Karnataka High Court
Rajiv Gandhi University Of Health ... vs Government Of India on 29 June, 2018
Bench: L.Narayana Swamy, B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WA Nos.100650/2017 & 100667/2017 (EDN-EX)
C/W WP Nos.112402/2015, 109452-453/2017 and
107612/2017
IN WA No.100650/2017
BETWEEN:
RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCE
"T" BLOCK, JAYANAGAR,
BENGALURU-560011,
REP. BY ITS REGISTRAR.
... APPELLANT
(BY SRI. GANGADHAR J M, ADV.)
AND:
1. GOVERNMENT OF INDIA
REP. BY ITS SECRETARY TO THE GOVERNMENT,
MINISTRY OF HEALTH AND
FAMILY WELFARE,
DEPARTMENT OF INDIAN SYSTEM OF
MEDICINE AND HOMEOPATHY (AYUSH)
(EDUCATION POLICY SECTION),
INDIAN RED CROSS SOCIETY,
ANNEXED BUILDING,
#1, RED CROSS ROAD,
NEW DELHI-110001.
2
2. CENTRAL COUNCIL OF HOMEOPATHY
REP BY ITS SECRETARY,
#61-65, INSTITUTIONAL AREA,
OPP "D" BLOCK, JANAKAPURI,
NEW DELHI-110058.
3. SRI.SATHYA SAI COLLEGE OF HOMOEOPATHIC
MEDICAL SCIENCE & HOSPITAL,
#19 C, P.B. ROAD, SATTUR, DHARWAD,
REP. BY ITS PRINCIPAL,
DR. NAGAPPA S/O SHIVAPPA DODDAMANI,
AGED ABOUT 44 YEARS.
...RESPONDENTS
(BY SRI. M B KANAVI, ADV. FOR R1-R2)
IN WA No.100667/2017
BETWEEN:
RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCE
"T" BLOCK, JAYANAGAR,
BENGALURU-560011,
REP. BY ITS REGISTRAR.
... APPELLANT
(BY SRI. GANGADHAR J M, ADV.)
AND:
1. GOVERNMENT OF INDIA
SREP. BY ITS SECRETARY TO THE GOVERNMENT,
MINISTRY OF HEALTH AND
FAMILY WELFARE,
DEPARTMENT OF INDIAN SYSTEM OF
MEDICINE AND HOMEOPATHY (AYUSH)
(EDUCATION POLICY SECTION),
INDIAN RED CROSS SOCIETY,
ANNEXED BUILDING,
#1, RED CROSS ROAD,
3
NEW DELHI-110001.
2. CENTRAL COUNCIL OF HOMEOPATHY
REP BY ITS SECRETARY,
#61-65, INSTITUTIONAL AREA,
OPP "D" BLOCK, JANAKAPURI,
NEW DELHI-110058.
3. GOVERNMENT OF KARNATAKA
HEALTH & FAMILY WELFARE DEPARTMENT,
(I.M.D. & CO ORDINATION) VIKAS SOUDHA,
REP. BY ITS SECRETARY, BENGALURU.
4. SRI.SATHYA SAI COLLEGE OF HOMOEOPATHIC
MEDICAL SCIENCE & HOSPITAL,
#19 C, P.B. ROAD, SATTUR, DHARWAD,
REP. BY ITS PRINCIPAL,
GURUSHANTAYYA HIREMATH
...RESPONDENTS
(BY SRI. M B KANAVI, ADV. FOR R1-R2)
(BY SMT. VEENA HEGDE, AGA FOR R3)
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS
HON'BLE COURT TO SET-ASIDE THE ORDER OF THE LEARNED
SINGLE JUDGE, DATED 30.08.2017 PASSED IN IA NO.1/2017 IN
WRIT PETITION NO.107612/2017 C/W WP NO.112402/2015 IN
THE INTEREST OF JUSTICE AND EQUITY.
IN WP NO.112402/2015
BETWEEN:
SRI.SATHYA SAI COLLEGE OF HOMOEOPATHIC
MEDICAL SCIENCE & HOSPITAL,
#19 C, P.B. ROAD, SATTUR, DHARWAD,
TALUK & DIST:DHARWAD.
REP. BY ITS PRINCIPAL,
4
GURUSHANTAYYA HIREMATH
S/O CHARANTAYYA, AGED ABOUT 59 YEARS.
...PETITIONER
(BY SRI. MADHUSUDHAN R NAIK, SENIOR COUNSEL FOR
SMT. SUNITA P KALASOOR, ADV.)
AND:
1. GOVERNMENT OF INDIA
SREP. BY ITS SECRETARY TO THE GOVERNMENT,
MINISTRY OF HEALTH AND
FAMILY WELFARE,
DEPARTMENT OF INDIAN SYSTEM OF
MEDICINE AND HOMEOPATHY (AYUSH)
(EDUCATION POLICY SECTION),
INDIAN RED CROSS SOCIETY,
ANNEXED BUILDING,
#1, RED CROSS ROAD,
NEW DELHI-110001.
2. CENTRAL COUNCIL OF HOMEOPATHY
REP BY ITS SECRETARY,
#61-65, INSTITUTIONAL AREA,
OPP "D" BLOCK, JANAKAPURI,
NEW DELHI-110058.
3. RAJIV GANDHI UNIVERSITY OF HEALTH
SCIENCES, "T" BLOCK, JAYANAGAR,
BENGALURU-560011,
REP. BY ITS REGISTRAR.
4. GOVERNMENT OF KARNATAKA
HEALTH & FAMILY WELFARE DEPARTMENT,
(I.M.D. & CO ORDINATION) VIKAS SOUDHA,
REP. BY ITS SECRETARY, BENGALURU.
GURUSHANTAYYA HIREMATH
...RESPONDENTS
(BY SRI. M.B. KANAVI, ADV. FOR R1)
(BY SRI. MAHESH WODEYAR, ADV. FOR 2)
5
(BY SRI. GANGADHAR J.M., ADV. FOR R3)
(SMT. VEENA HEGDE, 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 6.10.2015 MADE IN PROCEEDINGS
NO.4.14014/02/2014-E P(H) ISSUED BY THE FirstRESPONDENT
HEREIN, WHICH IS PRODUCED AND MARKED AS ANNEXURE-N
TO THIS WRIT PETITION, DIRECT THE FirstRESPONDENT TO
CONSIDER THE APPLICATION/SCHEME OF THE PETITIONER
DATED 28.04.2014 MADE UNDER SECTION 12A OF THE HCC
ACT, 1973 WHICH IS PRODUCED AND MARKED AS ANNEXURE-
C IN TERMS OF THE DIRECTION ISSUED IN WP
NO.109089/2014 DATED 8.9.2015, VIDE ANNEXURE-L AND
AFTER TAKING INO CONSIDERATION COMPLIANCE REPORT
SUBMITTED BY THE PETITIONER COLLEGE AND ETC.
IN WP Nos.109452-453/2017
BETWEEN:
1. SHRI SATYA SAI COLLEGE OF HOMOEPATHIC
MEDICAL SCIENCE AND HOSPITAL,
NO.19-C P.B. ROAD, SATTUR VILLAGE,
TQ & DIST:DHARWD,
REP. BY SECRETARY,
SHRI. SHARANAPPA S/O MAGUNDAPPA KATAGI,
AGE:53 YEARS, OCC:SECRETARY,
SHRI. SATYA SAI COLLEGE OF HOMOEPATHIC
MEDICAL SCIENCE AND HOSPITAL,
NO.19-C, PB ROAD, SATTUR VILLAGE,
TQ & DIST:DHARWAD.
2. THE IN-CHARGE PRINCIPAL,
SRI SATYA SAI COLLEGE OF
HOMOEPATHIC MEDICAL SCIENCE AND HOSPITAL,
REP. BY ITS PRINCIPAL,
SHRI. DR. NAGAPPA DODDAMANI,
6
AGE:44 YEARS, NO.19-C, PB ROAD,
SATTUR VILLAGE,
TQ & DIST:DHARWAD.
...PETITIONERS
(BY SRI. F.V. PATIL, ADV.)
AND:
1. GOVERNMENT OF INDIA
MINISTRY OF HEALTH AND
FAMILY WELFARE,
DEPARTMENT OF INDIAN SYSTEM OF
MEDICINE AND HOMEOPATHY (AYUSH)
(EDUCATION POLICY SECTION),
REP. BY ITS UNDER SECRETARY
INDIAN RED CROSS SOCIETY,
ANNEXED BUILDING,
#1, RED CROSS ROAD,
NEW DELHI-110001.
2. CENTRAL COUNCIL OF HOMEOPATHY
REP BY ITS SECRETARY,
#61-65, INSTITUTIONAL AREA,
JANAKAPURI,
NEW DELHI-110058.
3. RAJIV GANDHI UNIVERSITY OF HEALTH
SCIENCES, "T" BLOCK, JAYANAGAR,
BENGALURU-560011,
REP. BY ITS REGISTRAR.
...RESPONDENTS
(BY SRI. M.B. KANAVI, ADV. FOR R1-R2)
(BY SRI. GANGADHAR J.M., ADV. FOR R3)
THESE WRIT PETITIONS ARE IS FILED PRAYING TO
QUASH THE IMPUGNED ORDER 11.09.2017
BRG.F.NO.R.17014/69/2013 EP(H) PASSED BY THE
RESPONDENT NO.1 VIDE ANNEXURE-K AND TO DIRECT THE
RESPONDENT NO.3 TO RECONSIDER THE CASE OF THE
7
PETITIONER EDUCATIONAL INSTITUTION FOR GRANT OF
CONDITIONAL PERMISION FOR THE ACADEMIC YEAR 2017-18.
IN WP NO.107612/2017
BETWEEN:
SRI.SATHYA SAI COLLEGE OF HOMOEOPATHIC
MEDICAL SCIENCE & HOSPITAL,
#19 C, P.B. ROAD, SATTUR, DHARWAD,
TQ & DIST:DHARWAD
(KARNATAKA), REP. BY ITS PRINCIPAL,
DR. NAGAPPA S/O SHIVAPPA DODDAMANI,
AGED ABOUT 44 YEARS.
...PETITIONER
(BY SMT. SUNITA P. KALASOOR, ADV.)
AND:
1. GOVERNMENT OF INDIA
REP. BY ITS SECRETARY TO THE
GOVERNMENT, MINISTRY OF HEALTH
AND FAMILY WELFARE, DEPARTMENT
OF INDIAN SYSTEM OF MEDICINE AND
HOMOEPATHY(AYUSH),
(EDUCATION POLICY SECTION)
INDIAN RED CROSS SOCIETY,
ANNEXED BUILDING,
#1, RED CROSS ROAD,
NEW DELHI-110001.
2. CENTRAL COUNCIL OF HOMEOPATHY
REP BY ITS SECRETARY,
#61-65, INSTITUTIONAL AREA,
JANAKAPURI,
NEW DELHI-110058.
3. RAJIV GANDHI UNIVERSITY OF HEALTH
SCIENCES, "T" BLOCK, JAYANAGAR,
8
BENGALURU-560011,
REP. BY ITS REGISTRAR.
...RESPONDENTS
(BY SRI. M.B. KANAVI, ADV. FOR R1-R2)
(SRI. GANGADHAR J.M., ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING THAT IT IS
SUBMITTED THAT PENDING CONSIDERATION OF THE
DIRECTION ISSUED BY THIS HON'BLE COURT, IN WP
NO.109552/2016 DISPOSED OF ON 22.06.2017 THE STDUENTS
OF THE PETITIONE INSTITUTION MAY KINDL BE ALLOWED TO
TAKE THE EXAMS AND THE SAME TO BE FACILITATED BY THE
3RD RESPONDENT AND ISSUE A WRIT OF MANDAMUS TO THE
3RD RESPONDENT TO ISSUE THE EXAMINATION CENTRE LIST
TO THE PETITIONER INSTITUTION TO CONDUCT THE
PRACTICAL EXAMS FOR THE POST GRADUATE STUDENTS OF
THE YEAR 2015-16.
WRIT APPEALS AND WRIT PETITIONS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 13.06.2018,
COMING ON FOR PRONOUNCEMENT, THIS DAY, B.M. SHYAM
PRASAD J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
The petitioner in these writ petitions is an Educational Institution (referred to as 'Institution') offering education in homeopathic medical sciences. The cause of action for the present writ petitions and the writ appeals are as detailed hereinafter. When the Institution submitted an application seeking permission in the month of April 2014 to increase 9 admission capacity for Bachelor of Homeopathic Medical Sciences (BHMS) Course from the existing 50 to 100 and to offer five Post Graduation courses in different subjects, after securing consent in the prescribed Form from Rajiv Gandhi University of Health Sciences, Karnataka (referred to as 'University'), the Ministry of Health and Ayush, Government of India (First Respondent) refused such permission by its order dated 15.04.2015 based on the Inspection Report dated 16.10.2014 by the Central Council of Homeopathy (for short, 'CCH') and the Hearing Committee's observations. While the CCH reported certain alleged serious and fundamental shortcoming in the infrastructure and facilities available at the Institution, the Hearing Committee observed that such shortcomings would not enable quality education as required under the provisions of Homeopathy Central Council Act, 1973 (for short, 'the Act') and Regulations thereunder. 10
The Institution impugned this order dated 15.04.2015 in WP No.109089/2015, which was disposed of by a learned Single Judge of this Court by order dated 8.9.2015 directing the First Respondent to re-examine the Institutions' application for permission to increase the intake to BHMS course and to commence new post graduation courses in the light of the subsequent Report dated 17.03.2015; and this order was after recording the submissions of the counsel appearing for CCH and University. The directions in WP No.109089/2015 read thus:
"14. If the Central Government re-examines the issue in the light of the report, dated 17.03.2015 (Annexure-K) submitted by the Central Council of Homeopathy and after affording an opportunity of hearing to the petitioner, it would not put anybody to any prejudice. If the infrastructure is created to raise the intake capacity and start the new courses by spending huge sums of money, keeping such infrastructure idle would not be in the interest of anybody. If a pedantic view is taken that the petitioner's case for raising the intake capacity and 11 starting the new P.G. Course can be considered for the next academic year (2016-17), it would not be in the interest of anybody. It would only have effect of depriving the eligible and aspiring students of the opportunities to get admissions to the Courses in question."
The submissions of the counsel for CCH and University have been recorded thus:
"5. Sri. Mahesh Wodeyar, the learned counsel for respondent No.2 submits that the earlier inspection did not reveal the petitioner's adherence to all the norms. However, the subsequent inspection made by the respondent No.2 on 16.03.2015 [sic] revealed that the petitioner has the requisite infrastructure.
6. Sri. Shivakumr S Badawadagi, the learned counsel for the respondent No.3 submits that the third respondent-University has already granted its consent for raising the intake capacity and for starting 5 new P.G. Course but by subjecting the same to the petitioner getting permission from the Central Government.12
The First Respondent was required to consider the Institution's request for increase in intake capacity for BHMS course and for commencement of new Post Graduation courses in terms of the Order dated 15.04.2015. However, the First Respondent issued the order dated 6.10.2015 rejecting the Institution's request for the increase in intake of admission to BHMS Course and for commencement of the new PG courses on the ground that such request could not be considered based on the Report dated 16.03.2015[Sic] as the Inspection Report dated 16.03.2015 [Sic] was to only ascertain the availability of minimum infrastructure and facilities required for grant permission for the existent strength of 50 students to BHMS Course, but the grant of permission for increase in the intake for BHMS course and the commencement of new PG courses had to be examined with reference to the indices/ factors mentioned under Section 12(A) (3) and (7) of the Act. The Institution filed Writ petition in WP No.112402/2015, the first of the writ 13 petitions now under consideration, impugning this order dated 6.10.2015 issued by the First Respondent/ Central Government.
It must be noted that when this Writ petition in WP No.112402/2015 was listed on 30.10.2015, this Court granted an interim order of stay, which is construed by the Institution as permission to admit the students to BHMS courses in excess of sanctioned strength of 50 and also to offer Post-graduation courses.
When this Writ petition in WP No.112402/2015 was pending consideration, the First Respondent in its proceedings dated 14.11.2016 resolved not to grant permission to the Institution to admit the students for BHMS course even as against the earlier sanctioned/ permitted intake strength of 50 students for the academic year 2016-17, and this resolution in the proceedings dated 14.11.2016 was 14 challenged by the Institution in the Writ Petition in WP No.109552/2016. However, this writ petition in WP NO.109552/2016 was allowed in part by a learned Single Judge of this Court by order dated 22.06.2017 directing the Central Government and CCH to consider the Institution's different representations in accordance with law within a period of one month from the date of receipt of copy of such order, and such direction is issued after noting that the institution had already admitted 50 students to BHMS course for the academic year 2016-17.
The Institution filed another writ petition in WP No.107612/2017 seeking direction to the University to issue "examination centre list" to conduct the practical exams for the post graduation students admitted for the academic year 2015-16 asserting that such admissions were made pursuant to the orders of the Court in WP No. 112402/2015 and with the consent of the University, and the Institution in this WP 15 No.107612/2017 filed an application (IA No.2/2017) requesting for direction to the University to permit 82 students admitted for under graduate BHMS course in the academic year 2016-17 and 11 students admitted for post graduation for the academic year 2015-16 to take up examination.
This application was disposed of by a learned Single Judge of this Court by Order dated 30.08.2017 directing the University to accord permission to these students to take-up examination clarifying that the students would take up such examinations subject to the result of the different writ petitions pending consideration. This interim order directing the University to accord permission to take-up examination is called in question in WA Nos.100650/2017 and 100667/2017. It is seen that there is no interim order in this writ appeal. Further, by another Interim Order dated 12.02.2018 in WP Nos.107612/2017, the University is 16 directed to announce results of the 82 students admitted to BHMS course for the academic year 2016-17.
In the meanwhile, the First Respondent/ Central Government, which was directed in WP No. 109552/2016 to consider the Institution's representation as noted supra, again issued another order dated 17.08.2017 refusing permission to the Institution to admit the students to BHMS course even as against 50 seats, and this order was after inspection of the Institution on 28.06.2017 and an opportunity of hearing to the Institution to appear before the Committee for a hearing on the deficiencies/shortcomings noted during such inspection on 28.06.2017.
The Institution has filed the next writ petition in WP Nos.109452-453/2017 impugning this order dated 11.09.2017, and a learned Single Judge of this Court by Order 27.10.2017 has stayed the operation of the First 17 Respondent/ Central Government's order dated 11.09.2017 subject to conditions inter-alia that the Institution shall admit only 50 students for the BHMS course for the academic year 2017-18 and that neither the institution nor the students shall claim any equities and admissions shall be made after publication about the pending proceedings. Thus, the WP No.112402/2015, WP No.107612/2017, WA Nos.100650/2017 and 100667/2017 and WP Nos.109452- 453/2017, with the applications filed therein by the Institution and University, are listed for consideration before this Court after necessary orders in this regard.
The learned senior counsel, Sri. Madhusudhan Naik, appearing for the Institution has placed on record, during the hearing of these writ petitions and writ appeal (1) the details of the students admitted by the Institution during the three previous academic year and the present academic year and (2) a copy of the Ordinance dated 18.05.2018 issued by the 18 First Respondent/ Central Government to amend the Homeopathy Central Council Act, 1973 by insertion of Section 12C into the Act. The details of the admissions made by the Institution during these years are follows:
Sl.
No. Year Course
1. 2014-2015 UG 41 students admission taken
2. 2015-2016 PG 59 students admission taken
9 not approved
PG 11 students admission taken not
approved
3. 2016-2017 UG 82 students admission taken
50 students by interim order of this
Hon'ble Court
4. 2017-2018 UG No admission taken
Section 12C of the Act inserted by the Ordinance dated 18.05.2018 read as follows:
"12C. (1) If any person has established a Homeopathy Medical College or any Homeopathy Medical College has opened a new or higher course of study or training or increased the admission capacity on or before the date of commencement of the Homeopathy Central Council(Amendment) Ordinance, 2018, such person or Homeopathy Medical College, as the case may be, shall seek, within a period of one year from the said 19 commencement, permission of the Central Government, in accordance with the provisions specified in the regulations made by the Central Council."
The learned Senior Counsel, placing reliance upon Section 12C of the Act inserted by the Ordinance dated 18.05.2018, contended if a new Homeopathy Medical College is established or if an existing Homeopathy Medical College has started offering new or higher course study or increased the intake or admissions before 18.05.2018, such institutions/colleges can, within a period of one year from 18.05.2018, seek permission from the first respondent/ Central Government for establishment of such new college or to offer new or higher studies or increase in the admission capacity as applicable; and therefore, despite the orders dated 06.10.2015 and 11.09.2017, the Institution, an existing institution, is entitled to make necessary application as contemplated under new Section 12C of the Act, which is required to be considered by the First Respondent in accordance with the regulations under the Act. 20
The learned senior counsel placing reliance upon the decision of a Coordinate Bench of this Court in Central Council of Indian Medicine Vs. Union of India and others1, has canvassed that if permission as envisaged under section 12C of the Act is accorded, such permission will have retrospective effect and relate back to the date of establishment. The learned Senior Counsel submitted that as such the orders dated 6.10.2015 and 11.09.2017, which are impugned respectively in WP No.112402/2015 and WP Nos.109452-453/2017, are rendered subject to the due process envisaged under the provisions of Section 12C of the Act and that the students admitted for the Under Graduate BHMS Courses and Post Graduate Courses during the academic years 2014 -15 to 2016-17 are entitled to continue with their study subject to accord of, or refusal of, permission under the provisions of the Act.
1 ILR 2011 Kar. Page 5105 21 The learned Senior Counsel, independent of these submissions, also submitted that the first respondent/ Central Government's orders dated 6.10.2015 and 11.09.2017 are arbitrary, without application and contrary to the directions in WP No.109089/2016 pointing out that the directions in WP No.109089/2016 were specific in that the first respondent/central government had to considered Institution's request in the light of the Report dated 17.03.2015; that neither the Central Government nor CCH had impugned this direction; that CCH and the University (as recorded in the Orders in WP No.109089/2016) had accepted that subsequent Report dated 17.03.2015 revealed that the Institution had requisite infrastructure; and that even University had issued consented for increase in intake capacity and for starting new courses subject to the permission by the First Respondent: and therefore, the First Respondent could not have rejected the permission vide order 22 dated 6.10.2015 on the ground that the Report dated 17.03.2015 was only for the purpose of ascertaining the facilities available in the Institution to continue the permission granted for admission of 50 students to BHMS course.
The learned counsel, Sri. M.B. Kanavi appearing for the first respondent and CCH and Sri. Gangadhar J.M. appearing for the University (University is the appellant in WA Nos.100650/2017 and 100667/2017 that is filed challenging the interim order dated 30.08.2017 in WP No.107612/2017 directing the University to approve admissions of 82 UG students for academic year 2016-17 and 11 PG students for the academic year 2016-17) contended that the order dated 6.10.2015 was justified because the facilities available at the Institution for increase in intake and commencement of new PG courses had to be assessed with reference to factors/indices as contemplated under Section 12A(3) & (7) of the Act, whereas the Inspection Report dated 17.3.2017 was 23 for assessing the facilities available for the purposes of granting permission for continuance of the sanctioned intake for graduation course in an academic year as contemplated under the minimum standards and requirements regulations and HCC(MSR) Regulations 2013 that was in vogue as of that date. They also contend that the impugned order dated 11.09.2017 (impugned in WP Nos.109452-453/2017) was issued because it was ascertained during another inspection on 28.06.2017 that the Institution did not satisfy the requirements necessary for grant of permission for the existent sanctioned intake of 50 student for BHMS course as required under HCC(MSR) Regulations 2013.
The learned counsel, in continuation of this aforesaid submission, submitted that these Report/s indicate that the Institution has not taken any measure to comply with the minimum standards and requirement for issuance of permission to run BHMS course even with an intake of 50 24 students much less either for increasing the intake for BHMS course or starting new PG courses.
The learned counsel, insofar as the benefit of the newly inserted provisions of Section 12C of the Act, contended that the benefit available under such newly inserted Section 12C of the Act was not available to the Institution, because the institution was found wanting in infrastructure and facilities at the time of inspections as stated above and that the institution had failed to rectify or take measures to comply with the requirements.
The Institution, which could admit only to 50 students for BHMS course for the previous academic years 2015-16 and 2016-17, while permission is refused by the first respondent to admit even 50 students for BHMS Course for the academic year 2017-18 vide order dated 11.09.2017, because of the interim order/s has admitted (even according 25 to the data furnished by the Institution) excess 9 students and 32 students for the BHMS course during the academic years 2015-16 and 2016-17 respectively and 11 students for PG course during the year 2015-16, and no admissions have been made for the academic year 2017-18. Further, the students admitted with the Institution have been able to take- up examination and the university has also announced the results because of the interim order granted by this Court in WP No.107612/2017.
In these circumstances, this Court was required to consider the tenability of the orders dated 6.10.2015 and 11.09.2016 and also decide on the validity of the excess intake for the under graduate BHMS course and the admissions made for post graduation, however this Court is of the considered opinion that with the insertion of Section 12C in the Act by the Ordinance dated 18.05.2018 and in the light of the rival contentions in view thereof, the points that 26 arise for consideration are: (1) whether the Institution can seek permission under Section 12C of the Homeopathy Central Council Act, 1973; (2) whether the Respondents, after the insertion of Section 12C in the Homeopathy Central Council Act, 1973, and without considering the Institution's application in terms thereof, insist on enforcing the orders dated 6.10.2015 and 11.09.2017; and (3) whether the students admitted during the academic years 2014 -15 to 2016 -17 to undergraduate BHMS Courses and Post-graduate courses, subject to permission under Section 12C of the Act, can continue with their education with the Institution.
The provisions of Section 12C of the Act and Section13C of the Indian Medicine Central Council Act, 1970 read as follows.
Section 12C of the Act:2
12C. If any person has established a
Homoeopathy Medical College or any
2 Published in the in the Gazette of India on 18th May 2018 27 Homoeopathy 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 Homoeopathy Central Council (Amendment) Ordinance, 2018, such person or Homoeopathy Medical College, as the case may be, shall seek, within a period of One year from the said commencement, permission of the Central Government in accordance with the provisions specified in the regulations made by the Central Council.
(2) If any person or Homoeopathy Medical college, as the case may be, fails to seek permission under sub-section (1), the provisions of section 12B shall apply, so far as may be, as if permission of the Central Government has been refused.] Section 13C of the Indian Medicine Central Council Act, 1970 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 from the said commencement, permission of the Central 28 Government in accordance with the provisions of section l3A.
(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.] The provisions of Section 12C of the Act and Section13C of the Indian Medicine Central Council Act, 1970 (or Section 10C of the Medical Council of India Act) are similar in content and context, and therefore they are in pari material. These provisions afford an opportunity to the concerned Institutions to clean up their act and ensure that they put in place necessary facilities and infrastructure as per the prescribed Regulations to provide quality education, and also to protect the interests of the students, who could otherwise be severely affected.
A Co-ordinate Bench of this Court in its decision in Central Council of Indian Medicine Vs. Union of India and 29 others, which is referred to by the learned senior counsel appearing for the institution, while considering the provisions of Section13C of the Indian Medicine Central Council Act, 1970 and referring to the earlier decisions in Father Muller's Charitable Institutions, Kankanady, Mangalore Vs. Union of India and Yadalam Trust's Sushrutha Ayurvedic Medical College and others Vs. Government of India and others, has approved the proposition that permission granted for a subsequent year would be efficacious for the previous years also. In the case of Yadalam Trust's Sushrutha Ayurvedic Medical College and others Vs. Government of India and others, while considering the provisions of section 13C of the Indian Medicine Central Council Act, 1970, has paraphrased the declaration of law in paras 13, 14 and 15 in Father Muller's Charitable Institutions, Kankanady, Mangalore Vs. Union of India stating that if permission is granted 10C of the Medical Council of India Act (which are also in pari material with Section13C of the Indian Medicine Central Council Act, 30 1970 and Section 12C of the Act), the same relates back to the years of establishment.
Once it is held that the provisions of 12 C of the Act are in pari materia with the provisions of Section 13C of the Indian Medicine Central Council Act, 1970, and that the accepted proposition in law is that once permission is granted under section 13C of the Indian Medicine Central Council Act, 1970 the same would relate back to the year of establishment, this proposition would also be applicable insofar as permissions granted under Section 12C of the Act. Therefore, if permission is granted by the Central Government/First Respondent under Section 12C of the Act to an institution, which is eligible in terms of, would also relate back to the date of its establishment, and as such, the Respondents, after the insertion of Section 12C in the Homeopathy Central Council Act, 1973, and without considering the Institution's application in terms thereof, 31 insist on enforcing the orders dated 6.10.2015 and 11.09.2017.
The learned counsel for the respondents have, of course, contended that Institution is not eligible to seek such permission under the provisions of section 12C of the Act because the permission as regards increase in intake and commencement of new post-graduate courses is already refused and that the benefit under Section 12C of the Act cannot apply to an already established institution. But, this contention cannot be countenanced/accepted in view of the language of the provision of 12C of the Act as extracted above which stipulates inter alia that an Institution, to seek permission thereunder, should have increased the admission capacity or offered higher courses of study or training before the date on which the Ordinance introducing Section 12C of the Act came into effect that is, 18 May 2018. It is obvious from the provisions of Section 12 C of the Act that the test to 32 seek permission under Section 12C of the Act is whether the increase in intake and/ or commencement of new courses or higher courses by an institution is before 18 May 2018. There cannot by any dispute in the facts and circumstances of the case that the Institution, which was established in the years 1990, has increased the admissions for the undergraduate BHMS course and offered higher course of study viz. Post-Graduation for the academic years 2015-2016 and 2016-2017 much before 18th May 2018, the date on which the Ordinance came into effect; and the afore noted are the prerequisites to seek permission under the provisions of section 12C of the Act. Therefore, the Institution, despite the orders dated 6.10.2015 and 11.09.2017, would be entitled to seek permission under the provisions of Section 12C of the Act which would relate back to date of its establishment, and thus save the admissions made during the academic years 2015-16 and 2016-2017.
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For the foregoing reasons, it is concluded that the Institution is entitled to make application under Section 12C of the Act, which the first respondent should consider in terms thereof without insisting on enforcing the orders dated 6.10.2015 and 11.09.2017, and the students admitted with the Institution during the academic years 2014 -15 to 2016 - 17 to undergraduate BHMS Courses and Post-graduate courses, subject to permission under Section 12C of the Act, can continue with their education with the Institution.
Therefore, the Writ petitions in WP No.112402/2015, WP No. 107612/2017 and WP Nos.109452 & 109453/2017 are disposed of permitting the Institution to make necessary requisition/ application as per the provisions of Section 12C of the Homeopathy Central Council Act, 1973 seeking permission of the first respondent/Central Government as contemplated therein for the admissions made to BHMS courses during the academic years 2014 -15 to 2016 -17 and 34 Post-graduate courses during the academic year 2015 - 2016. The first respondent/Central Government shall consider such requisition/ application by the Institution for permission in terms of the provisions of Section 12C of the Homeopathy Central Council Act, 1973; and in the meanwhile, subject to the final decision of the first respondent/Central Government under the provisions of Section 12C of the Act, the students who are given admissions by the Institution to the BHMS courses for the years 2014 - 2015 to 2016 - 2017 and the students who are given admission by the Institution for post- graduation courses during the academic year 2015 -16, without being entitled to claim any equity, shall be entitled to continue, as per the academic calendar, to prosecute their studies in such courses, take up examinations and for declaration of results.
In view of the above the disposal of the Writ Petitions in WP No.112402/2015, WP No. 107612/2017 and WP 35 Nos.109452 & 109453/2017, the Writ Appeal in WA No.100650/2017, the Interim Applications pending consideration in these writ petitions do not survive for consideration and are accordingly disposed of.
Sd/-
JUDGE Sd/-
JUDGE JTR