IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.51249/2017 & W.P.Nos.18963 – 19007/2019 (EDN-REG – P) BETWEEN :
SRI KRISHNARAJENDRA CHARITABLE TRUST’S INDIAN INSTITUTE OF AYURVEDIC MEDICINE AND RESEARCH, BANGALORE PALACE COMPOUND, JAYAMAHAL ROAD, OPP: DARGA, BENGALURU-560006 REP BY ITS CHAIRMAN, SRI L.K.RAJU, S/O LATE B.V.MUNIRAJU, AGED ABOUT 75 YEARS ...PETITIONER (BY SRI ASHOK HARANAHALLI, SENIOR ADV. FOR 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 DIRECTORATE OF AYUSH, DHANAVANTRI ROAD, BENGALURU-560009 REP BY ITS DIRECTOR 5. KARNATAKA EXAMINATION AUTHORITY SAMPIGE ROAD, 18TH CROSS, MALLESHWARAM, BENGALURU-560012 REP BY ITS EXECUTIVE DIRECTOR 6. Ms. PANKAJA S., D/O SUPUTHRAPPA C., AGE: 18 YEARS.
7. Ms. MANA SANJARI PARIZI D/O YAHYA, AGE: 37 YEARS.
8. Ms. CHAITHANYA K., D/O KESHAVAMURTHY N., AGE 19 YEARS.
9. Ms. SOMAVARAPU RECHAL PARIMALA VEENA, D/O SOMAVARAPU VENKATE RAMANA AGE 21 YEARS.
10. Ms. DIVYA T.N.
D/O NAGARAJU T.A., AGE 19 YEARS.
11. Mr. SHRENIK S. JAIN, S/O SHIVA KUMAR S., AGE 19 YEARS.
12. Mr. MANU GOWDA H.N.
S/O NARASIMHA MURTHY H.C., AGE 19 YEARS.
13. Mr. ZAVID KHAN S/O MOHAMAD HANEEF AGE 23 YEARS.
14. Mr. MAZHARUL ISLAM KHAN S/O ABDUL MANNAM, AGE 30 YEARS.
15. Mr. MADIHA KOUSER R., D/O MOHAMMED RIYAZULLA, AGE 20 YEARS.
16. Ms. BHASKARA S.
S/O SOMASHEKAR, AGE 19 YEARS.
17. Mr. CHATE ARJUN SHIVAJIRAO S/O SHIVAJI PANDHARINATH CHATE AGE 19 YEARS.
18. Mr. RAHUL SHARMA, S/O TRILOK CHAND, AGE 20 YEARS.
19. Ms. SHAZIYA AKHIL TAJ, D/O NOOR AHMED SHARIFF, AGE 18 YEARS.
20. Ms. APARNA R.T., D/O RAVEENDRAN B., AGE 20 YEARS.
21. Ms. AMITA CHAUDHARY D/O ASHOK KUMAR, AGE 18 YEARS.
22. Mr. RAJESH KUMAR S/O VEER SINGH, AGE 20 YEARS.
23. Ms. GHULE RENUKA D/O GHULE RAJAPPA, AGE 20 YEARS.
24. Ms. POOJITHA K., D/O KRISHNA RAJU V., AGE 19 YEARS.
25. Ms. PREETHI R., D/O RANGARAJU T., AGE 18 YEARS.
26. Mr. MOHD KAIF S/O ABRAR AHMAD, AGE 21 YEARS 27. Mr. VINAY KUMAR S/O SHANKAR PATTEGAR, AGE 20 YEARS.
28. Mr. NOUSHAD ALI S/O MOHD JAAN, AGE 19 YEARS.
29. Ms. FIRDUSI RAHMAN, D/O MIJANUR RAHMAN, AGE 19 YEARS.
30. Mr. MOHAMMAED IZHAR ALI, S/O SHAM SUDDIN KHAN, AGE 18 YEARS.
31. Mr. AMBALIYA DHRUVINKUMAR JAGADISHABHAI S/O JAGADISH BHAI AMBALIYA AGE 18 YEARS.
32. Ms. PANTHULA SINDHUJA D/O PANTHULA RAVINDRA KUMAR AGE 21 YEARS.
33. Mr. JABED AKHTAR S/O MD MAHSIN ALI AHMED AGE 20 YEARS.
34. Mr. ALSAIHF ALI, S/O AKBAR ALI, AGE 20 YEARS.
35. Mr. AVANEEP KUMAR SINGH S/O DEVI PRASAD SINGH, AGE 19 YEARS.
36. Ms. RAJANI GAUTAM, D/O HARISH CHANDRA GAUTAM, AGE 20 YEARS.
37. Ms. KM AANCHAL GAUR D/O RAM NARESH GAUR AGE 22 YEARS.
38. Ms. KM RAJKUMARI MAURYA D/O PARIKRAMA PRASAD MAURYA AGE 27 YEARS.
39. Mr. ANIL SUNDARESAN MK S/O P.K.KUMARAM, AGE 41 YEARS.
40. Mr. NITISH KUMAR S/O JAHID HUSAIN, AGE 22 YEARS.
41. Mr. ABDUL KHALID S/O JAHID HUSAIN, AGE 21 YEARS.
42. Mr. PRANKUR KUMAR S/O VIJAY PRAKASH SINGH, AGE 22 YEARS.
43. Mr. PEYUSH KUMAR VARMA S/O BHOLA PRASAD, AGE 20 YEARS.
44. Ms. RITU SHREE DAS, D/O DIPAK DAS, AGE 22 YEARS.
45. Mr. MANI GUPTA, S/O MANOJ KUMAR, AGE 19 YEARS.
46. Mr. SALAHUDDEEN AHAMAD S/O MOHAMMAD VAKEER AGE 19 YEARS.
47. Mr. RISHABH SAXENA S/O SURESH CHANDRA SAXENA AGE 20 YEARS.
48. Mr. SHAHRUZ ZAMAN MONDAL S/O SOBUR UDDIN MONDAL AGE 21 YEARS.
49. Ms. DASARI SUSHMITHA D/O DASARAI PRABHAKAR AGE 17 YEARS.
50. Ms. MAHPARA AZAD D/O ABDUL KALAM AZAD, AGE 20 YEARS.
RESPONDENTS No.6 TO 50 ARESTUDENTS STUDYING IN 1ST BAMS (2017-18) IN SRI KRISHNARAJENDRA CHARITABLE TRUST’S INDIAN INSTITUTE OF AYURVEDIC MEDICINE AND RESEARCH BANGALORE PALACE COMPOUND, JAYAMAHAL ROAD, OPP: DARGA BENGALURU-560006.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 30.07.2018) …RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R-1; SMT.MANSI KUMAR, ADV. FOR R-2; SRI N.K.RAMESH, ADV. FOR R-3 & R-5;
SMT.PRAMODHINI KISHAN, AGA FOR R-4; SRI ANAND KUMAR M., ADV. FOR R-6 TO R-50.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 13.10.2017 ISSUED BY THE R-1 VIDE ANNEXURE-P AND ETC.
THESE PETITIONS COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has challenged the orders dated 12.01.2017 and 13.10.2017 only to the extent of withdrawal of earlier permission granted for a period not exceeding 5 years from the academic session 2014-15 to the academic session 2018-19 with the intake of 45 seats as per letter dated 11.08.2014 and for other consequential reliefs, issued by respondent No.1 at Annexures-J and P respectively.
2. The petitioner is an Education Trust running the Ayurvedic Medical Institution with the permission of the State Government, affiliated to the respondent No.3 University. The Central Council for Indian Medicine (‘CCIM’ for short) has notified the Indian Medicine Central Council (Minimum Standard of Requirements of Ayurveda Colleges and Attached Hospitals) Regulation of 2012 (‘Regulations 2012’ for short). Under the said Regulations, the Central Government had granted permission to the petitioner institution for a period of 5 years vide order dated 11.08.2014 from Academic Year 2114-15 till the Academic Year 2018-19 to the effect that the institution would not be inspected except for random checks on receipt of any complaint or otherwise as deemed necessary either by the Central Government or by the CCIM as specified in Sub-Regulation (2) of Regulation 3 of the Regulations of 2012. It transpires that for the academic year 2015-16, the petitioner institution with a desire to increase the intake capacity of Bachelor of Ayurvedic Medical Science (BAMS) seats from 45 to 60, had made an application to the Central Government by submitting the scheme. The CCIM, an expert body had conducted an inspection of the institution to verify the minimum standard requirements for increase in intake from 45 to 60 seats. It appears, the Central Government had constituted a Surprise Inspection Team and conducted a surprise inspection on 29.10.2015. In furtherance, the Central Government had issued a show cause notice dated 10.02.2016 to the petitioner under Section 13(A) of the Indian Medical Council Act 1970 (‘IMCC Act’ for short), which culminated in the order withdrawing the earlier permission granted on 11.8.2014 for a period of 5 years and granted conditional permission to conduct BAMS course for the academic year 2016-17. The respondent No.3 University also had conducted an inspection on 02.03.2017 for consideration of grant of continuation of affiliation to the petitioner institution for the Academic Year 2017-2018 and had recommended for grant of continuation of affiliation to the petitioner institution. The State Government also had conducted an inspection of the petitioner institution on 22.4.2017 and had recommended for the increase of intake capacity of the institution.
3. It is the grievance of the petitioner that the Central Government having conducted a surprise visit arbitrarily, had noted several deficiencies and passed the order impugned refusing permission to the petitioner institution to conduct the BAMS course for the Academic Year 2017-18 under Section 13(C) of the IMCC Act. Hence, these writ petitions.
4. Learned Senior counsel Sri.Ashok Haranahalli appearing for the petitioner submitted that the issue involved herein is squarely covered by the judgment of the Hon'ble Apex Court in the case of The Temple of Hanemann Homeopathic Medical College and Hospital Vs. Union of India and others (Civil Appeal No.6734/2018 (D.D.17.7.2018)). It was argued that the provisions of IMCC Act are in pari materia with the provisions of the Homeopathy Central Council Act 1973 (‘Act 1973’ for short) which was the subject matter of the case, supra. The Hon'ble Apex Court has categorically declared that Homeopathy Central Council (Minimum Standards Requirement of Homeopathy Colleges and attached Hospitals) Regulations, 2013 (‘Regulations, 2013’ for short) contemplates that inspection has to be made by a team to be appointed by the Central Council of Homeopathy (CCH). A team of inspectors or visitors as the case may be, can be appointed by CCH under Sections 17 or 18 of the Act. However, after an inspection is made, action has to be taken on the basis of the report as provided under the Act and the regulations made by the Central Government on the basis of the recommendation made by the CCH. The copies of the order dated 13.3.2018 passed by the Division Bench of the Hon’ble High Court of Judicature at Patna in LPA No.1610/2017, the order of the learned Single Judge dated 28.6.2017 in CWJC No.19681 of 2016 and the learned Single Judge order dated 12.12.2017 in CWJC No.16589/17 are placed on record.
5. The learned Senior counsel submitted that the permission granted in terms of the order dated 11.8.2014 for a period not exceeding five years from the Academic Years 2014-15 to the Academic Years 2018-19 with 45 UG seats has been withdrawn and conditional permission was granted for conducting UG (BAMS) with 45 seats under Section 13-C/13-E of the IMCC Act for the academic session 2016-2017 with certain conditions which is in pari materia with Regulation 3(5) of the Regulations, 2013 considered and analysed by the Hon'ble Apex Court in the case of Temple of Hanemann, supra. Regulation 3(2)(a) of Indian Medicine Central Council (Requirements of Minimum Standard for under-graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016 (‘Regulations 2016’ for short) has been referred to. In the light of the said judgment, the inspection conducted by the surprise team appointed by the Central Government lacks competency and the final decision taken by the Central Government based on such Surprise Inspection Team is wholly illegal and deserves to be set aside. It was argued that by virtue of the interim order granted by this Court on 20.11.2017, clarified further on 19.3.2018, 45 students of the petitioner institution have taken the examinations relating to the year 2017-18 in BAMS course and their admissions/course study has to be approved by the respondent Nos.1 to 4.
6. Learned counsel Sri. M.N.Kumar, appearing for the respondent No.1 Central Government argued that Chapter-II (A) of the IMCC Act deals with permission for new medical college, course etc., whereas Chapter-III deals with the recognition of medical qualifications. Permission for new medical college is accorded in terms of Section 13(A) of the IMCC Act and the recognition of medical qualifications granted by certain Medical Institutions in India is made under Chapter-III. Inspectors at examinations, visitors at examinations and withdrawal of recognition found at Sections 19, 20 and 21 refers to the recognition of medical qualifications contemplated under chapter III and the said sections are not applicable to the provisions dealing with permission for new medical college, course etc., as provided under chapter II(A). Learned counsel argued that these two provisions viz., permission and recognition are different and distinct. There is complete demarcation between the two aspects. In the absence of any provision relating to inspection at the time of granting permission, invoking Section 13(A) of the IMCC Act, the Central Government is the Authority empowered to exercise such powers of inspection appointing its own team. Section 21 of the General Clauses Act, 1959 was referred to, inasmuch as the source of power for withdrawing the permission granted earlier. It was submitted that Central Council of Indian Medicine as well as the Central Government exercised the concurrent jurisdiction. Thus the learned counsel made an endeavour to distinguish the judgment of the Hon'ble Apex Court referred to supra, to put forth his contention that the orders impugned are in accordance with law and the same do not call for any interference by this court.
7. I have heard the learned counsel appearing for the respective parties and perused the material on record.
8. Para No.4 of the order dated 11.8.2014 at annexure-A reads thus:
“ It has, therefore, been decided by the Central Government to grant permission under Section 13C/13A of the IMCC Act, 1970 for a period not exceeding five years to Sri.Krishnarajendra Charitable Trust’s, Indian Institute of Ayurvedic Medicine and Research, Bangalore Palace Compound, Jayamahal Road, J.C.Nagar, Bangalore, Karnataka, with 45 seats in UG (BAMS) course from the academic session 2014-15 to the academic session 2018-19, during which the college shall not be inspected, except for random checks on receipt of any complaint, or otherwise as deemed necessary either by the Central Government or by the Central Council of Indian Medicine as specified in Sub-Regulation (2) of Regulation 3 of the Regulations namely the “Indian Medicine Central Council (Minimum Standard Requirements of Ayurveda Colleges and attached Hospitals) Regulations, 2012” read with amendment Regulations, 2013.”
9. The surprise visit was made by the inspection team/investigating committee appointed by the Ministry of Ayush vide order dated 21.10.2015 and on the basis of the report said to have been submitted by the said inspection team/investigating committee, the order impugned at Annexures-J and P dated 12.1.2017 and 13.10.2017 have been passed. Now the main thrust of the controversy is:
1. Whether the inspection team/investigating committee appointed by the Central Government is competent to conduct the inspection in terms of Section 13-A of the IMCC Act?
2. Whether the decision taken by the Central Government based on such report of the inspection team/investigating committee is valid in the eye of law?
10. The questions involved herein are no more res integra in view of the ruling of the Hon'ble Apex Court in the case of Temple of Hanemann Homeopathic Medical College and Hospital, supra. Indisputably, the provisions of IMCC Act as well as Act 1973 are in pari materia. Section 12-A of the Act 1973 contemplates permission for establishment of new Medical Institution, new course of study etc., which comes under Chapter II(A) relating to permission for establishment of new Medical Institution, new course of study etc., whereas, Chapter III deals with recognition of medical qualifications. Sections 17, 18 and 19 deals with inspectors at examinations, visitors at examinations, withdrawal of recognition. The said provisions are identical to the provisions of IMCC Act 1970.
11. The facts of the case as culled out in paragraphs 6 to 9 of the order of the Hon’ble High Court of Judicature at Patna in LPA No.1610/2017 reads thus:
“ 6. It is the case of the writ petitioner that the College in question was established in the year 1967 and since then it has been imparting education in Homoeopathy Science to the students. The Bihar State Board of Homoeopathy granted recognition to the petitioner’s college vide Annexure 1 dated Patna High Court LPA No.1610 of 2017 dt. 13- 03-2018 10.04.1973 to the writ application. Later on the petitioner’s college was granted statutory affiliation by the B.R.Ambedkar Bihar University, Muzaffarpur vide Annexure-2 to the writ application. It is shown from Annexure-3 that the Central Council of Homoeopathy had granted recognition to the petitioner’s College vide a notification dated 13.03.1995. The petitioner was allowed to admit 50 students for imparting education for B.H.M.S. Course. The petitioner claims that for each academic session thereafter it has been getting permission from the respondents authorities for admitting 50 students in the said College and was regularly inspected by the Central Council of Homeopathy for continuation of permission.
7. The further case of the writ petitioner is that as per the provisions contained in the Homoeopathy Central Council Act 1973 (hereinafter referred to as the "HCC Act") and the provisions as contained in Homeopathy Central Council (Minimum Standard Requirement of Homeopathy Colleges and attached Hospitals) Regulation, 2013 (hereinafter referred to as the "HCC (MSR) Regulation, 2013"), the College was inspected by the Central Council of Homeopathy (in short the "CCH") on 16.05.2016, pursuant thereto a report was submitted to the Central Government and there is absolutely nothing Patna High Court LPA No.1610 of 2017 dt. 13- 03-2018 negative in the report of the CCH with respect to the petitioner’s College. Attempt has been made to show from Annexure-5 to the writ petition that in the report submitted by CCH, there is a remark column and in case of anything negative having been found in the inspection, then, the remark column should have mentioned/recorded the same but in this case, because there was no adverse finding, no such mention was made in the report.
8. The petitioner further states that on 24.08.2016 a team of Ayush made a surprise inspection to the petitioner’s College despite the fact that they had no authority under any law, rules or regulations to make an inspection of a Homoeopathy College which is wholly and solely vested with the Homoeopathy Council and yet despite the positive report of the CCH the Ministry of Ayush made a surprise visit of the College brushing aside the statutory recommendations of the CCH. According to the petitioner’s College on the said date several faculties member of the College were not present at the College because they had been appointed as external examiner and were sent to other Colleges/Centres for taking practical and other examinations. Petitioner’s College received a hearing notice dated 07.10.2016 calling upon the petitioner to report for Patna High Court LPA No.1610 of 2017 dt. 13-03- 2018 hearing on 14.10.2016, but because the said notice was not recommended within the date mentioned in the notice, another date, i.e., 24.10.2016 was fixed for hearing.
9. The petitioner further submitted in the writ application that on 24.10.2016, the petitioner appeared before the hearing committee and submitted its written submissions explaining therein the total number of patients in the OPD register and also highlighted the fact that there is indoor patients department as well comprising Wards, O.T., Labour Rooms etc. as prescribed under the HCC(MSR) 2013 Regulation. The petitioner claims to have provided the list of non- teaching staff as well as the hospital staffs to the hearing committee. It is, however, the grievance of the petitioner that a letter dated 08.11.2016 (Annexure 11 to the Writ Petition) was issued to the petitioner without considering the written submissions made on their behalf and by the letter dated 08.11.2016 the petitioner was denied permission for admitting 50 students for the academic year 2016-2017.”
12. The said Letters Patent appeals filed against the order of the writ Court were allowed and the judgment and order passed by the Hon’ble writ Court, the subject matters of the Letters Patent appeals were set aside, whereby it was held that the decision of the Central Government cannot be faulted with, if the Central Government deem it necessary may conduct an inspection. The said decision was the subject matter of appeal before the Hon'ble Apex Court in the case of Temple of Hanemann Homeopathic Medical College and Hospital, supra. The Hon'ble Apex Court analyzing Regulation 3(5) of the Regulations, 2013 observed thus:
“Regulation 3(5) of the 2013 Regulations envisages random checks to be ordered on receipt of a complaint or otherwise as deemed necessary either by the Central Government or by the CCH. In case, CCH or Central Government receives any complaint, random checks can be ordered, but the regulations stop at that. It does not deal with the aspect who will appoint a team of inspectors for the purpose of inspection to be carried out. In our considered opinion, it is only the Central Council which is empowered to appoint a team of inspectors under Section 17 and visitors for the examination under Section 18 for making recommendation to the Central Government on the basis of report submitted by the team of inspectors or visitors as envisaged under Sections 17 and 18 of the Act.
Regulation 3(5) of Regulations of 2013 has to be harmoniously interpreted with the provisions of section 17 of the Act not repugnant thereto. The provision of section 17 is not capable of interpretation empowering the Central Government to appoint a team of inspectors at all. Thus, the power conferred under section 17 has to be exercised only by the CCH. Any other interpretation would be against the legislative mandate. The regulations have to be subservient to the provisions of the Act. No other provision could be pointed out under which the Act may have conferred the power upon the Central Government to appoint a team of Medical Inspectors.
Thus, the Division Bench of the High Court has clearly erred in holding that the power to appoint the Inspectors is with the Central Government while interpreting Regulation 3(5) of the Regulations, 2013. The Central Government cannot appoint a team of Inspectors as this power has not been conferred upon the Central Government either under the said Regulation 3 (5) or any of provisions contained in the Act. It is only CCH which can appoint a team of inspectors as per Section 17 if the request is made by the Central Government under Regulation 3(5).
In our opinion, though Central Government on a complaint or otherwise, as contemplated under Regulation 3(5) of the Regulations, 2013 may cause inspection would mean only that inspection to be made by a team to be appointed by CCH. A team of inspectors or visitors as the case may be, can be appointed by CCH under Section 17 or 18 of the Act. However, after an inspection is made, action has to be taken on the basis of the report as provided under the Act and the Regulations by the Central Government on the basis of the recommendation made by the CCH.”
13. In view of the aforesaid decision, the arguments of the learned counsel for the respondent No.1 Central Government has to be negated. Hence, the inspection team/investigating committee appointed by the Ministry of Ayush is not competent to conduct inspection. It is the Central Council which is empowered to appoint the team of inspectors or visitors, as the case may be, whether regarding permission or recognition as contemplated under Chapters II and III of the IMCC Act 1970. The impugned orders based on such reports are unsustainable.
14. It is significant to note that by virtue of the interim order passed by this Court on 20.11.2017 the respondent Nos.6 to 50 were permitted to pursue their course in UG (BAMS) relating to the Academic Year 2017-18 which has been complied with. Hence, the following:
ORDER (i) Operation of the impugned order dated 12.01.2017 at Annexure-J and 13.10.2017 at Annexure-P issued by the respondent No.1, only to the extent of withdrawal of the earlier permission granted for a period not exceeding five years from the academic session 2014-
15 to the academic session 2018-19 with 45 seats in terms of the letter dated 11.08.2014 are quashed.
(ii) The respondent Nos.1 to 4 are directed to accord/grant permission to the petitioner-institution for the academic year 2017-18.
(iii) The official respondents shall allow/permit the students/respondent Nos.6 to 50 to continue their course of UG(BAMS) who had taken examinations pursuant to the interim order passed by this Court on 20.11.2017 relating to the academic year 2017-18 by declaring their results.
Sd/- JUDGE Dvr: