Karnataka High Court
Hillside Ayurveda Medical College vs The Union Of India on 4 September, 2023
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NC: 2023:KHC:31776
WP No. 5023 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 5023 OF 2021 (EDN-RES)
BETWEEN:
HILLSIDE AYURVEDA MEDICAL COLLEGE
AND HOSPITAL
No. 9, GUBBALALA CROSS
RAGHUVANAHALLI, KANAKAPURA MAIN ROAD
BENGALURU - 560 062
REP. BY ITS SECRETARY
DR. UMESH BABU
S/O LATE DR. S. BHEEMAPPA
AGED 41 YEARS
...PETITIONER
(BY SRI. ABHISHEK MALIPATIL., ADVOCATE)
AND:
Digitally signed
by R DEEPA 1. THE UNION OF INDIA
Location: High MINISTRY OF AYURVEDA YOGA AND NATUROPATHY
Court of UNION SIDDHA AND HOMEOPATHY [AYUSH]
Karnataka AYUSH BHAWAN, 'B' BLOCK, GPO COMPLEX
INA, NEW DELHI - 110 023
REP. BY ITS SECRETARY / SPECIAL SECRETARY
2. THE CENTRAL COUNCIL OF INDIAN MEDICINE
61-65, INDUSTRIAL AREA, JANAKAPURI
NEW DELHI - 110058
REP. BY ITS UNDER SECRETARY
3. THE RAJIV GANDHI UNIVERSITY OF HEALTH
SCIENCES
4TH T BLOCK, JAYANAGAR
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NC: 2023:KHC:31776
WP No. 5023 of 2021
BENGALURU - 560041
REP. BY ITS REGISTRAR
4. THE STATE OF KARNATAKA
DIRECTORATE OF AYUSH
DHANAVANTRI ROAD
BENGALURU 560009
REP. BY ITS DIRECTOR
...RESPONDENTS
(BY SRI. H. SHANTHI BHUSHAN, DSGI FOR R1
SRI. MANASIKUMAR, ADVOCATE FOR C/R2
SRI. GIRISH KUMAR R, ADVOCATE FOR R3
SRI. N.K. RAMESH, ADVOCATE FOR R3
SMT. MAMATHA SHETTY, AGA FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 12.02.2021 PASSED BY
THE R-1 DENYING PERMISSION TO THE PETITIONER
INSTITUTION TO ADMIT STUDENTS TO 50 SEATS OF UG
(BAMS) COURSE FOR THE ACADEMIC YEAR 2020-21
PRODUCED AT ANNEXURE-A AND DIRECT THE R-1 TO ACCORD
/ GRANT CONDITIONAL PERMISSION TO THE PETITIONER
INSTITUTION TO CONDUCT UG-BAMS COURSE WITH 50 SEATS
FOR THE ACADEMIC YEAR 2020-21 AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner filed the present writ petition seeking for the following reliefs:
(1) Quash the impugned order dated 12.02.2021 passed by the R-1 denying permission to the petitioner institution to admit students to 50 seats of UG (BAMS) course for the academic year 2020-21 produced at Annexure-A;-3-
NC: 2023:KHC:31776 WP No. 5023 of 2021 (2) Direct the R-1 to accord/grant 'conditional permission' to the petitioner institution to conduct UG-BAMS course with 50 seats for the academic year 2020-21; (3) Declare the action of the R-2 CCIM in forwarding its recommendations to the Central Government u/s 13(A)(4b) of the IMCC Act, 1970 without giving an opportunity to the petitioner to comply with the shortcomings as mandated u/s 13(A)(4a) of the IMCC Act, 1970, as illegal and arbitrary and violative of the clear mandate of the enactment.
2. Brief facts leading rise to filing of this petition are as under:
Petitioner is an Ayurvedic Medical College imparting education in the undergraduate course of BAMS and was established by the 'Bheemachandra Education Trust' in the year 1996. Since its inception, the petitioner - institution is running BAMS course of study without interruption. In January 2020, the petitioner - institution applied for grant of permission under Section 13(A)&(C) of the Indian Medicine Central Council Act, 1970 (hereinafter referred to as 'the IMCC Act' for short) for the academic year 2020-21 for conducting BAMS course with intake of 50 seats for the academic year 2020-21. The petitioner uploaded Part I of the 'Scheme' on the web portal of the Central Government -4- NC: 2023:KHC:31776 WP No. 5023 of 2021 and respondent No.2. As per the time schedule fixed for conducting of inspection of the institution, the respondent No.2 ought to have conducted the inspection of the institution within March 2020. However, due to onset of global pandemic, the inspection was not conducted within the specified time. The respondent No.2 conducted a surprise inspection of the petitioner - institution on 01.10.2020. The inspectors of respondent No.2 inspecting the institution failed to take on record the changes in the teaching faculty as on the date of inspection made from the date of uploading of Part I of the 'Scheme' in January 2020. The respondent No.2 without taking into account the available teaching faculty, as on the date of inspection, has forwarded the recommendations to respondent No.1 under Section 13(A)(4b) recommending not to grant permission to the petitioner - institution, without providing an opportunity to comply with the shortcomings as per the mandatory requirement under Section 13(A)&(4a). No communication is issued to the petitioner - institution notifying the shortcomings and no opportunity was given -5- NC: 2023:KHC:31776 WP No. 5023 of 2021 to the petitioner - institution to comply with the same.
The respondent No.1 upon receipt of recommendation of respondent No.2, issued a show-cause notice dated 07.01.2021 under Section 13(A)(5) directing the petitioner
- institution to show cause that the petitioner - institution had the requisite facilities / teaching facility as on the date of inspection. Two minor shortcomings are noted in the show-cause notice. The petitioner was directed to appear before the hearing committee through video conferencing on 13.01.2021 and to produce all relevant valid documents to substantiate the claims of the petitioner regarding the deficiencies pointed out by respondent No.2. The respondent No.1 has not sought for compliance of shortcomings noted in the show-cause notice. The representatives of the petitioner - institution appeared before the hearing committee and brought to their notice that the petitioner - institution had all the requisite facilities and teaching faculty as on the date of inspection with the teachers being photographed with the inspectors. It was specified to the Hearing committee that since -6- NC: 2023:KHC:31776 WP No. 5023 of 2021 uploading of Part I of the 'Scheme' in January 2020 due to the onset of global pandemic, few changes were made to the teaching faculty and fresh appointments were before the conduct of inspection on 01.10.2020. Such appointments ought to be considered by the Central Government and had produced all the relevant documents to substantiate the claim. Emails and written submissions were made to the hearing committee throughout the hearing. Respondent No.1 caused order dated 12.02.2021 received by the petitioner - institution in the last week of February rejecting conditional permission to admit students to the BAMS course for the academic year 2020- 21 only on the ground of shortage of 1 higher faculty as against the requirement of 12 higher faculty in 11 departments as it is noted that the institution has 11 higher faculty in 11 departments. The Central Government extended the last date for admitting students to BAMS course up to 15.03.2021. The petitioner - institution granted provisional admissions to eligible students. The Central Government vide communication -7- NC: 2023:KHC:31776 WP No. 5023 of 2021 dated 05.03.2021, informing petitioner - institution that the Central Government is willing to grant permission to admit the students for the academic year 2021 with a reduced intake capacity of 30 seats only on the condition that the petitioner does not challenge the same before this Court. The petitioner - institution aggrieved by the impugned order of denial of permission to admit 30 students to BAMS course for the academic year 2020-21 is in violation of mandate of the IMCC Act and prayed to allow the writ petition.
3. Respondent No.1 filed statement of objections. It is contended that the respondent No.2 visited the petitioner - institution on 01.10.2020 to re-assess the facilities of teaching and practical training as well as to verify the compliance report furnished by the petitioner - institution. The respondent No.2 forwarded its recommendation along with the visitation report to the Central Government vide communication dated 26.11.2020, recommending for not granting permission to -8- NC: 2023:KHC:31776 WP No. 5023 of 2021 UG (BAMS) course for the academic year 2020-21. The respondent No.2 observed several deficiencies prevailing in the petitioner - institution. In terms of first proviso to Sub-section (5) of Section 13A of the IMCC Act, an opportunity of hearing before the designated hearing committee of the Ministry of Ayush was granted on 13.01.2021. The petitioner - institution submitted its oral as well as written submission. After considering the same, the hearing committee observed several deficiencies are still persisting in the petitioner - institution as enumerated in para-8 of the denial order dated 12.02.2021, i.e., the impugned order. Hence the order passed by the respondent No.1 is in accordance with law and prayed to dismiss the writ petition.
4. Respondent No.2 filed statement of objections contending that the IMCC Act and Indian Medicine Central Council (Requirements of Minimum Standard for Undergraduates, Ayurveda College & attached Hospitals) Regulations, 2016 (hereinafter referred to as 'the -9- NC: 2023:KHC:31776 WP No. 5023 of 2021 Regulations of 2016' for short), provide the requirements to be followed by the petitioner - institution. All these requirements are mandatory in nature and in the absence of compliance with any requirement, the petitioner - institution is not entitled to admit students. It is contended that it is the bounded duty of every college to comply with the norms laid down by the law which prescribes the 'minimum standard of Medical Education'. The colleges are required to be in continuous compliance of the prescribed standards. The petitioner has not complied the norms laid down by the law i.e., minimum standard of Medical Education. It is contended that the respondent No.2 visited the college on 01.10.2020 to re- assess the available facilities of teaching and practical trainings and forwarded its recommendations and report dated 26.11.2020, to respondent No.1. In view of certain shortcomings, it was recommended that the petitioner - institution must not be granted permission to admit students for the academic year 2020-21. After considering the report submitted by respondent No.2, the
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NC: 2023:KHC:31776 WP No. 5023 of 2021 respondent No.1 passed the impugned order dated 12.02.2021, denying permission to the petitioner - institution for taking admission to UG (BAMS) course with 50 seats for the year 2020-21. Respondent No.1 gave an opportunity of hearing to the petitioner - institution vide notice dated 07.01.2021. The deficiencies were pointed out :
1. Lack of higher faculty in the departments of Ayurveda Samhita & Siddhant, Rachana Sharir, Kaumarbhritya & Kayachikista;
2. Operation theatre was not functional as specified in 2016 Regulations and no deliveries have been conducted between the period from 01.01.2019 to 31.12.2020.
After hearing, the respondent No.1 passed the impugned order. It is contended that the petitioner in gross violation of law admitted the students for the year 2020-21 without being granted the letter of permission from the respondent No.1. There is no concept of provisional admission i.e., recognized by the law. All such admissions are void and unlawful. The petitioner's action in admitting the students
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NC: 2023:KHC:31776 WP No. 5023 of 2021 without receiving the letter of permission is illegal and hence prayed to dismiss the writ petition.
5. Heard learned counsel for petitioner and learned Deputy Solicitor General of India for respondent No.1; learned counsel Smt. Manasi Kumari for respondent No.2; and learned Additional Government Advocate for respondent No.4.
6. Learned counsel for the petitioner submits that respondent No.1 has not properly considered the report submitted by respondent No.2. He submits that no opportunity of hearing was provided to the petitioner as required under Sub-section (5) of Section 13A of the IMCC Act. He submits that the impugned order passed by respondent No.1 is in violation of principles of natural justice. Hence on these grounds prays to allow the writ petition.
7. Per contra, learned DSG of India supports the impugned order.
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NC: 2023:KHC:31776 WP No. 5023 of 2021
8. Learned counsel for respondent No.2 submits that respondent No.2 inspected the petitioner - institution and submitted the report to the respondent No.1. The respondent No.1 after providing opportunity of hearing, has passed the impugned order. She further submits that the impugned order is in accordance with law and she submits that in view of the National Commission for Indian System of Medicine Act, 2020 (hereinafter referred to as 'the Act of 2020' for short), the respondent No.1 has no authority to pass any order, it is only respondent No.2 has the authority to consider the said aspect. In case if Court comes to a conclusion that the matter requires for reconsideration, it has to be remitted to respondent No.2, but not to respondent No.1. Hence on these grounds, prays to dismiss the writ petition.
9. Perused the records and considered the submissions made by learned counsel for the parties.
10. It is not in dispute that the petitioner - institution is imparting education in undergraduate course
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NC: 2023:KHC:31776 WP No. 5023 of 2021 of BAMS and same was established in the year 1996. The petitioner submitted a 'Scheme' for intake of 50 students in UG-BAMS course for the academic year 2020-21. Respondent No.1 denied the permission for intake of 50 students, but only granted permission for 30 UG seats in BAMS course vide communication dated 06.03.2021, vide Annexure-G and denied 20 UG seats in BAMS course for the academic year 2020-21 under Section 13(C) of the Act of 1930. In order to consider the case in hand, it is necessary to consider Section 13(A) & 13(C) of the IMCC Act, which reads as under:
"13(A). Permission for establishment of new medical college, new course of study, etc.--
(1) Notwithstanding anything contained in this Act or any other law for the time being in force,--
(a) no person shall establish a medical college; or
(b) no medical college shall--
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NC: 2023:KHC:31776 WP No. 5023 of 2021
(i) open a new or higher course of study or training, including a post-graduate course of study or training, which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or training including a post- graduate course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
(2) Every person or medical college shall, for the purpose of obtaining permission under sub- section (1), submit to the Central Government a scheme in accordance with the provisions of sub- section (3) and the Central Government shall refer the scheme to the Central Council for its recommendations.
(3) The scheme referred to in sub-section (2), shall be in such form and contain such particulars and be preferred in such manner and accompanied with such fee, as may be prescribed.
(4) On receipt of a scheme from the Central Government under sub-section (2), the Central Council may obtain such other particulars as may be considered necessary by it from the person or
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NC: 2023:KHC:31776 WP No. 5023 of 2021 the medical college concerned, and thereafter, it may,--
(a) if the scheme is defective and does not contain necessary particulars, give a reasonable opportunity to the person or medical college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Central Council;
(b) consider the scheme, having regard to the factors referred to in sub-section (8) and submit it to the Central Government together with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government.
(5) The Central Government may, after considering the scheme and recommendations of the Central Council under sub-section (4) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or medical college concerned and having regard to the factors referred to in sub-section (8), either approve the scheme with such conditions, if any, as it may consider necessary or disapprove the scheme and any such approval shall constitute as a permission under sub-section (1):
Provided that no scheme shall be disapproved by the Central Government except after giving the
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NC: 2023:KHC:31776 WP No. 5023 of 2021 person or medical college concerned a reasonable opportunity of being heard:
Provided further that nothing in this sub- section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme as if such scheme had been submitted for the first time under sub- section (2).
(6) Where, within a period of one year from the date of submission of the scheme to the Central Government under sub-section (2), no order is communicated by the Central Government to the person or medical college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted, and, accordingly, the permission of the Central Government required under sub-section (1) shall also be deemed to have been granted.
(7) In computing the time-limit specified in sub-section (6), the time taken by the person or medical college concerned submitting the scheme, in furnishing any particulars called for by the
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NC: 2023:KHC:31776 WP No. 5023 of 2021 Central Council, or by the Central Government, shall be excluded.
(8) The Central Council while making its recommendations under clause (b) of sub-section (4) and the Central Government while passing an order, either approving or disapproving the scheme under sub-section (5), shall have due regard to the following factors, namely:--
(a) whether the 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 the minimum standards of medical education as prescribed by the Central Council under section 22;
(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment, accommodation, training, hospital or other facilities to ensure proper functioning of the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course
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NC: 2023:KHC:31776 WP No. 5023 of 2021 of study or training or the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or the course of study or training by persons having recognised medical qualifications;
(f) the requirement of manpower in the field of practice of Indian medicine in the college;
(g) any other factors as may be prescribed. (9) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or medical college concerned.
13B. XXXX 13C. Time for seeking permission for certain existing medical colleges.--(1) If any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or before the commencement of the Indian Medicine Central Council (Amendment) Act, 2003, such person or medical college, as the case may be, shall seek, within a period of three years
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NC: 2023:KHC:31776 WP No. 5023 of 2021 from the said commencement, permission of the Central Government in accordance with the provisions of section 13A.
(2) If any person or medical college, as the case may be, fails to seek permission under sub- section (1), the provisions of section 13B shall apply, so far as may be, as if permission of the Central Government under section 13A has been refused.]
11. Section 13(A) of the Act of 1970 provides permission for establishment of new medical college, new course of study. That every college shall for the purpose of obtaining permission to establish new college submit a 'Scheme' for permission to the Central Government in accordance with the provision of Section 13(A) of the Act of 1970 and the Scheme shall be in such a form and contains such particulars and be referred in such a manner and accompanied with such a fee as may be prescribed. On the receipt of the 'Scheme' from the Central Government, the Central Council may obtain such particulars as may be considered necessary by it from the
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NC: 2023:KHC:31776 WP No. 5023 of 2021 medical college concerned and thereafter if the 'Scheme' is defective and does not contain necessary particulars, grant a reasonable opportunity to the person or medical college concerned for making a written representation and provide an opportunity to rectify the defects. After rectifying the defects, the Central Council submit it to the Central Government together with its recommendation thereon within a period not exceeding 6 months from the date of receipt of reference from the Central Government. The Central Government may consider the 'Scheme' and recommendation of the Central Council and may disapprove the 'Scheme'. The Proviso provides that no such 'Scheme' shall be disapproved by the Central Government except after giving a person or medical college concerned reasonable opportunity of being heard. Sub-section 13(C) provides time for seeking permission for certain existing medical colleges. If any medical college seeks increase of admission capacity, etc., on or before the commencement of the IMCC Amendment Act, 2003, within a period of 3 years from the said commencement,
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NC: 2023:KHC:31776 WP No. 5023 of 2021 permission of the Central Government in accordance with the provision of Section 13(A) and further if medical college fails to seek permission under Sub-section (1), the provision of Section 13(B) shall apply, if permission of the Central Government under Section 13(A) has been refused. As per proviso Sub-section (5) of Section 13(A), the Central Government i.e., respondent No.1 before disapproving the 'Scheme' provide a reasonable opportunity of being heard.
12. The National Commission for Indian System of Medicine Act, 2020, was enacted by the Act of 14 of 2020. Section 29 which provides for establishment of new medical institution reads as under:
"29. (1) No person shall establish a new medical institution or start any postgraduate course or increase number of seats without obtaining prior permission of the Medical Assessment and Rating Board for Indian System of Medicine.
Explanation.-- For the purpose of this sub- section, the term "person" includes any University, trust or any other body, but does not include the Central Government.
(2) For the purpose of obtaining permission under sub-section (1), a person may submit a
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NC: 2023:KHC:31776 WP No. 5023 of 2021 scheme to the Medical Assessment and Rating Board for Indian System of Medicine in such form, containing such particulars, accompanied by such fee, and in such manner, as may be specified by regulations.
(3) While considering the scheme received under sub-section (2), the Medical Assessment and Rating Board for Indian System of Medicine shall have regard to the standards of education and research, the standards and norms for infrastructure and faculty, the guidelines on setting up of medical institutions and other requirements determined by the Board of Ayurveda or, as the case may be, the Board of Unani, Siddha and Sowa-Rigpa under section 26, and pass an order either approving or disapproving the scheme within three months from the date of receipt of such scheme:
Provided that before disapproving such scheme, an opportuntiy to rectify the defects, if any, shall be given to the person concerned.
(4) Where a scheme is approved under sub-
section (3), such approval shall be the permission under sub-section (1) to establish a new medical institution.
(5) Where a scheme is disapproved under sub-section (3), or where no order is passed within three months of submitting a scheme under sub- section (2), the person concerned may prefer an appeal to the Commission within fifteen days of such disapproval or, as the case may be, after lapse of three months, in such manner as may be specified by regulations.
(6) Where the Commission has disapproved the scheme or no order has been passed within fifteen days from the date of preferring appeal under sub-section (5), the person concerned may
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NC: 2023:KHC:31776 WP No. 5023 of 2021 prefer a second appeal to the Central Government within seven days of communication of such disapproval or, as the case may be, lapse of specified period of fifteen days.
(7) The Medical Assessment and Rating Board for Indian System of Medicine may conduct evaluation and assessment of any University or medical institution at any time, either directly or through any other expert, having integrity and experience in medical profession, without any prior notice and assess and evaluate the performance, standards and benchmarks of such University or medical institution."
13. Proviso to Sub-section (3) of Section 29 of the Act of 2020, is similar to proviso to Sub-section (5) of Section 13(A) of the Act of 1970. Proviso to Sub-section (3) of Section 29 of the Act of 2020 provides that before disapproving such a scheme, an opportunity to rectify the defects if any, shall be given to the person concerned.
14. Admittedly, in the instant case, the respondent No.2 has pointed out the deficiency in the petitioner - institution. From the perusal of the impugned order vide Annexure-A, the respondent No.1 has not provided an opportunity of hearing the petitioner. The procedure followed by the respondent No.1 is in violation of Section
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NC: 2023:KHC:31776 WP No. 5023 of 2021 29 of the Act of 2020. The impugned order passed by the respondent No.1 is in violation of principles of natural justice. Hence on this ground alone, the impugned order is liable to be set aside.
15. Section 28 of the Act of 2020 provides the powers and functions of medical assessment and rating board for Indian System of Medicine. Now the power is vested with the Medical Assessment and Rating Board for determining the procedure for assessment and rating of medical institution, granting permission for establishment of new medical institution or to start any postgraduate course or to increase the number of seats. Section 28 of the Act of 2020 is similar to Section 13(A) of the IMCC Act. In view of Section 28 it is deemed to be just and appropriate to dispose of this writ petition by directing respondent No.2 presently National Commission for Indian System of Medicine to reconsider the claim of the petitioner in accordance with law insofar as additional
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NC: 2023:KHC:31776 WP No. 5023 of 2021 intake of students who are continuing their studies by virtue of interim order passed by this Court.
16. In view of the above discussion, I proceed to pass the following:
ORDER The writ petition is allowed.
The impugned order vide Annexure-A dated 12.02.2021, is quashed. Respondent No.2 is directed to reconsider the case of the petitioner in accordance with law, within a period of 6 weeks.
In the meanwhile, the students admitted by the petitioner are permitted to prosecute the course of study in the petitioner - institution till the outcome of the decision taken by respondent No.2.
This Court has not made any adjudication on merits in issue.
All the contentions of the parties are kept open.
SD/-
JUDGE RD