Swanirbhar Homoeopathic Medical College Sanchalak Mahamandal v. Union Of India
2020-02-19
A.J.SHASTRI, VIKRAM NATH
body2020
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ORDER : ASHUTOSH J. SHASTRI, J. 1. Both these Letters Patent Appeals are arising out of common grievance and raising almost similar issue, and have been requested to be dealt with by a common order. As a result of this, both these Letters Patent Appeals are taken up conjointly. 2. These Letters Patent Appeals under Clause 15 of Letters Patent have been submitted by the Colleges which are being run in the discipline of Homoeopathic as well as Ayurveda. So far as Letters Patent Appeal No.940 of 2019 is concerned, the same is submitted by Swanirbhar Homoeopathic Medical College Sanchalak Mahamandal, Gujarat State. It indicates that permission to run the Homoeopathy College and to get its renewal, a detailed procedure is adopted and there appears to be a consistent delay in deciding and proceeding with the applications. This causes an immense inconvenience in the process of admission. As such a grievance is raised that the applications, submitted by such Homoeopathy Colleges, be decided and disposed of in a timely manner for ensuring seamless imparting of education. To voice out this grievance, it has been submitted that the process of grant of permission and grant of renewal of permission is a detailed procedure starting from application to be submitted at various stages for technical scrutiny, for compliance of technical defects, if any, also evolves a physical inspection then submission of inspection report, defects and deficiency to be removed and if not, a consequential step requires issuance of show cause notice. Thereafter, upon hearing and after compliance of verification, a final decision either to grant or refuse would have to be taken and the authorities not having concluding it in a timely manner, the Swanirbhar Homoeopathic Medical College Sanchalak Mahamandal, Gujarat State was constrained to approach this Court by way of a petition. The petition was numbered as Special Civil Application No.18816 of 2018 and the learned Single Judge though found it a genuine grievance directed that respondent authorities shall adhere to the outer time limit prescribed in the related communication dated 01.09.2017 and the petition came to be disposed of. The only grievance is that the learned Single Judge on perusal of all the relevant rules regarding procedure though having found the grievance justifiable, has not directed to strictly comply by framing a time schedule on the similar pattern of courses for M.B.B.S. and alike.
The only grievance is that the learned Single Judge on perusal of all the relevant rules regarding procedure though having found the grievance justifiable, has not directed to strictly comply by framing a time schedule on the similar pattern of courses for M.B.B.S. and alike. As such, the petition was brought before this Court. 3. Similar is the grievance in Letters Patent Appeal No. 941 of 2019 wherein also the association of self-finance Ayurveda Colleges of Gujarat and several others have approached this Court raising similar issue and requested that a specific time table to be prescribed, so that the application as well as renewal can take place in a scheduled manner. This would remain in the best interest of colleges as well as the students at large. The said petition i.e. Special Civil Application No.18817 of 2018 has also been heard alongwith the earlier one by the learned Single Judge and by common order, on 03.04.2019, both the petitions came to be allowed with a consequential direction which reads as under: “21. In that view of the matter it is directed that the respective respondent authorities in both the petitions shall adhere to the outer time limits prescribed in the communication dated 1.9.2017 for granting/not granting of the permissions/renewal of permissions to the Homoeopathy and Ayurveda Medical Colleges under Section 12A of the HCC Act/Section 13A of IMCC Act and the Regulations made thereunder. 22. The petitions stand allowed to the aforesaid extent.” 4. Both these Letters Patent Appeals under Clause 15 of Letters Patent are filed to the extent that the order of learned Single Judge does not grant the specific reliefs as prayed for by the appellants in the main writ petitions and qua that the present Letters Patent Appeals have been brought before us. 5.
Both these Letters Patent Appeals under Clause 15 of Letters Patent are filed to the extent that the order of learned Single Judge does not grant the specific reliefs as prayed for by the appellants in the main writ petitions and qua that the present Letters Patent Appeals have been brought before us. 5. Before dealing with the main grievance, we would like to reproduce the reliefs sought by the respective original petitioners in the main petition, which reads as under: “(35.a) That this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction upon the Union of India (acting through the Ministry of AYUSH), Respondent No.1 herein and the Central Council of Homoeopathy, Respondent No.2 herein to adhere to the outer time limit of May 31 prescribed vide a communication dated September 1, 2017 for grant of permission/renewal of permission to an homoeopathy medical college under the provisions of Section 12-A of the Homoeopathy Central Council Act, 1973 (b) That this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction upon the Union of India (acting through the Ministry of AYUSH), Respondent No.1 herein and the Central Council of Homoeopathy, Respondent No.2 herein directing them to frame the time schedule within the aforesaid outer limit of May 31 for grant of permission/renewal of permission to an homoeopathy medical college under the provisions of Section 12-A of the Homoeopathy Central Council Act, 1973 by providing for various stages and corresponding time-lines for such stageson the lines prescribed for MBBS and BDS courses to be adhered to in letter and spirit. (c) That this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction upon the State of Gujarat (acting through the Health & Family Welfare Department), Respondent No.3 herein and the Admission Committee for Professional Undergraduate Medical Educational Courses, Respondent No.4 herein directing them to undertake the process of admission for B.H.M.S. Course simultaneous with the MBBS and BDS courses.
(d) That pending admission, hearing and final disposal of this petition, this Honourable Court be pleased to direct Union of India (acting through the Ministry of AYUSH), Respondent No.1 herein, and the Central Council of Homoeopathy, Respondent No.2 herein follow in strictosensu the time limit of May 31 prescribed vide a communication dated September 1, 2017 for grant of permission/renewal of permission to an homoeopathy medical college prescribed under the provisions of Section 12-A of the Homoeopathy Central Council Act, 1973 for the academic year 2019-20. (e) That this Honourable Court be pleased to pass any such other order as may be deemed necessary on the facts and in the circumstances of the case.” 6. Since identical reliefs are sought in a subsequent petition and except a change in the discipline, no other dissimilarity is there, the same is not reproduced to avoid unnecessary burden. Accordingly, both these appeals have come up for consideration where we have heard Shri Dhaval Dave, learned senior counsel assisted by Shri Udit N. Vyas, learned counsel for the appellants and Shri Devang Vyas, learned Assistant Solicitor General for Respondent Nos.1 and 2. 7. Shri Dhaval Dave, learned senior counsel for the appellants has submitted before us that though not contemplated under Section 12(A) of the Homoeopathy Central Council Act, 1973 (hereinafter referred to as the “HCC Act”) the respondent – authorities, have developed a practice whereby an institution has been established under Section 12(A) of the HCC Act and imparting education in the discipline of Homoeopathy and it is required to renew the requisite permission for continuing to impart education on the yearly basis. As a result of this, a method is evolved to accord permission conditionally, valid for a period of one year i.e. one academic year. Hence, on the regular basis, the Colleges are supposed to apply for renewal of such permission by way of applications. It has been submitted before us that these applications are being dealt with by the authorities by a detailed procedure. As per the summary pressed before us, the following is the practice adopted by the authorities to deal with such applications: “a. Application : the concerned institute is required to move an application before Respondent No.1 for grant of permission under Section 12-A of the HCC Act and for renewal of permission already granted.
As per the summary pressed before us, the following is the practice adopted by the authorities to deal with such applications: “a. Application : the concerned institute is required to move an application before Respondent No.1 for grant of permission under Section 12-A of the HCC Act and for renewal of permission already granted. b. Forwarding of the application for technical scrutiny: the aforesaid application is forwarded by Respondent No.1 to Respondent No.2 – Central Council of Homoeopathy for technical scrutiny of the application for defects. c. Compliance with technical defects, if any: the concerned institute is informed of the technical defects in the application and given an opportunity to rectify the same within a prescribed time limit. d. Inspection: if Respondent No.2 is satisfied that the application of the concerned institute is complete in all technical respects, Respondent No.2 causes an inspection upon the concerned institute by appointing visitors (inspectors). e. Submission of the Inspection Report: the report of the inspectors is submitted before Respondent No.2. f. Defects and deficiencies: Upon scrutiny of the inspection report, Respondent No.2 submits its observations and recommendations to Respondent No.1 including any defects and deficiencies noticed during the course of the inspection. g. Show cause notice: In the event of any defects and deficiencies being noticed during the course of the inspection, Respondent No.1 would issue a show cause notice upon the concerned institute inviting its authorized representatives to substantiate its claims against the said defects and deficiencies. Further, if certain deficiencies are rectifiable in nature, the concerned institute is given sufficient time to rectify the same. h. Hearing: Respondent No.1 is required to afford an opportunity of hearing to the concerned institutes for substantiating its claims with reference to the defects and deficiencies brought to its notice including with regards to steps taken by the concerned institute for rectification of defects and deficiencies. i. Compliance verification: if the nature of deficiency is such that it would require physical verification then, Respondent No.1 must direct Respondent No.2 to undertake a compliance verification inspection at the concerned institute to verify compliances and submit a report with reference to the same. j. Final Decision: Respondent No.1 is required to take a final decision either granting permission if it is satisfied in all respects; or declining permission (in the event deficiencies which may hamper the imparting education continue to persist.” 7.1.
j. Final Decision: Respondent No.1 is required to take a final decision either granting permission if it is satisfied in all respects; or declining permission (in the event deficiencies which may hamper the imparting education continue to persist.” 7.1. By the aforesaid process, a contention is raised that the authorities are not concluding this process in a timely manner. By virtue of a notification dated 01.09.2017 which coincides the prescribed procedure of processing of applications under the provisions of Indian Medical Council Act, 1956 as also the Dentist Act, 1948. If the applications are not processed in a timely manner, consequential effect is far reaching on the students as well as upon the college. 7.2. Shri Dave, learned senior counsel has pointed out that a detailed time schedule, as such required to be framed on the basis of the time schedule existing under the applicable regulations for M.B.B.S. and B.D.S. course, has already been crystallized after thorough judicial scrutiny. Now, all these admissions are to be effected by common admission process undertaken for all professional medical courses through NEET. Since it is intended to treat B.H.M.S. course as well as Ayurveda almost at par with M.B.B.S. course and B.D.S. course, the time table should also be prescribed for these courses. It has been further submitted that there seem to be incidents where the centralized process for admission of Homoeopathy Medical Colleges like the Ayurveda Colleges in the State of Gujarat is considerably delayed on account of most callous approach shown by the Ministry of AYUSH and the Central Council of Homoeopathy. The deadline of May 31 had not been maintained which has generated a series of litigations. On account of such a gross delay in not dealing with the applications in a timely manner, the resultant effect is that a large number of students are deprived of pursuing their studies in the field of Homoeopathy and Ayurveda. This has immensely prejudiced the interest of Homoeopathy Medical Colleges as well as Ayurveda Colleges, while considering the admission of meritorious students. It has been submitted that though to a substantial extent, the learned Single Judge is convinced that grievance voiced out by the appellants appears to have some substance, the learned Single Judge has not granted positive direction. As such, qua that only, the appeals have been submitted before this Court. 7.3.
It has been submitted that though to a substantial extent, the learned Single Judge is convinced that grievance voiced out by the appellants appears to have some substance, the learned Single Judge has not granted positive direction. As such, qua that only, the appeals have been submitted before this Court. 7.3. Shri Dave, learned senior counsel to substantiate his submission, has drawn our attention to the observations made by the learned Single Judge from paragraph No.18. It has been categorically observed by the learned Single Judge that the Court finds substance in the submission that there should be strict adherence to the time schedule for grant/renewal of permission as required under the relevant Acts and the regularization framed thereunder. Even, the learned Single Judge was convinced that non-adherence of the time schedule may entail serious consequences. These may not only jeopardize the interest of students and the institutes like that of the petitioner colleges, but ultimately may also result in jeopardizing the maintenance of proper standard of medical education. Thus, the learned senior counsel has prayed before us, that on the similar line on which M.B.B.S. and B.D.S. courses prescribe time schedule, the same shall have to be prescribed by the respondent - authorities. 7.4. To further elaborate his submission, Shri Dave, learned senior counsel has drawn our attention to page 73, in which, for dealing with the applications, the Medical Council of India has prescribed a specific time schedule either for setting up a new college or for renewal of permission. The said schedule has indicated the stages of process and the outer limit of taking decision. So each stage will have to be processed in such a time schedule manner, so that ultimately the outer limit can be maintained. By referring to this, the learned senior counsel has submitted that no doubt, though the learned Single Judge is practically convinced with the grievance of the appellants, has merely directed that outer time limit prescribed for grant or renewal to the Homoeopathy and Ayurveda Medical Colleges shall have to be maintained. However, unfortunately, no direction is issued to frame the time schedule as has been prescribed by the Medical Council of India. Therefore, ultimately a request has been made that authorities may be directed to frame such time schedule on the similar line on which the aforesaid time schedule is framed by the Medical Council of India. 8.
However, unfortunately, no direction is issued to frame the time schedule as has been prescribed by the Medical Council of India. Therefore, ultimately a request has been made that authorities may be directed to frame such time schedule on the similar line on which the aforesaid time schedule is framed by the Medical Council of India. 8. As against this, Shri Devang Vyas, learned Assistant Solicitor General for the respondent Nos. 1 and 2 – authorities, has submitted that the authorities are maintaining time schedule, but it is on account of delayed response by the colleges in clearing the stages of applications that some delay has taken place. By and large, no gross delay has been shown by the authorities. However, while dealing with the submission about framing of time schedule for various stages of applications, Shri Vyas, learned Assistant Solicitor General has candidly submitted that authorities cannot have any objections if such a time limit is prescribed. This is in the interest of the authorities, colleges as well as the students at large and as such Shri Vyas, learned Assistant Solicitor General has shown not much resistance in such submissions about the prescription of time schedule. 8.1. Shri Vyas, learned Assistant Solicitor General has, on the contrary, submitted that even the Ministry of AYUSH supports the cause espoused by the appellants. In that context, to streamline the process of dealing with an application, new guidelines have also been framed vide order dated 01.09.2017. Even, the Central Government has, in exercise of power conferred under Section 22 read with Section 12(A) of the HCC Act, amended the regulations in the tune with guidelines issued on 01.09.2017. Therefore, it has submitted that effective steps are also being taken by the authorities to see that proper process can be completed in a regulatory frame work and that is the reason why, in a communication dated 01.09.2017, an outer time limit has been prescribed as that of 31 May. However, Shri Vyas, learned Assistant Solicitor General has candidly submitted that even this grievance also can be looked into by the authorities and has ultimately left it to the discretion of the Court. 9. Having heard the learned counsels appearing for the respective parties and having gone through the overall material on record, we have found that a detailed procedure is prescribed by the respective respondent – authorities.
9. Having heard the learned counsels appearing for the respective parties and having gone through the overall material on record, we have found that a detailed procedure is prescribed by the respective respondent – authorities. The learned Single Judge has rightly observed that there should be a strict adherence to the time schedule for grant/renewal of permission to be dealt with by the authorities. 10. We have seen that the authorities have also, no doubt, taken a step in these directions by publishing guidelines in the form of communication dated 01.09.2017. However, such process, stagewise indicates outer limit of decision making process in substance, but not for the stages through which the application is being processed. The over view of the procedure for dealing with application, as we have mentioned above, is undisputedly a requirement to be undertaken by appropriate authorities. As such, the grievance voiced by the learned senior counsel for appellants is also to some extent justified in comparison of time schedule prescribed by the Medical Council of India. The time limit and stage mentioned by the present respondent - authorities is quite different. On account of that, reflected in paragraph 12 of the impugned order, a table may not probably cover up, the apprehensions raised by the appellants. As such looking at the recent examples that have been projected by the learned counsel for the appellants, having generated series of litigations, we also found it justified that authorities should re-look such issue well in time, so that in future, no complications can take place which turn out to be detrimental, not only to the students but to the institution as well. If the stagewise process as mentioned by the appellants in the memo of appeal in Ground-E, if to be undertaken strictly, then it requires the authorities to act promptly to ultimately maintain the outer limit. For that purpose, we are satisfied that to some extent, the authorities have also to consider the time schedule as has been prescribed by the Medical Council of India. We deem it proper to reproduce the schedule prescribed by the Indian Medical Council, reflecting on page 73 of present appeal compilation, hereinafter: “The above SCHEDULE has been substituted with the following: TIME SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL COLLEGES/RENEWAL OF PERMISSION AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA.
S.No. Stage of processing Last Date 1 Receipt of applications by the Central Government. Between 15th June to 7th July (both days inclusive) of any year 2 Forwarding application by the Central Government to Medical Council of India. By 15th July. 3 Technical Scrutiny, assessment and Recommendations for Letter of Permission by the Medical Council of India. By 15th December 4 Receipt of reply/compliance from the applicant by the Central Government and for personal hearing thereto, if any and forwarding of compliance by the Central Govt. to the Medical Council of India. Two months from receipt of recommendations from MCI but not beyond 31st January. 5 Final recommendations for the letter of permission by the Medical Council of India. By 30th April 6 Issue of Letter of Permission by the Central Government. By 31st May Note:- In case of renewal of permission, the applicants shall submit the application to the Medical Council of India by 15th July. *in terms of Notification published on 14.01.2016 in the Gazette of India” 11. Additionally, we are also convinced of the grievance raised by both the appellants hereinbefore in view of the fact that even the learned Single Judge has also, in paragraph 18, has categorically found that the grievance has some substance. Hence, this to be considered particularly when such non-adherence to the time schedule and the decision in time is resulting in serious consequences practically every year. Additionally, we have also taken note of the fact that the students getting admissions to B.H.M.S. course and to B.A.M.S. course through the centralized admission process, being conducted by Admission Committee, are as per a strict merit list, prepared on the basis of NEET examination. A common counselling takes place for all courses i.e. M.B.B.S., B.D.S., B.H.M.S. and B.A.M.S. So if the students are on account of multiple reasons, not in a position to get the admission in M.B.B.S. or B.D.S. Course, can avail admission in B.H.M.S. or B.A.M.S. Course.
A common counselling takes place for all courses i.e. M.B.B.S., B.D.S., B.H.M.S. and B.A.M.S. So if the students are on account of multiple reasons, not in a position to get the admission in M.B.B.S. or B.D.S. Course, can avail admission in B.H.M.S. or B.A.M.S. Course. If the applications for grant of setting up new college or the renewal of permission is not getting decided in a timely manner, serious consequences flow back not only on the students, but even on the institution of B.H.M.S. and B.A.M.S. As such, we are also of the considered opinion that each stage of the procedure of dealing with applications will have a specific time schedule, as has been done by the Medical Council of India. The present respondent - authorities are expected to seriously look into this at the earliest. 12. This is also in view of the fact that even respondent - authorities are conscious about these implications and the consequences. As a result of this, when the petition came up for consideration, even the Ministry of AYUSH also found a way supporting the cause espoused by the present appellants. They have also made an attempt to pursue the matters by framing and amending the guidelines. In that context only, the new guidelines have been framed vide order dated 01.09.2017. That having found an outer limit, as reflected in paragraph 12 of the decision, the same is not in the line of entry stage of applications having a specific outer limit, as has been done by the Medical Council of India. Resultantly, we are in complete agreement with the submission voiced by the learned senior counsel for the appellants. Noticing the fact that several matters are being filed practically for every academic year, we deem it proper to direct the authorities to consider this issue at the earliest.
Resultantly, we are in complete agreement with the submission voiced by the learned senior counsel for the appellants. Noticing the fact that several matters are being filed practically for every academic year, we deem it proper to direct the authorities to consider this issue at the earliest. Resultantly, in addition to the direction which has been given by the learned Single Judge, we further deem it proper to direct the authorities in the following manner while disposing of present Letters Patent Appeals: (i) Without disturbing the operative part of the order, passed by the learned Single Judge, we hereby direct respondent Nos.1 and 2 – authorities, to consider prescribing a time schedule of outer limit to deal with each stage of applications, either for setting up a new college or for renewal of permission by the college and shall see to it that said time schedule shall have to be maintained, keeping in view the outer limit as has already been prescribed that of 31 May. (ii) Since the ensuing academic year is nearby, we expect the authorities to frame such schedule of outer time limit, as indicated above, as early as possible within a period of four weeks from the date of receipt of writ of this Court. 13. With these observations, both the Letters Patent Appeals are disposed of accordingly. 14. Since the main appeals are disposed of, the connected Civil Applications are also disposed of hereby.