Madhya Pradesh High Court
Sendhwa Homoeopathic Medical College ... vs Union Of India on 19 November, 2018
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No. 24297 / 2018
SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
W. P. No. 25353 / 2018
INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF
INDIA AND OTHERS
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INDORE, Dated : 19/11/2018
Parties through their counsel.
Regard being had to the similitude in the controversy
involved in the present cases, the writ petitions were
analogously heard and by a common order, they are being
disposed of by this Court. Facts of Writ Petition No.
24297/2018 are narrated hereunder.
The petitioner before this Court has filed this present
writ petition being aggrieved by the order dated 18/9/2018
by which the respondent No.1 has denied permission for
intake of students (100 seats) BHMS Courses for the academic year 2018-2019.
The contention of the petitioner is that the order has been passed in utter disregard to the provisions of Homoeopathy Central Council Act, 1973 and the respondent No.1 was required to follow the process, as provided under the provisions of Sec. 19 of the Homoeopathy Central Council Act, 1973. It has been further stated that respondent No.1 has completely ignored the documents submitted by the petitioner and the Committee has also ignored the documents which were submitted by the petitioner in respect of the deficiencies. It has been stated that the College is running since 2001. It has been argued that the role of respondent HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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No.1 is supervisory in nature. Reliance has been placed upon the judgment delivered by the apex Court in the case of The Temple of Hanemann Homoeopathic Medical College and Hospital Vs. Union of India and others (Civil Appeal No. 6734/2018, decided on 17/7/2018). Heavy reliance has been placed upon paragraph 20.
On the other hand, learned counsel for the respondents has filed a detailed reply and it is contended that the respondent No.1 authority is the competent authority when it comes to decide that whether all the given parameters and standards in terms of the HCC Act, 1973 read with the Homoeopathy Central Council Act, (MSR) Regulation, 2013 have been fulfilled by the colleges. The main function of the respondent No.3 CCH is to inspect the college and send its recommendation to the respondent No.1 Ministry for final decisions. The respondent No.3 CCH can only recommend to the respondent No.1 Ministry of AYUSH on the basis of the provisions of MSR Regulation. It has been contended that the aim of the writ petitioner by filing the Writ Petition is to compel the respondent No.1 Ministry to grant the permission for running the BHMS course for the academic session 2018-2019 without following the due process of law.
It has been further contended that the Central HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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Government is the permission granting authority for running a Homeopathy College and the authority which grants permission surely shall have the responsibility to verify beyond doubt that the Colleges meet the standards so that responsible decision can be taken in the matter of grant of permission.
It has been contended that as per the provision prescribed under sub-regulation 3(4) of HCC (MSR), 2013, the existing college was required to fulfill the minimum standard requirement of infrastructure, teaching & training facilities by 31/12/2014 for consideration of grant of permission for undertaking admission in the coming academic year. Further, as per the provision of sub- regulation 3(9) of HCC (MSR), 2013, if the existing colleges fails to achieve full compliance of the requirements as specified in the regulation by 31/12/2014 the college may be stopped for taking admission in existing courses.
It has been contended by the respondents that as per the provisions of HCC (MSR) Regulation, 2013, the colleges were required to meet the complete norms of MSR by 31/12/2014 for obtaining five years permissions, else the colleges would be liable for action u/S. 19 of the Act including stopping of admissions. As there is no provisions HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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for granting conditional permissions in the MSR after the year 2014, a Policy decision has been taken by the Ministry for granting conditional permission during 2016-2017 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.
It has been further contended that the respondent No.1 Ministry has always adhered to the statutory provisions, well established constitutional principles as well as directions given by various courts from time to time. As per Rule 9 of the Establishment of new Medical College (Opening of New or Higher Course of Study of Training and Increase of Admission Capacity by a Medical College) Regulation, 2011, the permission order passed by the Central Government under Section 12A(7) shall clearly indicate the preliminary requirement about setting up of buildings, infrastructural facilities, medical and allied equipment, faculty and staff before admitting the first batch of students. The Central Government under the scheme of the HCC Act and the Regulations framed thereunder, plays a crucial role in the matter of grant of recognition / permission for admission to institutions of this nature and, therefore, it has HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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the duty and responsibility to ensure that the Colleges imparting education in Homoeopathy, maintain minimum standards of requirement laid down under the statutory provisions. In respect of writ petitioner college's submission regarding the violation of principles of natural justice, it has been stated that the respondent No.1 Ministry has provided the fair opportunity to the petitioner by giving them an opportunity of hearing in accordance to the provision of law. It has been further contended that the writ petitioner has also admitted the facts that the respondent No.1 Ministry has provided the hearing opportunity to the petitioner College.
Respondents have further contended that in the light of the powers granted under Section 20 and 33 of the HCC Act, 1973 the Central Council has enacted the HCC (Minimum Standards Requirement of Homoeopathic Colleges and attached Hospitals) Regulations, 2013 through which it has laid down the minimum requirement, norms and standards in terms of teaching and Hospital staff, accommodation, equipment, training and other facilities with the previous sanction of the Central Government. In order to further streamline the regulatory mechanism of Homoeopathy Education the Homoeopathy Central Council Amendment Ordinance, 2018 was promulgated to further amend HCC HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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Act, 1973. It has been further contended that the Ordinance seeks to replace the Central Council of Homoeopathy (CCH) with a Board of Governors and aimed at bringing accountability and quality in the homoeopathy education system. The aforementioned ordinance has been passed by the parliament. It is also stated that in the said amendment, Section 3A, 3B and 3C and Sec. 12C are inserted in the HCC Act, 1973.
Section 3C(1) of the HCC Act provides that without prejudice to the provisions of this Act, the Board of Governors or the Central Council after its reconstitution shall, in exercise of its powers and in the performance of its functions under this Act, be bound by such directions on question of policy, other than those relating to the technical and administrative matters, as the Central Government may give in writing to it from time to time. Provided that the Board of Governors or the Central Council, after its reconstitution shall, as far as practicable be given an opportunity to express its view before any direction is given under this sub-section.
Section 3C(2) of the Act provides that the decision of the Central Government whether a question is a matter of policy or not shall be final.
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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It is further contended that the respondent No.1 Central Government / Ministry of AYUSH takes the decision on the policy matters. While taking any decision, the Ministry of AYUSH also considers the principles of natural justice and takes care of the fact that any decision should not be discriminatory in nature. It has been further contended that the aim of the policy decisions as well as the statutory laws is to bring into effect a just and equal application thereof to the institutions in order to ensure quality education in the field of homoeopathy and to prevent bogus institutions to circumvent the legal process and to run homoeopathic courses in a manner contrary to that of the statutory law.
It is further contended that the role of respondent No.1 Ministry of AYUSH only comes after the recommendation of the CCH. The respondent No.1 Ministry of AYUSH properly scrutinizes the particulars of the colleges on the basis of the inspection report submitted by the respondent No.3 CCH. The Ministry of AYUSH being the competent authority examines the inspection report of the CCH and scrutinizes the recommendation of the CCH to come to a final decision. Whenever there are doubts in respect of compliance to the standards by any colleges, the Ministry of AYUSH conducts the hearing of the colleges by following HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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the principles of natural justice in accordance with law.
It is further contended that the act of filing the misconceived Writ Petition before the Court and passing of any interim order / orders by the Court is detrimental to the purpose of conscious policy decisions of the Government as well as statutory laws. It has been further stated that the Ministry processes every application and either approves or disapproves the permission to colleges in accordance with law.
It is further contended that the Hon'ble Supreme Court in number of cases concerning to medical education has observed that "Undoubtedly, there is something rotten in the state of medical colleges. Unless the concerned Ministries in the Government of India take a far more proactive role in ensuring that medical colleges have all the necessary facilities, clinical materials, teaching faculty, staff, accommodation etc. the health of the people of our country will take a hit in the coming years due to inadequately educated doctors. Quality in medical education is equally important, if not more, than quantity. When the Ministries takes the proactive role in order to make the medical education qualitative, the medical colleges approach the Courts for the purpose of bypassing the statutory provisions HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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and to compel the Courts to pass the order particularly interim orders in their favour by suppression of material facts. "The Hon'ble Supreme Court has expressed several times that "quality of medical education is at its lowest ebb, the right type of health professionals were not able to meet the basic health needs of the country. Products coming out of medical college are ill-prepared to serve in poor resource settings like Primary Health Centres. Graduates lacked competence in performing basic health care tasks. Unethical practices continued to grow".
It has been stated that the impugned order has been passed under the Homoeopathic Central Council Minimum Standard of Education Regulation 2013 and the College was not having 24 Full Time Eligible Teaching Faculty in the College. The representatives of the College failed to substantiate the claim of having regular existence of requisite non-teaching staff. They also failed to substantiate the claim of having regular existence of requisite hospital staff. The respondents have prayed for dismissal of the Writ Petition.
Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at the admission stage with the consent of the parties.
This Court has carefully gone through the impugned HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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order. Paragraph 5 of the impugned order reads as under :
5. WHEREAS, The deficiencies communicated to the college, submission made by the college at the time of hearing and observation of hearing committee has been examined vis-a-vis with the provision of HCC Act, 1973 and relevant regulations made thereunder and the following observations have been made :
S.No. Deficiency conveyed Submission of the applicant Observation of the Hearing to the applicant committee 1 Most of the teaching It is submitted that the The college representative faculty is having College is having 43 teaching submitted that they are having 43 DHMS / BHMS faculty (33 regular - 10 guest teaching faculty (33 regular + 10 degree against faculty). The photocopy of guest faculty). As most of the required MD degree. appointment orders, prom- teaching faculty is having Hence their eligi- otion order, qualification DHMS / BHMS degree against bility needs verif- certificates, experience cer- required MD degree, the cation. The date of tificates and Form16 are documents submitted to support birth, detail previous submitted. The notice for the experience of thos teachers teaching experience, summer vacation during the had discrepancies in date of form 16, Bio metric month of May - June 2018 is joining and year of experiences.
attendance sheet are submitted. Photocopy of No original documents are not available to attendance register (manual produced before the hearing verify the genuine and computerised) bank committee to verify. Also no existence and statement of salary paid joining letter of any of the eligibility of entire through bank transfer teaching faculty, Time table and teaching faculty. including cheque details duty roster was submitted to 50% of teaching (May June 2018) submitted substantiate eligibility. faculty was found for May 2018 and June 2018. The Form 16 of teaching faculty absent on the day of No original documents of submitted by the college does not CCH inspection. teaching staff have been include the complete details and brought. Also, joining letters, has most of the columns are Time table, duty roster for blank. Also there is discrepancies teaching faculty not in the amount deducted mentioned submitted. in numeric and words in all the forms. Hence, the authenticity cannot be ascertained.
The photocopy of notice dated 9/5/2018 for summer vacation during the month of May June 2018 attendance register (manual and computerised) was submitted by the college. The attendance registers for previous months and bills and payments for purchase of Biometric machine were not submitted. Hence their genuine existence could not be verified.
2. The attendance It is submitted that the The College representative sheet, salary state- College is paying the salary submitted that the College is ment, contri-bution / of non-teaching staff through paying the salary of non-teaching deduction towards bank transfer. The copy of staff through bank transfer. The Provident fund (PF) bank statement including copy of bank statement including of the non-teaching cheque details form is cheque details form is submitted HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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staff is not available submitted for months April for months April 2018 - July to verify their 2018 - July 2018 only. As 2018 only. For most of the staff genuine existence. most of the staff have PF was not deducted. However, submitted Form 11 for non no copy of the request for this was deduction of PF, it has not submitted. This cannot be been deducted. However, the verified. The copy of attendance copy of the request or Form (Manual and computerised) was 11 not submitted today. The submitted for May 2018 and June copy of attendance (Manual 2018 only.
and computerised) is
submitted for May 2018 and
June 2018 only.
3. The attendance It is submitted that the The College representative
sheet, salary College is paying the salary submitted that the College is
statement contri- of non-teaching staff through paying the salary of non-teaching
bution / deduction bank transfer. The copy of staff through bank transfer. The
towards Provident bank statement including copy of bank statement including
fund (PF) of the cheque details form is cheque details form is submitted
entire hospital staff submitted for months April for months April 2018 - July
is not available to 2018 - July 2018 only. As, 2018 only. For most of the staff
verify their genuine most of the staff have PF was not deducted. However,
existence. submitted Form 11 for non no copy of the request for this was
deduction of PF, it has not submitted. This cannot be
been deducted. However, the verified. The copy of attendance
copy of the request or form (manual and computerised) was
16 not submitted today. The submitted for May 2018 and June
copy of attendance (Manual 2018.
and computerised) is
submitted for May 2018 and
June 2018.
4 Mummified bodies The College representative The College representative
are not available in has submitted that they are submitted that they are having
the department of having Mummified bodies, Mummified bodies, however, no
anatomy however, no supporting supporting documents were
documents are submitted. submitted.
5 The website does not The College representative The College representative
have information has submitted that currently accepted that their website were
like detail of website is being updated and currently updation and will be
principal, staffs, will be functional soon. functional soon.
students, research
publications, results
of examinations etc.,
required as per HCC
(MSR) 2013
The aforesaid deficiencies were pointed out and communicated to the applicant and the Committee after HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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hearing, has given observation in respect of the deficiencies and thereafter the impugned order has been passed under the provisions of Homoeopathy Central Council (Minimum Standard Requirements of Homoeopathic Colleges and attached Hospitals) Regulations, 2013.
It is not the case of the petitioner that there were no deficiencies at all. Undisputedly, the shortcomings and deficiencies pointed out were in existences and in those circumstances no permission has been granted to admit the students in academic session 2018-2019. The judgment relied upon by the petitioner in the case of The Temple of Hanemann Homoeopathic Medical College and Hospital (supra) is of no help to the petitioner and it is not the respondent No.1 who has suo-motu taken action against the petitioner. On the contrary, based upon the recommendations of the expert body to the Central Government, the impugned order has been passed.
This Court is of the considered opinion that no case for interference is made out in the matter and the petitioner shall be free to apply afresh for the next academic session after rectifying the deficiencies which are in existence as per the Schedule framed by the respondents for the purpose of grant of permission. With the aforesaid, the present Writ Petition HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No. 24297 / 2018 SENDHWA HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS W. P. No. 25353 / 2018 INDIRA GANDHI MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE VS. UNION OF INDIA AND OTHERS
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stands dismissed. The other connected Writ Petition also stands dismissed.
A copy of this order be placed in the record of connected Writ Petition ie., W.P.No. 25353/2018.
(S. C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE
KR
Digitally signed by Kamal Rathor
Date: 2018.12.17 10:45:00 +05'30'