Uttarakhand High Court
Chandola Homeopathic Medical College ... vs Union Of India Through Secretary on 2 April, 2012
Equivalent citations: AIR 2012 UTTARAKHAND 112, (2013) 1 UC 764
Author: B.S.Verma
Bench: B.S.Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 1562 of 2011
1. Chandola Homeopathic Medical College through its
Principal Dr. Somnath Ganguly, R/O Chandola Homeopathic
Medical College, Kichha Road, Rudrapur, District Udham
Singh Nagar.
2. Principal, Chandola Homeopathic Medical College, Kichha
Road, Rudrapur, District Udham Singh Nagar.
... Petitioners.
Versus
1. Union of India through Secretary, Ministry of Health and
Family Welfare, Department of AYUSH IRCS Innexe
Building 1-Red Cross Road, New Delhi-110001.
2. Director, AYUSH (Homeopathy), Health and Family
Welfare, Department of AYUSH IRCS Innexe Building 1-
Red Cross Road, New Delhi-110001.
3. Central Council for Homeopathy through its Secretary, 61-
65, Institutional Area, Janakpuri, New Delhi- 110058.
4. State of Uttartakhand through its Principal Secretary,
Medical Education and AYUSH, Secretariat Complex,
Dehradun.
5. Kumaon University, through Registrar, Kumaon University,
Nainital.
6. Director (Homeopathy), State of Uttarakhand, Sahasdhara
Road, Dehradun (Uttarakhand).
... Respondents.
Mr. U.K.Uniyal, Senior Advocate, with Mr. Vipul Sharma, Advocate, learned counsel for the
petitioners.
Mr. V.B.S.Negi, Assistant Solicitor General of India with Mr. Ajay Singh Bisht, Central Govt.
Counsel, learned counsel for the respondent nos. 1 and 2.
Mr. Navneet Kaushik, Advocate, learned counsel for the respondent no. 3.
Mr. N.P.Sah, Standing Counsel, learned counsel for the respondent No.4 and 6.
Date April 02, 2012.
Hon'ble B.S.Verma, J.
Learned counsel for the parties have submitted that the pleadings have already been exchanged between the parties and the writ petition may be disposed of as on today at the admission stage.
2. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the impugned order dated 22-7-2011 passed by respondent no.1 whereby the Chandola Homoeopathic Medical College and Hospital, Rudrapur, Uttarakhand (petitioner no.1) has not been granted permission to 2 take admissions in first BHMS degree course for the academic year 2011-12 holding that per provision of Regulation 6 of Homoeopathy (Minimum Standards of Education) Regulations, 1983, the Central Government cannot allow admissions of BHMS Degree Course in this college for the academic year 2011-12.
3. Brief facts, giving rise to the present writ petition, according to the petitioners, are that the petitioner no.1 is a Homeopathy Medical College Rudrapur and the petitioner no. 2 is the Principal of the said college. The petitioner no.1 institution is recognized by Central Council for Homeopathy, New Delhi and is affiliated to Kumaon University, Nainital as well as by the Government of India. On 19-5-2011, Inspectors of respondent no.1 (Uninion of India), namely, Dr. S.N.Sahu, Deputy (Homeopathy), Ministry of Health and Family Welfare, Department of AYUSH IRCS & Dr. Manoj Nisari, Joint Advisor (Ayurveda) of the said Ministry came to conduct an inspection of the petitioner no.1- institution and in the course of inspection, they asked the principal of the said medical college to sign on various documents and even forced him to sign on certain blank piece of papers. On 3-6-2011, a show cause notice purporting to be under first proviso to sub- section 4 of Section 12A and Section 19(3) of the Homoeopathy Central Council Act, 1973 (for short the Act) as well as under the provision of Regulation 6 read with Regulation 3 of Homoeopathy (MSE) Regulation, 1983, was issued by the Government of India to the petitioner No. 2 stating that why the recognition of BHMS (Homeopathy) degree be not withdrawn and why the petitioner no.1-institution be not restrained from admitting students to the academic year 2011-12. In that notice 10-6-2011 was fixed the date for hearing before the designated Hearing Committee in the Department of AYUSH. It has been stated by the petitioner in paragraph 23 of the memo of petition that no such notice was in fact received by the petitioner by 10th June 2011 and an ambiguous and blurred copy was sent to the petitioner institute by respondent no.1 and that the petitioner no. 2 went to the office of respondent 3 no.1 on 13-6-2011 and the respondent no.1 fixed a date for hearing on 21-6-2011 by another notice dated 13-6-2011. A copy of the same has been annexed as Annexure-10 to the petition.
4. By letter dated 23-6-2011 issued by the Director Homoeopathic Medical Services, Uttarakhand, Dehradun, the petitioner-institution has been restrained not to run BHMS course for the session 2011-2012 until further orders of the Government of India. A copy of the said letter/order dated 23-6-2011 has been annexed as Annexure-12 to the petition. It is also stated by the petitioners that between 11-6-2011 and 12-6-2011 as many as 25 students had already been admitted in the institute much before passing of the order dated 23-6-2011.
5. The petitioners assailed the order dated 23-6-2011 in Writ Petition No. 1356 of 2011 (M/S) before this Court and this Court directed the Union of India to pass a final order. On 22-7- 2011, the impugned order was passed, which gave rise to the present writ petition.
6. The grievance of the petitioners is that the impugned order dated 22-7-2011 has been passed by the Union of India without any authority of law inasmuch as the provisions of Section 19 of the Act had not been adhered to at all and that the Central Council had never considered any report having been made by the inspector or the visitor as provided under clause (a) and (b) of Section 19(1) of the Act and that the Central Council had not made any representation to the Central Government with regard to withdrawal of recognition. In paragraph no.4 of the memo of petition, the petitioners have specifically stated that the order impugned is totally without jurisdiction.
7. On behalf of the respondent no.1, counter affidavit has been filed. In paragraph no. 5 of the counter affidavit, there is mention of as many as five complaints received against the 4 petitioner. In paragraph no.6, the following averments have been made:-
"6. That, all these complaint were sent to Central Council of Homoeopathy (CCH), but CCH till date neither carried out the detailed inspection of the college nor submitted any recommendation to the Answering Respondent except but sending its routine inspection reports without specifying the status of 14 requirements of infrastructure namely teachers, running hospital etc. as brought out in the para No.24 of this reply."
8. The main ground taken in the counter affidavit by the respondent no.1 is that the action had been taken by the respondent no.1 in view of its powers contained in sub-section (4) of Section 19 of the Act.
9. Separate counter affidavit has been filed on behalf of the respondent no.3-Central Council of Homoeopathy, New Delhi. In paragraph no.2, the following averments have been made:-
" 2. That the contents of para no. 4 of the petition do not concern the 3rd Respondent. However, it is submitted that the Central Council of Homoeopathy has never recommended to Central Government for closing of institution or for stopping of admissions in the petitioner College. The Central Council has, on the other hand, sent its recommendation for inclusion of BHMS Degree of Kumaon University to which the Petitioner College is affiliated all alone for BHMS Course. The Central Council vide letter dated 2.12.2010 recommended for recognition of BHMS qualification of Kumaon University in terms of Section 13 of Homoeopathy Central Council Act w.e.f. December, 2009 till 2014 in the Second Schedule but the Government of India restricted it upto December 2010. A copy of Council's recommendation letter dated 02.12.2010 is marked as Annexure R-1 hereto. The name of Kumaun University, Nainital, Uttarakhand has been included in the Second Schedule of the Homoeopathy Central Council Act by the Government of India vide notification dated 16th June, 2011 and the 5 name of above mentioned University has been included at Sl. No. 33 of the Second Schedule from December, 2009 to December, 2010 only at present alongwith the name of Chandola Homoeopathy Medical College and Hospital, Rudrapur which means Central Council and Central Government (Respondents herein) have been satisfied in accordance to the provisions of Section 17 of Homoeopathy Central Council Act that the said College and University fulfil the required norms for granting qualification. A copy of the said notification is marked as Annexure R-2 hereto."
10. On behalf of the State of Uttarakhand-respondent no.4 separate counter affidavit has been filed. The counter affidavit filed on behalf of the respondent no.4 is not material for adjudication of the controversy involved in the present writ petition, as the pleadings are common in nature in the said counter affidavit.
11. On behalf of the respondent no.1 supplementary counter affidavit has been filed. Along with the same, copies of some documents have been brought on record.
12. On behalf of the petitioners supplementary affidavit has been filed. Along with the affidavit, copy of inquiry report conducted by the Inquiry Officer/Principal, Government P.G. College Rudrapur and sent to the Director (Higher Education) Uttarakhand, Haldwani dated 4-2-2012 has been annexed.
13. I have heard learned counsel for the parties and have perused the entire material placed before this Court including the counter affidavits as well as supplementary affidavit of the petitioner and supplementary counter affidavit filed on behalf of the respondent no.1.
14. Learned counsel appearing on behalf of the petitioners Mr. U.K.Uniyal, Senior Advocate, assisted by Mr. Vipul Sharma, 6 Advocate, has vehemently contended that the impughed order that the show cause notice issued to the petitioner no.2 inter alia refers to the provisions Section 19 of the Act, which deals with the withdrawal of recognition but no inquiry as contemplated under Section 19 was ever conducted by the Central Council of Homoeopathy. Therefore, the impugned order as passed by the respondent no.1 is arbitrary and without any authority of law.
15. Mr. V.B.S. Negi, learned Assistant Solicitor General of India appearing on behalf of the Union of India has on the other hand submitted that sub-section (4) of Section 19 of the Act empowers the Central Government to make inquiry as it may think fit and the impugned order has been passed by the Central Government in conformity with the provisions of the Act.
16. The short controversy to be resolved in this writ petition is whether the order impugned passed by the respondent no.1 is without jurisdiction or without any authority of law or against the provisions of Section 19 of the Act.
17. It is pertinent to mention here that a new Chapter II-A has been inserted to the Act by the Homoeopathy Central Council (Amendment)Act, 2002 thereby new Section 12-A and Section 25- A have been added to the Act and Section 33 of the Act has been amended. Amended Section 12-A of the Act deals with permission for establishment of new medical institution, new course of study, etc. In the case at hand, neither the matter of permission for establishment of new medical institution is involved nor there is a case of new course of study, therefore, the provisions of Section 12- A of the Act are not at all attracted to the case at hand.
18. For a just decision of the case, a reference to Section 19 of the Act which deals with withdrawal of recognition is necessary:-
7"19. (1) When upon report by the inspector or the visitor it appears to the Central Council-
(a) that the courses of study and examination to be undergone in or the proficiency required from candidates at any examination held by any University, Board or medical institution, or
(b) that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University, Board or medical institution or in any college or other institution affiliated to the University, do not conform to the standard prescribed by the Central Council, the Central Council shall make a representation to that effect to the Central Government, (2) After considering such representation, the Central Government may send it to the Government of the State in which the University, Board or medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the University, Board or medical institution with an intimation of the period within which the University, Board or medical institution may submit its explanation to the State Government.
(3) On the receipt of the explanation or where no explanation is submitted within the period fixed then on the expiry of that period the State Government shall make its recommendations to the Central Government.
(4) The Central Government after making such further inquiry, if any, as it may think fit, may, by notification in the Official Gazette, direct that an entry shall be made in the Second Schedule against the said medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date or that the said medical qualification if granted to students of a specified college or institution affiliated to any University shall be recognised medical qualification only when granted before a specified date or as the case may be, that the said medical qualification shall be recognised medical qualification in 8 relation to a specified college or institution affiliated to any University only when granted after a specified date."
19. I have perused the impugned order dated 22nd July, 2011. The opening paragraph no.1 thereof reads as under:-
"WHEREAS, the Department of AYUSH had received complaints from various quarters about Chandola Homoeopathic Medical College and Hospital, Rudrapur, Uttarakhand regarding insufficient infrastructure and staffing for teaching and practical training to the students of the college. The Central Government, after considering the persistent complaints against the college, decided to get a surprise inspection of the college. Accordingly, a Central Team comprising Dr. Manoj Nesari, Jt. Advisor (Ay.) and Dr. S.N.Sahu, Deputy Adviser (Homoeo) was constituted to verify the functioning of the college and Homoeopathic Hospital and availability of the requisite infrastructure, staff and clinical material as per Homoeopathy (MSE Regulations 1983), vide department's letter of even No. dated 12.05.2011."
20. Section 17 of the Act deals with Inspectors at examinations and Section 18 deals with the Visitors to be appointed by the Homoeopathy Central Council to inspect any medical college, hospital or other institution for the purpose of recommending to the Central Government recognition of medical qualifications granted by that University, Board or medical institution.
21. I have pondered over the matter and I am of the considered view that the provisions of Section 19 of the Act are attracted only when upon report by the inspector or the visitor it appears to the Central Council that the courses of study and examination to be undergone in or the proficiency required from candidates at any examination held by any University, Board or medical institution or that the staff, equipment, accommodation, training and other facilities for instruction and training provided in the said University, Board or medical institution or in any college 9 or other institution affiliated to the University do not conform to the standard prescribed by the Central Council, the Central Council shall make a representation to that effect to the Central Government. Thus, it is obvious that there must be report by the inspector or the visitor appointed by the Homoeopathy Central Council on the above mentioned matters followed by the representation made by the Central Council to the Central Government for any action being taken by the Central Government under Section 19 of the Act. Moreover, sub-section (2) of the Act makes it clear that after considering such representation made to the Central Government by the Central Council as envisaged by sub- section (1) of Section 19 of the Act, the Central Government may send it to the Government of the State where the medical institution is situated and thereafter the State Government is under obligation to forward it to the University, Board or the medical institution concerned with an intimation of the period within which the medical institution may submit its explanation to the State Government as prescribed under sub-section (2) of Section 19. Sub-section (3) provides that on receipt of the explanation or where no explanation is submitted with the stipulated period, then on expiry of that period the State Government shall make its recommendations to the Central Government.
22. In the case at hand, admittedly, the mandatory procedure as laid down under sub-sections (1), (2) and (3) of Section 19 of the Act is entirely lacking. Sub-section (4) of Section 19 provides that the Central Government after making such further inquiry, if any, as it may think fit, may, by notification in the Official Gazette, direct that an entry shall be made in the Second Schedule against the said medical qualification as mentioned in sub-section (4). Sub-section (4) of Section 19 cannot be read in isolation. It would be read along with sub-sections (1), (2) and (3) of Section 19 of the Act. In the case at hand, the impugned order has been passed without following the provisions of Section 19 of the Act and the procedure mentioned therein.
1023. Besides above, it is further pertinent to mention that Section 19 of the Act does not deal with stopping of admission to any course for any academic session.
24. It also finds place to mention here that this Court while granting interim order dated 28-7-2011 has observed in the order that the procedure contemplated under Section 19 of the Act has been given a go bye and that Regulation 3 read with Regulation 6 of the Homoeopathy Regulation 1983 does not provide any provision for stopping the admission.
25. Having considered the submission made by the learned counsel for the petitioners as well as learned counsel appearing on behalf of the Union of India and in view of the discussion made in the foregoing paragraphs, this Court is of the considered view that in the case at hand, the procedure as contemplated under Section 19 of the Act has been clearly ignored while passing the impugned order, therefore, the impugned order dated 22-7-2011 (Annexure No.1 to the writ petition) cannot be sustained in the eye of law. The writ petition, therefore, deserves to be allowed outright.
26. The writ petition is allowed. The impugned order dated 22nd July, 2011 passed by the respondent no.1 (Annexure No.1 to the writ petition) is set aside. However, the respondent no.3- Homoeopathy Central Council would be at liberty to proceed in accordance with law against the petitioner-institution if cause of action arises, if so advised.
All pending applications stand disposed of.
(B.S.Verma, J.) RCP