190-200 patients per day. Hence need to be verified.
3. Rehabilitation unit including yoga and hospital kitchen are not available.
4. USG is not available in hospital.
5. 01 Colorimeter (Photoelectric) available against requirement of 02 in the department of Physiology.
Mummified bodies are not available in the department of Anatomy.
4. As per notice, opportunity of hearing regarding these deficiencies is being given to the petitioner in accordance with Section 12-A(4) of the HCC Act. On 21.10.2016, the petitioner submitted before the committee regarding each deficiency and clarified that all of those have been cured or alternative arrangements are in place. The committee consisting of two members recorded submissions of the petitioner and after hearing, passed the order dated 04.11.2016 thereby the permission to the petitioner for taking admission to BHMS Degree Course with 100 UG seats under Section 12-A of the HCC Act has been denied. Paras-2 to 7 of the order dated 04.11.2016 is relevant, which reads as under:-
1. Whereas, CCH conducted inspection of Indira Gandhi Memorial Homoeopathic Medical College, 13,1 Prakash Nagar, Dhar (M.P.) on 11.05.2016 for considering admission in BHMS Course for the session 2016-17 and furnished its recommendation to the Ministry for further consideration. The CCH recommended as under :-
Professor not appointed in the Pharmacy. Reader not appointed in Organon of Medicine. Average bed occupancy is reported to be 7-8/day which is 28% to 32%. The average no. of patient in OPD is 190-200 patients per day.
Colorimeter (photoelectric) available 01 against requirement of 02. Recommended 3 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others) for admission in BHMS Course during 2016-17 subject to removal of above deficiencies.
3. Whereas, the inspection report of CCH has been examined and observed that the college is not fulfilling the conditions as per the Homoeopathy Central Council (Minimum Standards Requirement of Homoeopathic Colleges and Attached Hospitals) Regulation, 2013. Accordingly, an opportunity of hearing was convened to the college vide Ministry's Hearing Notice of even number dated 14.10.2016. The College availed the opportunity of hearing on 20.10.2016.
4. Whereas, as per the provisions of HCC (MSR) Regulations, 2013, the colleges have to meet the complete norms of MSR by 31.12.2014 for obtaining 5 years permissions, else the colleges would be succumbed for action under Section 19 of the Act including stopping of admissions. As there is no provision for granting conditional permissions in the MSR after the year 2014, a Policy has been taken by this Ministry for granting conditional permission during 2016-17 and also to relax 10% of deficiency in teaching staff, considering IPC Bed occupancy as 20% instead of 30% and to exempt USG facility if an alternative arrangement is shown by the college.
5. Whereas, after considering the written and oral submissions made by the college representatives during hearing, it has been observed that the college could not substantiate the claim for having fulfilled the requirements of HCC (MSR) Regulations, 2013 in respect of the deficiencies conveyed vide Ministry's Hearing Notice of even number dated 14.10.2016.
6. Whereas, in view of the above deficiencies, it has been observed that the college is nether fulfilling the norms of HCC MSR, Regulations, 2013 for granting permission upto 5 years, nor meeting the relaxed norm of proposed Policy for granting conditional permission for 1 year for the Academic Year 2016-17.
Therefore, the permission for undertaking admission of students by Indira Gandhi Memorial Homoeopathic 4 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others) Medical College, 131, Prakesh Nagar, Dhar (M.P.), in Under Graduate (UG) course 100 seats has been denied for the Academic Year 2016-17.
7. However, for taking admission during the forthcoming Academic Year 2017-18, the college has to comply with the full requirements of HCC (MSR) Regulations, 2013 by December, 2016. CCH shall verify the compliance well in time for considering the admissions during the Academic Year 2017-18 and furnish the recommendation to the Central Government.
5. The Regulations mentioned at S. No.(i) i.e., The Homoeopathy (Minimum Standard of Education) Regulations, 1983 (as amended upto 2002), the Central Council of Homoeopathy has laid down the minimum requirement, norms and standards in terms of teaching and hospital staff, accommodation, equipments and training hospital and other facilities with the previous sanction of the Central Government in pursuance of Sections 20 and 33 of the HCC Act, 1973.
6. Section 20(1) of the HCC Act say that "The Central Council may prescribe the minimum standards of education in Homoeopathy required for granting recognised medical qualifications by Universities, Boards or medical institution in India".
7. As per Section 3(9) of the HCC (MSR) Regulation, 2013, "all the existing colleges which are not able to achieve full compliance of the requirement as specified in these regulations by the 31st December, 2014 shall be denied permission from academic year 2015-16 onwards and action as envisaged under Section 19 of the Act shall be initiated against all such college apart from rejection of their applications under Section 12-A which have been under consideration by way of conditional permissions or denials".
5THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others)
8. In the field of granting permissions to medical institutions for various purposes, the spirit behind is to perceive the mandatory requirements as laid down in the provisions of the concerned Act and subsequent Regulations framed thereunder for fulfilling 100% norms so that the respective medical institution is equipped for imparting quality medical education.
9. The Hon'ble Supreme Court of India in the case of Ayurveda Shastra Seva Mandal vs. Union of India, 2013 (3) SCALE 213 comprising three Judge Bench headed by the then Chief Justice of India has settled the issue in the context of the IMCC Act, 1970 having similar provisions in the CCH Act and held that Courts ought not to interfere with expert bodies ;
"....It is nor for us to judge as to whether a particular Institution fulfilled the necessary criteria for being eligible to conduct classes in the concerned discipline or not. That is for the experts to judge and according to the experts the institutions were not geared to conduct classes in respect of year 2011-12. It is also impractical to consider the proposal of the colleges of providing extra classes to the new entrants to bring them upto the level of those who have completed the major part of the course for the first year ....".
10. The Hon'ble Supreme Court in the recent judgement tilted as National Council for Teacher Education and Another vs. Venus Public Education Society and others, Civil Appeal No.7749/2012 (arising out of SLP (Civil) No.11385/2012 decided on 01.11.2012 has held that;
"As has been laid down in many a pronouncement of this Court that without recognition from the NCTE and affiliation from the university/examining body, the educational institution cannot admit the students. An educational institution is expected to be aware of the law. The students who take admission are not young in age. They are graduates. They are expected to enquire whether the institution has recognition and affiliation. If we allow ourselves to say so, the institution had 6 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others) given admission in a nonchalant manner. Possibly, its functionaries harboured the idea that they had incomparable fertile mind. The students who had taken admission possibly immersed with the idea that ignorance is a bliss. It is also necessary to state that the institution had the anxious enthusiasm to commercialize education and earn money forgetting the factum that such an attitude leads to a disaster. The students exhibited tremendous anxiety to get a degree without bothering for a moment whether their effort, if any, had the sanctity of law. Such attitudes only bring nemesis. It would not be wrong to say that this is not a case which put the institution or the students to choose between Scylla and charybdis. On the contrary, both of them were expected to be Argus-eyed. The basic motto should have been "transparency".
Unfortunately, the institution betrayed the trust of the students and the students, in a way, atrophied their intelligence. The institution decidedly exhibited characteristics of carelessness. It seems that they had forgotten that they are accountable to law. The students, while thinking "vision of hope", chose to play possum. The law does not countenance either of the ideas. Hence, the plea propounded with anxiety, vehemence and desperation on behalf of the appellant is not acceptable and, accordingly we unhesitatingly repel the same.
11. Adequate infrastructure is essential in a college for imparting quality medical education. Ill equipped colleges would produce in-sufficiently skilled doctor who would not give proper medical treatment and therefore the health of citizens would be at risk. The college, after fulfilling infrastructural requirements may apply afresh under the relevant provisions of the HCC Act, 1973.
12. The Ministry has received the recommendation from CCH after conducted inspection to petitioner college on 26.07.2016, in reference to Ministry's earlier letter No.R-13040/10/2011-HD(Tech.) dated 11.03.2016 wherein the Council was requested to provide recommendation as per the latest status of availability of infrastructure, equipment, teaching faculty, hospital staff and functioning of hospital in the existing Homoeopathic 7 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others) Colleges.
13. As per Section 3(9) of the HCC (MSR) Regulations, 2013, "all the existing colleges which are not able to achieve full compliance of the requirement as specified in these Regulations by the 31st December, 2014 shall be denied permission from academic year 2015-16 onwards and action as envisaged under Section 19 of the Act shall be initiated against all such colleges apart from rejection of their applications under Section 12-A, which have been under consideration by way of conditional permissions or denials".
14. The CCH inspected on 26.07.2016 and the CCH has recommended as:-
"Professor not appointed in the Pharmacy. Reader not appointed in Organon. Average bed occupancy is reported to be 7-8 per day which is 28% to 32%. The average no. of patients in OPD is 190-200 patients per day. Colorimeter (Photoelectric) available 01 against requirement of 02. Recommended for admission in BHMS Course during 2016-17 subject to removal of above deficiencies.
15. The Ministry of Ayush carefully examined the inspection report of CCH and observed that ;
i) The college is not meeting the norms of HCC (MSR) Regulations, 2013 as it is not having required average patients per day in OPD and IPD, USG facility, rehabilitation unit including yoga and kitchen in hospital, equipment like 01 Colorimeter in department of Physiology, mummified bodies in the department of Anatomy and functional website for granting 5 years permission to the said college.
ii) The deficiency of average patients per day in OPD and IPD, USG facility, rehabilitation unit including yoga and kitchen in hospital, 01 Colorimeter in department of Physiology, mummified bodies in the department of Anatomy.
16. The denial order dated 04.11.2016 was issued after taking into 8 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others) consideration of the recommendation of CCH and observations of the Hearing Committee, the petitioner college fails to produce sufficient documents to substantiate the claim and the college is not fulfilling HCC (MSR), 2013 norms.
17. As per the provisions of the HCC (MSR) Regulations, 2013, the colleges have to meet the complete norms of MSR by 31.12.2014 for obtaining 5 years permissions, else the colleges would be succumbed for action under Section 19 of the Act including stopping of admissions. As there is no provision for granting conditional permissions in the MSR after the year 2014, a Policy has been approved by Hon'ble MOS(IC) for granting conditional permission during 2016-17 and also to relax 10% of deficiency in teaching staff, considering IPD Bed occupancy as 20% instead of 30% and to exempt USG facility if an alternative arrangement is shown by the college.
18. On 13.12.2016, when the matter was listed for admission, learned counsel for the petitioner has drawn our attention to the order dated 07.12.2016 passed in W. P. No.20005/2016 and submitted that the petitioner be permitted to take all possible steps to rectify and remove the deficiencies and the respondent No.3 shall examine the matter afresh notwithstanding with the pendency of the controversy involved before this Court and till then, no case for grant of admission to permit the students was made out.
19. Thereafter, on 09.01.2017, a submission was made by the learned counsel for the petitioner that the institution of the petitioner was inspected on 11.05.2016 and all the five deficiencies as pointed out in para-3 of the letter dated 14.10.2016 has been rectified. It was also pointed out that the Gwalior Bench of this Court in W. P. No.8109/2016 granted stay and the petitioner therein was permitted to participate in the counselling process for 9 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others) BHMS Course.
20. Considering the aforesaid, similar relief be granted to the petitioner for participating in the counselling process of BHMS Course. It was also observed that no equity shall be claimed by the petitioner arising from the said order and the permission granted thereby is provisional which shall remain effective subject to final decision of the writ petition.
21. As per para-30 of the reply filed by the respondent No.1, W. P. No.8301/2016 and W. P. No.8689/2016 has been dismissed by the Gwalior Bench of this Court vide order dated 11.01.2017 by passing the following order :-
19. In view of above discussions, this court has no instigation to hold that action of the respondents neither suffers from any illegality nor for want of jurisdiction. Thus, the impugned order warrants no interference in writ jurisdiction under Article 226 of the Constitution of India.
20. Consequently, Writ Petition No. 8301/16 (Shri Ramnath Singh Homoeopathic Medical College Vs. Union of India & others) and Writ Petition No. 8689/16 (Sophia Homoeopathic Medical College Vs. Union of India & others) fail and are hereby dismissed with no order as to cost.
22. Learned counsel for the respondent No.3 has submitted that as per inspection reports dated 31.12.2015, 11.05.2016, 15.06.2016 and 05.08.2017, the deficiencies as pointed out by the respondent No.1 was never removed and they have made wrong statement that all the five deficiencies were removed on 14.10.2016.
23. The law on the subject is well settled. Considering the aforesaid, no case is made out to quash/set aside the impugned order. The petitioner has suppressed the fact and made wrong statement on 09.01.2017 that all the five deficiencies as pointed out by the respondents have been rectified and, therefore, we vacate the interim stay granted earlier and dismiss the writ 10 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.8217 of 2016 (Indira Gandhi Memorial Homoeopathic Medical College & Research Centre vs. Union of India & others) petition. The respondent authorities are directed to take appropriate steps for de-affiliation and as we have vacated the interim stay, the respondents may take appropriate steps against the students who have been granted admission, in accordance with law.
24. With the aforesaid, the writ petition stands dismissed with cost of Rs.25,000/-. The cost amount of Rs.23,000/- shall be deposited by the petitioner into the account of "Army Welfare Fund Battle Casualties" at Syndicate Bank, South Block Branch, New Delhi (IFSC Code :SYNB0009055) with Account No.90552010165915, which has been approved by the Integrated Head Quarter of Ministry of Defence (Army) and as per their approval, the donations received in the fund will be utilized to pay financial assistance/grant to widows of Battle Casualties, their next of kin and dependants and remaining Rs.2,000/- shall be deposited with the Secretary, M. P. High Court Bar Association within a period of four weeks from today.
(P. K. Jaiswal) (Ashok Kumar Joshi)
Judge Judge
gp
Digitally signed by Geeta Pramod
Date: 2018.07.20 10:56:37 +05'30'