1. Heard learned advocates for the parties and perused the papers on record.
2. The petitioner herein has prayed to direct the respondent no. 1 to annul its decision contained in the order dated 12.07.2012 passed by the Union of India-respondent no. 1 and to further direct respondent no. 1 to grant permission to the petitioner college for admitting the students in the discipline of Ayurvedic Medicine for the current academic year 2012-13.
3. The facts in nutshell giving rise to the present petition are set out as under:
3.1 The petitioner came to be established by Charutar Vidya Mandal in the year 2006 as a self financing institution for the purpose of imparting education in the discipline of Ayurvedic at graduation level and is affiliated to the Gujarat Ayurved University, Jamnagar. Every year, the petitioner has to obtain permission from the Central Government through the department of AYUSH which falls under the Ministry of Health and Family Welfare. Accordingly, the petitioner has been receiving the requisite permission from the said department since 2006.
3.2 However, on 13.04.2012, the petitioner received a show cause notice from the Under Secretary to the Ministry of Health and Family Welfare, Government of India. Vide the said notice, the petitioner was called upon to show cause as to why the petitioner should not be denied the permission to enroll the students for the year 2012-13. The petitioner was also called upon to attend the hearing before the designated Hearing Committee in the department of AYUSH on 24.04.2012.
3.3 The petitioner replied to the show cause notice on 18.04.2012 by explaining in detail with calculation that there was no shortfall in bed occupancy in any of the IPD wards. The petitioner also attended the hearing before the designated Hearing Committee of AYUSH with all relevant documents of IPD wards since the show cause notice was essentially in respect of shortfall in bed occupancy in IPD wards.
3.4 Thereafter, on 14.07.2012, the petitioner received a copy of the order dated 12.07.2012 whereby the permission to enroll the students for the academic year 2012-13 was denied. Being aggrieved by the said order, the present petition is preferred.
4. Mr. DC Dave, learned Senior Counsel appearing with Mr. Jigar Patel for the petitioner institution submitted that the order impugned in the present petition reflects total non application of mind on the part of respondent no. 1 and therefore the same deserves to be quashed and set aside.
4.1 Mr. Dave submitted that the petitioner is one of the most sought after colleges by the students aspiring to study Ayurvedic medicine. The infrastructure and other facilities in the set up of the petitioner are not having a parallel in the State of Gujarat and therefore the Fee Committee approved the fee structure of the petitioner for the current academic year 2012-13 at the highest rate of Rs. 2,25,000/- from that of Rs. 2,05,000/- for the earlier years.
4.2 Mr. Dave submitted that in fact the show cause notice issued by respondent no. 1 was accompanied by a visitation report prepared by Central Council of Indian Medicine, New Delhi respondent no. 2 herein. He had drawn the attention of this Court to the report and submitted that on the contrary in the said report, the bed occupancy at the rate of 87.1% was found as against the minimum requirement of 40%. He submitted that the as per the said report the petitioner was found to have possessed strength of 37 teachers as against the minimum requirement of 32 teachers and 18 senior faculties as against the minimum requirement of 16. Further, in all 190 patients were found to have visited OPD each day as against the minimum requirement of 100 patients. Moreover, the petitioner college was also found to have adequate infrastructure facilities of about 1,69,839.89 sq. ft as against the minimum requirement of 30,500 sq. ft.
4.3 Mr. Dave further submitted that the Hearing Committee went beyond the show cause notice dated 13.04.2012 pursuant to which the impugned order has been passed. He submitted that if the notice is perused it would become clear that the same was issued in connection with so called shortfall of bed occupancy in IPD wards and therefore the petitioner thought it fit to produce the documents of IPD ward only and therefore the documents of OPD ward were not produced. He submitted that the petitioner would have produced the documents of OPD wards though not relevant had it been granted sufficient time. In this connection he has drawn the attention of this Court to paras 2 & 5 of the show cause notice dated 13.04.2012 which read as under:
“2. On examining the same in terms of provisions under the IMCC Act and relevant regulations and approved norms of the CCIM, it is observed that the college is not fulfilling the basic eligibility conditions for obtaining permission for BAMS course which is as under:
(i) In Balroga department in the month of June 01 patient generated 82 bed days in the month of October 07 patient generated 246 bed days.
(ii) In Shalakya Department 05 patient generated 173 bed days.
(iii) In Panchakarma department 07 patient generated 316 bed days.
Aforesaid, figure in respect of bed occupancy in Bal Roga, Shalakya and Panchakarma are very unusual. Thus the date regarding bed occupancy seems to be fabricated and exaggerated.
...
5. It is further directed that you may bring along and submit all possible oral and written submissions with valid documents/records/proof to substantiate your claims against all the deficiencies/shortcomings as indicated above during hearing for evidence/verifications by the Central Government.
i. Similarly, the supporting documents with respect to the deficiency of OPD/IPD may be attendance register of the doctors and hospital staff, the date wise OPD and IPD registers, the case sheets of all the IPD patients, discharge ticket/cards/summary of IPD patients, the lab registers and records of the lab findings, nursing duty registers, IPD medicine dispensing registers, IPD medicine indent registers, IPD diet register, IPD duty rosters of Doctors for the whole concerned year (2011) which may help to assess that the college is having genuinely functional hospital.”
4.4 Mr. Dave further submitted that in the order dated 12.07.2012, at several places, a reference is made about admission by the representative of the petitioner of certain irregularities. The petitioner states that at no point of time, during the course of hearing did the representative of the petitioner admit any so called irregularities. He submitted that in fact in the said order, there is a reference about the recommendations having been made by respondent no. 2 to the central government recommending that the petitioner should be granted a conditional permission for the current academic year 2012-13.
4.5 Mr. Dave submitted that vide reply dated 18.04.2012, the petitioner explained in detail all queries raised by respondent no. 1 in its show cause notice dated 13.04.2012 with calculation as to why the query raised by respondent no. 1 about shortfall in IPD wards was unwarranted.
4.6 Mr. Dave also contended that the finding recorded by the hearing committee to the effect that the number of bed occupancy in the three concerned departments is less than the prescribed norms is absolutely perverse. He submitted that the total patients were 2307 and the bed days were 31804 as referred in the visitation report. Considering the same, even if the so called disputed patients being 20 in number and accordingly the bed occupancy generated by them being 817 are excluded while calculating the overall bed occupancy in the hospital of the petitioner college the bed occupancy would undisputedly come to 84.8%. He has referred to the following table in arriving at the same:
BED OCCUPANCY : 30987 * 100 = 84.8% 100 * 365 Disputed Patients : 20 = 1 + 7 + 5 + 13 Bed Occupancy Generated : 817 = 82 + 246 + 173 + 316 By These 20 Patients
4.7 Mr. Dave contended that respondent no. 1 was not justified in declining the permission to the petitioner college for admitting the students in the first year on the ground of so called deficiency of short fall in bed occupancy in departments namely Bal Roga, Shalakya and Panch Karma which are otherwise related to final year.
4.8 Mr. Dave contended that the initiation of proceedings for inquiring into so called irregularities being committed by the petitioner by respondent no. 1 was unwarranted in view of the visitation report submitted by respondent no. 2 wherein no irregularities were noticed and when in fact it was recommended by respondent no. 2 that the petitioner should be granted the conditional permission to the college for 50 UG seats for the academic year 2012-13. He submitted that in absence of any glaring and compelling reasons, the visitation report prepared by respondent no. 2 ought to have been accepted by respondent no. 1 and the petitioner ought to have been granted permission for admitting the students for the current academic year 2012-13.
5. Mr. P.S. Champaneri, learned advocate appearing for respondent no. 1 has supported the stand of the respondents and submitted that a medical college is duty bound to ensure at all times that the college conforms to the requirements to the Act and the regulations made thereunder and the CCIM norms. He submitted that in view of the fine reading of the show cause notice and the impugned order dated 12.07.2012, it is clear that the petitioner college has not met with the requirements and not fulfilled the requisite criteria for running an Ayurvedic Hospital. He submitted that as per the observations of the Hearing Committee the petitioner college did not have genuine functional teaching hospital having the genuine patient load of 40% IPD bed occupancy.
5.1 Mr. Champaneri submitted that the CCIM had suo motu conducted inspection of the aforesaid college to reassess the available facilities of teaching and practical training as well as to verify the compliance submitted by the college for permission of the Central Government for academic year 2010-11. The Central Government had considered the recommendation of the CCIM and granted conditional permission to the said college for conducting BAMS course with 50 seats for the session 2010-11 subject to rectification of deficiencies stipulated therein vide its letter dated 26.7.2010. He submitted that the college was further informed that the CCIM will inspect the college suo motu in any time between January – February 2011 to verify the compliance in terms of the provisions of the IMCC Act and the relevant regulations and norms of the CCIM.
5.2 Mr. Champaneri submitted that that the CCIM had suo motu conducted inspection of the petitioner college on 30- 31.1.2012 to assess the available facilities of teaching and practical training for conducting UG course and to verify the compliance of shortcomings informed by the Government of India vide letter dated 13.09.2011. The CCIM had recommended for permission to take admissions in BAMS course for the academic session 2012-13. He submitted that on examining the inspection report of the CCIM with regard to sub section 8 of Section 13 A of the IMCC Act and the regulations made thereunder and the norms prescribed for the purpose, it was found that the petitioner college had many shortcomings.
5.3 Mr. Champaneri has drawn the attention of this Court to the observations made by the Hearing Committee against the shortcomings which are as under:
5.4 Mr. Champaneri has further submitted that the rights of the petitioner have not been closed by respondent no. 1 for all time to come. He has drawn attention of this Court to para 10 of the order and submitted that the college has been provided time up to 31.10.2012 to fulfill the shortcomings observed during this academic year so that the CCIM may carry out inspection of the college for consideration of matter for granting permission for undertaking admissions during academic year 2012-13.
5.5 Mr. Champaneri though has not cited any judgments on the subject matter during the course of hearing has relied upon the decisions referred in the affidavit in reply which were perused by this Court.
6. Mr. Nikhil Kariel, learned advocate appearing for respondent no. 2 supported the stand of respondent no. 1. He, however, fairly conceded that insofar as the petitioner college is concerned, the petitioner college was found to have satisfied the criteria laid down for the session 2012-13. Accordingly, CCIM recommended for the grant of conditional permission to the college for the session 2012-13 with intake capacity of 50 students vide lettter dated 28.03.2012.
7. As a result of hearing and perusal of records, certain undisputed facts which emerge from the records are that the petitioner college is regulated by the provisions of Indian Medicine Central Council Act, 1970. Respondent No. 2 is set up under the provisions of the said Act for the purposes of assisting the Central Government in the matters of granting permission to the concerned colleges for admitting the students.
7.1 On 13.04.2012, the petitioner received a show cause notice from the Under Secretary to the Ministry of Health and Family Welfare, Government of India accompanied by a visitation report prepared by respondent no. 2. The petitioner was also called upon to attend the hearing before the designated Hearing Committee in the department of AYUSH.
7.2 Perusing the report of the Hearing Committee, it is borne out that the overall observation of the Hearing Committee was as under:
“In view of the above observations about the hospital data and other inconsistencies as mentioned and as accepted by the college representative during the hearing, it appears to the hearing committee that the teaching hospital of the college does not appear to be a genuinely functional Ayurvedic hospital having the genuine IPD bed occupancy during the period of 01.01.2011 to 31.12.2011.”
7.3 In view of the same, the committee's overall remarks were as under:
“As per observation of the Hearing Committee the aforesaid mentioned college does not have genuine functional teaching hospital having the genuine patient load of 40% IPD bed occupancy.”
7.4 Respondent No. 1 therefore in view of the shortcomings and deficiencies particularly about the non-availability of genuinely functional hospital with genuine patient load of 40% bed occupancy in IPD denied permission to the petitioner college for taking admission to the BAMS course with 50 seats in the academic year 2012-13.
8. The question therefore which remains for this Court to consider is whether the petitioner satisfies all the criteria prescribed by AYUSH for the purpose of getting permission to start a college with regard to strength of teachers, senior faculties and bed occupancy.
9. It shall be relevant to peruse the visitation report prepared by respondent no. 2 wherein the bed occupancy at the rate of 87.1% was found as against the minimum requirement of 40%. As per the said report the petitioner was found to have possessed strength of 37 teachers as against the minimum requirement of 32 teachers and 18 senior faculties as against the minimum requirement of 16. Further, in all 190 patients were found to have visited OPD each day as against the minimum requirement of 100 patients. Moreover, the petitioner college was also found to have adequate infrastructure facilities of about 1,69,839.89 sq. ft as against the minimum requirement of 30,500 sq. ft.
10. In this regard, even if the shortcomings as found by the Hearing Committee are considered, it is to be seen whether the petitioner college still fulfills the criteria as prescribed by AYUSH. The total number of patients admitted from 01st Jan to 31st Dec 2011 in the IPD were 2307. The total number of bed days occupied were 31804. Therefore even if the shortcomings are taken into consideration, the number of patients will be 2287 and the number of bed days occupied shall be 30987. Accordingly, the bed occupancy shall be 84.8% as per formula :
BED OCCUPANCY = Number of Bed days occupied * 100 Total Number of Beds * 365 BED OCCUPANCY = 30987 * 100 = 84.8% 100 * 365 Disputed Patients : 20 = 1 + 7 (Balroga) + 5 (Shalakya) + 7 (Panchkarma) Bed Occupancy Generated : 817 = 82 + 246 (Balroga) + 173 (Shalakya) + 316 (Panchkarma)
11. Therefore, considering the above, it cannot be said that the bed occupancy at the rate of 84.8% is far more in excess than what is required to be maintained as per the rules and norms prescribed by respondent no. 1. Therefore, the main remark and observation by the Hearing Committee that the college does not have genuine functional teaching hospital having genuine patient load of 40% IPD bed occupancy does not have any justification and in fact is contrary to the evidence on record.
12. Moreover, if the order impugned in the present petition is perused minutely, the same does not contain any specific reason as to why the visitation report prepared by respondent no. 2 and recommendations made by it to the respondent no. 1 should not be accepted. Apart from the shortcomings in the three departments, no other discrepancy has been found.
13. Apart from that it is also mentioned that the petitioner college failed to provide complete and relevant documents during the course of hearing. As far as the observations made by hearing committee are concerned, it appears that the same evolve from perusal of original records. The IPD registers were sent to the Under Secretary, Ministry of Health and Family Welfare, Government of India. This is also relevant from the reply dated 18.04.2012 wherein copies of IPD case sheets of all the patients were enclosed.
14. Therefore, considering the above discussion, this court is of the view that the petitioner college is found to have satisfied the criteria laid down for the session 2012-13. The CCIM also recommended grant of conditional permission to the college for the said session with intake capacity of 50 students. In that view of the matter, the impugned order is required to be quashed and set aside.
15. In the premises aforesaid, petition is allowed. The impugned order dated 12.07.2012 passed by respondent no. 1 denying permission to the petitioner college to enroll students in the discipline of Ayurvedic Medicine for the academic year 2012-13 is hereby quashed and set aside. It is clarified that the petitioner shall grant admission to the students subject to rules and availability of seats.
16. After the aforesaid order was dictated, learned counsel for respondent no. 1, Mr. Champaneri has requested for staying this order to enable the respondents to approach the higher forum. This court is not inclined to stay the present order when the impugned order itself is found to be illegal and perverse and this Court cannot allow continuity of such illegality and more particularly when future of several students is at stake. Therefore request is declined. However, it is clarified that the admissions granted pursuant to the present order shall be subject to the order which may be passed in appellate proceedings, if any. Rule is made absolute accordingly with no order as to costs.
(K.S. JHAVERI, J.) Divya//