Gujarat High Court
Vasantben N. Vyas Homeopathic Medicine ... vs Union Of India & on 8 December, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/20190/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20190 of 2016
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VASANTBEN N. VYAS HOMEOPATHIC MEDICINE AND
HOSPITAL....Petitioner(s)
Versus
UNION OF INDIA & 1....Respondent(s)
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Appearance:
MR DC DAVE, SR. ADVOCATE WITH MR PRERAK OZA WITH MR UDAYAN
P VYAS, ADVOCATE for the Petitioner(s) No. 1
MR NIKUNT K RAVAL, ADVOCATE for the Respondent(s) No. 1
MR HARSH PAREKH, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 08/12/2016
ORAL ORDER
Heard learned senior counsel Mr.D.C. Dave with learned advocate Mr.Prerak Oza for the petitioner and learned advocate Mr.Nikunt Raval for the first respondent. Learned advocate Mr.Harsh Parekh appears for the second respondent on service of advance copy of the petition and accordingly accepting the service.
2. The petitioner college existing since 2015- 16, seeks to continue to impart education in the discipline of Homeopathy at the graduation level leading to BHMS Degree. The sanctioned intake capacity for the petitioner college is 100 seats for the Academic Year 2016-17 and the petitioner seeks to admit 100 students and continue the course. It is Page 1 of 12 HC-NIC Page 1 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER aggrieved as the first respondent-Ministry of AYUSH, Government of India, has by impugned order, denied such permission.
3. It appears that the petitioner-Smt.Vasantben N. Vyas Homeopathic Medical College and Hospital was established in 2015-16 and was given permission to run the course in question with 100 seats. The new Regulations called Homeopathy Central Council (Minimum Standards Requirement of Homeopathy Colleges and attached Hospital) Regulations, 2013 came into force with effect from 08th March, 2013, replacing the previously prevalent Homeopathy Regulations, 1983. The Regulations of 2013 prescribed fresh norms and standards to be observed by the colleges imparting the homeopathy education. In the wake of coming into force of the new Regulations, the Central Council of Homeopathy carried out inspection to all the colleges from 15th May, 2013 onwards.
3.1 As the Homeopathic Colleges were given breathing time, the new Regulations of 2013 were sought to be enforced from the Academic Year 2016-17. This brought about a situation which is reflected in the controversy involved. Inspection of the petitioner college was done by respondent No.2 on 19th May, 2016. The inspection report given by the second respondent was positive and it favoured approval to run the course. It appears however that the first respondent carried out another inspection on 02nd September, 2016. After that inspection the impugned order came to be passed on 21st November, 2016 and the permission was Page 2 of 12 HC-NIC Page 2 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER denied. The order is in purported exercise of powers under Section 12A of the Homeopathy Central Council Act, 1973.
3.2 The controversy surrounds whether the first respondent-Ministry of AYUSH, Government of India, has powers to refuse the extension of approval to the existing Homeopathy Colleges to continue to run the course, even as in the inspection carried out by the Central Council of Homeopathy, these colleges are found to be fulfilling the norms and standards as per the Regulations of 2013.
3.3 The first respondent has taken a stand that it is the authority who is empowered to grant permission under Section 12A of the Homeopathy Central Council Act. In the affidavit-in-reply filed by the Under Secretary to Government of India, Ministry of AYUSH-the first respondent herein evinces such stand. It has contended that all colleges were inspected to assess the minimum standards and the requirements of infrastructure for teaching facilities as per the new regulations, that the principal of the petitioner college was informed about ht inspection to be carried out. It appears that the inspection was carried out on 03rd August, 2016. The say of the first respondent is that the applicant college is not fulfilling the criteria as per the Regulations to be eligible to be granted the permission of extension or for starting new course.
3.4 It is contended by the first respondent that Page 3 of 12 HC-NIC Page 3 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER "the Respondent No.1 is the authority under Section 12A of the Homeopathy Central Council Act, 1973 empowered to grant permission for establishment of any new college in the discipline of Homeopathy as also for commencement of any new course of programme in an existing Homeopathy College as also increase in intake of an existing Homeopathy college". This claim and the contention of the first respondent is the theme of the controversy herein.
4. At this stage, the provisions of Section 12A of the Homeopathy Central Council Act, 1973 may be glanced at. Falling in Chapter II-A, Section 12A provides for permission for establishment of new medical institution, new course or study, etc. The Section insofar as relevant, reads as under.
"12-A. Permission for establishment of new medical institution, 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 Homeopathic Medical College; or
(b) No Homeopathic Medical College shall-
(i) Open a new or higher course of study or training (including postgraduate course of study or training) which would enable students of each course or training to qualify himself for the award of any recognized medical qualification; or
(ii) increase its admission capacity in any course of study or training (including the postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1.- ... ... ...
Explanation 2.- ... ... ...
Page 4 of 12HC-NIC Page 4 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER Sub-section (2) to sub-section (7) ... ... ..." 4.1 The contention of learned senior counsel for the petitioners is that the Section 12A is applicable in limited contingencies and the question of prior approval of the Central Government would arise only in those contingencies. It was submitted that the powers under the said section do not extend to or apply to the grant of extension of approval to the existing college. It was submitted that the petitioner college which is already functional in the impartation of homeopathy education, is entitled to be granted the extension of approval to run the course for the current academic year.
4.2 Learned counsel for the petitioners relied on interim orders of different High Courts in support of the contention to submit that the issue similar to one involved in these petitions was considered by other High Courts and the petitions have been admitted. These are (i) order dated 26th October, 2016 passed by High Court of Judicature at Bombay, Nagpur Bench in Writ Petition No.6264 of 2016 in Homeopathic Education through its Secretary Vs the Union of India,
(ii) order dated 09th January, 2009 passed by High Court of Judicature of Bombay, Aurangabad Bench in Writ Petition No.3512 of 2008 in Hindustan Education Society Vs Union of India (iii) Ayurved Shastra Seva Mandal Vs Union of India [2013(3) Scale 213] and (iv) order dated 14th September, 2011 passed by High Court of Judicature at Bombay, Aurangabad Bench in Writ Petition No.5194 of 2011 in Dhanraj Hiralal Jain Vs Union of India.
Page 5 of 12HC-NIC Page 5 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER 4.3 On the other hand, learned advocate for the first respondent harped on 2013 Regulations, in particular Regulation No.3(4), which provides that "The existing colleges and their attached hospitals established under Section 12A of the Act and those colleges and their hospitals established prior to the 28th January, 2003 and recognized by the Central Council of Homeopathy shall fulfill the minimum standards requirements of infrastructure teaching and training facilities referred to in these regulations by the 31st December, 2014 for consideration of grant of permission for undertaking admissions in the coming academic years." Regulations 3(6) and 3(9) were also relied on which provide that the Central Council will visit the college and the college will have to fulfill the requirements before the specified date. Learned advocate for the first respondent sought to rely on decision of the Supreme Court in Ayurveda Shastra Seva Mandal Vs Union of India [JT 2013 (4) SC 64] in support of his submissions. However, it may be noted at this stage itself that the said decision was in the context of the provisions of Indian Medical Council Act, 1970 and based on the facts of that case.
4.4 In addition to all the aforesaid aspects, yet another development was pointed out which deserves a reference. Bill called The Homeopathy Central Council (Amendment) Bill, 2015 has been under consideration to be made law. The Bill was introduced in Rajyasabha on 06th May, 2016 and appears to have been referred to the Department related Parliamentary Page 6 of 12 HC-NIC Page 6 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER Standing Committee on Health and Family Welfare on 08th May, 2016. This is seen from the contents of the 86th Report on the aforesaid Bill, a xerox copy of which was made available by learned counsel for the petitioner to the Court. The statement of objects and reasons of the said proposed law states as under.
"The Homeopathy Central Council Act, 1973 was amended in the year 2002, to check growth of sub-standard colleges, increase in admission capacity and starting of new courses in such colleges. The permission of the Central Government is mandatory for establishing new colleges or starting new courses of study. The existing provision in the Homeopathy Central Council Act is, however, not enabling the Central Government to stop admissions in colleges, which are not conforming to standards specified in the regulations made under the said Act. Due to this, quality of Homeopathy education is being compromised."
4.5 The 2015 Bill seeks to amend the Homeopathy Central Council Act, 1973 so as to (i) making provision for obtaining prior permission of the Central Government by Homeopathy Medical Colleges for admission of new batches and students in any course of study and (ii) to provide permission by the Central Council for five years. From the contents of the said Report, learned counsel referred to and relied on to the Note dated 28th March, 2012 put up by the Attorney General of India stating that, "there is no provision under which permission can be granted or denied to undertake admissions in the forthcoming year. Section 12A of the Act deals with establishment of new medical institutions and new course of study. It does not contemplate grant of permission to make admissions year after year". Further, the Law Ministry also in its opinion rendered vide note dated 5.6.2012, was of Page 7 of 12 HC-NIC Page 7 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER view that, "on the question of putting a restriction on the admission is concerned, as there is no enabling provision in the Parent Act, as such, if the department, so desires, the enabling provisions for putting a restriction on the admissions may be got incorporated in the Parent Act by way of an amendment in the Parent Act.".
4.6 The aforesaid development and the aspects emerging therefrom buttresses the construction sought to be put up by learned counsel on the scope of application of Section 12A of the Act that the Bill to amend the law on the aforesaid lines is mooted, is a greatly bearing, if not clinching, aspect on the subject matter.
5. A reading of Section 12A go to show that it primarily relates to as the title itself suggest, (a) establishment of new medical institution, (b) establishment of new course of study. It contemplates that except without previous permission of the Central Government to be obtained in accordance with the provisions of the Section, a person, which would include university or a trust (but not the Central Government) and no Homeopathic Medical College (i) shall not open a new course, (ii) shall not open a higher course of study, and (iii) shall not increase its admission capacity. For the purpose of opening of new or higher course for increasing admission intake, the other provisions of the Section provide for submission of scheme to the Central Government for its recommendations and further action. The question Page 8 of 12 HC-NIC Page 8 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER involved in this batch of petitions is about extension of approval to the existing college. All the petitioner institutions/colleges have been running since long and at present imparting the education. There is no new course to be opened. No opening of higher standards or studies are applied for. It is not the case of increasing the capacity. Therefore it was not possible to brush aside lightly the contention that the provision of Section 12A, and therefore the claim of power flowing for the first respondent thereunder to refuse the extension of approval to the existing course, may not be available to the first respondent-Ministry of AYUSH, Government of India.
5.1 On the basis of the aforesaid discussion, following prima facie aspects emerged strong-(i) in each case the Central Council of Homeopathy carried out the inspection and the report was favourable recommending the extension of approval to the Homeopathy Course being currently run by petitioner college concerned, (ii) for asserting his powers, the first respondent-Ministry of AYUSH carried out inspection on his own though there was already an inspection done by the Central Council of Homeopathy in the context of Regulations of 2013. The report of the Council was overlooked, (iii) the petitioner college has been imparting education in the faculty of Homeopathy since 2015-16 and is an existing college already imparting the education in the BHMS course. It is denied the extension to run the course on the aforesaid controversy where the inspection report of the first and second respondents are at variance, (iv) Page 9 of 12 HC-NIC Page 9 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER on a prima facie interpretation of Section 12A under which the first respondent seeks to derive powers, in its ambit does not cover the aspect of extension of approval to the existing course. The other High Courts have taken view favouring the contention of the petitioner and the petitions are admitted with grant of interim relief, to which this Court on a consideration of the matter at this stage, endorses to. In any view, the controversy needs a final consideration after hearing the parties and going into the issues at length, (v) a prima facie case for continuance of course stands good in favour of the petitioner, though the petitioner may be put to certain conditions.
5.2 In the end, learned advocates for the respondents could note dispute that the controversy and the point involve in this petition is similar to one involved in group of petitions being Special Civil Application No.17011 of 2016 and allied matters, in which Rule was issued by order dated 25th November, 2016 and interim relief is granted. The entire reasoning supplied hereinabove forms part of the said order dated 25th November, 2016 and apply to the present case as well.
6. For all the aforesaid considerations cumulatively taken, a strong prima facie case is made out for admission as well as interim relief.
6.1 Therefore, there shall be Rule, returnable on 23rd March, 2017, to be placed with Special Civil Page 10 of 12 HC-NIC Page 10 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER Application No.17011 of 2016 and allied matters.
7. By way of interim relief, following directions are issued.
(i) The petitioner college shall be allowed to admit students in the graduation course course in the faculty of Homeopathy for the Year 2016-17 to the extent of their existing intake capacity already approved during the previous Academic Year;
(ii) The first respondent-Government of India, Ministry of AYUSH shall forward within 15 days from the date of receipt of this order, a letter of No- objection intimating the petitioner college that it is permitted to admit students as above. This No- objection shall remain provisional and shall be subject to the final orders which may be passed in the petition;
(iii) Deadline for completion of admission process shall be upto 15th December, 2016 and the entire process shall be completed by the said date;
(iv) The students who may be admitted to the graduation course, shall be specifically intimated that their admission is treated as being subject to the final orders which may be passed in the present Special Civil Application. This is to make the students know about the factum of currency of controversy and the pendency of the petition;
(v) During the pendency of the petition, the Page 11 of 12 HC-NIC Page 11 of 12 Created On Fri Dec 09 00:38:46 IST 2016 C/SCA/20190/2016 ORDER first respondent-Ministry of AYUSH may carry out fresh inspection by directing the second respondent-Central Council of Homeopathy to revisit and verify the availability of the infrastructure for teaching and other facilities at the petitioner college to make them in accordance with the Regulations of 2013, if found to be wanting. If deficiencies are noticed, the petitioner college may be permitted to make good the requirements in tune with the norms and standards under the 2013 Regulations.
Direct service is permitted, today.
(N.V.ANJARIA, J.) Anup Page 12 of 12 HC-NIC Page 12 of 12 Created On Fri Dec 09 00:38:46 IST 2016