CENTRAL COUNCIL FOR INDIAN MEDICINE versus KARNATAKA AYURVEDA MEDICAL COLLEGE AND OTHERS
[2022] 2 S.C.R. 1120, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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[2022] 2 S.C.R. 1120
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CENTRAL COUNCIL FOR INDIAN MEDICINE
v.
KARNATAKA AYURVEDA MEDICAL COLLEGE AND
OTHERS
(Civil Appeal No. 2892 of 2022)
APRIL 11, 2022
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
Medicine Central Council Act,1970:s. 13A – Permission for
establishment of new Medical College, new course study, etc. – On
facts, Union of India rejected the permission to respondent no. 1-
State Ayurvedic Medical College to admit students for the PG course
for academic year 2018-19 on the ground of non-availability of
Central Research Laboratory and Animal House, however, granted
permission to admit students to Under Graduate (BAMS) Course
with an intake of 50 seats for the academic year 2018-19 subject to
it fulfilling the deficiencies mentioned therein – Writ petition by
respondent no. 1 – Meanwhile, Union of India granted permission
to admit students for the Post Graduate course for academic year
2019-2020 – Single Judge allowed the writ petition – Said order
upheld by the Division Bench of the High Court – On appeal, held:
Statutory scheme is clear that no medical college can open a new
or higher course of study or training, including a post-graduate
course, except with the previous permission of the Central
Government – Prior to such a permission being granted, the
procedure as prescribed u/s. 13A has to be followed – Furthermore,
as per Reg 3(1)(a), it is clear that in order to be eligible for grant of
permission
for undertaking admissions in a particular academic
session, the institution must fulfill the requirements of minimum
standard as on 31st December of the earlier year – It cannot be
said that the permission granted for a subsequent academic year
would also enure to the benefit of earlier academic year though the
said institution was not fulfilling the criteria of minimum standard –
Single Judge as well as the Division Bench erred in not taking into
consideration the scheme of the Act as also the judgment of this
Court in Ayurved Shastra Seva Mandal’s case, thus the order of the
Single Judge and the Division Bench quashed and set aside –
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Medicine Central Council (Amendment) Act, 2003 – Medicine
Central Council (Post-Graduate Ayurveda Education) Regulations,
2012 – Medical Central Council (Post-Graduate Ayurveda
Education) Regulations, 2016 – Precedent.
Allowing the appeals, the Court
HELD: 1.1 Section 13A read with Sections 22 and 36(1)(j)
of the Medicine Central Council Act, 1970 Act provides a
complete scheme for establishment of medical college, opening
a new or higher course of study or training, including a post-
graduate course of study or training, and also increasing the
admission capacity. From the perusal of the scheme of the said
provisions, it is clear that no person is entitled to establish a
medical college except with the previous permission of the
Central Government. Similarly, no medical college can open a
new or higher course of study or training, including a
postgraduate course of study or training without the previous
sanction of the Central Government. Likewise, no medical
college can increase its admission capacity in any course of study
or training, including a post-graduate course of study or training.
Sub-sections (2) to (5) of Section 13A of the said Act prescribe
a detailed procedure for submitting a scheme and consideration
thereof by the Central Council and the Central Government. It
also provides for in-built safeguards inasmuch as the principles
of natural justice are provided at two stages, one before the
Central Council and another before the Central
Government.
The second proviso to sub-section (5) of Section 13A of the
said Act also enables a person or medical college whose scheme
has not been approved by the Central Government, to again
submit a fresh scheme, which is required to be considered as if
the same is made for the first time under sub-section (2) of
Section 13A of the said Act. Sub-section (6) of Section 13A of
the said Act provides that when no order is communicated within
a period of one year from the date of submission of the scheme,
by a deeming provision, such scheme shall stand approved and
it will be deemed that the permission of the Central
Government as required under subsection (1) of Section 13A of
CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKA
AYURVEDA MEDICAL COLLEGE AND OTHERS
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the said Act has been granted. Sub-section (7) of Section 13A of
the said Act provides for exclusion of the period for the time
taken by the person or medical college concerned to furnish
any particulars called by the Central Council, or by the Central
Government. Subsection (8) of Section 13A of the said Act
provides the factors to be taken into consideration. Sub-section
(9) of Section 13A of the said Act provides for the communication
of the order approving or disapproving the scheme, to the
person or medical college concerned. [Para 27][1139-D-H; 1140-
A-C]
1.2 The statutory scheme is clear that no medical college
can open a new or higher course of study or training, including a
post-graduate course, except with the previous permission of
the Central Government. Prior to such a permission being
granted, the procedure as prescribed under Section 13A has to
be followed. [Para 28][1140-D]
1.3 The legislative intent is further clarified by the
provisions made in Section 13B of the said Act. Sub-section (1)
of Section 13B of the said Act provides that where any medical
college is established without the previous permission of the
Central Government in accordance with the provisions of Section
13A of the said Act, medical qualification granted to any student
of such medical college shall not be deemed to be a recognized
medical qualification for the purposes of the said Act. Likewise,
sub-section (2) of Section 13B of
the said Act provides that where
any medical college opens a new or higher course of study or
training including a post-graduate course of study or training
without the previous permission of the Central Government in
accordance with the provisions of Section 13A of the said Act,
medical qualification granted to any student of such medical
college on the basis of such study or training shall not be deemed
to be a recognised medical qualification for the purposes of the
said Act. Likewise, sub-section (3) of Section 13B of the said Act
provides that where any medical college increases its admission
capacity in any course of study or training without the previous
permission of the Central Government in accordance with the
provisions of Section 13A of the said Act, medical qualification
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granted to any student of such medical college on the basis of the
increase in its admission capacity shall not be deemed to be a
recognised medical qualification for the purposes of the said Act.
[Para 29][1140-E-H; 1141-A]
1.4 It could further be seen that the legislature itself has
taken care of a situation, where 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
prior to the commencement of the Indian Medicine Central
Council (Amendment) Act, 2003. It has provided that such person
or medical college, as the case may be, shall seek, within a period
of three years from the said commencement, permission of the
Central Government in accordance with the provisions of Section
13A of the said Act. [Para 30][1141-B-C]
1.5 The impugned judgment of the Division Bench and the
Single Judge of the High Court, so also the other judgments of
the High Court, which are relied on by the Division Bench, do
not take into consideration the scheme of Section 13A of the Act.
[Para 31][1141-C-D]
1.6 Regulation 3(1)(a) of the 2016 Regulations specifically
provides that the Ayurveda colleges established under Section
13A and existing under Section 13C of the said Act and their
attached hospitals shall fulfill the requirements of minimum
standard for infrastructure and teaching and training facilities
referred to in the Regulations 4 to 11 up to 31st December of
every
year for consideration of grant of permissions for
undertaking admissions in the coming academic session. It is
thus clear that in order to be eligible for grant of permission for
undertaking admissions in a particular academic session, the
institution must fulfill the requirements of minimum standard as
on 31st December of the earlier year. For example, if the
institution is seeking grant of permission for undertaking
admissions for the academic session 2022-23, it must have
fulfilled the requirements of minimum standard as on 31st
December 2021. It could thus be seen that the finding that the
permission granted for a subsequent academic year would also
CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKA
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enure to the benefit of earlier academic year though the said
institution was not fulfilling the criteria of minimum standard, is
totally erroneous. [Para 32, 33][1141-G-H; 1142-A-B]
1.7 The High Court erred in not correctly applying the law
laid down by this Court in the case of Ayurved Shastra Seva
Mandal’s case. This Court in Ayurveda Shastra’s case had
specifically observed that the petitioner therein tried to impress
upon that the deficiencies had already been removed and that is
why permission was specifically given for the admission of students
for the academic year 2012-13. It was therefore urged that there
was no reason for withholding the permission for the academic
year 2011-12. This Court specifically noticed that a large number
of students had applied for admission for the academic year 2011-
12 and that too with the leave of this Court. However, this Court
found that the privilege granted to the candidates could not be
transformed into a right to be admitted in the course for which
they had applied. It can be seen from the conjoint reading of
various paragraphs of the said judgment that the contention that
since the deficiencies stood already removed and the permission
granted for the academic year 2012-13, the said permission should
also be construed as having been granted for the academic year
2011-12, was not accepted by this Court. [Para 34-36][1142-C,
D-F; 1143-B]
1.8 The Court is at pains to say
that though the judgment
in Ayurved Shastra Seva Mandal’s case was specifically relied on
by the appellant, the Single Judge and the Division Bench of the
High Court have chosen to rely on the earlier judgments of the
Division Bench of the same High Court rather than a judgment
of this Court. The Single Judge as well as the Division Bench
grossly erred in not taking into consideration the scheme of the
said Act so also the judgment of this Court in Ayurved Shastra
Seva Mandal’s case. The judgment and order passed by the
Division Bench of the High Court, and the Single Judge are
quashed and set aside. [Para 39, 40][1144-G-H; 1145-A-B]
Ayurved Shastra Seva Mandal and Another v. Union of
India and Others (2013) 16 SCC 696 : [2013] 4 SCR
1098 – relied on.
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Bahubali Vidyapeeths JV Mandal Gramin Ayurvedic
Medical College v. Union of India and Others Writ
Petition No. 107076/2018 (EDN-ADM) dated
01.07.2019; Central Council of Indian Medicine v.
Union of India and Others Writ Appeal No. 736/2011
– referred to.
Case Law Reference
[2013] 4 SCR 1098
relied on
Para 34, 37, 39
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2892
of 2022.
From the Judgment and Order dated 21.12.2020 of the High Court
of Karnataka at Bengaluru in Writ Appeal No.542 of 2020 (EDN-REG).
With
Civil Appeal Nos.2895, 2894, 2893, 2897 and 2896 of 2022.
Ms. Madhvi Divan, ASG, Ms. Aishwarya Bhati, Sr. Adv., Ms.
Archana Pathak Dave, Kumar Prashant, Ms. Vanya Gupta, Parmod
Kumar Vishnoi, Ms. Himanshi Shakya, Ms. Kirti Khangarot, Gurmeet
Singh Makker, Ms. Arunima Dwivedi, Ms. Nidhi Khanna, O. P. Shukla,
Neela Kedar Gokhale, Advs. for the Appellant.
Devadutt Kamat, Sr. Adv., Chinmay Deshpande, Anirudh
Sanganeria, V. N. Raghupathy, Md. Apzal Ansari, Advs. for the
Respondents.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Leave granted in all the Special Leave Petitions.
2. The present appeals challenge the following:
(i)
judgment dated 21st December 2020 passed by the Division
Bench of the High Court of Karnataka in Writ Appeal Nos.
541 of 2020 (EDN-REG) and 542 of 2020 (EDN-REG),
thereby dismissing the writ appeals filed by the present
appellant-Central Council for Indian Medicine, which was
in turn filed, challenging the order
dated 24th September
2020 passed by the learned Single Judge in Writ Petition
No.50772 of 2018 (EDN-REG-P), thereby allowing the writ
CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKA
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petition filed by the respondent No.1 herein-Karnataka
Ayurveda Medical College; and
(ii)
judgment dated 24th September 2020 passed by the learned
Single Judge of the High Court of Karnataka in Writ Petition
Nos. 50828 of 2018 (EDN-EX) thereby allowing the writ
petition filed by the petitioner therein and Writ Petition
No.50772 of 2018 (EDN-REG-P), thereby allowing the writ
petition filed by the respondent No.1 herein-Karnataka
Ayurveda Medical College.
3. For the sake of convenience, we refer to the facts as are found
in civil appeal arising out of SLP(C) No.4618 of 2021.
4. The respondent No.1 herein had applied to the respondent No.4-
State Government, respondent No.3-Rajiv Gandhi University of Health
Sciences and the appellant herein for permission to start Post-Graduate
course for the academic year 2014-15. The appellant granted permission
to start five new Post Graduate Ayurvedic disciplines with five seats
each in accordance with the then prevalent Indian Medicine Central
Council (Post-Graduate Ayurveda Education) Regulations, 2012
(hereinafter referred to as “2012 Regulations”). These 2012 Regulations
came to be superseded by the Indian Medicine Central Council (Post-
Graduate Ayurveda Education) Regulations, 2016 (hereinafter referred
to as “2016 Regulations”).
5. As per 2016 Regulations, it was a requirement that an institution
should possess a Central Research Laboratory and an Animal House.
The 2016
Regulations provided that the Animal House could be either
owned by the institution or it could be in collaboration with any other
institution. Accordingly, the respondent No.1 collaborated with Sri
Dharmasthala Manjunatheshwara College of Ayurveda, Udupi, which
permitted respondent No.1 the usage of Animal House set up by it. As
such, the appellant and the respondent No.2-Union of India, continued
permission to respondent No.1 for the academic years 2016-17 and 2017-
18. The Union of India directed the appellant to inspect the facilities
available with the respondent No.1 in accordance with the relevant
Regulations and submit its recommendations and the inspection report
to it. This was to be done by the end of March 2018 so that the matter
pertaining to grant of permission for the academic year 2018-19 could
be considered before the start of the next academic year. The appellant
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inspected the facilities available with the respondent No.1 on 2nd February
2018 and again on 23rd-24th May 2018. On the basis of the said inspection,
the Union of India issued a notice dated 3rd August 2018, which was
received by respondent No.1 on 16th August 2018. Vide the said notice
dated 3rd August 2018, certain deficiencies were pointed out. The
respondent No.1 was given an opportunity of hearing on 24th August
2018 before the designated Hearing Committee. After the hearing, the
Union of India, vide order dated 5th September 2018, rejected the
permission to respondent No.1 to admit students to the Post Graduate
courses for the academic year 2018-19 on the ground of non-availability
of Central Research Laboratory and Animal House. However, vide the
said order dated 5th September 2018, the Union of India granted permission
to respondent No.1 to admit students to Under Graduate (BAMS) Course
with an intake of 50 seats for the academic year 2018-19 subject to it
fulfilling the deficiencies mentioned therein by 31st December 2018.
6. The respondent No.1 therefore filed a writ petition being Writ
Petition No. 50772 of 2018 (EDN-REG-P) before the learned Single
Judge of the High Court of Karnataka. It is to be noted that in the
interregnum, the Union of India granted permission to the respondent
No.1 to admit students for the Post Graduate Course for the academic
year 2019-20. The learned Single Judge, relying on the judgments of the
Division Bench of
the High Court of Karnataka in the cases of Bahubali
Vidyapeeths JV Mandal Gramin Ayurvedic Medical College v. Union
of India and Others1 and Central Council of Indian Medicine v.
Union of India and Others2, wherein the Division Bench held that if
the permission was granted for the subsequent years, the benefit should
enure in respect of the previous year also, allowed the said writ petition.
The same was carried in an appeal by the present appellant before the
Division Bench of the High Court of Karnataka, which was dismissed
vide the impugned judgment. Hence, the appellant approached this Court
by way of the present appeals.
7. This Court, while issuing notice in the present matter, recorded
the statement of Smt. Aishwarya Bhati, learned Additional Solicitor
General (for short “ASG”), appearing on behalf of the appellant that the
students who have been granted admission in the respondent No.1 college
for the Post Graduate Ayurveda courses for the academic year 2018-
1 Writ Petition No. 107076/2018 (EDN-ADM) dated 01.07.2019
2 Writ Appeal No. 736/2011
CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKA
AYURVEDA MEDICAL COLLEGE AND OTHERS [B. R. GAVAI, J.]
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19, will not be disturbed. The learned ASG, however, requested that the
question of law arising in these matters needs consideration by this Court.
As such, by the said order dated 19th April 2021, this Court issued notice.
8. We have heard Smt. Aishwarya Bhati, learned ASG appearing
on behalf of the appellant, Smt. Madhavi Divan, learned ASG appearing
on behalf of the Union of India and Shri Chinmay Deshpande, learned
counsel appearing on behalf of respondent No.1.
9. Smt. Bhati submitted that the said 2016 Regulations were made
by the appellant in exercise of the powers conferred by clause (j) of
Section 36 of the Indian Medicine Central Council Act, 1970 (hereinafter
referred to as the “said Act”) with the previous sanction of the Central
Government. She submitted that the 2016 Regulations prescribe the
requirements of minimum standard for grant of permission. The learned
ASG submitted that unless the institution applying possess the required
minimum standards, it would not be entitled for permission. It is submitted
that the minimum standards, as required, are to be fulfilled for the
particular academic year and in the event, such minimum standards are
not fulfilled for the relevant academic year, the institution would not be
entitled for permission. The learned ASG submitted that merely because
for the subsequent academic year, the requirements were fulfilled, it
cannot efface the deficiencies that were found in
the previous academic
year. It is therefore submitted that the view taken by the High Court of
Karnataka, that if the permission is granted for a subsequent academic
year, it would also be available for the previous year and such an institute
would be entitled for permission even for the earlier year in which the
deficiencies were found to have existed, does not lay down a correct
proposition of law. She submitted that though a judgment of this Court in
the case of Ayurved Shastra Seva Mandal and Another v. Union of
India and Others3, was pointed out to the learned Single Judge and the
Division Bench of the High Court of Karnataka, they have failed to
apply the law laid down in that judgment and as such, the judgment and
order of the Division Bench and the Single Judge are liable to be set
aside.
10. Smt. Divan, learned ASG appearing on behalf of the Union of
India, also supported the submissions made on behalf of the present
appellant.
3 (2013) 16 SCC 696
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11. Shri Deshpande, learned counsel appearing on behalf of
respondent No.1, on the contrary, submitted that the view taken by the
Division Bench of the High Court of Karnataka is taken on the basis of
its earlier judgment and as such, no interference is warranted in the
present appeal.
12. For appreciating the rival submission, it will be necessary to
refer to the background in which the said Act came to be enacted. The
Union of India, after noticing that the minimum standards for admission,
duration of courses of training, details of curricula and syllabi of studies
and the title of the degree or diploma, vary from State to State and even
from institution to institution in the same State, had appointed various
Committees to consider problems relating to the Indian system of medicine
and Homoeopathy. The said Committees had recommended that a
statutory Central Council, on the lines of the Medical Council of India
for modern system of medicine, was a pre-requisite for the proper
development of these systems of medicine. It was noticed that though
some States have constituted State Boards or Councils, either by
legislation or by executive orders for the purpose of registration of
practitioners in the various systems of Indian Medicine and Homoeopathy
as well as recognition of qualifications, there was, however, no central
legislation for the regulation of practice or for minimum standards of
training and conduct of examinations in these systems of medicine
on an
all-India basis. It was also noticed that in the absence of such legislation,
there was no effective control over the large number of unregistered
practitioners in these systems. In June 1966, the Central Council of Health,
in its 13th meeting, while discussing the policy on Ayurvedic education,
has recommended the setting up of a Central Council for Indian systems
of Medicine to lay down and regulate standards of education and
examinations, qualifications and practice in these systems. In this
background, the said Act came to be enacted on 21st December 1970.
13. As per the provisions of Section 3 of the said Act, the Central
Government was required to constitute, for the purpose of the said Act,
a Central Council consisting of the Members specified therein. Chapter
IIA of the said Act deals with “Permission for new Medical College,
Course, etc.”. The earlier Chapter IIA of the said Act came to be
substituted by new Chapter IIA containing Sections 13A to 13C by the
Indian Medicine Central Council (Amendment) Act, 2003 (Act No. 58
of 2003). It will be relevant to refer to Sections 13A to 13C of the said
Act, which read thus:
CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKA
AYURVEDA MEDICAL COLLEGE AND OTHERS [B. R. GAVAI, J.]
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“13A. Permission for establishment of new medical college,
new course of study, etc.—(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—
(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 postgraduate course of study or
training,
except with the previous permission of the Central Government
obtained in accordance with the provisions of this section.
Explanation 1.—For the purposes of this section, “person”
includes any University or a trust, but does not include the Central
Government.
Explanation 2.—For the purposes of this section, “admission
capacity”, in relation to any course of study or training, including
post-graduate course of study or training, in a medical college,
means the maximum number of students as may be fixed by the
Central Government from time to time for being admitted to such
course or training.
(2) Every person or medical college shall, for the purpose of
obtaining permission under sub-section (1), submit to the Central
Government a scheme in accordance with the provisions of sub-
section (3) and
the Central Government shall refer the scheme to
the Central Council for its recommendations.
(3) The scheme referred to in sub-section (2), shall be in such
form and contain such particulars and be preferred in such manner
and accompanied with such fee, as may be prescribed.
(4) On receipt of a scheme from the Central Government under
sub-section (2), the Central Council may obtain such other
particulars as may be considered necessary by it from the person
or the medical college concerned, and thereafter, it may,—
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(a) if the scheme is defective and does not contain necessary
particulars, give a reasonable opportunity to the person or
medical college concerned for making a written representation
and it shall be open to such person or medical college to rectify
the defects, if any, specified by the Central Council;
(b) consider the scheme, having regard to the factors referred
to in sub-section (8) and submit it to the Central Government
together with its recommendations thereon within a period not
exceeding six months from the date of receipt of the reference
from the Central Government.
(5) 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
as 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 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).
(6) Where, within a period of one year from the date of submission
of the scheme to the Central Government under sub-section (2),
no order is communicated by the Central Government to the person
or medical college submitting the scheme, such scheme shall be
deemed to have been approved by the Central Government in the
form in which it was submitted, and, accordingly, the permission
of the Central Government required under sub-section (1) shall
also be deemed to have been granted.
CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKA
AYURVEDA MEDICAL COLLEGE AND OTHERS [B. R. GAVAI, J.]
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(7) In computing the time-limit specified in sub-section (6), the
time taken by the person or medical college concerned submitting
the scheme, in furnishing any particulars called for by the Central
Council, or by the Central Government, shall be excluded.
(8) The Central Council while making its recommendations under
clause (b) of sub-section (4) and the Central Government while
passing an order, either approving or disapproving the scheme
under sub-section (5), shall have due regard to the following
factors, namely:—
(a) whether the proposed medical college or the existing medical
college seeking to open a new or higher course of study or
training, would be in a position to offer the minimum standards
of medical education as prescribed by the Central Council under
Section 22;
(b) whether the person seeking to establish a medical college
or the existing medical college seeking to open a new or higher
course of study or training or to increase its admission capacity
has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment,
accommodation, training, hospital or other facilities to ensure
proper functioning of the medical college or conducting the
new course of study or training or accommodating the increased
admission capacity have been provided or would be provided
within the time-limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the
number of students likely to attend such medical college or
course of study or training or the increased admission capacity
have been provided or would be provided within the time-limit
specified in the scheme;
(e) whether any arrangement has been made or programme
drawn to impart proper training to students likely to attend such
medical college or the course of study or training by persons
having recognised medical qualifications;
(f) the requirement of manpower in the field of practice of
Indian medicine in the college;
(g) any other factors as may be prescribed.
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(9) 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.
13B. Non-recognition of medical qualifications in certain
cases.—(1) Where any medical college is established without
the previous permission of the Central Government in accordance
with the provisions of Section 13-A, medical qualification granted
to any student of such medical college shall not be deemed to be
a recognised medical qualification for the purposes of this Act.
(2) Where any medical college opens a new or higher course of
study or training including a postgraduate course of study or training
without the previous permission of the Central Government in
accordance with the provisions of Section 13-A, medical
qualification granted to any student of such medical college on
the basis of such study or training shall not be deemed to be a
recognised medical qualification for the purposes of this Act.
(3) Where any medical college increases its admission capacity
in any course of study or training without the previous permission
of the Central Government in accordance with the provisions of
Section 13-A, medical qualification granted to any student of such
medical college on the basis of the increase in its admission
capacity shall not be deemed to be a recognised medical
qualification for the purposes of this Act.
13C. Time for seeking permission for
certain existing
medical colleges.—(1) 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, such person or medical college, as the
case may be, shall seek, within a period of three years from the
said commencement, permission of the Central Government in
accordance with the provisions of Section 13-A.
(2) If any person or medical college, as the case may be, fails to
seek permission under sub-section (1), the provisions of Section
13-B shall apply, so far as may be, as if permission of the Central
Government under Section 13-A has been refused.”
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14. The perusal of sub-section (1) of Section 13A of the said Act,
which is a non-obstante clause, would show that no person is entitled to
establish a medical college except with the previous permission of the
Central Government obtained in accordance with the provisions of the
said Section. Similarly, no medical college can open a new or higher
course of study or training, including a post-graduate course or training,
which would enable a student of such course or training to qualify himself
for the award of any recognized medical qualification without the previous
permission of the Central Government. Likewise, there is also a prohibition
for the medical colleges to increase its admission capacity in any course
of study or training, including a post-graduate course of study or training
except with the previous permission of the Central Government obtained
in accordance with the provisions of the said Section. Explanation 1 to
the said Section clarifies that the “person” stated therein includes any
University or a trust, but does not include the Central Government.
Explanation 2 to the said Section clarifies that the “admission capacity”
means the maximum number of students as may be fixed by the Central
Government from time to time for being admitted to such course or
training.
15. Sub-section (2) of Section 13A of the said Act provides that a
person or a medical college, who desires to seek permission as provided
under sub-section (1) of Section 13A of the said Act, shall submit a
scheme to the Central Government in accordance with the provisions of
sub-section (3) of Section 13A of the said Act. It further provides that
the Central Government shall refer the scheme to the Central Council
for its recommendations.
16. Sub-section (3) of Section 13A of the said Act provides that
the scheme shall be in such form and contain such particulars and be
preferred in such manner and accompanied with such fee, as may be
prescribed.
17. Sub-section (4) of Section 13A of the said Act provides that
on receipt of a scheme from the Central Government under sub-section
(2) of Section 13A of the said Act, the Central Council may obtain such
other particulars as may be considered necessary by it from the person
or the medical college concerned. It further provides that if the scheme
is defective and does not contain necessary particulars, it shall give a
reasonable opportunity to the person or medical college concerned for
making a written representation. It further provides that it shall be open
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to such person or medical college to rectify the defects, if any, specified
by the Central Council. It also requires the Central Council to consider
the scheme with regard to the factors referred to in sub-section (8) of
Section 13A of the said Act and submit the same to the Central
Government together with its recommendations thereon within a period
not exceeding six months from the date of receipt of the reference from
the Central Government.
18. It can be seen from perusal of sub-section (5) of Section 13A
of the said Act, that the Central Government may, after considering the
scheme and recommendations of the Central Council under sub-section
(4) of Section 13A of the said Act and after obtaining, where necessary,
such other particulars as 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) of Section 13A of the said Act, either
approve the scheme with such conditions, if any, as it may consider
necessary or disapprove the scheme. It further provides that any such
approval shall constitute as a permission under sub-section (1) of Section
13A of the said Act. The first proviso to sub-section (5) of Section 13A
of the said Act provides that no scheme shall be disapproved by the
Central Government, without giving the person or medical college
concerned, a reasonable opportunity of being heard. The second proviso
to sub-section (5) of Section 13A of the said Act
also enables the person
or medical college, whose scheme has not been approved by the Central
Government, to submit a fresh scheme. It further provides that the
provisions of the said Section shall apply to such scheme as if such
scheme had been submitted for the first time under sub-section (2) of
Section 13A of the said Act.
19. Sub-section (6) of Section 13A of the said Act, which is a
deeming provision, provides that if no order is communicated by the
Central Government to the person or medical college submitting the
scheme, within a period of one year from the date of submission of the
scheme, such a scheme shall be deemed to have been approved by the
Central Government in the form in which it was submitted. It further
provides that the permission of the Central Government required under
sub-section (1) of Section 13A of the said Act shall also be deemed to
have been granted.
20. Sub-section (7) of Section 13A of the said Act provides that in
computing the time-limit specified in sub-section (6) of Section 13A of
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the said Act, the time taken by the person or medical college concerned
submitting the scheme, in furnishing any particulars called for by the
Central Council, or by the Central Government, shall be excluded.
21. The perusal of sub-section (8) of Section 13A of the said Act
would show that the Central Council while making its recommendations
under clause (b) of sub-section (4) of Section 13A of the said Act and
the Central Government while passing an order, either approving or
disapproving the scheme under sub-section (5) of Section 13A of the
said Act, shall have due regard to the factors mentioned therein. Various
factors have been mentioned in clauses (a) to (g) including as to whether
the proposed medical college or the existing medical college seeking to
open a new or higher course of study or training, would be in a position
to offer the minimum standards of medical education as prescribed by
the Central Council under Section 22 of the said Act. It could be seen
that clauses (a) to (f) of sub-section (8) of Section 13A of the said Act
relate to specific factors to be taken into consideration, whereas clause
(g) thereof is a residuary clause, which permits the Central Council and
the Central Government to take into consideration any other factors that
may be prescribed.
22. Sub-section (9) of Section 13A of the said Act provides that
where the Central Government passes an order either approving or
disapproving a
scheme under the said Section, a copy of the order shall
be communicated to the person or medical college concerned.
23. At this stage, it will also be relevant to refer to Section 22 of
the said Act, which reads thus:
“22. Minimum standards of education in Indian medicine.—
(1) The Central Council may prescribe the minimum standards of
education in Indian medicine, required for granting recognised
medical qualifications by Universities, Boards or medical
institutions in India.
(2) Copies of the draft regulations and of all subsequent
amendments thereof shall be furnished by the Central Council to
all State Governments and the Central Council shall, before
submitting the regulations or any amendment thereof, as the case
may be, to the Central Government for sanction, take into
consideration the comments of any State Government received
within three months from the furnishing of the copies as aforesaid.
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(3) Each of the Committees referred to in clauses (a), (b) and (c)
of sub-section (1) of Section 9 shall, from time to time, report to
the Central Council on the efficacy of the regulations and may
recommend to the Central Council such amendments thereof as
it may think fit.”
24. It can thus be seen that under sub-section (1) of Section 22 of
the said Act, the Central Council is entitled to prescribe the minimum
standards of education in Indian medicine, required for granting
recognized medical qualifications by Universities, Boards or medical
institutions in India. Sub-section (2) of Section 22 of the said Act would
reveal that the copies of the draft regulations and of all subsequent
amendments thereof shall be furnished by the Central Council to all
State Governments. It further provides that before submitting the
regulations or any amendment thereof, to the Central Government for
sanction, the Central Council shall take into consideration the comments
of any State Government received within three months from the
furnishing of the copies as aforesaid. Sub-section (3) of Section 22 of
the said Act provides that each of the Committees referred to in clauses
(a) to (c) of sub-section (1) of Section 9 of the said Act, shall, from time
to time, report to the Central Council on the efficacy of the regulations
and may recommend to the Central Council such amendments thereof
as it may think fit.
25. Section 36 of the said Act empowers the Central Council “to
make regulations” to carry out the purposes of the said Act, which reads
thus:
“36. Power to make regulations.— (1) The Central Council
may, with the previous sanction of the Central Government, by
notification in the Official Gazette, make regulations generally to
carry out the purposes of this Act, and, without prejudice to the
generality of this power, such regulations may provide for—
(a)
….……..
(b)
…………
(c)
…………
(d)
…………
(e)
…………
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(f)
…………
(g)
…….......
(ga) ………..
(gb) any other factor under clause (g) of sub-section (8) of
Section 13-A;
(h) the appointment, powers, duties and procedure of inspectors
and visitors;
(i) the courses and period of study and of practical training to
be undertaken, the subjects of examination and the standards
of proficiency therein to be obtained, in any University, Board
or medical institutions for grant of recognised medical
qualifications;
(j) the standards of staff, equipment, accommodation, training
and other facilities for education in Indian medicine;
(k) ………..
(l) …………
(m) ……….
(n) ………..
(o) ………..
(p) ………..
(2) The Central Government shall cause every regulation made
under this Act to be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one session or in
two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any modification
in the regulation or both Houses agree that the regulation should
not be made, the regulation shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so,
however, not any such modification or annulment shall be without
prejudice to the validity of anything previously done under that
regulation.”
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26. It can be seen that such regulations are to be made by the
Central Council with the previous sanction of the Central Government.
Clause (gb) of sub-section (1) of Section 36 of the said Act enables the
Central Council to make regulations with regard to any other factor as
provided under Clause (g) of sub-section (8) of Section 13A of the said
Act. Clause (i) of sub-section (1) of Section 36 of the said Act enables
the Central Council to make regulations providing for the courses and
period of study and of practical training to be undertaken, the subjects of
examination and the standards of proficiency therein etc. It can further
be seen from the perusal of Clause (j) of sub-section (1) of Section 36 of
the said Act that the Central Council, with the previous sanction of the
Central Government, is entitled to make regulations prescribing for the
standards of staff, equipments, accommodation, training and other
facilities for education in Indian medicine. Sub-section (2) of Section 36
of the said Act requires the Central Government to cause every regulation
made under the said Act to be laid, as soon as after it is made, before
each House of Parliament. It reserves the power of both the Houses of
Parliament to make any modification in the regulations.
27. It could thus clearly be seen that Section 13A read with Sections
22 and 36(1)(j) of the said Act provides a complete scheme for
establishment of medical college, opening a new or higher course of
study or training, including a post-graduate course of study or training,
and also increasing the admission capacity. From the perusal of the scheme
of the aforesaid provisions, it is clear that no person is entitled to establish
a medical college except with the previous permission of the Central
Government. Similarly, no medical college can open a new or higher
course of study or training, including a post-graduate course of study or
training without the previous sanction of the Central Government.
Likewise, no medical college can increase its admission capacity in any
course of study or training, including a post-graduate course of study or
training. Sub-sections (2) to (5) of Section 13A of the said Act prescribe
a detailed procedure for submitting a scheme and consideration thereof
by the Central Council and the Central Government. It also provides for
in-built safeguards inasmuch as the principles of natural justice are
provided at two stages, one before the Central Council and another before
the Central Government. The second proviso to sub-section (5) of Section
13A of the said Act also enables a person or medical college whose
scheme has not been approved by the Central Government, to again
submit a fresh scheme, which is required to be considered as if the same
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is made for the first time under sub-section (2) of Section 13A of the
said Act. Sub-section (6) of Section 13A of the said Act provides that
when no order is communicated within a period of one year from the
date of submission of the scheme, by a deeming provision, such scheme
shall stand approved and it will be deemed that the permission of the
Central Government as required under sub-section (1) of Section 13A
of the said Act has been granted. Sub-section (7) of Section 13A of the
said Act provides for exclusion of the period for the time taken by the
person or medical college concerned to furnish any particulars called by
the Central Council, or by the Central Government. Sub-section (8) of
Section 13A of the said Act provides the factors to be taken into
consideration. Sub-section (9) of Section 13A of the said Act provides
for the communication of the order approving or disapproving the scheme,
to the person or medical college concerned.
28. The statutory scheme is thus clear that no medical college
can open a new or higher course of study or training, including a post-
graduate course, except with the previous permission of the Central
Government. Prior to such a permission being granted, the procedure as
prescribed under Section 13A has to be followed.
29. The legislative intent is further clarified by the provisions made
in Section 13B of the said Act. Sub-section (1) of Section 13B of the
said Act provides
that where any medical college is established without
the previous permission of the Central Government in accordance with
the provisions of Section 13A of the said Act, medical qualification granted
to any student of such medical college shall not be deemed to be a
recognized medical qualification for the purposes of the said Act.
Likewise, sub-section (2) of Section 13B of the said Act provides that
where any medical college opens a new or higher course of study or
training including a post-graduate course of study or training without the
previous permission of the Central Government in accordance with the
provisions of Section 13A of the said Act, medical qualification granted
to any student of such medical college on the basis of such study or
training shall not be deemed to be a recognised medical qualification for
the purposes of the said Act. Likewise, sub-section (3) of Section 13B
of the said Act provides that where any medical college increases its
admission capacity in any course of study or training without the previous
permission of the Central Government in accordance with the provisions
of Section 13A of the said Act, medical qualification granted to any
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student of such medical college on the basis of the increase in its admission
capacity shall not be deemed to be a recognised medical qualification
for the purposes of the said Act.
30. It could further be seen that the legislature itself has taken
care of a situation, where 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 prior to the commencement
of the Indian Medicine Central Council (Amendment) Act, 2003. It has
provided that such person or medical college, as the case may be, shall
seek, within a period of three years from the said commencement,
permission of the Central Government in accordance with the provisions
of Section 13A of the said Act.
31. The impugned judgment of the Division Bench and the Single
Judge of the High Court of Karnataka, so also the other judgments of
the High Court of Karnataka, which are relied on by the Division Bench,
do not take into consideration the scheme of Section 13A of the said
Act.
32. It could further be relevant to notice Regulation 3(1)(a) of the
2016 Regulations, which reads thus:
“3. Requirements of Minimum Standard to grant of
permission-
(1)(a) The Ayurveda colleges established under Section 13A and
existing under Section 13C of the Act and their attached hospitals
shall fulfill the requirements of minimum standard for infrastructure
and teaching and training facilities referred to in the
Regulations 4
to 11 up to the 31st December of every year for consideration of
grant of permissions for undertaking admissions in the coming
academic session.”
33. It could thus clearly be seen, that Regulation 3(1)(a) of the
2016 Regulations specifically provides that the Ayurveda colleges
established under Section 13A and existing under Section 13C of the
said Act and their attached hospitals shall fulfill the requirements of
minimum standard for infrastructure and teaching and training facilities
referred to in the Regulations 4 to 11 up to 31st December of every year
for consideration of grant of permissions for undertaking admissions in
the coming academic session. It is thus clear that in order to be eligible
for grant of permission for undertaking admissions in a particular academic
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session, the institution must fulfill the requirements of minimum standard
as on 31st December of the earlier year. For example, if the institution is
seeking grant of permission for undertaking admissions for the academic
session 2022-23, it must have fulfilled the requirements of minimum
standard as on 31st December 2021. It could thus be seen that the finding
that the permission granted for a subsequent academic year would also
enure to the benefit of earlier academic year though the said institution
was not fulfilling the criteria of minimum standard, is totally erroneous.
34. We further find that the High Court has also erred in not
correctly applying the law laid down by this Court in the case of Ayurved
Shastra Seva Mandal (supra). In the said case, the petitioner Ayurved
Shastra Seva Mandal had approached the Bombay High Court being
aggrieved by the refusal by the Government of India to grant permission
to the colleges to admit students for the academic year 2011-12. Such
permission was refused on account of various deficiencies relating to
infrastructure and teaching staff, which had not been rectified and brought
into line with the minimum standard norms.
35. It is further to be noted that in paragraph (10) of the said
judgment, this Court had specifically observed that the petitioner therein
tried to impress upon that the deficiencies had already been removed
and that is why permission was specifically
given for the admission of
students for the academic year 2012-13. It was therefore urged that
there was no reason for withholding the permission for the academic
year 2011-12. This Court specifically noticed that a large number of
students had applied for admission for the academic year 2011-12 and
that too with the leave of this Court. However, this Court found that the
privilege granted to the candidates could not be transformed into a right
to be admitted in the course for which they had applied. While dismissing
the petition and refusing to interfere with the judgment of the High Court,
this Court observed thus:
“17. It is not for us to judge as to whether a particular institution
fulfilled the necessary criteria for being eligible to conduct classes
in the discipline concerned or not. That is for the experts to judge
and according to the experts the institutions were not geared to
conduct classes in respect of the year 2011–2012. It is also
impractical to consider the proposal of the colleges of providing
extra classes to the new entrants to bring them up to the level of
those who have completed the major part of the course for the
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first year. We are not, therefore, inclined to interfere with the
orders of the High Court impugned in these special leave petitions
and the same are, accordingly, dismissed.”
36. It can be seen from the conjoint reading of various paragraphs
of the said judgment that the contention that since the deficiencies stood
already removed and the permission granted for the academic year 2012-
13, the said permission should also be construed as having been granted
for the academic year 2011-12, was not accepted by this Court.
37. We are at pains to say that though the judgment in the case of
Ayurved Shastra Seva Mandal (supra) was specifically relied on by
the appellant herein, the learned Single Judge and the Division Bench of
the High Court of Karnataka have chosen to rely on the earlier judgments
of the Division Bench of the same High Court rather than a judgment of
this Court.
38. It will further be relevant to note that this Court in the case of
Ayurved Shastra Seva Mandal (supra) has also referred to the
amended provisions of the said Act. It will be relevant to refer to
paragraphs (5) to (9) of the said judgment, which read thus:
“5. As far as medical institutions are concerned, the procedure
relating to the recognition of medical colleges as well as admission
therein was governed by the Indian Medicine Central Council
Act, 1970 (hereinafter referred to as “the 1970 Act”), which was
amended in 2003, to incorporate Sections 13-A, 13-B and 13-C,
which
provided the procedure for establishing new colleges and
making provision for seeking prior permission of the Central
Government in respect of the same. The amendment also attempted
to bring in reforms in the existing colleges by making it mandatory
for them to seek permission from the Central Government within
a period of three years from their establishment.
6. Having regard to the said amendments, the Central Council of
Indian Medicine, with the previous sanction of the Central
Government, framed Regulations, in exercise of the powers
conferred on it by Section 36 of the 1970 Act. The said Regulations
were named as the Establishment of New Medical College,
Opening of New or Higher Course of Study or Training and
Increase of Admission Capacity by a Medical College Regulations,
2003 (hereinafter referred to as “the 2003 Regulations”).
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Regulation 6(1)(e) of the 2003 Regulations provides for applications
to be made by a medical college owning and managing a hospital
in Indian medicine containing not less than 100 beds with necessary
facilities and infrastructure.
7. The Central Council of Indian Medicine further framed
Regulations in 2006 called as the Indian Medicine Central Council
(Permission to Existing Medical Colleges) Regulations, 2006
(hereinafter referred to as “the 2006 Regulations”). Regulation
5(1)(d) of the 2006 Regulations provides that the applicant College
would have to be owning and managing a minimum of 100 beds
for undergraduate courses and 150 beds for postgraduate courses,
which conforms to the norms relating to minimum bed strength
and bed occupancy for in-patients and the number of out-patients.
8. When the 2003 Amendment was effected to the 1970 Act,
three years’ time was given to the existing colleges to remove the
deficiencies. The 2006 Regulations provided a further period of
two years to remove the deficiencies and even relaxed the
minimum standards in that regard. Even after the expiry of two
years, the colleges were given further opportunities to remove
the shortcomings by granting them conditional permission for their
students for the academic years 2008–2009, 2009–2010 and 2010–
2011. It is only obvious that the minimum standards were insisted
upon by the Council to ensure that the colleges achieved the
minimum
standards gradually.
9. It may be noted that there was little or no response from the
institutions concerned in regard to removal of the deficiencies in
their respective institutions and it is only when the notices were
given to shut down the institutions that they woke up from their
slumber and approached the courts for relief. In many of these
cases, permission was given by the courts to the institutions
concerned to accept admission forms, but they were directed not
to pass any orders thereupon till the decision of this Court in these
special leave petitions.”
39. We are, therefore, of the considered view that the learned
Single Judge as well as the Division Bench have grossly erred in not
taking into consideration the scheme of the said Act so also the judgment
of this Court in the case of Ayurved Shastra Seva Mandal (supra).
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40. In the result, the appeals are allowed. The common judgment
and order dated 21st December 2020, delivered by the Division Bench
of the High Court of Karnataka in Writ Appeal No. 542 of 2020 (EDN-
REG) and Writ Appeal No.541 of 2020 (EDN-REG), and the judgment
and order dated 24th September 2020 passed by the Single Judge in Writ
Petition No. 50772 of 2018 (EDN-REG-P) and Writ Petition No. 50828
of 2018 (EDN-EX) are quashed and set aside. The writ petitions filed
by the original writ petitioners in the High Court are dismissed.
41. Pending application(s), if any, shall stand disposed of in the
above terms. No order as to costs.
Nidhi Jain
Appeals allowed.
(Assisted by : Tamana, LCRA)
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