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Naiminath Ayurvedic Medical College ... vs Union Of India & Ors on 19 February, 2021

Author: Prateek Jalan

Bench: Prateek Jalan

                          $~52
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      W.P.(C) 2341/2021

                                 NAIMINATH AYURVEDIC
                                 MEDICAL COLLEGE HOSPITAL
                                 AND RESEARCH CENTRE                      ..... Petitioner
                                             Through: Mr. Animesh Kumar, Mr. Nishant
                                                       Kumar, Mr. Ambuj Dixit &
                                                       Ms.Utkarsha Sharma, Advocates
                                                            versus
                                 UNION OF INDIA & ORS.                                ..... Respondent
                                               Through:            Mr. Farman Ali, Mr. Syed Husain
                                                                   Adil Taqvi and Mr. Athar Raza
                                                                   Farooquei, Advocates for R-1/UOI
                                                                   Ms. Archana Pathak Dave, Mr.
                                                                   Kumar Prashant & Ms. Vanya
                                                                   Gupta, Advocates for Respondent
                                                                   No. 2/CCIM.

                          CORAM:
                          HON'BLE MR. JUSTICE PRATEEK JALAN

                                              ORDER

% 19.02.2021 The proceedings in the matter have been conducted through hybrid mode (physical and virtual hearing).

CM APPL. 6810/2021 (exemption) Exemption allowed, subject to all just exceptions. The application is disposed of.

W.P.(C) 2341/2021 & CM APPL. 6809/2021 (stay)

1. Issue notice. Mr. Farman Ali, learned counsel, accepts notice on behalf of respondent no. 1/Union of India [hereinafter, "the Union"]. Ms. Signature Not Verified Digitally Signed W.P.(C) 2341/2021 Page 1 of 7 By:SHITU NAGPAL Signing Date:22.02.2021 20:58:56 Archana Pathak Dave, learned counsel, accepts notice on behalf of respondent no. 2/Central Council for Indian Medicine [hereinafter, "CCIM"]. Issue notice to respondent no. 3 by all permissible modes, dasti in addition.

2. The petitioner seeks to establish a new Ayurveda college, and submitted a scheme for this purpose to the Union under Section 13A, Indian Medicine Central Council Act, 1970 on 29.08.2019. Pursuant to an inspection carried out on 17-18.12.2020, the petitioner was granted a letter of intent on 24.12.2020. In accordance with the orders passed by this Court in an earlier round of litigation between the parties, a second inspection was carried out on 22-23.01.2021, for the purpose of deciding whether or not to issue a letter of permission to the petitioner.

3. The Union issued a show cause notice dated 09.02.2021 to the petitioner, a copy whereof is at page 286 of the writ petition. The following deficiencies were enumerated in the show cause notice:

"i. There is no Higher faculty available in the department of Rachana Sharir against the requirement of 02(1P+1R) as per RMS, 2016.

ii. Professor is not available in Rachana Sharir and Kriya Sharir department against the requirement of 01 as per RMS, 2016.

iii. There is no Lower faculty available in the department of Rachana Sharir, Kriya Sharir and Ayurved Samhita & Sidhhant against the requirement of 01 in each as per RMS, 2016.

iv. Only 03 eligible Higher Faculty available in 02 department against the requirement of 06 (1P+1R) in 03 department as per RMS, 2016.

v. Total 03 eligible teachers are available against the requirement of 09 in 03 departments as per RMS, 2016 (UG regulation).

vi. Sanskrit teacher is not available against the requirement of 01 as per RMS, 2016.

vii. The CCIM reported that functional labour room is not available as No deliveries conducted from 1st Jan 2019 to 31st dec.2019.

viii. At least one Specialist doctor or one clinical teacher in each of Kayachikitsa, Panchkarma, Shalya, Shalakya, Prasuti Tantra evam Stri Roga, and Kaumarbhritya are not available as per RMS, 2016. ix. College website is not updated as specified in sub-

regulation (2) of regulation 9 of RMS.

x. Mean availability of essential and general equipments/instruments is 41.6% against the requirement of 100% as per RMS, 2016.

xi. Shortage of 01 consultant in Hospital staff as per RMS, 2016.

xii. Yoga teacher and Biostatistician are not available as per RMS, 2016.

xiii. Quality testing lab is not available as per RMS, 2016."

4. The petitioner submitted a detailed reply on 10.02.2021, and also attended a hearing convened by the Union on the same date. A further representation was also submitted on 11.02.2021. However, by the impugned order dated 17.02.2021, the Union has not accepted the contentions of the petitioner.

5. Mr. Animesh Kumar, learned counsel for the petitioner, submits that the grounds taken against the petitioner in the impugned order are unsustainable, and seeks an interim order permitting the petitioner to participate in the ongoing counselling process and to admit students for the 2020-2021 academic year. He relies upon the order of the Division Bench dated 04.02.2021 in LPA 49/2021, and several interim orders passed by this Court in which this Court has granted interim relief to several institutions following the aforesaid order of the Division Bench.

6. In the aforesaid orders, in consistence with the approach indicated by the Division Bench, this Court has considered the prima facie case in respect of each of the deficiencies pointed out, and come to a conclusion regarding entitlement of the institution to an interim order.

7. With regard to the alleged shortages of faculty, the petitioner's case is similar to many cases in which I have granted interim orders, permitting the institutions concerned to participate in counselling.

8. However, having heard learned counsel for the parties, I am of the view that the petitioner in the present case has failed to make out a prima facie case for grant of an ad interim order, at least in respect of the following deficiencies, which have been found against it:

a. At Serial No. 7 of the table provided in the impugned order [at page 718 of the writ petition], the Union has noted the report of CCIM that a functional labour room is not available, as no deliveries have been conducted from 01.01.2019 to 31.12.2019. The petitioner in response submitted that 730 "procedures" have been performed, which have been verified by the CCIM visitors, and that it has adequate facilities for deliveries to be conducted. However, the petitioner admitted that no deliveries have been conducted at all in the year 2019. This position is sought to be explained on the basis that patients get certain benefits if they use government allopathic hospitals for the purpose of deliveries. The Hearing Committee constituted by the Union came to the conclusion that the failure to show even a single case of delivery in the labour room, although the hospital in question was established since 2016-2017, demonstrated that the labour room was non-

functional. I am unable to come to a prima facie finding in favour of the petitioner on this aspect at this stage. Regulation 10 of the Indian Medicine Central Council (Requirements of Minimum Standard for under-graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016 [hereinafter, "2016 Regulations"] specifies the requirements that must be in place in terms of faculty, infrastructure etc. before an Ayurveda college can be permitted to admit students to its first batch. The first requirement is as follows:

"10. Phase-wise specific requirements of new colleges - (1) An Ayurveda college seeking permission for starting Bachelor of Ayurvedic Medicine and Surgery (Ayurvedacharya) Course under the provisions of section 13A of the Act, shall establish infrastructure and manpower as given below:

(a) Before admission of the first batch of students, the college shall have-

(i) at the time of submission of application, there shall be a fully developed hospital building as specified regulations 4 and 5 with functional Ayurveda hospital prior two years from the date of application, having appropriate number of beds, bed occupancy and Out-Patient Department attendance corresponding to the annual students intake capacity as specified in the sub-regulation (2) of regulation 7;"

(Emphasis supplied) At Serial no. V(2) of Schedule-I, a specific mention is made about the requirement of a labour room with attached toilet and bathroom. Although Mr. Kumar submitted that the existence of a functional labour room is sufficient to meet the requirements of Regulations 10(a)(i), I am of the prima facie view that the Signature Not Verified Digitally Signed W.P.(C) 2341/2021 Page 5 of 7 By:SHITU NAGPAL Signing Date:22.02.2021 20:58:56 requirement is of a functional Ayurveda Hospital, which should be in existence for at least two years before the college is established. Regulation 10(a)(i) refers not just to the existence of physical infrastructure, but also to the infrastructure being utilised, so that the hospital is in a position to support the practical training of medical students studying in the proposed college. The petitioner's argument that patients prefer to get deliveries conducted in government allopathic hospitals itself shows that the petitioner is not in that position. In the admitted factual situation that a basic procedure like a delivery has not been carried out in the whole year, I am unable, at least at this stage, to fault the decision-making process by which the respondents have come to the conclusion that the petitioner does not meet the requirements of the Regulation. b. Deficiency no. 10 enumerated in the impugned order is with regard to availability of essential and general equipment, which is 41.6 % against the requirement of 100% under 2016 Regulations. The requirement in this regard is in Regulation 11, which in itself provides that the hospital must possess at least 90% of the requirement of the machinery, equipment etc. in teaching departments, hospital, laboratories and dissection hall, library, pharmacy and other units of the college. This requirement, particularly as far as equipment is concerned, is spelt out in Schedule-VII to the Regulations. The contention advanced by the petitioner in this connection is that it has the equipment required for conducting the first year of the BAMS course, and would subsequently acquire the equipment for the remaining years. In the Signature Not Verified Digitally Signed W.P.(C) 2341/2021 Page 6 of 7 By:SHITU NAGPAL Signing Date:22.02.2021 20:58:56 impugned order, this contention has not been accepted and I am unable to find any support in the Regulations, to at least return a prima facie finding on this basis. It may be noted that in Regulation 10, a year-wise schedule is laid out for the requirements that the college has to deliver before each successive batch is admitted. No corresponding segregation is apparent from Regulation 11. In these circumstances, at least at this stage, I am of the view that the writ Court must defer to the view taken by the expert regulator that the infrastructure is insufficient to this extent.

9. In coming to this view, I am guided by the principle that the Court will interfere with the views of an expert regulator only in exceptional circumstances, e.g. on grounds of arbitrariness or irrationality. Reference may be made to the judgments of the Supreme Court inter alia in Dental Council of India vs. Subharti K.K.B. Charitable Trust and Anr. (2001) 5 SCC 486 (paragraph 16), and University Grants Commission and Anr. Vs. Neha Anil Bobde (Gadekar) (2013) 10 SCC 519 (paragraph 31).

10. In view of the fact that on these two important factors, I have come to the conclusion that the petitioner cannot be granted an interim order, it is not necessary to examine the remaining deficiencies pointed out in the impugned order at this stage.

11. Counter affidavits be filed within four weeks. Rejoinders thereto, if any, be filed within two weeks thereafter.

12. List on 07.04.2021.

PRATEEK JALAN, J FEBRUARY 19, 2021/„hkaur‟ Signature Not Verified Digitally Signed W.P.(C) 2341/2021 Page 7 of 7 By:SHITU NAGPAL Signing Date:22.02.2021 20:58:56