IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION Nos.49519/2018 & 15978 – 16015/2019 (EDN – REG – P) BETWEEN:
HILLSIDE AYURVEDA MEDICAL COLLEGE AND HOSPITAL NO.9, GUBBALALA CROSS RAGHUVANAHALLI, KANAKAPURA MAIN ROAD, BENGALURU-560062 REP. BY ITS SECRETARY Dr. UMESH BABU S/O LATE Dr. S.BHEEMAPPA AGED 40 YEARS ... PETITIONER [BY SRI ABHISHEK MALIPATIL, ADV.] AND:
1. THE UNION OF INDIA MINISTRY OF AYURVEDA, YOGA AND NATUROPATHY UNION SIDDHA AND HOMOEOPATHY (AYUSH) AYUSH BHAWAN, ‘B’ BLOCK, G.P.O. COMPLEX, INA, NEW DELHI-110023 REP. BY ITS SECRETARY/SPECIAL SECRETARY 2. THE CENTRAL COUNCIL OF INDIAN MEDICINE 61-65, INDUSTRIAL AREA JANAKAPURI, NEW DELHI-110058 REP. BY ITS SECRETARY 3. THE RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES 4TH T BLOCK, JAYANAGAR BENGALURU-560041 REP. BY ITS REGISTRAR 4. THE STATE OF KARNATAKA DIRECTOR OF AYUSH DHANAVANTRI ROAD BENGALURU-560009 REP. BY ITS DIRECTOR …RESPONDENTS [BY SRI C.SHASHIKANTHA, ASG FOR R-1; SMT.MANASI KUMAR, ADV. FOR R-2;
SRI N.K.RAMESH, ADV. FOR R-3; SMT.PRAMODHINI KISHAN, AGA FOR R-4.] THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 29.09.2018 PASSED BY R-1 AT ANNEXURE-A.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has assailed the order dated 29.09.2018 passed by respondent No.1, inter alia, seeking for a direction to respondent No.1 to accord/grant conditional permission to the petitioner – institution to conduct UG – BAMS Course for the academic session 2018-19 with an intake capacity of 50 seats.
2. The petitioner is claiming to be an Ayurvedic Medical College, imparting education in the under- graduate course of BAMS and was established by the ‘Bheemachandra Education Trust’ in the year 1996 and has since been running the institution without any interruption.
3. The petitioner herein is aggrieved by the order dated 29.09.2018 passed by respondent No.1 – Central Government, denying permission for taking admission to the UG (BAMS) Course with 50 seats for the academic year 2018-19; under Section 13(c) of the Indian Medicine Central Council Act, 1970 (‘IMCC Act’ for short), for the academic session 2018-19, despite having accepted all the submissions/documents placed before the Hearing Committee and the Hearing Committee having drawn up the proceedings, accepting the submissions and documents produced by the petitioner. The order passed by respondent No.1 impugned herein is without application of mind and is passed arbitrarily after the commencement of the academic sessions 2018-19, on the ground stated at paragraph Nos.5 and 9 of the said order which reads as under:-
“5.WHEREAS, on examining the case in light of above notified & approved criteria and on perusal of visitation report, it was observed that the college was not fulfilling the basic eligibility condition and the following deficiencies were found:
i) Website & URL: www.hillsideacademy.in is available however the details are not found as per sub-regulation (2) of regulation 9 of RMS, 2016 at the time of processing.
ii) Functional Clinical Laboratory, X- Ray, ECG and USG are not available.
iii) Adhaar based Geo location enabled attendance system is not functional for teaching staff, non-teaching staff, hospital staff and PG students as per decision dated 31.01.2018 and policy decision dated 15.06.2018 in place of Biometric Attendance as per sub- regulation (3) of regulation 9 of MSR.
iv) Web based Computerized Central Registration system is not available as per RMS 2016.
9. NOW, THEREFORE, in view of the shortcomings and deficiencies particularly about the non-availability of Functional Clinical Laboratory, X-ray, ECG and USG in the hospital, Web based Computerized Central Registration System and Aadhaar based Geo location enabled attendance system which is installed but is not functioning, which violate the provisions of the IMCC Act and the relevant regulations and is of such a serious and fundamental in nature that they adversely affect the ability of the College to provide quality medical education in terms of the provisions of the IMCC Act and the relevant regulations. Therefore, Hillside Ayurveda Medical College and Hospital, No.174/2, Saldoddi, Kengri Hobli, Agara Village, Bangalore South, Bengaluru, Karnataka, is hereby denied permission for taking admission to BAMS course with 50 UG seats under section 13A of the IMCC Act, 1970 for the academic session 2018-19.”
4. This Court by order dated 05.12.2018, directed respondent No.2 – CCIM to conduct the spot inspection of the petitioner – institution cum hospital on or before 18.12.2018 in respect of the items enlisted in paragraph Nos.5 and 9 of the impugned order dated 29.09.2018 and submit the report thereof, to this Court in a sealed cover on or before 19.12.2018. The CCIM Inspection Team shall also videograph the entire inspection exercise so that the Court also can make its own assessment after witnessing the same. It was further observed that the Spot Inspection Team shall comprise of the members other than those who had done earlier spot inspection in question. Pursuant to the said directions issued by this Court, the inspection was conducted and the report was submitted before this Court in a sealed cover on 19.12.2018. This Court permitted the learned counsel for respondent No.2 to open the envelopes and to make submissions considering the inspection report. The learned counsel for the petitioner was also permitted to look into the said report.
5. The learned Counsel Sri. Abhishek Malipatil appearing for the petitioner would submit that the deficiencies pointed out by the CCIM has been complied with and the same is evident from the observations of the visitors pursuant to the inspection conducted on 13.12.2018 and the copy of the said observations by the visitors/inspection team is placed on record. The learned counsel placed reliance on the judgment of the Division Bench of this Court in the case of Central Council of Indian Medicine vs. Union of India and others in W.A.No736/2011 and allied matters dated 31.10.2011 to contend that once permission to continue the course for a particular academic year is granted, it must be concluded that the deficiencies and shortcomings notified with regard to the previous year, have been complied with even in respect of the year for which permission had been withdrawn. Learned counsel argued that in identical circumstances, in W.P.No.51249/2017, this Court has granted interim order permitting the students who were already admitted by the petitioner/institution to prosecute their course of study in the petitioner/institution and the same shall be subject to the result of the writ petition.
6. It was argued that it was obligatory on the part of the respondent No.1 to strictly adhere to the guidelines issued by the Central Government for streamlining the process and timelines for granting/renewal of permissions of ASU & H colleges dated 01.09.2017 whereby the inspection has to be made by CCIM and report has to be submitted by 31st March, 2018 and the decision of the Ministry was required to be taken by 31.05.2018. Hence, inspection conducted on 13.12.2018 and the decision taken as per the order impugned at Annexure – A dated 29.09.2018 is arbitrary and illegal. The same would adversely affect the rights of the petitioner – institution as well as the students who had been admitted to the college which had the recognition and approval for the academic year 2017-18. Learned counsel also submitted that respondent No.1 has passed an order granting conditional recognition to the Government colleges despite non-compliance of the deficiencies pointed out by respondent No.2 and the petitioner is discriminated in this regard.
7. The learned counsel appearing for respondent No.3 - University submits that recognition has to be accorded by respondent No.1 and it is only on the decision to be taken by respondent No.1, the University shall approve the admissions of the students.
8. The learned counsel appearing for respondent No.2 – CCIM supporting the said submission of the learned counsel for the University argued that the compliance of the deficiencies pointed out by the CCIM, if made relating to the academic year 2019-20, the same would not be construed as the compliance for the academic year 2018-19, both being different and distinct. However, it is submitted that the final decision requires to be taken by the authorities – respondent No.1. The reports of the inspection conducted on 13.12.2018 in pursuant to the directions of this Court as well as the inspection conducted on 12.03.2019 relating to the academic year 2019-20 shall be submitted to respondent No.1 to take a decision in the matter.
9. The learned Assistant Solicitor General appearing for respondent No.1 would submit that keeping interest of the students, the writ petitions may be finally disposed of with a direction to respondent No.1 to take an appropriate decision in the matter in accordance with law. Learned Assistant Solicitor General further submits that such a decision shall be taken by respondent No.1 in an expedite manner, provided the inspection reports are submitted by respondent No.2.
10. I have carefully considered the rival submissions made by the learned counsel appearing for the parties and perused the material on record.
11. Having regard to the factual aspects as narrated in the preceding paragraphs inasmuch as the inspection conducted by respondent No.2 – CCIM in pursuant to the directions of this Court as well as the report relating to the academic year 2019-20 conducted, the matter requires consideration by respondent No.1.
12. The report dated 12.03.2019 reads thus:-
“Observation by the visitors:- Dr. Umesh Kumbar(AYUPKO329)-professor in Panchkarma debt. And Dr. Rashma (AYUKS1264) Asst. Professor in Kriya Sharira debt. have left the Institute after submission of part1 DR. Geeta Natikar (AYUAT0290) – Reader in Agada tantra dept. has joined this Institute since 29/12/2018, but her teacher code was unable to linked due to some technical reasons. bio matrix attendance is available Agbas Instrument is available, but not functional. On that day of visitation total 34 teaching staff is registered among those 32 were present and 2 were on informed leave-documents enclosed, 37 non teaching staff is registered all were present and 95 hospital staff is registered including teachers in clinical departments and modern medical staff, all were present.”
13. However, at this juncture the learned counsel for respondent No.2 submitted that the said report is confidential and the petitioner has no right to rely upon the said report. Be that as it may, the said report relating to the academic session 2019-20 cannot be disputed by the learned counsel appearing for respondent No.2 – CCIM.
14. The division bench of this Court in Central Council of Indian Medicine, supra, has observed thus:-
“10. In these circumstances, we are of the opinion that the appeal filed by the Central Council of Indian Medicine is wholly devoid of merit. Firstly, neither the Central Government nor the State Government supports the prayer of the appellant for canceling the admission of several students for the academic year 2009-10. The Appellant is only a recommendatory Body, and the Central Government is fully empowered not to accept its advice. It cannot be overlooked that the cancellation order dated 31.10.2009 has come in the wake of completion of admission for the relevant academic year. Secondly, the appellant is only a recommendatory body and it cannot arraign the Union Government as a respondent, when the Central Government is desirous of complying the mandamus issued by the learned Single Judge. Thirdly, we see no justification for the appellant to issue the far reaching cancellation orders, which has the result of wastage of a valuable year in students’ life, it may jeopardize their future irretrievably. We think that recommendations must be given well in advance, at least on or before the month of June, for the next following academic year. Fourthly, once permission to continue the course for a particular academic year is granted, it must be concluded that the deficiencies and shortcomings notified with regard to the previous year, have been complied with even in respect of the year for which permission had been withdrawn.”
15. It is pointed out that Annexure – N dated 13.12.2018, the report submitted by the CCIM is placed before the Court, but the same has not been made available before respondent No.1, who is the competent authority to take a decision in the matter as regards recognition of the institution is concerned. In addition to this, subsequent report dated 12.03.2019 also requires to be considered by respondent No.1 in the light of the dictum laid by this Court in Central Council of Indian Medicine, supra. Hence, this Court is of the considered opinion that it will be appropriate to direct respondent No.1 to take a decision in the matter in accordance with law keeping in mind the observations made herein above.
16. Accordingly, Annexure – A dated 29.09.2018 is quashed. The respondent No.2 is directed to forward the inspection reports to respondent No.1 forthwith and respondent No.1 shall take a decision on the same, in an expedite manner, preferably within a period of four weeks from the date of receipt of inspection reports from the respondent No.2 in accordance with law. In the meantime, 38 students as provided at Annexure – M to the writ petitions being already admitted by the petitioner – institution are permitted to prosecute the course of study in the petitioner - institution for the first year BAMS course for the academic year 2018-19 and the same shall be subject to the outcome of the decision to be taken by respondent No.1.
17. It is made clear that the petitioner and the students shall not claim any equity in the event any adverse decision is taken by respondent No.1 and the same shall be made known to the students by the petitioner – institution.
18. The Registry shall handover the inspection reports along with the CD/pen drive submitted before this Court to the learned counsel for respondent No.2 in order to comply the orders passed hereinabove.
With the aforesaid observations and directions, the writ petitions stand disposed of.
PMR Sd/- JUDGE