IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 WP(C).No. 27396 of 2008(J) -------------------------------------- PETITIONERS: --------------------- 1. SANTHIGIRI AYURVEDA MEDICAL COLLEGE, OLASSERY.P.O., PALAKKAD. REP. BY ITS MANAGER. 2. DR.V.P.SREEDHARAN, PRINCIPAL, SANTHIGIRI AYURVEDA MEDICAL COLLEGE OLASSERY, PALAKKAD. BY ADV. SRI.N.SUKUMARAN, ADV. SRI.S.SHYAM RESPONDENTS: ----------------------- 1. UNION OF INDIA, REP. BY ITS SECRETARY TO THE MINISTRY OF HEALTH AND FAMILY WELFARE, (DEPARTMENT OF AYURVEDA, YOGA AND NATUROPATHY, UNANI, SIDDHA AND HOMEOPATHI). AYUSH, IRCS BUILDING-1 RED CROSS ROAD, NEW DELHI.-1. 2. CENTRAL COUNCIL OF INDIAN MEDICINE INSTITUTIONAL AREA, JANAKPURI, REP. BY ITS SECRETARY, NEW DELHI-58. 3. STATE OF KERALA, REP. BY ITS SECRETARY TO THE DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIATE, THIRUVANANTHAPURAM. 4. COMMISSIONER FOR ENTRANCE EXAMINATION GOVERNMENT OF KERALA, O/O.THE COMMISSIONER OF ENTRANCE EXAMINATION, THIRUVANANTHAPURAM. R3 & R4 BY GOVT. PLEADER SMT. M.R. SREELATHA, R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.S.G. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/11/2008,ALONG WITH W.P.(C ).NO. 26061/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V.GIRI,J. ------------------------- W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 -------------------------- Dated this the 21st November, 2008 J U D G M E N T The action taken by the Central Government interdicting admissions to the BAMS Course offered by the colleges, which are the petitioners in these writ petitions(except in one writ petition where the students of a college are the petitioners) is the subject matter of dispute in these writ petitions. 2. Submissions have been made by the learned counsel for the petitioners and learned Asst.Solicitor General on the scope and ambit of the provisions contained in the Indian Medicine Central Council Act and the relevant regulations framed in that behalf in the year 2006 in so far as they relate to the existing medical colleges. Most of the issues which arise for consideration are common. Therefore, they have been heard together and are disposed of by a common judgment. I am W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 2 referring to the facts in WP(C) No. 27396 of 2008 in the first instance. Consideration of individual facts where necessary, shall be done at the appropriate stage. 3. The 1st petitioner has established the Santhigiri Asramam, a Society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Act 12 of 1978. It established a college in the year 2002 which is affiliated to the Calicut University. It offers courses in Ayurveda with an intake of 50 students annually to the BAMS Degree course. 25 seats are to be filled up by the management and rest are to be filled up by candidates allotted by the Commissioner of Entrance Examinations. Petitioner has been admitting students every year from 2002. The college was established after obtaining sanction from the 2nd respondent, which is the Central Council of Indian Medicine. It is relevant in this context to straight away refer to Indian Medicine Central Council Act (hereinafter referred to as the ‘Act’) The Act provides for the constitution of Central Council of Indian Medicine and the maintenance of a Central Register of Indian Medicine W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 3 and for matters connected therewith. Indian Medicine defined in Section 2(e) means the system of “Indian Medicine” commonly known as Ashtanga Ayurveda, Siddha or Unani Tibb. Medical Colleges defined in Section 2(ea) means a college of Indian Medicine whether known as such or by any other name, in which a person may undergo a course of study or training including any post-graduate course of study or training which will qualify him for the award of a recognised medical qualification. There is no dispute that the colleges established by the petitioners in these writ petitions are medical colleges for the purpose of the Act. All of them were established in the year 2002. All these colleges are affiliated to the respective Universities. While so, Chapter IIA was introduced in the Act with effect from 7.11.2003. Relevant portion of Section 13A reads as follows: (1) Notwithstanding anything contained in this Act or any other law for the time being in force:- (a) no person shall establish a medical college; or (b) no medical college shall- W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 4 (i) open a new or higher course of study or training, including a post-graduate course of study or training, which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii) increase its admission capacity in any course of study or training including a post- graduate course of study or training, except with previous permission of the Central Government obtained in accordance with the provisions of this Section. 4. Section 13A deals with the manner in which a scheme, for the purpose of establishing a college or for starting a new course, is to be approved by the Central Government. This requires a consideration of the scheme by the Central Council and physical verification of the facilities offered in the colleges by a team to be deputed by the Central Council. The Central Council while making its recommendation is to have due regard, inter alia, to the question as to whether the proposed medical college would be in a position to offer the minimum standards of medical W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 5 education as prescribed by the Central Council under Section 22 of the Act. Section 13C of the Act which is relevant is extracted below:- “If any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or before the commencement of the Indian Medicine Central Council (Amendment) Act 2003.” (the amendment by which Chapter IIA was introduced) then it has given three years time to make an application for approval of the scheme for permission of the Central Government in accordance with the provisions of Section 13A. 5. Section 13A of the Act confers power on the Central Government either to approve the conditions as it may consider necessary or disapprove the scheme. Section 13A(6) states that where no order is communicated by the Central Government within one year from the date of submission of the scheme to the Central Government under sub Section 2 then the scheme shall be deemed to have been approved by the Central Government in the form in W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 6 which it was submitted. 6. Section 13A (9) states that where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or medical college concerned. 7. Section 21 deals with withdrawal of recognition. Section 22 confers power on the Central Council to prescribe the minimum standards of education in Indian Medicine, required for recognising medical qualifications offered by Universities, Boards or Medical Institutions in India. 8. First petitioner submitted an application under Section 13C of the Act on 30.10.2006 and according to it no orders were passed on that application for a period of one year.. After the 2nd respondent council made an inspection of the college, according to the petitioner, it favourably recommended the approval of the scheme submitted by the 1st petitioner by letter dated 12.7.2008. Nevertheless, the 1st respondent issued Exhibit P4 notice W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 7 pointing out certain defects. A reply was submitted by the petitioner . But by Exhibit P6 order dated 26.8.2008 the 1st respondent declined permission to the 1st petitioner to admit students for the year 2008. Exhibit P6 is under challenge in this writ petition. It is contended that the order is not in conformity with the provisions of the statute. It is in violation of the principles of natural justice. Approval given by the Central Council cannot be brushed aside by the Central Government. Exhibit P6 order does not take into account all the requisite facilities in the 1st petitioner’s college. 9. Reference is made to Exhibit P8, produced later, being the Minutes of 146th meeting of the Executive Committee of the Central Council of Indian Medicine held on 29.7.2008 and the list of colleges considered by the Executive Committee and nature of the recommendations given by the Central Council in relation to the petitioner and other colleges. It is contended that Central Council had given its approval for the scheme submitted by the petitioner. W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 8 10. It is necessary to straight away mention at this juncture that going by the list of colleges forming part of the minutes of the Central Council referred to above, none of the other colleges involved in these writ petitions have been approved by the Central Council as on date. 11. A detailed counter affidavit has been filed by the 1st respondent. It is contended that on an inspection of the colleges in the State and elsewhere it was found that the standards which were hitherto to be followed in different colleges both in the matter of minimum eligibility of the teachers appointed and facilities to be provided in the colleges have not been satisfied by any of the colleges including the petitioners. It is then contended that colleges did not qualify for permission on the basis of a strict interpretation of IMCC Act and Regulations. Department took a realistic view that colleges that have shortcomings and deficiencies of staff, infrastructure and facilities which are remediable and which do not have an adverse impact on the medical education should be given permission subject to the condition that the shortcomings W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 9 and deficiencies are removed within the stipulated time. Para 9 of the counter affidavit filed by the 1st respondent is worthy of reproduction in its entirety and the same reads as follows: “Given the very large number of colleges which did not fully qualify for permission on the basis of a strict interpretation of the IMCC Act and the relevant regulations, the Department has taken a realistic view that colleges that have shortcomings and deficiencies of staff, infrastructure and facilities which are remediable and which do not have an adverse impact on the provision of quality medical education should be given permission subject to the condition that these shortcomings and deficiencies are removed within a stipulated time frame. Such conditional permissions, which are permissible in terms of the IMCC Act and the regulations, are necessary if Ayurveda, Siddha and Unani medical education is to continue in the country. Since a large number of existing colleges appeared to have serious deficiencies and shortcomings, the Department also took a pragmatic decision to restrict the qualifying criteria to only two of the very basic requirements for a medical college and to apply them in a clear and W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 10 transparent manner- (i) the availability of teaching staff and (ii) the status of the teaching hospital. Even though a lowering of the bar in this manner is not very desirable, a conscious decision was taken to ignore all the other attributes which a medical college should normally possess for the purpose of Section 13C permissions. The lowered threshold for conditional permissions was as under. Sl.No Item Criteria 1 Teaching Staff A college should have at least 80% of the teaching staff to be eligible to apply for permission under Section 13C in terms of the regulations. Therefore, it was not possible to dilute this any further. However, an exception was made in the case of colleges which require more than 55 teaching staff for whom a 70% threshold was used. 2 Teaching Hospital No. of beds OPD IPD Under graduate colleges - 100 beds Postgraduate colleges - 150 beds There should be an average patient attendance of at least 100 per day during the current/previous years Bed occupancy should be at least 40% for the current year. W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 11 12. Reference is then made to Exhibit R2 communication issued by the Government of India to the Central Council of Indian Medicine dated 1.5.2007 intimating that on a consideration of the issue, the department had originally decided that those existing colleges which did not fulfill the eligibility criteria laid down in the regulations should not be allowed to make admissions for the year 2007-2008. But the matter has been reconsidered in the light of representations made by the State Governments and colleges and it has been decided that the interests of quality medical education would be best served by permitting all the existing medical colleges which have applied, to go ahead with admissions for the year 2007-2008 academic session subject to the condition that at least 80% of the full complement of teaching staff as prescribed in the IMCC (Permission to existing medical colleges) Regulations 2006 would be in position before the commencement of academic admissions. The contention now taken by the learned Asst.Solicitor General is that W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 12 though it was possible for the Central Government to have passed an order disapproval of the scheme qua the colleges in question, it was not done but time was granted to remove the defects and admissions have been put on hold for the year 2008-2009 in all these colleges because it was found that they lack requisite facilities in terms of the regulations. Reply affidavits have been filed by most of the petitioners. 13. I heard Sri.N.Sukumaran, Sri. Kurian George Kannanthanam, learned senior counsel, Sri.B.S Swathikumar, Sri.Sunil Sankar, Sri.Babu Joseph Kuruvathazha, Sri.P.C.Sasidharan and Sri.C.K. Abdul Rahim, learned counsel for the petitioners and Sri. P.Paramaseswaran Nair, learned Asst.Solicitor General for the Central Government. 14. The Central Council of Indian Medicine has not been served in all these writ petitions but copy of interim orders passed by this Court in all these writ petitions have been communicated and they have been served in one or more writ petitions. It is evidenced by Ext.P20 communication in WP(C) No.26061/2008. I do not find any W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 13 appearance for the Central Council. But I proceeded to hear and dispose of the matter after hearing the submissions of the Asst.Solicitor General. In the nature of the directions, I propose to issue, the absence of the Central Council at this stage may not really be crucial. 15. Learned counsel for the petitioners submit that though no doubt the existing medical colleges are bound to satisfy the minimum requirements of a college as stipulated in the Regulations to be published by the Central Council in terms Section 36 of the Act and fulfill the minimum standards of education laid down by the Central Council in terms of Section 22 of the Act. Hitherto minimum standards have not been separately prescribed in respect of the existing medical colleges. The statutory regulations framed under Section 36 of the Act called as Indian Medicine Central Council (Permission to existing medical colleges) Regulations 2006 only deals with eligibility for making an application in terms of Section 13C of the Act . Clause 5 of the regulations dealing with eligibility for making an application, which reads as follows: W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 14 “The Central Government may, after considering the scheme and recommendations of the Central Council under sub-section 4 and after obtaining , where necessary such other particulars that may be considered necessary by it from the person or medical college concerned and having regard to the factors referred to in sub-section (8), either approve the scheme with such conditions, if any, as it may consider necessary or disapprove the scheme and any such approval shall constitute as a permission under sub-section (1). Provided that no such scheme shall be disapproved by the Central Government except after giving the person or medical college concerned a reasonable opportunity of being heard. Provided further that nothing in this sub-section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme as if such scheme had been submitted for the first time under sub- section (2).” W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 15 16. It is contended that the orders by which admissions to the petitioner's institution for the year 2008 has been directed to be put on hold, do not seem to have been passed specifically keeping in mind clause 5 of the regulations alone. Many of the other alleged deficiencies noted qua the petitioners do not have the sanction of these regulations. The existing medical colleges therefore cannot be prevented from functioning. 17. According to the Asst. Solicitor General, a strict adherence to the regulations and minimum requirements as were formulated for new colleges applying for approval under Section 13A of the Act was initially undertaken and it was found that many of the colleges did not satisfy such requirements. Therefore, the criterian to be satisfied was limited to two of them as mentioned in para 9 of the counter affidavit as already extracted. But even these separate criterian have not been satisfied by the petitioners and it is therefore that without passing an order of disapproval of the scheme as is contemplated by Section 13C of the Indian Medicine Central Council Act, the Central W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 16 Government adopted a less rigorous action by requiring the petitioners to put on hold admissions for the year 2008. This is subject to an appraisal by the authorities, if sufficient reasons are offered and established by the petitioners. 18. I do not propose to undertake a detailed appraisal of the question as to whether each one of the petitioners have really satisfied the conditions that are prescribed in the regulations or in the Rules relating to minimum requirements to be maintained in medical colleges offering Indian Medicine. I did not come across any materials placed either by the petitioners or by respondents clearly indicating that Rules having statutory force dealing minimum requirements of an existing medical college, have been formulated and have been published in the manner known to low as is required by a statutory body established under the provisions of the Act. In fact, reference has been made to minimum standards and requirements of Ayurveda colleges and hospitals stated to have been approved by the Central Council of Indian W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 17 Medicine in its 40th meeting held on 5th and 6th of February, 2007. I would have proceeded on the premise that these are the minimum requirements that they have formulated by the statutory body but then the Asst. Solicitor General submits that the aforementioned minimum requirements have been subsequently withdrawn by the Central Council as evidenced by Exhibit R5 communication dated 4.5.2007. In effect, except for the minimum requirements as are mentioned in the counter affidavit now filed by the respondents, there seems to be vacuum in so far as the guidelines relating to the minimum standards and requirements for existing medical colleges in Indian Medicine are concerned. I have proceeded on the premise that the minimum requirements as is noted in the counter affidavit are apparently a reflection of the minimum requirements as noted in Exhibit-P7 in W.P(C) No.27396 of 2008. 19. Petitioners do not challenge the minimum standards and requirements as noted in Exhibit P7. I do not think any prejudice will be caused to the petitioners by W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 18 requiring them to fulfill the minimum standards and requirements as noted in the counter affidavit filed by the 1st respondent. I proceed to consider the further contentions on this premise. 20. The orders which are impugned in these writ petitions as stated above are only orders which require the colleges to keep in abeyance the process of admissions for the year 2008. In my view such orders cannot be considered as orders passed by the Central Government disapproving a scheme, submitted by an existing medical colleges in terms of Section 13C r/w 13A (ai). Though there is no specific provision in the Act which enables the Central Government to interdict admissions undertaken in the existing medical colleges during the pendency of an application for approval submitted by such colleges under Section13C r/w 13A (ai), I find force in the submission made by the learned Asst. Solicitor General that the intention on the part of the Central Government while issuing the impugned orders are only for the purpose of intimating them that the minimum standards and W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 19 requirements of an existing medical college are not satisfied by the petitioners. 21. Learned counsel for the petitioners, without exception, have submitted that their colleges have established the facilities and have appointed the requisite number of staff with requisite qualifications and the requirements now stipulated by the 1st respondent as reflected in para 9 of the counter affidavit have been satisfied by them. They submit that if these aspects are verified by a competent team of the Central Council, the Council would be positively satisfied of the same and if that be so, those factors identified by the Central Government to pass the impugned orders would be found to be no longer in existence. This is apart from the case advanced by them that the facilities required were actually in existence even at the time when the impugned orders were passed. 22. Learned Asst. Solicitor General has no objection to a re -verification of the facilities established and offered in each of the petitioners' colleges and ascertainment of the current status obtaining therefrom by a competent team of W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 20 the Central Council of Indian Medicine. Learned counsel for petitioners submit that one or two teams may make an inspection, at the earliest and since they may have to come from different parts of the country the expenses incurred by them will be met by the petitioners jointly. This submission is recorded. 23. As I stated above, except the petitioners in WPC Nos.27428 and 27455 of 2008, the Council has not granted its approval in respect of other institutions and it is consequent upon the order passed by the Central Government, the admissions to the BAMS course offered in these institutions are kept in abeyance. Pursuant to the detailed interim order passed by this Court, the Commissioner for Entrance Examinations proceeded to invite options from students already included in the list drawn up by the Commissioner for Entrance Examinations and it is stated that more than the requisite number of students, necessary to make up the 50% merit quota in each one of the institutions have opted for each college. Allotment of such students are put on hold pending orders W.P ( C) Nos.26019, 26061, 26491, 27237, 27396, 27428, 27455,27843 and 27854 of 2008 21 from this Court. If as a matter of fact, the requisite facilities have been established by these institutions,