Madras High Court
Dr.T.Arutselvam vs The Government Of Tamil Nadu on 12 March, 2012
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12-03-2012
CORAM
THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN
WRIT PETITION Nos.3589 and 4452 of 2012
and
M.P.Nos.1,2,3 2 and 3 of 2012
Dr.T.Arutselvam .. Petitioner in WP 3589/2012
1.B.Santhi
2.M.Ammu
3.J.Bebin Jershia
4.T.Siva Ranjani
5.L.P.Prashanthi
6.M.Suganthi
7.V.S.Anjitha
8.C.Pooja
9.K.Aathi Sakthi
10.M.Priya
11.P.M.Hemalatha
12.A.Shanmuga Priya
13.S.Anju
14.S.Abinaya
15.K.Deepika
16.M.N.Keerthiga
17.K.Venkateswaran
18.Greeshma Kuriakose
19.A.Radha
20.M.Anitha
21.K.Anitha Lakshmi
22.K.S.Gobinath
23.M.Mangaiyarkarasi
24.M.Lalitha
25.R.G.Remya
26.I.V.Vinisha .. Petitioners in WP 4452/2012
Vs.
The Government of Tamil Nadu,
Represented by Secretary to Government,
Health and Family Welfare Department,
Fort St. George,
Chennai-600 009. .. R-1 in both WPs
The Registrar,
Tamil Nadu M.G.R. Medical University,
No.69, Anna Salai, Guindy,
Chennai-600 032. .. R-2 in both WPs
The Commissioner of Indian Medicine
And Homeopathy,
Arumbakkam,
Chennai-600 106. .. R-3 in both WPs
The Principal,
Government Siddha Medical College,
Palayamkottai,
Tirunelveli District. .. R-4 in WP 3589/2012
The Principal,
Government Ayurveda Medical College,
Kottar,
Kanyakumari District. .. R-4 in WP 4452/2012
The Secretary to Government,
Department of AYUSH,
Government of India,
Ministry of Health and Family Welfare,
IRCS Buildings, No.1, Red Cross Buildings,
New Delhi-110 001. .. R-5 in both WPs
The Secretary,
Central Council for Indian Medicine,
No.61-65, Institutional Area,
Janakpuri,
New Delhi-110 058. .. R-6 in both WPs
WP No.3589/2012:
Writ petition filed under Article 226 of Constitution of India praying for issue of a Writ of Certiorarified Mandamus, calling for the production of the records relating to the order dated 20.1.2012 made in F.No.R-17013/03/2011-EP (IM-I) passed by the fifth respondent herein, quash the same in so far as M.D.(Siddha) Courses at Government Siddha Medical College for the Palayamkottai for the year 2011-2012 is concerned and direct the fifth and sixth respondents to grant permission and allow the students to undergo and complete M.D. (Siddha) Course at Government Siddha Medical College, Palayamkottai for the academic year 2011-2012.
WP No.4452/2012:
Writ petition filed under Article 226 of Constitution of India praying for issue of a Writ of Certiorarified Mandamus, calling for the production of the records relating to the order dated 20.1.2012 made in F.No.R-17013/03/2011-EP (IM-I) passed by the fifth respondent herein, quash the same in so far as B.A.M.S. Course at Government Ayurveda Medical College, Kottar, Kanyakumari District for the year 2011-2012 is concerned and direct the fifth and sixth respondents to grant permission and allow the students to undergo and complete B.A.M.S. Course at Government Ayurveda Medical College, Kottar, Kanyakumari for the academic year 2011-2012.
For Petitioners in both WPs: Mr.S.Senthilnathan
For Respondents 1,3 &4 : Mr.S.T.S.Murthi,
Special Government Pleader.
For Respondent-2 : Mrs.Narmada Sampath
For Respondent-5 : Mr.S.Haja Mohideen Kisthi,
Senior Central Government Standing
Counsel.
For Respondent-6 : Mr.M.T.Arunan, Standing Counsel.
C O M M O N O R D E R
Challenging a common order passed on 20.1.2012 by the Joint Secretary to Government, Department of AYUSH, Ministry of Health and Family Welfare, Government of India, rejecting the requests for permission sought for the academic year 2011-12 by (i) the Government Siddha Medical College, Palayamkottai, Tirunelveli District and (ii) the Government Ayurveda Medical College, Kottar, Kanyakumari District, one student of M.D.(Siddha) has come up with the first writ petition and 26 students of the Degree course in Ayurveda (BAMS) have come up with the second writ petition.
2. I have heard Mr.S.Senthilnathan, learned counsel for the petitioners, Mr.S.T.S.Murthi, learned Special Government Pleader appearing for respondents 1, 3 and 4, Mrs.Narmada Sampath, learned counsel appearing for the second respondent-University, Mr.S.Haja Mohideen Gisthi, learned Senior Central Government Standing Counsel appearing for the fifth respondent and Mr.M.T.Arunan, learned Standing Counsel for the sixth respondent.
3. Since the first writ petition relates to the Government Siddha Medical College and the second writ petition relates to Government Ayurveda Medical College and also since there is some distinction on facts between the two cases, I shall present the facts arising in each of these writ petitions separately. Thereafter, I shall deal with the issues arising in the writ petitions, together.
W.P.No.3589/2012:
4. The Government Siddha Medical College, Palayamkottai, Tirunelveli District is one of the oldest Siddha Medical Institutions in the State and elsewhere. It was established several decades before any statutory regulation of the profession was even contemplated. It has the unique distinction of producing Siddha Doctors of repute, for the past more than 4 decades. Interestingly, it is a past student of this Siddha College who has filed a counter affidavit on behalf of the respondents, opposing the writ petitions.
5. With a view to regulate the profession of indigenous systems of medicine such as Ayurveda, Siddha and Unani and also with a view to regulate medical education relating to these indigenous systems of medicine, the Parliament enacted the Indian Medicine Central Council Act, 1970. While a few provisions came into effect in the year 1971, a few other provisions came into effect in 1976.
6. Chapter-II of the Act, provides for the Constitution of a Central Council, election of Office Bearers, Meetings of the Council, Constitution of Committees for Ayurveda, Siddha and Unani and for various other matters relating to the functioning of the Council.
7. Chapter-III contains provisions for recognition of medical qualifications, examinations, withdrawal of recognition and prescription of minimum standards of education in Indian Medicine.
8. Chapter-IV contains provisions relating to Central and State Register of Indian Medicine, provisional registration for practice, professional conduct etc.
9. Chapter-V deals with miscellaneous provisions.
10. The First Schedule to the Act, indicates the number of persons to be nominated to the Central Council from each of the 3 systems of medicine from each State. The Second Schedule gives a list of recognised medical qualifications in Indian Medicine, granted by various Universities and other Institutions in India. The Second Schedule contains a list of about 116 Universities/Institutions in various States in India, which offer recognised medical qualifications in Ayurveda and Siddha. Part-II of the Second Schedule gives a list of about 25 institutions, which offer medical qualifications in Unani, which are recognised under the Act.
11. The Third Schedule gives a list of qualifications granted by certain Medical Institutions before the country attained independence. The Fourth Schedule contains the list of qualifications granted by Institutions in countries with which there is a scheme of reciprocity. This list contains the names of only 4 institutions, all of which are from Sri Lanka.
12. Despite the fact that the Indian Medicine Central Council Act came into force only in 1971 (and 1976), Chapter-II-A containing Sections 13A, 13B and 13C were inserted in the Act only by the Indian Medicine Central Council (Amendment) Act, 2002, published in the Government Gazette on 9.12.2002 and enforced from 28.1.2003. Chapter-II-A was amended further by an Amendment Act of 2003, which was published in the Gazette on 31.12.2003 and enforced with effect from 7.11.2003.
13. Since the resolution of the controversy on hand would eventually depend upon the provisions contained in this Chapter-II-A, it is necessary to extract relevant parts of Sections 13A and 13C of the Act. Therefore, they are extracted as follows:-
"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 -
(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.
Explanation 1.--For the purposes of this Section, "person" includes any University or a Trust, but does not include the Central Government.
Explanation 2.--For the purposes of this Section, "admission capacity", in relation to any course of study or training, including post-graduate course of study or training, in a medical college, means the maximum number of students as may be fixed by the Central Government from time to time for being admitted to such course or training.
(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 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 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 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 provision 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 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 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 medical college;
(g) Any other factor 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.
13-C. 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 Government in accordance with the provisions of Section 13-A. (2) If any person or medical college, as the case may be, fails to seek permission under sub-section (1), the provisions of Section 13-B shall apply, so far as may be, as if permission of the Central Government under Section 13-A has been refused."
14. Before proceeding further, I must record the fact that the qualifications and institutions named from Sl.Nos.93 to 98-C in the Second Schedule to the Act, relate to the State of Tamil Nadu. It may be necessary to extract here, the qualifications, the names of the institutions and the period from which those institutions are functioning, as indicated in the Second Schedule to the Act, in order to appreciate as to how far the provisions of the Act, can impact these institutions. Therefore, Serial Nos. 93 to 98-C of the Second Schedule are extracted as follows:-
S.No Name of University, Board or medical Institution Recognised medical qualification Abbreviation for registration Remarks
93.
Government College of Indian/ Indigenous/ Integrated Medicine, Madras Graduate of the college of Indian/ Indigenous/Integrated Medicine Licentiate in Indian/Indigenous/ Integrated Medicine GCIM LIM From 1947 to 1960 From 1924 to 1948
94. Madras Ayurveda College, Madras Ayurveda Bhushan Ayurveda Bhishagawara ..
..
..
..
95. Venkataramana Ayurvedic College, Mylapore, Madras Vaidya Visharada ..
..
96. Board of Examiners in Indian/ Indigenous/ Integrated Medicine, Madras Higher Proficiency in Indian/ Indigenous/Integrated Medicine HPIM Upto 1955
97. University of Madras, Madras Ayurveda-Shiromani Bachelor of Indian Medicine (Siddha) {Ayurvedacharya (Bachelor of Ayurvedic Medicine & Surgery) ..
BIM BAMS {From 1930 to 1977} {From 1965 to 1970} From 1986
98. Madurai Kamaraj University, Madurai Bachelor of Indian Medicine (Siddha) Doctor of Medicine (Siddha) Bachelor of Siddha Medicine & Surgery BIM MD (Siddha) BSM&S From 1971 onwards From 1975 From 1982 98-A. Bharathiyar University, Coimbatore.
Ayurvedacharya (Bachelor of Ayurvedic Medicine & Surgery BAMS From 1989 to 1993 98-B. Dr.MGR Medical University, Chennai (Tamil Nadu) Ayurvedacharya (Bachelor of Ayurvedic Medicine & Surgery) Siddha Maruthuva Arignar (Bachelor of Siddha Medicine & Surgery) Siddha Maruthuva Perarignar (Doctor of Medicine in Siddha() BAMS BSMS MD (Siddha) From 1994 onwards From 1994 onwards From 1992 onwards 98-C. Shri Chandrashekhendra Saraswathi Viswa Mahavidyalaya, Kanchipuram (Deemed University) Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery) BAMS From 2001 onwards It must be noted that serial number 93 of the Second Schedule relates to a Government Institution, started in 1924, which has now become the Government Siddha College, Palayamcottai. This shows that the institution now sought to be closed by the 5th respondent, was in existence for at least 5 decades before the Act came into force.
15. It is seen that the object of the Act, in the first instance, when it was enacted, was only to regulate the profession, evolve uniform standards of education and to maintain a Central Register. The power to recognise and regulate institutions imparting education relating to these systems of medicine, became vested in the Central Government only in 2003 with the insertion of sections 13 A to 13 C. But it took 3 more years after the insertion of these provisions, for the Central Council of Indian Medicine to issue a set of Regulations known as "Indian Medicine Central Council (Permission to Existing Medical Colleges) Regulations 2006, in exercise of the power conferred by Section 36 of the Act. The Regulations were notified on 6.10.2006.
16. Since Section 13-C came into force only with effect from 28.1.2003/7.11.2003 by the two Amendment Acts of 2002 and 2003, the Regulations defined an "Existing Medical College" to mean a Medical College established on or before 7.11.2003. It was under Regulation 3 of these Regulations that an existing Medical College was required to submit an Application in Form 1 for Ayurveda, Form 2 for Siddha and Form 3 for Unani system of medicine, on or before 6th November 2006. Regulation 5 laid down the conditions for eligibility of an existing Medical College to obtain permission. Regulation 6 prescribed the fee to be submitted. Regulation 7 mandated the Central Council to examine the application of an existing Medical College, to conduct an inspection and to submit its recommendations to the Central Government in Form 4, if the relevant Regulations and Rules have been fulfilled. Regulation 8 prescribed the procedure for the issue of letter of permission, directions for the removal of deficiencies and the conduct of suo motu inspections. Regulation 9 indicated the consequences of failure to rectify deficiencies. Regulation 10 stipulated that all Medical Colleges which were granted permission under Section 13-C shall seek recognition of the medical qualifications granted by them in terms of Section 14. Regulation 11 empowered the Central Government to notify the time schedule for the processing of cases.
17. Before proceeding further, it is necessary to take note of 3 important dates that will decide not only the fate of these writ petitions, but also the fate of any educational institution teaching indigenous system of medicine. They are:
(i) The date of section 13C coming into force was 7.11.2003
(ii) The date of notifying the Regulations was 6.10.2006
(iii) The date within which an existing college was required to apply in terms of Regulation 3 was 6.11.2006.
18. The above 3 dates assume extraordinary significance in the light of Section 13-A(6). Under the said provision, if no order is communicated by the Central Government, to the College which submits a scheme under sub-section (2) within a period of one year from the date of submission of the scheme to the Central Government, the scheme should be deemed to have been approved and the permission required under sub-section (1) shall be deemed to have been granted.
19. Therefore, if an existing college {within the meaning of Regulation 2(b)} had submitted an application on or before 6.11.2006 in terms of Regulation 3 and if no order had been communicated by the Central Government within a period of one year thereof, the deeming fiction under Section 13-A(6) will come into operation. However, the period taken by the applicant, in furnishing any particulars called for by the Central Council or the Central Government, will stand excluded from this period of one year, in view of sub-section (7) of Section 13-A.
20. Once it is conceded that an existing Medical College was required to submit an application on or before 6.11.2006 in terms of Regulation 3 and once it is seen that a definite period of time is stipulated under sub-section (6), subject to sub-section (7) of Section 13-A, it would follow as a logical sequence that if no order had been communicated on or before 6.11.2007, permission should be deemed to have been granted. {subject however to the time spent on correspondence under sub-section (7) }
21. Perhaps keeping in mind the prescription contained in Regulation 3 and the deeming fiction contained in sub-section (6) of Section 13-A, it was stipulated under Regulation 11 that the time schedule for processing of cases will be notified by the Government. Though there are no pleadings on both sides as to whether any such time schedule was fixed by the Central Government in terms of Regulation 11, it was brought to my notice in the course of hearing of these writ petitions that the Central Government had, in fact, prescribed the following time schedule:-
"Activity Time schedule Receipt of applications in the By 6th November,2006 Department of AYUSH Forwarding of applications to By 28th February,2007 the CCIM Recommendations and report By 31st May, 2008 by the CCIM to the Department of AYUSH Grant of permission or rejection By 31st October,2008" of the application by the Department of AYUSH
The above dates are mentioned in the counter affidavit filed by one Mr.Vikram Singh Gaur, working as Director in the Ministry of Health and Family Welfare, Department of AYUSH, in W.P.Nos.7598 and 7599 of 2009, filed by an institution by name Dharma Medical Research and Charitable Trust, Sriperumbudur, on the file of this Court. I am bringing on record these dates, as they have some significance to the contentions raised in these writ petitions with reference to the time prescribed in Regulation 3 and the deeming fiction contained in Section 13-A(6). It must be noted that the time schedule prescribed above, actually goes beyond the period of 1 year stipulated in Section 13-A(6), for the deeming fiction to arise. But I shall come back to these dates later, while dealing with the contentions.
22. In pursuance of the aforesaid Regulations, the Government Siddha Medical College, Palayamkottai, submitted an application on 9.10.2006 for the grant of permission under Section 13-C of the Act, for the admission of 100 students at the Under Graduate level and 60 students at the Post Graduate level. The application was in order, as it was submitted before 6.11.2006 in terms of Regulation 3. Therefore, it was forwarded by the Department of AYUSH to the Central Council of Indian Medicine. Pending inspection by CCIM, the Central Government passed an order dated 1.5.2007, granting conditional permission not only to the Government Siddha Medical College, but also to all existing colleges for the academic year 2007-2008. However, by letter dated 23.7.2007, the Central Government also directed the college to have at least 80% of the full compliment of teaching faculty. Therefore, it appears prima facie that the Central Government acted within 1 year from the date of the application, so as to avoid the deeming fiction under section 13- A(6) being invoked.
23. Thereafter, the CCIM conducted an inspection and submitted its recommendations vide letter dated 1.7.2008. After scrutinising the recommendations of CCIM, the Department of AYUSH passed an order dated 26.8.2008 granting conditional permission to the Government Siddha Medical College, Palayamkottai, for the conduct of BSMS courses with admission capacity of 100 seats and for the conduct of Post Graduate courses in six subjects with total intake capacity of 60 students for the academic year 2008-2009. Though it was made clear by the said order dated 26.8.2008 that certain deficiencies noted therein should be rectified before 31.12.2008, it was also stated therein that the deficiencies are not serious enough to deny permission to the college.
24. It appears that after the issue of the order dated 26.8.2008, an inspection of the college was carried out on 5.2.2009 by the CCIM. A report was submitted thereafter on 15.4.2009 for the academic year 2009-2010. In the report, the CCIM appears to have pointed out 3 deficiencies, namely (i) that nine more teachers for Under Graduate teachers and one additional Post Graduate teacher should be appointed, as there were 41 teachers as against the norms of 50 teachers; (ii) that non teaching staff should be appointed in all teaching departments as per the norms; and (iii) that non teaching staff are to be appointed in two departments, namely Nunnuyir Iyal and Noi-Anugavidhi Ozhukkam. After scrutinising the recommendation of the CCIM, the Department of AYUSH passed an order on 9.7.2009 granting conditional permission for the intake of 100 seats in Under Graduate courses and for the intake of 10 seats in each of the six P.G.courses for the academic year 2009-2010. This was subject to the compliance of the shortcomings by 31.10.2009. It will be of interest to note that in para 3 of the said order dated 9.7.2009, the Government of India noted very clearly "that the college is fulfilling the basic eligibility criteria of having requisite teaching staff, 150 bed hospital and OPD and IPD as per norms'. This order dated 9.7.2009 is the third order passed by the respondents, after the Regulations came into effect.
25. Thereafter, CCIM appears to have carried out an inspection on 19.2.2010 and submitted its recommendations on 22.5.2010. On the basis of the said recommendations, the Department of AYUSH passed the fourth order of permission on 19.8.2010. Paragraph 2 of the said order requires to be extracted and hence it is extracted as follows :
"The CCIM had carried out an inspection of the college on 19.2.2010 to verify the rectification of shortcomings intimated to the college. After careful consideration of the recommendations and inspection report of the CCIM and compliance report, it is found that the college is fulfilling the minimum requirements of 80% teaching staff, 150 bedded hospital, 100 patients per day in OPD and 40% bed occupancy in IPD. It has, therefore, been decided to continue approval conveyed vide this Department's letter of even no. dated 9.7.2009 to grant conditional permission to Government Siddha Medical College, Tirunelveli, Palayamkottai, Tamilnadu for taking admission in BSMS course with 100 seats in UG level and 60 seats in 06 PG courses in Siddha for the session 2010-11 subject to the rectification of the following deficiencies by the end of December, 2010, failing which the permission may be withdrawn :
(i) Full complement of teachers including required number of higher faculty in various teaching departments should be made available as per norms of the CCIM for intake capacity of 100 UG seats and 60 seats for 06 PG courses in Siddha.
(ii) Teachers/Consultants of modern medicine like pathologist, radiologist, anesthetist, gynaecologist, surgeon, pharmacologist and chemist should be appointed on contract basis/part time/full time.
(iii) Hospital staff including laboratory staff should be appointed as per CCIM norms and Regulations."
26. The order dated 19.8.2010 of the Government of India, was the fourth order passed under the aforesaid Regulations and it related to the academic session 2010-2011. Therefore, the permission granted under this order was naturally valid till the end of the academic session, which perhaps fell in April/May 2011.
27. But in the meantime, the CCIM appears to have finalised, in a meeting held on 10.3.2011, the minimum standards requirements for Ayurveda, Siddha and Unani colleges for the academic session 2011-2012. The Competent Authority appears to have approved the minimum standards recommended by the CCIM and a letter dated 18.3.2011 was sent by the Under Secretary to Government, Department of AYUSH, to the CCIM, conveying their approval for the minimum standards requirements recommended by the CCIM. The minimum norms prescribed by CCIM and approved by the Central Government throw light upon the manner in which these standards have been prescribed. Therefore, they are extracted as follows :
"For Under Graduate Courses :
S.No Parameter Minimum standards requirements for conditional permission for the academic session 2011-12
1.
Teaching staff for Under Graduate ASU Colleges
(i) At least 90% of the total requisite teaching staff as per the CCIM's draft norms with no minimum requirement of teachers from modern faculty and
(ii) 50% higher faculty (Professor + Reader) of the total required higher faculty staff as per the CCIM's draft norms and (iiii) Availability of at least one teacher in each Department
2. Number of beds of teaching hospital for Under Graduate colleges For hospitals of Ayurveda and Siddha Colleges : Student-bed ratio will be 1 : 2. However, minimum 100 bedded hospital is required.
For hospitals of Unani colleges, Student-bed ratio will be 1: 1. However, minimum 50 bedded hospital is required.
3. OPD attendance of teaching hospital for UG courses in ASU colleges Daily average OPD attendance of the OPDs will be required on an average 100 patients per day during 1st January 2010 to 31st December 2010.
4. Bed occupancy in IPD of teaching hospital for Under Graduate ASU colleges Minimum 40% bed occupancy during 1st January 2010 to 31st December 2010.
For Post Graduate course :
S.No Parameter Minimum standards requirements for conditional permission for the academic session 2011-2012 1 Teaching and non teaching staff for Post Graduate ASU Colleges A.All Ayurveda and Siddha Colleges are required to be recommended on the basis of provisions as exist in the notified P.G.regulations for Ayurveda entitled 'The Indian Medicine Central Council (Postgraduate Ayurveda Education) Regulations, 2005', except for the following two modifications which are separately being notified-
a. The students teachers ratio of 1:3 shall be allowed instead of 1:2 in case of Professor for PG students to be admitted per year.
b. The minimum annual average bed occupancy in the IPD of the hospital shall be at least 50% instead of 60%.
It is reiterated that all the provisions (measurable and non measurable) as contained in the Indian Medicine Central Council (Postgraduate Ayurveda Education) Regulations, 2005 shall be examined by CCIM before sending their recommendation.
B. All Unani Colleges are required to be recommended on the basis of provisions as exist in the notified PG regulations for Unani entitled 'The Indian Medicine Central Council (Postgraduate Unani Education) Regulations, 2007'.
It is reiterated that all the provisions (measurable and non measurable) as contained in the Indian Medicine Central Council (Postgraduate Unani Education) Regulations, 2007 shall be examined by CCIM before sending their recommendation.
2. Number of beds of teaching hospital for Postgraduate ASU colleges
1. For Postgraduate course in Ayurveda and Siddha-
Minimum 150 beds are required including 50 beds for 10 PG seats in clinical subjects with UG intake capacity of 50 students. However, no.of beds in hospital for PG seats in clinical subjects will be maintained in 1:5 student-bed ratio in addition to beds required for UG seats.
2. For PG courses in Unani-
Minimum 75 beds are required including 25 beds for 5 PG seats in clinical subjects with UG intake capacity of 50 students. However, total no.of beds in hospital for PG seats in clinical subjects will be maintained in 1:5 student-bed ratio in addition to beds required for UG seats.
3.
OPD of teaching hospital for PG ASU colleges Daily average OPD attendance of the OPDs will be required on an average 100 patients per day during period from 1st January, 2010 to 31st December 2010.
4. Bed occupancy in IPD of teaching hospital for Postgraduate ASU colleges Minimum 50% bed occupancy during period from 1st January, 2010 to 31st December, 2010."
28. It appears that the aforesaid Minimum Standards Norms finalised on 18.3.2011 were not notified by the Government. These minimum standards were far in excess of those prescribed under Regulation 5. But even before notifying those revised norms, the CCIM conducted an inspection of the Government Siddha Medical College, Palayamkottai on 29th and 30th March 2011 and submitted its report on 19.5.2011. Their recommendation was for granting conditional permission for the academic session 2011-12 for BSMS course with an intake of 75 students and MD (Siddha) course in six disciplines with an intake of 10 seats each.
29. However, ignoring the recommendations of the CCIM, the Department of AYUSH issued a notice dated 7.7.2011 calling upon the Government Siddha College to appear for a personal hearing on 14.7.2011, to show cause as to why permission to take admissions in BSMS/PG courses for the year 2011-12 should not be denied to the college. This was on the ground that the college did not fulfill the following eligibility criteria :
(i) As against the requirement of 61 teachers, the college had only 60 teachers. The college in fact submitted a list of 61 teachers, but one was found ineligible and hence the minimum requirement fell short by one teacher.
(ii) The required teacher/student ratio of 1:3 for Professors, 1:2 for Readers and 1:1 for Lecturers is not fulfilled as there are only one Reader and five Lecturers in Nanju Noolaam Maruthuva Noolum, which is not sufficient for ten seats.
(iii) IPD bed occupancy is only 38.29% as against the approved norm of 50% for PG colleges for the session 2011-12.
(iv) Clinical registers in the hospital are not reported in the visitation proforma.
30. The representative of the college appeared for the hearing on 14.7.2011 and made submissions before the Hearing Committee. After the hearing, the Hearing Committee found that out of four deficiencies pointed out in the show cause notice dated 7.7.2011, two stood rectified already. However, the Hearing Committee remarked that two deficiencies still existed. They are (i) that there were only 60 teachers as against the requirement of 61; and (ii) that the IPD bed occupancy was only 38.29% as against the approved norm of 50%.
31. Therefore, the first respondent passed an order dated 30.8.2011, refusing to grant permission to the Government Siddha Medical College for the admission of students to the Under Graduate as well as Post Graduate Courses for the academic year 2011-2012. It was also indicated in the said order that the college could set right the deficiencies, on or before 30.11.2011, so that the question of grant of conditional permission for the academic year 2012-2013 could be considered.
32. Challenging the said order, the Government of Tamil Nadu filed a writ petition in W.P.No.21776 of 2011. Pending writ petition, the Government sought interim orders in M.P.Nos.2 and 3 of 2011 for conducting counselling and admitting students. Along with the said writ petition, the Government of Tamilnadu filed one more writ petition in W.P.No.21775 of 2011, challenging a similar order passed in respect of the Government Ayurveda College. On the petitions for interim relief filed in both writ petitions, this Court passed an interim order on 29.9.2011 to the following effect:-
"These writ petitions are filed challenging the order rejecting the renewal of permission for the academic year 2011-2012 for two colleges viz., Government Ayurveda Medical College, Kottar and Government Siddha Medical College, Palayamkottai on the ground of lack of teaching faculty and among other grounds. The said two colleges are established and administered by the Government of Tamil Nadu.
2. When the matters were posted for admission, the learned Advocate General appearing for the petitioners submitted that the last date for admission of candidates in the said colleges for the courses of Siddha and Ayurveda for the year 2011-2012 will be 31.10.2011 and steps have already been taken by the petitioners to fill up the vacant posts and after appointment of qualified teachers, the list will be sent to respondents 1 and 2 for getting permission. For conducting the course for this year, the learned Advocate General also submitted that the seats in the said Government Colleges and in private colleges have to be filled up only through counselling to be conducted by the Commissioner of Indian Medicine and Homeopathy-second petitioner and it will spread over to several posts as students from various parts of the State have to be issued with communication for attending counselling and thereafter only allotment order could be issued. The learned Advocate General also submitted that the students, who are appearing in the counselling for admission to Government Colleges will be intimated to the effect that the counselling/selection/allotment order and joining in the college will be subject to orders/permission from respondents 1 and 2 for the said Courses for the academic year 2011-2012 before 31.10.2011. The said submission is recorded.
3. The learned Advocate General seeks direction to the third respondent to give seat matrix for the academic year 2011-2012 for BSMS, BHMS, BUMS and BNYS Degree Courses and after getting seat matrix only, the counselling can be conducted by the second petitioner.
4. In view of the said submissions made and having regard to the fact that the petitioners are taking effective steps to appoint teachers and complying with the requirements for getting renewal of permission, there will be a direction permitting the petitioners to conduct counselling for the said Courses on the above conditions. It is made clear that conducting of counselling, allotment of seats, or admission of any student will depend upon the approval to be granted by respondents 1 and 2 for the academic year 2011-2012 and merely because any student is alloted and admitting in any Course, the said student shall not plead any equity.
5. The petitioners are directed to file the progress report before this Court, within two weeks and also send a report to respondents 1 and 2 for their perusal and passing appropriate orders.
Post these writ petitions after two weeks."
33. Accordingly, the Government proceeded with the counselling and admission of students and also sent a compliance report dated 14.10.2011 along with an Inspection Report dated 11.10.2011 of the Inspection Team. But there was no response to the compliance report. In the meantime, the writ petition itself was taken up for final hearing along with the other writ petition and disposed of by a common order dated 5.1.2012, directing the respondents 1 and 6 to look into the compliance report and take a decision.
34. In pursuance of the aforesaid order, the Principal Secretary to Government of Tamil Nadu, Department of Health and Family Welfare addressed another communication dated 13.1.2012 to the first respondent, enclosing a copy of the order passed by this Court in the writ petitions W.P.Nos.21775 and 21776 of 2011. In response to the said communication and in pursuance of the order passed by this Court, the first respondent has issued the impugned order dated 20.1.2012, refusing to grant permission for the admission of students for the Under Graduate as well as the Post Graduate Courses for the academic year 2011-2012. Aggrieved by the said order, a student who has been admitted to the Post Graduate Medical Course viz., M.D. Siddha, has come up with the above writ petition.
35. Before proceeding to consider the rival contentions and the grounds on which the impugned order is assailed by the student of the Government Siddha Medical College, I would bring on record, the facts relating to the Government Ayurveda Medical College, Kottar, Kanyakumari, so that legal issues arising in common, could be dealt with together, conveniently.
W.P.No.4452 of 201136. The Government Ayurveda Medical College, Kottar, Kanyakumari is not an age old institution like the Siddha Medical College, Palayamkottai. The sanction to establish the Government Ayurveda Medical College at Kottar, was accorded by the Government of Tamilnadu, only under G.O.Ms.No.10 Health and Family Welfare Department dated 23.1.2006. The reasons for the Government according sanction for the establishment of the said college, are found in paragraphs 3 and 4 of the said Government Order. They are of relevance for deciding the question as to whether the college should survive or not. Therefore, paragraphs 3 and 4 of G.O.Ms.No.10 dated 23.1.2006 are extracted as follows :
"The Government considered the proposal of the Special Commissioner of Indian Medicine and Homeopathy. There are Government Colleges for Siddha, Homeopathy, Unani and Yoga and Naturopathy Systems of Indian Medicine in Tamilnadu. But, no Government college is available for Ayurveda course. As far as the State of Tamilnadu is concerned, the student community is now attracted towards Ayurveda system in a large number. But due to the non availability of Government Colleges for Ayurveda System, the economically weaker students are unable to undergo the Ayurveda course in Tamilnadu as they cannot afford the fee structure of private Ayurveda Medical Colleges available in this State. Therefore, the Government considered that it is very much necessary to start Bachelor of Ayurveda Medicine and Surgery Course in a Government Ayurveda Medical College and Hospital.
The Kanyakumari District is an apt place to start an Ayurveda College, since the Ayurvedic medicines and treatment is very much popular among the public of Kanyakumari District and a large number of public living in and around the Kanyakumari District are opting for Ayurveda treatment. Hence, the Government considered that it would be very ideal to locate the Government Ayurveda Medical College at Nagercoil, Kanyakumari District."
37. The Government order extracted above shows the noble object with which the Ayurveda college was established by the Government. Though the college was established after Chapter II-A of the Act came into force, it must be remembered that the Regulations were notified only on 6.10.2006.
38. Therefore, the Government of Tamilnadu sought permission vide letter dated 15.4.2009, to establish the Ayurveda Medical College at Kottar. After scrutinising the application, the Central Government accorded permission, by a letter dated 30.10.2009, to the Government of Tamilnadu to establish the college with annual intake capacity of 50 seats in BAMS course from the academic year 2009-2010 onwards in terms of Section 13A of the Act.
39. Thereafter, CCIM inspected the college on 10th and 11th February 2010 and submitted a report dated 31.5.2010 to the Central Government. On the basis of the recommendations made by CCIM, the Central Government passed an order on 18.8.2010, granting conditional permission for the intake of 50 students in BAMS course for the academic session 2010-11. Paragraph 2 of the said order is of relevance and hence it is reproduced as follows :
"After careful consideration of the recommendations and inspection report of the CCIM in terms of the IMCC Act and relevant Regulation and norms of the CCIM, it is found that the College is fulfilling the minimum requirement of 100 bedded hospital, 80% teaching staff, 100 patients per day in OPD and 40% bed occupancy in IPD. It has, therefore, been decided to grant conditional permissions to Government Ayurveda Medical College and Hospital, Kottar, Nagercoil, Tamilnadu for taking admission in to the BAMS course with 50 seats at UG level for the session 2010-2011 subject to rectification of the following deficiencies by 31st December 2010, which will be verified for granting permission for the subsequent year/s.
(i) Full complement of teachers including required number of higher faculty in various teaching departments should be appointed as per norms of the CCIM.
(ii) Teachers/consultants of modern medicine like pathologist, radiologist, anesthetist, gynaecologist, surgeon, pharmacologist and chemist should be appointed on contract basis/part time."
40. For the next session 2011-12, the CCIM inspected the college on 27th and 28th April 2011, keeping in mind the Minimum Standards Norms issued on 18.3.2011. They submitted a report on 30.5.2011. On the basis of the report, the Central Government issued a show cause notice dated 23.6.2011 calling upon the college to appear for a hearing on 4.7.2011 before the Designated Hearing Committee for showing cause as to why permission should not be denied. In paragraph 4 of the said show cause notice dated 23.6.2011, the first respondent indicated that any submission made by the college at the time of oral hearing, will be considered only with reference to the position that prevailed as on the date of inspection by the CCIM. This meant that no opportunity for subsequent rectification was possible at all.
41. However, the representatives of the college participated and made their submissions on 4.7.2011. Thereafter, the Government of Tamilnadu also issued newspaper advertisements on 14.8.2011 for filling up the post.
42. But in the meantime, the first respondent passed an order dated 18.8.2011 refusing to grant permission to the college for admission to BAMS course for the academic year 2011-12. Therefore, after making appointments and filling up all posts on 25.8.2011 and after making a representation to the Central Government, the Government of Tamilnadu filed a writ petition in W.P.No.21775 of 2011, challenging the order dated 18.8.2011.
43. This writ petition W.P.No.21775 of 2011 relating to Ayurveda college was taken up along with W.P.No.21776 of 2011, which related to Siddha college and an interim order was passed on 29.9.2011. I have already extracted the said order earlier. However, by a subsequent order dated 4.11.2011, the colleges were directed not to conduct classes for the first year students for the academic session 2011-12.
44. However, W.P.No.21775 of 2011 was subsequently disposed of along with the other writ petition relating to Siddha college, by a final order dated 5.1.2012, about which I have already made a reference. In pursuance of the said order, the Government of Tamilnadu sent one more representation dated 13.1.2012. But by an order dated 20.1.2012, the first respondent rejected the request for the grant of permission, forcing 26 students admitted to the first year BAMS course for the academic session 2011-12 to come up with W.P.No.4452 of 2012.
THE PICTURE THAT EMERGES:
45. From the narration of facts relating to both the colleges that I have given above, the following undisputed conclusions could be drawn:-
(i) that the Government Siddha College, which is in existence from 1924 and whose survival depended upon the Regulations of 2006, was granted permission for the academic years 2007-2008, 2008-2009, 2009-2010 and 2010-2011, but denied permission for the academic session 2011-2012;
(ii) that the Government Ayurveda College was granted permission for the academic sessions 2009-2010 and 2010-2011, but denied permission for 2011-2012; and
(iii) that the denial of permission to both institutions is on the basis of Minimum Standards Norms issued on 18.3.2011, but which have not so far been notified.
STAND OF THE CENTRAL GOVERNMENT:
46. On behalf of the Central Government, the Director of the National Institute of Siddha, Chennai-47, has filed counter affidavits in both the writ petitions. I do not know how he is authorised to file a counter affidavit on behalf of the fifth respondent viz., the Secretary to Governement, Department of AYUSH, Ministry of Health and Family Welfare. Nevertheless, it appears to be an irony of fate that the deponent to the counter affidavit is an alumni of the Government Siddha Medical College, Palayamkottai, whose fate is sought to be sealed by the impugned orders.
47. In the counter affidavit filed on behalf of the fifth respondent, the following contentions, both factual and legal, are raised:-
(i) The orders impugned in both the writ petitions have been passed on the applications of the Government of Tamil Nadu for the grant of permission for the academic session 2011-2012 and hence in the absence of a challenge to these orders by the State Government, the students like the petitioners cannot maintain a challenge to the impugned orders;
(ii) In the interim orders passed on 29.9.2011 in the writ petitions filed by the Government of Tamil Nadu in W.P.Nos.21775 and 21776 of 2011, it was made clear that the admission of the students for the current academic year was subject to the ultimate decision taken by the Central Government and that the students shall not plead any equity. By a subsequent order dated 4.11.2011, the Siddha as well as Ayurveda colleges were directed not to conduct classes, but the State Government appears to have continued to conduct classes in violation of the orders of this Court. Therefore, the students cannot now challenge the impugned orders.
(iii) Both the colleges were granted only conditional permissions in the previous academic years, but they have not fulfilled those conditions. They have not rectified the deficiencies pointed out before the cut off date for admission, viz., 31.10.2011 and hence the Central Government could not grant permission for the current academic year.
(iv) The fact that the Minimum Standards Norms prescribed by the Central Government on 18.3.2011 are not fulfilled, is not disputed by the State Government. It was already made clear in the communication dated 21.3.2011 that the fulfilment of the Minimum Standards Norms should be as on the date of inspection, but not on any subsequent date. Therefore, the representations that the Norms have been subsequently fulfilled, cannot advance the cause of the colleges.
(v) The direction given in the writ petitions W.P.Nos.21775 and 21776 of 2011, on 5.1.2012, directing the Central Government to pass orders on the representations of the Government, would not entitle the colleges to get permission for the current year, since the cut off date for valid admission of students had expired by then, on 31.10.2011 itself.
(vi) The prescription of Minimum Standards Norms, is only to improve the standards of medical education in Indian Medicine. Therefore, the enforcement of the Norms by the Central Government, with a view to improve the quality of medical education, cannot be found fault or interfered with.
Let me now take each one of these contentions, to see if the impugned orders are sustainable or not.
CONTENTIONS (i) and (ii):
48. The first two contentions of the respondents are that the State Government which is the main aggrieved party, has not chosen to challenge the impugned order and that therefore, a challenge by the students who were specifically prevented from pleading equity, is not maintainable.
49. But the above contentions are totally misconceived. The petitioners and the State Government are not at loggerheads on this issue. The students are not taking a stand which is opposed to the stand of the State Government. The State Government has filed counter affidavits supporting the challenge made by the petitioners to the impugned orders. A perusal of the files discloses that the State Government took an extra mile in making the Health Minister of the State write to the Union Minister of Health. The Officers at the level of Secretary to Government were deputed to Delhi to pursue the matter with the Department of AYUSH. Therefore, unless it is demonstrated that the petitioners have a conflict of interest with the State Government or that the State Government has accepted the impugned orders and resigned themselves to fate, the writ petition by the students cannot be said to be not maintainable.
50. What the petitioners are prevented, by virtue of the interim orders passed in the first two writ petitions, was only a right to plead equity and not a right to challenge the action of the Central Government. The fact that they are not entitled to plead equity is completely different from their right to challenge the orders of rejection passed by the Central Government. The petitioners have not mortgaged or forfeited their right to challenge the orders of rejection passed by the Central Government. The right to approach this Court under Article 226 cannot be said to have been given up by the petitioners, by virtue of the interim order dated 29.9.2011, preventing them from claiming equity. Therefore, the first two contentions are rejected.
CONTENTION No.(iii):
51. The third contention is that both the Colleges were granted only conditional permissions in the previous academic years and that since they had not rectified the deficiencies before the cut off date for admission, it was not possible to grant permission.
52. Before taking note of the deficiencies on account of which the Central Government had rejected permission to the Government Colleges of Siddha and Ayurveda, it is necessary to take a small detour. This necessity has arisen on account of two basic facts viz.,:-
(i) that we are now dealing with Colleges teaching indigenous systems of medicine and
(ii) that we are actually dealing with Government Colleges, which are not run on profit motive, but which are run for the purpose of promoting indigenous systems of medicine as an alternative to Allopathy.
Therefore, unless certain things are taken note of, in this regard, any decision rendered in these writ petitions would only put the indigenous systems of medicine, in the Intensive Care Unit, and that too in an allopathic hospital. Therefore, I am constrained to make a small deviation here.
SIGNIFICANCE OF INDIGENOUS SYSTEMS
53. The history of Ayurveda and Siddha dates back to several centuries. Literally meaning the "science of life", Ayurveda is often used in a narrow sense as a "system of medicine", which considerably dilutes and distorts its real scope and objective. Health, according to Ayurveda is not only freedom from disease. According to Susruta, one of the great early practitioners, it is a state of the individual where, in addition to harmony among the functional units (dosas), digestive and metabolic mechanisms (agnis), structural elements (dhatus), and waste products (malas), a person should also be in an excellent state (prasanna) of the spirit (atman), senses (indriyas), and mind (manas). The Encyclopaedia Britannica states that Ayurvedic practitioners work in rural areas, providing healthcare to at least 5 million people in India. Pointing out that the golden age of Indian medicine from 800 B.C., till 1000 A.D., was marked by the production of the medical treatises known as "caraka-samhita" and "susruta-samhita", the Britannica records in page 776 of Volume-23 (15th Edition) as follows:-
"In surgery, ancient Hindu medicine reached its zenith. Operations performed by Hindu surgeons included excision of tumours, incision and draining of abscesses, punctures to release fluid in the abdomen, extraction of foreign bodies, repair of anal fistulas, splinting of fractures, amputations, cesarean sections, and stitching of wounds.
A broad array of surgical instruments were used. According to Susruta the surgeon should be equipped with 20 sharp and 101 blunt instruments of various descriptions. The instruments were largely of steel. Alcohol seems to have been used as a narcotic during operations, and bleeding was stopped by hot oils and tar.
Hindu surgeons also operated on cataracts by couching or displacing the lens to improve vision."
54. In a Book titled "Man and Medicine - A History" authored by Farokh Erach Udwadia, an Emeritus Professor of Medicine (Allopathy) and published by Oxford University Press (2001 Edition), an interesting event is reported at page No.43. It is about the documented performance of rhinoplasty (for which Susruta was famous) witnessed and recorded in 1793 in Pune. A Parsee gentleman by the name of Cowasjee, who was serving the English Army at the time of the Mysore War in 1792, was captured by the soldiers of Tipu Sultan. His nose and one hand was cut off. He and 3 of his friends, who had met with the same fate, consulted a person who was only a bricklayer by profession. The bricklayer performed a surgery, which was witnessed by Thomas Cruso and James Findlay, Senior British Surgeons in Bombay Presidency. They described and drew the skin graft procedure and the same was published in the Madras Gazette. It was later reproduced in the October 1794 issue of the Gentleman's Magazine of London. The surgery was described in the following words:-
"A thin plate of wax is fitted to the stump of the nose so as to make a nose of a good appearance, it is then flattened and laid on the forehead. A line is drawn around the wax which is then of no further use and the surgeon then dissects off as much skin as it had covered, leaving undivided a small slip between the eyes. This slip preserves the circulation till a union has taken place between the new and old parts.
The cicatrix of the stumps of the nose is next paired off and immediately behind the new part an incision is made through the skin which passes around both alae, and goes along the upper lip. The skin now brought down from the forehead and being twisted half around, is inserted into this incision, so that a nose is formed with a double hold above and with its alae and septum below fixed in the incision.
A little Terra Japanica (pale catechu) is softened with water and being spread on slips of cloth, five or six of these are placed over each other to secure the joining. No other dressing but this cement is used for four days. It is then removed and clothes dipped in ghee (clarified butter) are applied. The connecting slip of skin is divided about the twentieth day, when a little more dissection is necessary to improve the appearance of the new nose. Four, five or six days after the operation, the patient is made to lie on his back and on the tenth day bits of soft cloth are put into the nostrils to keep them sufficiently open."
55. The learned author of the Book Mr.Udwadia, goes on to say that the above occurrence caught the attention J.C.Carpue, a 30 year old Surgeon in London. He successfully used the same skin graft procedure for nose repair on a patient in 1814. He reported his successful results in 1816, introducing the "Hindu Surgical Technique" and with it, "The Indian Nose" to the West.
56. After pointing out that Susruta recommended the use of a facial skin flap for repair of a cleft lip, the author of the book states that Carl Ferdinand Von Graefe (1747-1840) popularised the Indian Surgical Technique of plastic reconstruction of the nose in Germany and Europe.
57. It is common knowledge that smallpox vaccine was invented by Dr.Edward Jenner, an English Physician in 1798. But on the occasion of the opening ceremony of the King's Institute of Preventive Medicine in February 1905 at Madras, the then Governor of Madras, Lord Ampthill, said the following:-
"It is also very probable, so Colonel King assures me, that the ancient Hindus used animal vaccination secured by transmission of the smallpox virus through the cow, and he bases this interesting theory on a quotation from a writing by Dhanwantari, the greatest of the ancient Hindu physicians, which is so striking and so appropriate to the present occasion that I must take the liberty of reading it to you. It is as follows:
"Take the fluid of the pock on the udder of the cow or on the arm between the shoulder and elbow of a human subject on the point of a lancet, and lance with it, the arm between the shoulders and elbows until the blood appears : then mixing the fluid with the blood the fever of the smallpox will be produced. This is vaccination pure and simple. It would seem from it that Jenner's great invention was actually forestalled by the ancient Hindus."
58. As is the case with Ayurveda, the Siddha System of Medicine also has a history which dates back to several centuries. Traditionally believed to have been developed by 18 Siddhas including Sage Agasthiya, the Siddha System of Medicine has its own merits. But unfortunately, due to lack of patronage for the culture of the ancient times, this system of Medicine also suffered to a great extent under the colonial rule. It will be of interest to know that an Allopathy Doctor and Professor by name Dr.C.N.Deivanayagam, who is a Fellow of the Royal College of Physicians (Edinburgh), who retired as the Superintendent of the Government Hospital of Thoracic Medicine, Tambaram, presented a paper titled "HIV/AIDS and Siddha System of Healthcare - an experience of 13 years". He reported in the said paper that after the Government Hospital of Thoracic Medicine at Tambaram adopted an open door policy for HIV/AIDS in 1992, there was an exponential increase in the number of HIV sufferers seeking care and treatment. While the number of patients were only 2 in 1993, it rose upto 365 in 1996 and 6,791 in the year 2000. Since ARV Drugs could not be provided by the Government to all the patients, the Hospital invited 90 Siddha Physicians to a Seminar to identify suitable Siddha formulations to combat the killer disease. All of them agreed on formulations containing processed Sulphur and processed Mercury to fight the disease. As a consequence, a formulation known as RAN was born as the child of Tambaram. The acronym RAN stands for Rasagandhi Mezhugu, Amukkira Chooranam and Nellikkai Ilagam. It has become an immunogenic and adaptogenic drug. The said Medical Practitionaer demonstrated through laboratory evidence that there was clinical improvement in more than 60% of the patients who received either RAN alone or in combination with OL controlling drugs (reported in the publication "Evaluation of Siddha Medicare in HIV Disease" - JAPI March 2001, 49:390-1. - an indexed Journal).
59. Keeping the above historical perspective in mind, if we look at what happened in the country during colonial rule, it would be clear that there was a systematic campaign, in a subtle manner, to make the indigenous systems of medicine fade away from the public domain. In a paper submitted by Ms.Padma Srinivasan, a Senior Research Officer at the Indian Institute of Health Management Research in the World Health Forum (Vol. 16 - 1995), the Author pointed out that during 19th and first half of the the 20th Century, the traditional systems of medicine were gradually replaced by modern medicine, under the influence of The British Raj. During the period 1920-1940, Provincial Governments and popular leaders like Mahatma Gandhi, made various efforts to reverse this trend. But unfortunately, the country's first National Healthcare Policy outlined in 1946 by Bhore Committee completely ignored the traditional practices. Subsequent Committees attempted to correct this error and in 1961, the Mudaliar Committee made strong recommendations for integrating modern medicine with the traditional medicine. But by that time, the dominance of modern medicine had become irreversible. The learned Author also made an interesting observation in the said article about the role played by the Central Government vis-a-vis the State Governments. The observations read as follows:-
"At present, most of the larger institutions promoting indigenous systems of medicine are controlled and financed by the State Governments, and little interest is shown at the central level. This is probably because the Central Government depends on support for healthcare from international organisations backed by rich Western countries. Extensive promotion of indigenous systems might jeopardise this support and discourage foreign investment in drugs and healthcare.
.. .. .. .. .. .. ..
Two World Bank reports (1,2) recommend that the Government should leave tertiary curative healthcare to the private sector and concentrate on primary healthcare in the rural areas, immunisation and disease eradication programmes. This implies that India should go deeper into international debt by borrowing more money for these programmes, thus supporting the propagation of Western medicine on behalf of the multi-national drug and healthcare companies. Apart from the questionable economics of this prescription, it completely overlooks the existence of alternative systems of medicine and the possibility of using them to ensure healthcare coverage for the rural and urban populations of the nation."
60. Therefore, it is clear that there has been some resistance worldwide, to the Government patronage of indigenous systems of medicine. But Latin American countries and even China, spend millions of dollars for developing indigenous systems of medicine. The National Health Service of the United Kingdom is said to be funding billions of pounds every year on Homeopathy, despite opposition. In February 2010, the Science and Technology Committee of the British Parliament submitted a report alleging that there is no evidence to show that Homeopathic treatments work better than a placebo. Therefore, the Committee recommended that the National Health Service should cease to provide funds for Homeopathic Hospitals and that Doctors in the N.H.S. System should not refer patients to Homeopaths. The Committee even recommended that the Medicines and Healthcare Products Regulatory Agency (MHPRA) should bar homeopathic treatments from displaying medical claims on their labels. The British Medical Association Junior Doctors Committee even went to the extent of terming Homeopathy as witchcraft. But it is reported in the Print and Electronic Media that the campaign initiated by the Orthodox Medical Profession was effectively countered by a campaign called H:MC21 (Homeopathy: Medicine For the 21st Century) pointing out that more than 100 million European Union citizens, including Prince Charles use Homeopathy for their health care. This has made it difficult for the Science and Technology Committee of the British Parliament to make inroads into State funding of homeopathy.
61. In so far as the State of Tamilnadu is concerned, the earliest attempt to streamline the system of education relating to medicine, appears to have been started in 1924. The Government Indian Medical School was started by the then Government of Madras in 1924 and all the 3 systems of medicine viz., Siddha, Ayurveda and Unani, were taught to persons who studied any one of these systems for 4 years. They were awarded a Diploma called "LIM", which is an acronym for Licentiate in Indian Medicine.
62. After India attained independence, the name of the institution was changed as Indian Medical College. Any person who completed a 5 years Course of study in this College, after completing Intermediate, was granted a degree known as "GCIM", standing for Graduate of the College of Indian Medicine.
63. The name of the said College was later changed to "College of Indigenous Medicine" in 1949. However, Allopathy was also taught in the College and hence the name of the College was changed to "College of Integrated Medicine" in the year 1956. It appears that thereafter a College of Indian Systems of Medicine was started in Courtallam. The said College was later transferred to Palayamkottai in November 1964. When the transfer took place, several faculty members employed in the then College of Integrated Medicine (later Kilpauk Medical College) were transferred to Palayamkottai, seen from a Government Order G.O.Ms.No.2372, Health dated 23.11.1964.
64. Subsequently, the Government of India itself sanctioned the upgrading of two Departments in the College of Indian Systems of Medicine, Palayamkottai, for Post Graduate Training and Research in Siddha, as a centrally sponsored scheme. The scheme was accepted by the State Government and an order was issued in G.O.Ms.No.2064, Health and Family Planning Department, dated 6.9.1972. Subsequently, P.G. Courses in Special Medicine (Sirappu Maruthuvam) and Paediatric Medicine (Kuzhanthai Maruthuvam) were started under G.O.Ms.No.96, Health and Family Welfare, dated 19.2.1996. With the creation of Post Graduate Departments in Special Medicine and Paediatric Medicine, the total number of Post Graduate Departments rose to four. The fifth Post Graduate Department in "Noi-Nadal" (perhaps meaning Diagnostic Techniques) was started with the sanction of the State Government under G.O.Ms.No.211, Health and Family Welfare Department, dated 9.5.1997. As a matter of fact, the Post Graduate Courses conducted by the College at Palayamkottai attracted even students from Sri Lanka, Malaysia, Singapore etc., forcing the Government to start one more P.G. Department in Nanju Noolum Maruthuva Noolum (could be translated in layman's language to mean Book on Poisonous Substances and Medical Ethics), in the year 1998 as seen from G.O.Ms.No.279, Health dated 5.6.1998. Thus, the Government Siddha College Palayamkottai had been built brick by brick over a period of several decades, with the Government developing necessary infrastructure before offering admission to the courses of study.
65. Keeping in mind the above historical background, let me now look into the deficiencies on account of which the fifth respondent has passed the impugned order against the Siddha college. The impugned order relating to Siddha College cites two deficiencies viz., (i) that as against the requirement of 64 teachers (52 for Under Graduate Courses and 12 for six Post Graduate Courses), the College had only 60 teachers and (ii) that as against the requirement of bed occupancy of 50% for Post Graduate Courses and 40% for Under Graduate Courses, the College had only 38.29%.
66. The Norms prescribed by the Department of AYUSH indicate that they are intended to achieve high standards. I have no reason to suspect it to be so. Even if I have any doubt, I am no expert and I have no jurisdiction to question the norms prescribed. But I am only afraid that instead of developing and encouraging indigenous systems of Medicine, the attempt made by the fifth respondent may be counter-productive and end up with the closure of these Colleges. If we really look at the Norms, they require 52 teachers for Under Graduate Courses of 100 students. It means that there should be at least one teacher for every two students. The Norms require 12 teachers for 6 Post Graduate Courses, each with a permitted intake of 10 students. In other words, the Norms stipulate one teacher for every 5 Post Graduate students. I do not really know if this is an utopian dream on the part of the fifth respondent, but I certainly know that this will act as a disincentive even for Government Colleges and will persuade them to wind up the show, sooner or later. Anyway I would not go into this question and I would not decide the case on the basis of this fact.
67. It is common knowledge that Government Colleges do not run on profit motive. On the contrary, a Government College teaching alternative systems of medicine, has to be seen in the context of the initiatives taken by several Governments globally, to nurture, protect and preserve alternative indigenous systems of medicine. As a matter of fact, one singular development viz., the establishment of the "Traditional Knowledge Digitial Library" even by the Central Council of Indian Medicine (CCIM) shows that the underlying object is to preserve the traditional knowledge acquired in indigenous systems. This underlying object may not really be served by the Department of AYUSH, closing down even established Government Colleges, which were started solely with the object of nurturing these indigenous systems of medicine.
68. Interestingly, an identical question arose before a Division Bench of this Court in C.Stephenson Rubasingh vs. State of Tamil Nadu {1993 WLR 521}. The Division Bench held in para 57 of its judgment that the prescription of different Norms for Government Educational Institutions and for Private Institutions would be valid. Therefore, if the Department of AYUSH is really interested in prolonging the "AYUSH" (meaning life span) of the indigenous systems of medicine and in rejuvenating these systems, the department should make -
(i) a distinction between colleges teaching Allopathy and colleges teaching Ayurveda, Siddha and Unani and
(ii) a distinction between colleges of Ayurveda, Siddha and Unani run by the Government and those run by private institutions.
If this is not done, it will sound the death knell for the rich traditional systems of medicine of the country.
69. In so far as the deficiencies highlighted by the respondents in respect of the Siddha college are concerned, there are 3 points that make the impugned order very vulnerable to attack, as being arbitrary and unfair. They are:-
(i) By the first show cause notice dated 7.7.2011, the respondents took a stand that the Siddha college has 60 teachers as against the requirement of 61. But in the impugned order, it is alleged that the college has 60 teachers as against the requirement of 64. Therefore, there is no consistency in the stand taken by the fifth respondent.
(ii) In so far as bed occupancy is concerned, as rightly contended by the learned Special Government Pleader, the patronage to Government Hospitals keeps fluctuating for various reasons. About 30 years ago, even the Government Allopathic Hospitals used to be flooded with the rich and the poor, the elite and the ignorant and the mighty and the small. But today, the patronage to private hospitals even by very important persons (VIPs) has increased, due to various factors. Keeping this fact in mind, if we look into the facts of the case, it may be seen that the Secretary to the Department of Health, of the State Government, already informed the respondents that the bed occupancy rose to more than 50% in the month of September. But unfortunately, this aspect has not even been considered by the respondents.
(iii) The fifth respondent has taken a narrow and parochial view that they would consider only the status as on the date of inspection and not as on any subsequent dates. By taking such a stand, the opportunity of hearing granted to the State Government has been reduced to an empty formality. It must be remembered that the show cause notice pointing out deficiencies, was issued on 7.7.2011 and the hearing took place on 14.7.2011. The order of rejection was passed in August 2011. The cut off date for admitting students for the current year, was only 31.10.2011. Therefore, if the cry of the State Government, made in their letter dated 14.10.2011, that the optimum bed occupancy was reached in September 2011, had been considered or at least verified, the fifth respondent would not have reached the conclusion that they had reached in the impugned order.
70. In so far as the deficiencies relating to the Ayurveda college pointed out by the fifth respondent are concerned, the same also appears to be the outcome of an arbitrary exercise of power. The reasons for this conclusion of mine are recorded in the following paragraphs.
71. The first order dated 18.8.2011, issued by the fifth respondent, listed 3 deficiencies viz., (i) though at least there should be 18 eligible teachers out of the total requirement of 20 teachers, the college has only 11 teachers in the cadre of Tutors and none in the cadre of Professor, Reader/Lecturer (ii) there is no higher faculty in the college and (iii) there is not a single teacher in 8 departments of first and second Professionals. 72. But in the counter affidavit filed by the Commissioner of Indian Medicine and Homeopathy (third respondent herein), both on his behalf and on behalf of the respondents 1 and 4, he has narrated in graphic detail, the extensive steps taken by the Government to rectify the deficiencies pointed out by the fifth respondent. The steps taken are as follows:-
(i) Immediately after the hearing before the Designated Hearing Committee on 4.7.2011, the Government of India issued an advertisement in the New Indian Express in its edition dated 14.8.2011, inviting applications for filling up 3 posts of Professor and 8 posts of Reader in the Ayurveda college.
(ii) However, by the order dated 18.8.2011, the fifth respondent rejected the application for permission.
(iii) In the meantime, the Government appointed two persons by orders dated 25.8.2011, under Rule 10(a)(i) of the Rules for Tamil Nadu State and Subordinate Services. Unfortunately, they were given the designation of Tutor (Ayurveda) in view of the fact that that was the nomenclature given to the post under the rules.
(iv) A D.O. letter No.25143/IMI-2/2011-2 dated 8.9.2011 was sent directly by the Minister of Health of the State, to the Union Minister of Health, listing out the various steps taken by the State to fill up the posts. One important aspect indicated in the said letter was that due to the coming into force of the Code of Conduct during the period from March to May 2011, on account of the State Assembly Elections, the process of filling up the posts got delayed. It was also indicated in the said letter that after the Government assumed Office, immediate steps were taken. The letter also highlighted the fact that as the only State Government run Ayurveda institution, the denial of permission to the college would be detrimental to public interest.
(v) Subsequently, advertisements were issued on 11.9.2011 and 5.10.2011, again inviting applications for appointment of 3 posts of Professors and 8 posts of Readers. The latter advertisement was published in All India Editions of leading newspapers.
(vi) In the meantime, the Government also realised the fact that the designation of the post was to be changed from that of Tutor to Lecturer Grade-II. This was done by G.O.Ms.No.252, Health and Family Welfare, dated 24.10.2011. Immediately thereafter, 5 posts of Readers were filled up by orders dated 31.10.2011 under Rule 10(a)(i). A compliance report was sent on 11.11.2011 to the fifth respondent, pointing out that there was one Professor, 5 Readers and 4 Lecturers Grade-II. It was further pointed out that an interview was scheduled to be held on 18.11.2011 for filling up 5 more posts of Lecturer Grade-II.
(vii) The Government pointed out that apart from the Election Code of Conduct that was in force from March to May 2011, there was also one more impediment viz., that the rule of reservation had to be relaxed. For the study of Ayurveda, the learning of Sanskrit is necessary and hence the government found it difficult to apply the rule of reservation while filling up the posts. Since a relaxation of the rule of reservation became necessary in terms of Rule 48 of the General Rules for State and Subordinate Services, there was some delay.
(viii) As promised in the compliance report dated 11.11.2011, the Government appointed 3 persons on 22.12.2011 as Lecturers Grade-II (Ayurveda).
(ix) Subsequently, another paper advertisement was released on 5.1.2012. In pursuance of the same, 2 more posts were filled up on 24.2.2012.
73. Thus, the Government had not only taken earnest attempts, but also ratified the deficiencies to a great extent. In the course of hearing of the writ petition, the learned Special Government Pleader produced a tabulation, containing the list of teaching staff working in Government Ayurvedic College, Kottar. The list requires reproduction and hence it is reproduced as follows:-
Sl.No. Department CCIM requirements Existing Professor Reader Lecturer Professor Reader Lecturer
1.
Samhita Siddhanta 1 or 1 2
-
-
01.Dr.Ramela Rajaba
02.Dr.Senthiarasi
03.Dr.Harani Ramya
04.Mr.Subramaniam (Sanskrit)
2. Rachna Sharir 1 1 1
-
-
05.Dr.R.Sunil Roy
3. Kriya Sharir 1 or 1 1
-
06.Dr.Senthilnathan
07.Dr.Seeni
4. Dravya Guna 1 1 1
-
08.Dr.Nandhinee Vijay
09.Dr.Vasumathi
10.Dr.Saivijayapriya
11.P.Neelayathatchi
5. Rasasasthra and Bhaisajakalpana 1 1 1
-
12.Dr.Clarance Davy
13.Dr.Rosy Joseph
6. Roganidan 1 or 1 1
-
14.Dr.Sudarkodi
15.Dr.Mayuranathan
7. Swastha Vritta 1 or 1 1
-
16.Dr.Ramaraju
17.Dr.M.S.Thirunavukarasu
18.Dr.Ramakrishnamacharya
8. Agada Tantra 1 or 1 1
-
19.Dr.Menaka Devi
20.Dr.Raneesh
21.Dr.Prakash Total 11 9
-
6 15 Total requirements - 20 90% of total requirements - 19 No. of higher faculties available - 06 No. of Lecturer Grade II available (subject wise) - 15 Total - 21 50% of higher faculties - 06 Available - 06"
74. Therefore, it is clear that the State Government had taken an extra mile to support the one and only Ayurveda institution in the State. In such circumstances, the attitude adopted by the fifth respondent, cannot be appreciated.
CONTENTIONS (iv) and (vi)
75. The fourth contention raised by the respondents is that the Minimum Standards Norms, approved on 18.3.2011, were communicated vide a Circular dated 21.3.2011. It was clearly indicated therein that the position prevailing on the date of inspection alone would be taken into consideration. Therefore, the fifth respondent contends that they were justified in refusing to take into account the claim of compliance made by the colleges.
76. The sixth contention of the respondents is that the object of prescribing higher standards was to improve the quality of education. Therefore, the Court shall not allow dilution of standards.
77. In so far as the former contention is concerned, there are two difficulties in accepting the same. The first is that the Minimum Standards Requirements dated 18.3.2011 have not been notified so far. They actually prescribe higher standards than those prescribed by Regulation 5. As between Regulation 5 and the circular dated 18.3.2011, the former will prevail. Therefore, the rejection of the request for permission, on the basis of those Minimum Standards Requirements, which are yet to be notified, may not be proper.
78. The second difficulty for the fifth respondent is that the standards prescribed by the Circular of the fifth respondent dated 18.3.2011, are with reference to the period from 1.1.2010 to 31.12.2010. In other words, revised Norms/Standards are introduced on 18.3.2011 and the fifth respondent expects these colleges to have fulfilled those Norms with retrospective effect. It is needless to point out that the Minimum Standards prescribed for the grant of permission to any college, cannot be revised with retrospective effect. At least in so far as the student bed ratio and bed occupancy rate are concerned, the Circular dated 18.3.2011 stipulates that the college should have attained the prescription even in the previous calendar year. This is highly arbitrary.
79. In so far as the sixth contention relating to Standards are concerned, there are (i) factual issues as well as (ii) legal issues. The factual issues can be highlighted in the form of a tabular column:-
Siddha College:
Academic year Date of order Observations 2007-08 01.05.07 General approval granted to all colleges.
2008-09 26.08.08 Though the order reads as if conditional permission was granted, the order also states that the deficiencies are not serious enough for refusing permission. It is relevant to note that the deficiencies did not relate to (i) the number of teaching faculty and (ii) the bed occupancy ratio.
2009-10 09.07.09 Conditional permission granted on the ground that (i) there are 41 teachers as against the requirement of 50 (ii) non-teaching staff to be appointed in all Departments as per Norms. There was no complaint about bed occupancy. The Norms relating to teachers was more than 80%.(41 out of 50).
2010-11 19.08.10 Conditional permission granted. But it is accepted that the college fulfilled minimum requirement of 80% teaching staff, 150 bedded hospital, 100 patients per day in OPD and 40% bed occupancy in IPD. Still the only condition was to fill up full compliment of teachers.
2011-12 30.08.11 Permission rejected on the basis of new Norms prescribed on 18.3.2011, requiring (i) 90% teaching faculty and (ii) 50% bed occupancy for the period 1.1.2010 to 31.12.2010. These observations go contrary to the earlier order.
Ayurveda College:
Academic year Date of order Observations 2009-10 30.10.09 General permission granted.
2010-11 18.08.10 Conditional permission granted after recording the fact that the college fulfilled the minimum requirements of 100 bedded hospital, 80% teaching staff, 100 patients per day in OPD and 40% bed occupancy in IPD.
2011-12 18.08.11 Permission rejected.
80. The above tabular columns would make it clear that the fifth respondent has suddenly changed the Standards that they applied for the previous years, while considering the applications for permission for the academic year 2011-12. This is wholly unacceptable. The respondents cannot change the rules of the game at least in so far as colleges which are already established and for which permission had already been granted. Therefore, on factual issues also, the conclusion of the respondents cannot be sustained.
81. On legal issues, the stand of the respondents is still worse. If one has a look at the provisions of Sections 13-A to 13-C, the provisions of Section 13-A are made applicable to existing colleges, by virtue of Section 13-C(1), in so far as the procedural aspects are concerned. Under Section 13-A(2), what is required to be submitted by a college is actually a scheme in accordance with sub-section (3). But sub-section (3) states that the scheme to be submitted shall be in such form and contain such particulars and be preferred in such manner.
82. Therefore, one has to look upto the Regulations issued in 2006, to find out (i) the form (ii) the particulars (iii) the manner of preferring and (iv) the fee payable, by a college applying for a scheme under Section 13-A(3). So let us now go back to the Regulations.
83. Regulation 3 prescribes the form in which an application is to be preferred. Regulation 4 indicates the person to whom it should be submitted (manner of preferring). The form itself contains the particulars. The fee payable is prescribed in Regulation 6. Therefore, the scheme referred to in Section 13-A(2) and (3), can be traced to Regulations 3, 4 and 6.
84. Regulation 5 prescribes the eligibility for making applications. They are as follows:-
(i) location of the college and attached hospital preferably in a single plot or at least in two plots reasonably close to each other, either owned or taken on lease for 30 years.
(ii) Permission from the State Government.
(iii) Affiliation from a University.
(iv) Ownership and management of a 100 bedded hospital for Under Graduate Courses and 150 bedded hospital for Post Graduate Courses, conforming to the Norms relating to minimum bed strength and bed occupancy for inpatients and to the number of outpatients.
(v) Appointment of at least 80% of the teaching and non-teaching staff on regular basis, as stipulated by the Central Council.
(vi) Undertaking to reduce the deficiency in respect of teaching and non-teaching staff within 2 years in two equal steps.
85. There is no dispute about the fact that the Government Siddha Medical College and the Government Ayurveda Medical College fulfill the eligibility conditions prescribed in Regulation 5. But permission has been denied to the Siddha College for the current session on the ground that 90% strength is not reached in respect of teaching faculty. However, the respondents submit that there are 60 teachers. Earlier they had prescribed 61, but for the current year they have taken 64 as the maximum. Even if 64 is taken, the existence of 60 teachers fulfills 90%. Therefore, I do not know on what basis the impugned order proceeded in so far as the strength of teaching staff is concerned. In respect of bed occupancy, the letter of the Secretary to Government pointing out that 50% was reached even in September 2011, was not even looked into. Therefore, there has been an unfair treatment of the Government Colleges, by the fifth respondent.
86. I fail to understand as to how the power granted under Section 13-C in respect of existing colleges could be exercised on yearly basis by the fifth respondent. Section 13-A(2) and (3) as well as the Regulations do not actually contemplate temporary or yearly permissions. It is true that they provide for conditional permissions and suo motu inspections to enable the CCIM to satisfy itself that the conditions have been satisfied. But by resorting to the power to grant conditional permissions, the fifth respondent cannot keep the colleges and the students always on tenter hooks. Doing so would either frustrate the managements of these colleges or at least shift their focus from enhancement of the quality of education to a bureaucratic entanglement.
87. The fifth respondent always has powers to withdraw the recognition granted to a college, by invoking Section 21. Therefore, the appropriate procedure to be adopted by the fifth respondent is to grant permission in terms of Section 13-C read with Section 13-A(3) and the Regulations, without making the whole exercise an annual ritual. Since the CCIM always has the power to conduct an inspection and to withdraw recognition under Section 21, the grant of yearly permissions is a practice to be avoided.
CONTENTION (v):
88. The fifth contention is that the order passed by this Court on 5.1.2012 cannot advance the cause of the colleges, since the cut off date for admission of students was over on 31.10.2011 itself.
89. There can be no dispute that no student can be admitted beyond the cut off date. But in this case, students have been admitted before the cut off date in pursuance of the directions issued by this Court. In so far as the Siddha college is concerned, there was 60 teachers as against 61. In so far as the Ayurveda college is concerned, there was a problem with regard to re-designation of Tutors as Lecturers. Even they were subsequently rectified. As far as bed occupancy is concerned, I have already pointed out that the prescription of 50% under the Circular dated 18.3.2011, cannot be in respect of a previous period from 1.1.2010 to 31.12.2010. Therefore, the contention that no student can be admitted beyond the cut off date, arises out of a wrong impression as though students were admitted after 31.10.2011.
90. The learned Standing Counsel for the fifth respondent has relied upon the following decisions:-
(i) The University of Madras vs. Loorthu Ammal Educational Trust {2005 (3) MLJ 350}
(ii) Minor Sunil Tr. Gardin vs. C.B.S.E. {2007 (4) LW 97}
(iii) The President Board of Education Orissa vs. D.Suvankar {2007 (4) LW 104}
(iv) Rukmani College of Education Tirunelveli District vs. State of Tamil Nadu, Chennai {2008 (1) MLJ 1217}
(v) A.P.Christians Medical Education vs. Government of Andhra Pradesh {1986 (2) SCC 667}
(vi) Guru Nanak Dev University vs. Parminder Kr.Bansal {1993 (4) SCC 401}
(vii) Central Board of Secondary Education vs. Nikhil Gulathi {1998 (3) SCC 5}
(viii) Mahatma Gandhi University vs. Jikku Paul {LNIND 2011 SC 398}
(ix) Visveswaraya Technological University vs. Krishnendu Halder {2011 (4) MLJ 878 INSC}
(x) SRM University by its Registrar vs. Versity Grants Commission, Bahadur Shah Jafar Marg {LNIND 2011 Mad 3153}
(xi) Veterinary Councial of India vs. Indian Council of Agricultural Research {LNIND 2000 SC 25} Let me now consider each one of those decisions.
91. In University of Madras vs. Loorthu Ammal Educational Trust, the institution admitted students without affiliation from the University, though it had approval from NCTE. Therefore, the same was found fault with. But in the cases on hand, the Tamil Nadu Dr. MGR Medical University is with the State Government and it had granted affiliation. The Government Siddha college is not one of those self-financing medical colleges which have suddenly sprung up without any infrastructure or approval or affiliation. Even the Government Ayurvedic college is an institution which has come up at the instance of the State Government. Both the colleges have had permission in the previous years. It is only for the current year that permission has been refused by invoking an amended Minimum Standards Norms, applied with retrospective effect. Therefore, Loordhu Ammal case, cannot be compared to the case on hand.
92. In Minor Sunil, the institution did not have affiliation with the Central Board of Secondary Education. The prayer in the writ petition itself was to allow the students to appear in the examination. Therefore, the Court deprecated the practice of allowing students to take the examination. But in this case, I am testing the correctness of the orders of the fifth respondent, refusing to grant permission to the Government Ayurveda and Siddha colleges, after having granted permission for the previous academic years.
93. In Rukmani College of Education, a Full Bench of this Court had to resolve the controversy between the decisions of two Division Benches, one in Loordhu Ammal and another in Vinayaga Mission. Even in that case, there was no affiliation from the University. But as stated earlier, the Government colleges involved in these case, have affiliation of the University. As a matter of fact, the Full Bench quoted with approval the ratio laid down by me in Annai J.K.K. Sampoorni Ammal Charitable Trust (as seen from paragraph 31 of the decision). Therefore, the Full Bench decision in Rukmani College of Education, which arose under different context, cannot be imported to the case on hand.
94. A.P.Christians Medical Education, is relied upon by the learned counsel for the fifth respondent to drive home the point that the Court cannot issue any direction to the University to protect the interests of students who had been admitted to a college which did not have permission. There can be no quarrel with the said proposition. But the fifth respondent has overlooked the fact that I am not addressing the issues on hand from the point of view of the students. Though Mr.S.Senthilnathan, learned counsel for the petitioner, in the course of arguments, attempted to project the plight of the students, I shut him out, at the threshold, on the ground that the students have no right to claim equity. The entire discussion of mine in the above paragraphs, revolves only around (i) the interests of the traditional systems of medicine of this country and (ii) the interests of the State Government run institutions, which have taken upon themselves the task of rejuvenating traditional medicine after several decades of struggle.
95. The decisions in Guru Nanak Dev University and Central Board of Secondary Education, are also relied upon for the purpose of showing that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. But what I had stated with regard to the decision in A.P. Christians Medical Education, applies to this case as well.
96. The decision of the Supreme Court in Mahatma Gandhi University is concerned, lateral entry of diploma holders directly to the second year of the degree courses in Engineering. Taking advantage of the scheme, several self-financing Engineering Colleges admitted diploma holders who could not even secure the minimum 20% marks in the entrance test to the second year of the B.Tech., Course. The follow up action was challenged by a set of students. The High Court allowed the writ petitions on the ground that AICTE Regulations did not prescribe any minimum marks for the entrance test. Therefore, the matter was taken to the Supreme Court. The Supreme Court allowed the appeal, following a recent decision in Visveswaraya Technological University vs. Krishnendu Halder {2011 (3) Scale 359}. The said case is of no relevance to the issues raised in the present writ petitions.
97. The decision in Visveswaraya Technological University, is relied upon to show that the State or the University is entitled to fix eligibility criteria higher than those fixed by the AICTE and that the admission of students whose marks fall short of higher eligibility criteria fixed by the State, cannot be approved.
98. But in the case on hand, the revised Norms dated 18.3.2011, requires that 50% bed occupancy should have been there during the period from 1.1.2010 to 31.12.2010. To this extent, the Minimum Standards Norms, which are not even notified, seeks to take away the rights already vested in the Government colleges by virtue of the old Regulations. In any case, the stand taken by the State Government that the bed occupancy ratio reached 50% in September, fell only in deaf ears.
99. What fell for consideration in Veterinary Council of India, was entirely different. A question arose in that case due to a dispute as to whether the Veterinary Council of India or the Indian Council of Agricultural Research, which is empowered to conduct All India Common Entrance Examination. Therefore, the said decision has no relevance to the case on hand.
100. Therefore, the impugned orders cannot be sustained both on factual as well as legal basis. The fifth respondent has not approached the issues from the proper perspective. Hence, both the writ petitions are allowed, the impugned orders are set aside and the fifth respondent is directed to issue fresh orders in respect of both Colleges, within a period of two weeks from the date of receipt of a copy of this order, keeping in mind the fact that both the colleges satisfy the requirements of Regulation 5, as it stands today. In view of my findings in the previous paragraphs, both the Colleges are permitted to continue to conduct classes for the current academic year and conduct examinations. There will be no order as to costs. Consequently, connected miscellaneous petitions are closed.
12/03/2012 Index : Yes.
Internet: Yes.
Svn Office to Note: Issue order copy by 13.3.2012.
To
1.The Secretary to Government, Government of Tamil Nadu, Health and Family Welfare Department, Fort St. George, Chennai-600 009.
2.The Registrar, Tamil Nadu M.G.R. Medical University, No.69, Anna Salai, Guindy, Chennai-600 032.
3.The Commissioner of Indian Medicine And Homeopathy, Arumbakkam, Chennai-600 106.
4.The Principal, Government Siddha Medical College, Palayamkottai, Tirunelveli District.
5.The Principal, Government Ayurveda Medical College, Kottar, Kanyakumari District.
6.The Secretary to Government, Department of AYUSH, Government of India, Ministry of Health and Family Welfare, IRCS Buildings, No.1, Red Cross Buildings, New Delhi-110 001.
7.The Secretary, Central Council for Indian Medicine, No.61-65, Institutional Area, Janakpuri, New Delhi-110 058.
V. RAMASUBRAMANIAN, J.
Svn Common Order in WPs 3589 & 4452 of 2012 12-03-2012