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Judgment
Heard. The petitioner has filed this petition against the order dt.18.1.2011.
The petitioner in April 2010 submitted an application u/s 12A of the Homeopathy Central Council Act, 1973 (hereinafter shall be referred to as the ''Act of 1973'') for the purpose of grant of recognition to run a Homeopathic Medical College. The Council nominated a team of experts to conduct an inspection of the petitioner institution. Consequently, the team visited the institution of the petitioner on 19.7.2010. The team noticed some deficiencies during inspection, hence, a notice was issued to the petitioner on 9th November 2003 (Annexure P/3). The Council pointed out following deficiencies :
i. The beds in IPD of attached Homeopathic Hospital have been found to be displayed without any matters any bed sheets.
ii. The records of the indoor patients in respect of admission files and case histories have been found to be improper.
iii. The patients in the IPD have been admitted in the Hospital for day observation only.
iv. 25 bedded private Nursing Home has been also shown, which can''t be taken as Homoeopathic Hospital and in this nursing home, the management of the college was running some para-medical courses like DMLT and BPT.
v. The personal file relating to the teachers including the Principal have not been found to be proper and complete for necessary verification.
vi. There is no provision for central registration in OPD.
vii. Stock register of Medicine is not properly maintained.
viii. Medicines in stores are insufficient.
ix. The working of Homoeopathic Hospital is not yet fully satisfactory in providing clinical services to the indoor patients.
x. There is no provision of Dissection Hall or storage facilities for keeping the cadavers in the Department of Anatomy.
xi. Departmental office, departmental demonstration room and departmental library are not available in most of the department.
Thereafter, the Council directed the petitioner to submit its explanation before the designated hearing committee and show to cause why the permission to take admission in BHMS course be not denied to the college. The petitioner submitted a reply to the notice and also remained present before the committee on 29.11.2010. Thereafter, the appropriate authority rejected the application of the petitioner in regard to grant of approval to start a new K.S. Homeopathic Medical College.
The learned counsel for the petitioner has contended that the petitioner institution has all the requisite infrastructure and facility for start of Homeopathic College. The respondent has not considered the case of the petitioner objectively, neither the documents placed by the petitioner have been considered by the respondent. He further submitted that the petitioner is willing to cure all the deficiencies and an opportunity has to be granted to the petitioner in this regard. In support of his contention, learned counsel relied on the judgment in the case of Al-Karim Educational Trust and another Vs. State of Bihar and others, . Contrary to this, learned Assistant Solicitor General for the respondent has submitted that the appropriate authority has considered the case of the petitioner objectively. The visiting team recorded some deficiencies. Thereafter, a show cause notice was issued to the petitioner and personal hearing has also been afforded to the petitioner and the authority has recorded its subjective satisfaction. In such circumstances, the order passed by the authority is in accordance with law.
The visiting expert team recorded some deficiencies in regard to grant of approval to the petitioner to run medical college. Thereafter, the deficiencies as stated above were pointed out as mentioned in the show cause notice issued to the petitioner. The petitioner filed a rejoinder and submitted parawise deficiencies as pointed out by the authority and also submitted its parawise reply. A reply to the rejoinder has also been filed. In the aforesaid reply of rejoinder, the view of the respondent has further been explained. The following is the position as mentioned below in the chart; the deficiencies pointed out by the respondent in the return, reply of the petitioner in regard to the deficiencies and the observation of the authority :-
S. No.
Deficiency pointed by the respondent in the return
The petitioner given the reply as under
Observation of the respondent on Rejoinder
1.
The beds in IPD of attached HomeopathicHospital have been found to be displayed without any mattress & bed sheets.
The petitioner has already annexed the photographs of mattress and Bed Sheets along with Visiting Team in the writ petition, which is Annexure P/6.
As per Annexure P/6 in page No. 9 of the rejoinder it is very difficult to ascertain from photograph about presence of the bed sheets over mattresses.
2.
The record of the indoor patients in respect of admission file and case histories have been found to be improper.
All the indoor and outdoor patients registers have been completed with full details. Copy of document in this respect is annexed hereto and marked as Annexure P/7.
As per Annexure P/7 on page No. 12 to 16 of the rejoinder the pages of the register are without any printed caption and the register is not serially numbered and even on the end of the day the said page was neither certified by medical officer nor by head of the institution. In IPD sheets on page No. 14 and 15 there is no reference about diagnosis and date of discharge of the patient from the hospital.
3.
The patients in the IPD have been admitted in the Hospital for day observation only.
The patients are admitted in the petitioner hospital for day & night. Copy of document in this respect is annexed hereto and marked as Annexure P/8.
As per Annexure P/8 on page No. 17 and 18 of the rejoinder these are the computerized sheets of duty roster for doctors and nursing staff for the month of January 2012 but inspection was conducted on 19.07.2010. There is no relevance of these documents and the petitioner cannot rely upon them.
4.
25 bedded Private Nursing Home has been shown, which cannot be taken as HomeopathicHospital and in this Nursing Home, the management of the college was running some paramedical courses like DMLT and BPT.
This was the additional 25 bedded Private Nursing Home which was shown for the Physiotherapy purpose.
As per inspection report the college is conducting a Homeopathic wing in this Nursing Home which cannot be considered as a part of the institution.
5.
The personal files relating to the teachers including the Principal have not been found to be proper and complete for necessary verification.
The said deficiency is incorrect as the petitioner having full staff including Teachers & Principal as per the norms. A copy of staff list is annexed hereto and marked as Annexure � P/9-Ai.
As per Annexure P/9 on page No. 19 and 20 of the rejoinder these are the computerized loose sheets of indicating the names of the teaching staff with their qualification and experience without indicating their salaries and supporting documents regarding their appointment and joining in the college.
6.
There is no provision for Central registration in OPD.
There is no HomeopathicMedicalCollege is in existence and no specific departments till the date therefore no need of Central Registration in OPD.
When a proposed college is running OPD and IPD in the attached Homeopathic hospital all the patients visiting the hospital should be registered at one place at the reception counter before starting the treatment. Without proper OPD and IPD records it is very difficult to ascertain the functionality.
7.
Stock Register of Medicine is not properly maintained
The said deficiency is incorrect because stock register is properly maintained. Copy of document in this respect is annexed hereto and marked as Annexure P/9A.
As per Annexure P/9A on page No. 21 to 44 of the rejoinder are photocopies of Index made on accounts ledger sheets which is not a proper medicine stock register. The stock register should reflect date of purchase of medicine, name of the firm, quantity purchased and their value to ascertain the genuine purchase of the medicine.
8.
Medicine & Store are insufficient
The petitioner having medicine and its store sufficient quantity. Copy of document in this respect is annexed hereto and marked as Annexure P/10.
As per Annexure P/10 on page No. 45 to 46 of the rejoinder, the invoice furnished on page No. 45 is without date and on page 46 is dated way back to 30.12.2006 which cannot be relied upon.
9.
The working of HomeopathicHospital is not yet fully satisfactory in providing clinical services to the indoor patients.
The petitioner having the fully working homeopathic hospital.
As per the inspection report in the IPD there is no proper admission or discharge procedure, case taking and record keeping etc.
10.
There is no provision of Dissection Hall or storage facilities for keeping the cadavers in the Department of Anatomy.
Dissection Hall, Dissection Table and Storage Tank is available. Receipt was produced at the personal hearing before the respondent. Copy of documents in this respect is annexed hereto and marked as Annexure P/11.
As per Annexure P/11 on page No. 47 of the rejoinder, is an invoice dated 15.11.2010 for purchase of dissection table and cadaver tank which was purchased after inspection. Thereafter this cannot be considered.
11.
Department office, Departmental demonstration room and Departmental Library are not available in most of the Department.
The petitioner having Department Office, Departmental Demonstration Room and Department Library have already seen by the visiting team. And photographs of these have already submitted at the time of personal hearing. Copy of document in this respect is annexed hereto and marked asAnnexure P/12.
As per Annexure P/12 on page No. 48 to 52 of the rejoinder, are the list of books department wise on the letter head of the college without date of purchase and cost of purchase, even proper library accession register is not maintained
From the aforesaid chart, it is clear that the appropriate authority has considered the reply of the petitioner and the documents objectively and recorded its finding.
Section 12A of the Act of 1973 prescribes procedure in regard to grant of permission for establishment of a new medical institution. The relevant provisions of the section are as under :
12A. 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 Homoeopathic Medical College; or
(b) no Homoeopathic 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 recognised medical qualification; or
(ii) increaseits 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.
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 institution, means the maximum number of students as may be decided by the Central Council from time to time for being admitted to such course or training.
(2) (a) Every person or medical institution shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Central Council for its recommendations.
(b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3) 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 institution concerned, and thereafter, it may,
(a) if the scheme is defective and does notcontain any necessary particulars, give areasonable opportunity to the person ormedical institution concerned for making awritten representation and it shall be open to such person or medical institution 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 (7), 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.
(4) The Central Government may, after considering the scheme and the recommendations of the Central Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or medical institution concerned, and having regard to the factors referred to in sub-section (7), either approve (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 institution concerned a reasonable opportunity of being heard.
From the facts of the case, it is clear that the appropriate Government i.e. the Central Government has applied its mind and came to the conclusion that it is not possible to grant approval. The action of the authority is neither arbitrary nor illegal. It is based on subjective satisfaction. This is a case of grant of recognition. It is not a case in regard to withdrawal of recognition. An appropriate opportunity has been granted to the petitioner and the case of the petitioner has been considered. The learned counsel for the petitioner has relied on an unreported order passed by this court in W.P. No. 1-2/11 and submitted that a direction be issued to the respondent to reconsider the case of the petitioner. However, we have discussed the facts of the present case and in our opinion, the decision of the authority is based on subjective satisfaction after considering all the facts of the case. In such circumstances, it would not be just and proper to refer the matter for reconsideration. Hence, we do not find any merit in this petition. It is hereby dismissed. No order to costs.