District Homeopathic Medical College Charitable Hospital Medical Research and Eductional Trust vs Union of India

Heard on the question of admission.

This is second round of litigation. In the first round of litigation (Writ Petition No. 5537/2014), the petitioner - college had prayed for quashment of the order dated 15.07.2014 and 18.06.2008 and issuance of writ, direction or order, permitting the the petitioner to take admissions in the PG Course.

On 15.09.2014, interim relief was granted by directing the fourth respondent to accept the forms of the students of M.D. Homeopathy of the petitioner - institution, permitting them to appear in the ensuring examination, but they would not be entitled to claim equity on the basis of this interim order passed in the matter and acceptance of the forms by the University shall be subject to further orders and final outcome of the petition.

Thereafter, the matter was finally heard and decided on 20.04.2014 and the writ petition was dismissed on merit, the order is very relevant, which reads, as under:--

"W.P. No. 5537/2014

20.11.2014.

Shri Piyush Mathur, learned Senior counsel with Shri Mukesh Kumawat, learned counsel for the petitioner.

Shri Deepak Rawal, learned Addl. Solicitor General for the respondent No. 1.

Shri Mayank Upaddhyay, learned counsel for the respondent No. 2.

They are heard.

By this petition under Article 226 of the Constitution of India, the petitioner - trust is praying for the following relief:--

"(a) This Hon''ble Court may be pleased to quash the direction/order dated 15.7.2014 and 18.6.2008 and allow the petitioner to take admissions in the PG Courses.

(b) To award the costs of the petition from the respondents.

(c) Any other relief which this Hon''ble Court may deem fit in the facts and circumstances of the case in favour of the petitioner."

The respondent No. 2 - Central Council for Homeopathy is a statutory body constituted by the Government of India, under the provisions of Homeopathy Central Council Act, 1973 (Hereinafter referred as ''HCC Act, 1973'') for maintaining the Central Register of Homeopathy and matters connected with. The Central Council has been vested with the powers under Section 20 of the HCC Act, 1973 for prescribing minimum standards of education in Homeopathy, required for granting recognized medical qualification by University, Board of medical institution in India.

Under the provisions of Section 33 of the HCC Act, the Central Council has been authorized to make Regulations with previous sanction of the Central Government to carry out the purposes of this Act. Under the provisions of clauses (i), (j) and (k) of Section 33 and Section 20 of the HCC Act the Central Council with the previous sanction of the Central Government has made the following Educational Regulations:--

(i) Homeopathy (Degree Course) Regulations, 1983 (as amended in 2003 & 2005);

(ii) Homeopathy (Graded Degree Course) Regulations, 1983 (as amended in 2001);

(iii) Homeopathy (Post Graduate Degree Course) M.D. (Hom.) Regulations, 1989 (as amended in 1993, 2001 and 2012).

Homeopathy Central Council (Minimum Standards Requirement of Homeopathic colleges and attached Hospitals) Regulations, 2013 have been notified, with previous sanction of Central Government as per provisions of Clause (j) of Section 33 of HCC Act, 1973 in supersession of Homeopathy (Minimum Standards of Education) Regulations, 1983, in Official Gazette on 8th March, 2013. The Central Council has also notified in Official Gazette the Homeopathy Central Council (Inspectors-Visitors) Regulations, 1982 with the previous sanction of the Central Government.

That the petitioner District Homeopathic Medical College Charitable Hospital Medical Research & Educational Trust is running a homeopathic hospital since 1992 for teaching and training imparted in the homeopathic college. The petitioner trust have developed adequate infrastructure for running homeopathic college as per norms of Central Council for Homeopathic and have been conducting the degree course of BHMS (Bachelor of Homeopathic Medicine & Surgery). He had applied to the respondent No. 3 State Government for granting NOC for commencing P.G. Course MD (Homeopathy) and the Higher Education Department of Respondent No. 3, issued a NOC dated 29.11.2001. Thereafter NOC was granted by the respondent No. 4 University vide letter dated 6.7.2002.

The petitioner applied for approval to conduct the PG Course in MD (Homeopathy) course to respondent No. 2. On 9.9.2002 respondent No. 2 - Central Council for Homeopathy has granted an approval for 2002-03. Thereafter vide permission dated 18.8.2014 the permission was granted by the AYUSH department of Government of India vide letter dated 18.8.2004. The name of the petitioner is at Serial No. 71. On 23.9.2004 the respondent No. 1 issued a corrigendum whereby permissions/recognitions were extended to "2003-04 on words", for conducting BHMS course.

The petitioner applied for grant of NOC for MD course before the respondent No. 3. The respondent No. 3 after considering the proposal allowed the application subject to compliance of Educational Regulation framed by the Government of India in the year 1989 with the previous sanction of the Central Government. Thereafter, the respondent No. 4 granted affiliations to the petitioner for MD (Homeopathy) for Educational Session 2008-09. Clause A and B reads as under:--

The respondent No. 1 by letter dated 18th June, 2008 requested the petitioner not to make admission to the P.G. Course without obtaining the prior approval of the Central Government under the provisions of 12A of the HCC Act, 1973. This has been issued on the basis of letter written by the respondent No. 2 on 5.9.2007 to the respondent No. 1 that the PG course were not started. After receipt of the aforesaid letter the petitioner made a detailed representation to the respondent No. 1 on 30th June 2008 stating therein that the college has adequate facilities and infrastructure for the P.G. Course. It is also stated that on 9.9.2002 the respondent No. 2 had recognized the petitioner college to make admission in M.D. (Homeopathy course in Materia Medica and Practice of Medicine with an intake capacity of 3 students in each subject. When the college was going to admit the students in the MD (Homeopathy) course in 2003-04, the State Government wanted fresh inspection. Due to unknown reasons the State Government had taken their own time and granted final permission on 30.5.2008. Immediately thereafter, the college granted admission to three students each in the two subjects permitted by the Government of India and CCH - respondent No. 2 and requested that college may be allowed to continue to run MD (Homeopathy).

The petitioner after a period of more than one year from the date of the aforesaid representation intimated them that they have admitted six students on 12.1.2009. The respondent No. 1 vide communication dated 15.7.2014 (Annexure P/11) directed the petitioner that the college had not to take admission in PG Course without obtaining prior approval of the Central Government under the provisions of Section 12A of the HCC Act, 1973. The admitting of students in P.G. Course is a clear violation of the provision of the said Act and relevant Regulations, and directed to take appropriate steps to stop admissions in the P.G. Course conducted by the said college with immediate effect. It is this action which is impugned in this writ petition.

It is submitted by the learned Senior counsel that the permission was granted to start P.G. Homeopathy course by the respondent No. 2 on 9.9.2002 and thereafter, by corrigendum dated 23.9.2004 the permission was granted for the Academic Session "2003-04 on words" and under the HCC Act, 1973 and Regulations framed therein no fresh permission is required. The letter dated 18.6.2008 Annexure R/4 on the basis of which Central Government directed the petitioner not to admit the student is contrary to the Regulations and the HCC Act and submitted that college is eligible to admit the students. It is also submitted that petitioner has not violated the provisions of Section 12A of HCC Act, 1973 as they have all necessary permissions, authorization and NOC as required to begin the subject course and it was only after they got all necessary permission they lawfully started the course. He also submitted that amended Section 12A of the HCC Act, 1973, deals with permission for establishment of new medical institution, new course of study, etc. whereas in the case in hand neither the permission for establishment of new medical institution is involved nor there is a case of new course of study, therefore, the provisions of Section 12A of the HCC Act, 1973 are not at all attracted in the case in hand and payed that directions dated 15.7.2004 and 18.6.2008 be quashed.

In reply, learned counsel for the respondents have submitted that corrigendum dated 23.9.2004 is in respect of BHMS course only. The Government of India vide letter dated 18.6.2008 rightly directed the petitioner not to make admission to the PG Course. It is also submitted that unless and until permission is granted by the Central Government to the petitioner to conduct the P.G. Course, they cannot be permitted to grant admission or admit the students for the P.G. Course and prays for dismissal of the writ petition.

The amendments in CCH Act, 1973 were notified on 9.12.2002 which had become implementable w.e.f. 28.1.2003, before that H.C.C. Act in itself did not provide for grant of permission to establish a new college or for grant of permission to start P.G. Course in a College. However, under the provisions of H.C.C. Act, 1973, the Central Council with the previous sanction of Central Government, notified Homeopathy (Degree Course) Regulations, 1983 and Homeopathy (Minimum Standards of Education) Regulation, 1983 wherein regulation 2 (v) defined "Homeopathic College" as a Homeopathic Medical College affiliated to a University/Board and recognized by the Central Council of Homeopathy. Homeopathy (Post Graduate Degree Course) Regulations (as amended in 2001) prescribed the requirements for Post Graduate Teaching as under:

"9(1): The Central Council may after evaluation permit a Homeopathy College or Institute or Hospital to start post Graduate Course in Homeopathy.

(2) Every such college, institute or hospital shall have a department of the concerned specialty and shall also have the following additional facilities namely:

(i) one full time Professor in the department of specialty

(ii) one Reader/Astt. Professor

(iii) staff such as Attendants, Technician etc as deemed necessary depending upon the Department

(iv) Departmental library

(v) Out patient department and in-patient department with all facilities including separate clinical laboratory

(vi) Three beds shall be ear-marked per student for each clinical subject of specialty."

The said Homeopathy (Post Graduate Degree Course) Regulations, 1989 (as amended in 2001) in Regulation 2(d) defined "Homeopathic College" as a Homeopathic Medical College or an Institute affiliated to a University and recognized by the Central Council for post graduate course. The Central Council of Homeopathy was the authority to grant recognition to a Homeopathic College including increase/decrease in the intake capacity which had been later on vested in Government of India w.e.f. 28.1.2003.

As per reply of the respondent No. 2 the inspection of the petitioner college was carried out by the Central Government on 9.10.2003, the Council vide its letter dated 10.2.2004 informed the Registrar of the respondent No. 4 -University about the decision of its executive committee taken in its meeting held on 26 & 27.12.2003 wherein executive committee held that it did not appreciate non submission of desired information by the college authorities to Visitors during the inspection. However, it desired to cancel the admission of in-eligible students enrolled in MD (Hom) Courses in view of the provisions of Homeopathy (Post Graduate Degree Course) Amendment Regulations, 2001. Letter dated 10.2.2004 reads as under:--

"I am to say that the Executive committee of this council considered the report of inspection of District Homeopathic Medical College, Ratlam in its meeting held on 26th and 27th December, 2003 and it did not appreciate non submission of desired information by the College authorities to Visitors during the inspection. However, it desired to cancel the admission of ineligible students enrolled in M.D.(Hom) Courses in view of provisions of Homeopathy (Post Graduate Degree Course) Amendment Regulations, 2001.

However, a copy of the report of inspection carried out on 9th October, 2003 by the Central Council in respect of District Homeopathic Medical College and Hospital, 478, Katju Nagar, Ratlam (MP) is sent herewith with the request that remarks, if any, on the insufficiencies pointed out in the inspection report in regard to minimum requirements, norm and standards in respect of teaching staff, equipment, accommodation, training hospital and other facilities as specified in the Homeopathy (Minimum Standards of Eduction) Regulations, 1983 (as amended till 2002) and for running B.H.M.S. degree course as per Homeopathy (BHMS Course) Regulations, 1983(Amended upto 2003) may please be furnished to this Council within 30 days from the date of receipt of this letter"

Respondent No. 2 on 10.8.2004 issued another letter to the University which reads as under:--

"I am to invite your kind attention towards this council''s letter cited above which have been sent by Registered Post, but no reply about action taken has yet been received from the University.

The admission in MD (Hom) Course in Vikram University need to be cancelled as asked vide said letters.

It is requested to you kindly to get the needful done and let this Council know about action taken in the matter by the University"

The respondent No. 2 thereafter wrote a letter to the Government of India respondent No. 1 on 5.9.2007 which reads as under:

"I am to say that the Executive Committee of this Council in its meeting held on 25.6.2007 after considering the report of inspection of District Homeopathic Medical College, Ratlam noted that the College has not started the Post Graduate Degree Course as allowed by the Council as such the Central Government may be written in the matter to ask the college not to admit students in the P.G. Course till it seeks recognition of the Central Government as per provisions of Homeopathy Central Council Amendment Act, 2002

Accordingly, it is requested to you kindly to initiate necessary action in the matter"

The respondent No. 2 again by letter dated 7.7.2009 informed that since Central Government vide its order dated 18.6.2008 had directed the petitioner not to make admission in P.G. Course without obtaining prior approval how the petitioner - college had admitted six students in the academic year 2008-09 in P.G. Course. On 17.12.2009 Annexure R/7 the council again asked the petitioner - college to produce documentary evidence of grant of permission by the Central Government in terms of HCC Act, 1973 after 18.6.2008.

Letter dated 17.12.2009 reads as under:

"I am to invite your kind attention towards this Council''s letter of even number dated 7.7.09 (copy enclosed) and to say with regret that no reply has been received in the matter till date from your side.

However, this Councils has received inspection fees vide your letter No. 337/09 dated 7.8.09 for BHMS and P.G. Courses. It is not understood as to why you have sent the fees for P.G. Courses though the Central Govt. vide its letter dt. 18.6.2008 had told to you not to make any admissions in P.G. Courses without obtaining the prior approval of the Central Govt.

Your are hereby asked to produce the documentary evidence of grant of permission by the Central Govt. after 18.6.2008 in terms of Homeopathy Central Council Act for conduct of M.D. (Hom.) Courses of the College.

Your are also asked to produce the documentary evidence of grant of affiliation by the Vikram University for BHMS Graded Degree Course as the Notification of affiliation dated 27.6.2001 of the University did not indicate its affiliation to the College for Graded Degree Course."

The respondent No. 2 vide its letter dated 14.9.2011 deputed its Inspector to visit Vikram University on 26.9.11 to get the information whereupon the University informed that petitioner college was granted affiliation for the year and subsequent affiliation for the year 2009-10 was not granted by the University due to want of permission from the Council and also from the Commissioner, Department of Higher Education, Govt. of M.P. It was also informed that University has not conducted any M.D. (Hom) Course examination. From the reply of the respondent No. 2 it appears that Writ Petition No. 1185/2012 was filed by the petitioner college in which respondent No. 2 Central Council was not a party.

From the perusal of return of respondent No. 2, it is clear that the petitioner had filed a writ petition vide W.P. No. 1158/2012 on 31.1.2012, against Vikram University, Ujjain and Government of M.P. The respondents No. 1, 2 and 3 were not impleaded in the said writ petition. The petitioner College claimed the following relief:--

(I) That the Vikram University Ujjain, may kindly be directed to Conduct the Examination of Post Graduate M.D. Homeopathic course Examination Part -1 for the Academic Session 2008-2009,

(II) That the Hon''ble Court may kindly be directed to respondents to conduct the Examination and allowed the petitioner''s student to appear in the Examination of Academic Session of 2008-2009

(III) To, allow this petition with costs,

(IV) Any other relief which this Hon''ble Court may grant to the petitioner.

At the time of filing of the writ petition, they have complete knowledge about letter dated 18.6.2008 (Annexure P/9) of the respondent No. 1 and 7th July, 2009 (Annexure R/7) of respondent No. 2. The University in the aforesaid matter filed their reply without disclosing the other relevant facts ie., Annexure R/1 dated 30.8.2010, Annexure R/4 dated 5.9.2007, Annexure R/6 dated 7th July 2009 nor they disclosed their own letter dated 26.9.2011 Annexure R/8. The respondents therein filed their reply. Para 1 to 4 are relevant which reads as under:--

That, the petitioner has filed this petition claiming the relief that the respondent University may be directed to conduct the examination of M.D. Homeopathic Course in the light of the fact that the petitioner has admitted 18 students in the said course after according due approval from AAYUSH Department to run the PG courses, but since the answering respondent University has not granted affiliation to the said courses, the examination could not be conducted also for want of appropriate ordinance for conducting such examinations.

That, at present since the answering respondent University has prepared the ordinance for conducting such examinations and the same has also been approved by the Governor House, the answering respondent University has already declared the date of examination for the petitioner college. The examinations shall be conducted from 15.5.2012. The letters regarding conducting the aforesaid examinations have also been sent to the petitioner college.

That, in the light of the aforesaid facts, the petition filed by the petitioner has rendered infructuous and therefore the same deserves dismissal.

That, the answering respondent have filed the aforesaid reply reserving their right to file a detailed para-wise reply in case the need so arises."

This Court disposed of the writ petition and passed the following order on 26.4.2012:--

"26.4.2012.

Shri Piyush Mathur, learned Senior counsel with Shri Mukesh Kumawat, learned counsel for the petitioner.

Shri Ashutosh Nimgaonkar, learned counsel for the Respondents No. 1,2 and 3.

Ms. Mini Ravindran, learned Deputy Govt. Advocate for the respondent No. 4/State.

Respondents No. 1,2 and 3 have filed reply.

A statement has been made by Shri Ashutosh Nimgaonkar, learned counsel appearing for the Respondents No. 1,2 and 3 that the desired examination shall be conducted by the University w.e.f. 15.5.2012.

In view of the aforesaid statement, we are of the view that nothing survives in this writ petition. Accordingly, the petition stands disposed of.

In case the Respondent fail to comply with the assurance given before this court, it will be open for the petitioner to revive the prayer made in this petition."

The petitioner vide its letter dated 27.2.2013 informed that students were admitted to the P.G. Course after due permission for the same, but examination could not be conducted in time due to the State Government formalities and under the circumstances college authorities were forced to take legal help for conducting examination of students of PG Course. The respondent No. 2 Council vide its letter dated 13.9.2013 and 28.10.13 requested Vikram University to furnish actual position of examination conducted by the University of students enrolled in M.D. (Hom) Courses in petitioner college including the details of examiners and guides in respect of M.D. (Hom). They also enquired whether the University had complied with Regulation 13 of Homeopathy (Post Graduate Degree Course) Regulations (as amended up to March 2012). As per reply of respondent No. 2 the respondent No. 4 - University has not sent any panel of examiners to the Central Council for its approval which is mandatory requirement for conducting the Post Graduate Examinations. Due to non-compliance with the provisions of Regulation 13 of Homeopathy (Post Graduate Degree Course) M.D. (Hom) Regulations, 1989, even the examinations conducted by the University cannot be held valid.

As per Section 12B (2) of HCC Act, 1973 as amended in December 2002 provides that

"(2) Where any medical institution 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 12A, medical qualification granted to any student of such institution on the basis of such study or training shall not be deemed to be recognized medical qualification for the purposes of this Act.

(3) Where any medical institution 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 12A, medical qualification granted to any student of such medical institution on the basis of the increase in its admission capacity shall not be deemed to be recognized medical qualification for the purpose of this Act."

Section 12A of HCC Act, 1973 reads as under:--

"Permission for establishment of new medical institution, 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 Homeopathic Medical College; or

b) no Homeopathic Medical College shall -

(i) open a new or higher course of study or training (including post-graduate course of study or training) which would enable students of each course or training to qualify himself for the award of any recognized medical qualification; or

(ii) increase its admission capacity in any course of study or training (including the post-graduate course of study or training.),

except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

From the perusal of 12A and 12B of HCC Act, 1973 the University or the petitioner do not have the authority to take admission of students in P.G. Course without seeking permission from the Central Government.

For the above mentioned reasons, we are of the view that no case for quashment of communication dated 15.7.2014 and 18.6.2008, as prayed by the petitioner is made out nor the petitioner is entitled to admit the students and grant admission in P.G. Course.

The writ petition has no merit and is accordingly, dismissed. No costs."

The petitioner filed an application on 29.03.2015 (Annexure P/32) for declaration of result of PG Students. On 9th November, 2015 (Annexure P/33), the Government of India granted permission to declare results of PG Students of 2nd Batch of District Homeopathic Medical College & Hospital, Ratlam. As per the final order dated 20.11.2014, which has been reproduced herein above in preceding paragraph, this Court observed that under Section 12-A and 12-B of the HCC Act, 1973, the University or the petitioner do not have the authority to take admission of students in P.G. Course, without seeking permission from the Central Government and dismissed the writ petition. In spite of that, an order has been passed. The petitioner, on the strength of the aforesaid order dated 9th November, 2015 (Annexure P/33), filed the present writ petition for directing the respondents to declare the results of the students of the petitioner - college, when the similar prayer was rejected in the earlier round of litigation. Therefore, no such direction can be issued in the present writ petition, nor such a writ petition is maintainable.

Learned Senior Counsel for the petitioner has drawn our attention to the various documents passed by the Authorities from time to time and averments made in the writ petition and submitted that respondent No. 4 - University be directed to declare the result.

We cannot accept the prayer of the petitioner, because once the said prayer was refused in the earlier round of litigation in Writ Petition No. 5537/2014 of the petitioner and the same was dismissed on 20.11.2014, fresh writ petition is not maintainable. In any event, there is no justifiable reason in such a case to permit the petitioner to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, once again.

For these reasons, Writ Petition No. 8822/2015 has no merit and is accordingly dismissed.