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Judgment
Hon''ble V.K. Bist, J.—Present petition has been filed by the petitioner for quashing the impugned order dated 16.08.2011 passed by the respondent No. 2 by which permission for undertaking admission in BAMS course for the academic year 2011-12 has been denied. Further prayer has been made for a direction to the respondents to grant permission to the College for the Academic Session 2011-12.
In April 2008, the petitioner, namely, Patanjali Bhartiya Ayurvigyan Avam Anusandhan Sansthan, Patanjali Yogpeeth, Haridwar applied for permission of the Central Government, in terms of Section 13(A) of the Indian Medicine Central Council Act, 1970 (hereinafter referred to as the Act), for starting a new Medical College for taking admissions in BAMS course. After careful consideration of the recommendations of the Central Council of Indian Medicine (for short CCIM) and in terms of provisions of the Act and relevant regulations and norms of the CCIM, the permission of the Central Government was accorded to the petitioner to run Ayurvedacharya (B.A.M.S.) Course for the Session 2009-10, under the provisions of Section 13(A) of the Act. This permission was granted for 50 seats. It was made clear in the letter dated 20.07.2009 that the permission so granted will be valid till such time the first batch of students admitted against this course appears for the first final examination of the said course and at that time, the College authorities may take up the matter for recognition of the qualifications u/s 14(2) of the Act. It was also mentioned in the letter dated 20.07.2009 that the college administration will ensure that sufficient qualified teachers and non teaching staff in each department, as per the relevant CCIM Regulations, are in position before the admission of the first batch of students in the Ist Professional of B.A.M.S. course is made, under intimation to the Central Government and CCIM. It was also mentioned that the College has to develop the requisite infrastructure for IInd and IIIrd Professionals well in time as per the CCIM norms. It appears that the conditions mentioned in the letter dated 20.07.2009 by which the permission was granted for the Session 2009-10 was fulfilled by the petitioner and only thereafter, the permission for the Session 2010-11 was granted vide order dated 09.08.2010. The letter-dated 09.08.2010, which was issued by the respondents, was in continuation of the letter-dated 20.07.2009. By this letter, the permission was extended for the Session 2010-11 for taking admission in B.A.M.S. Course with 50 seats in UG level, subject to the rectification of the following deficiencies by the end of December, 2010, failing with the permission was liable to be withdrawn:
(i) Full complement of teachers including required number of higher faculty in various teaching departments should be made available as per norms of the CCIM for intake capacity of 50 UG seats.
(ii) Teachers/consultants of modern medicine like pathologist, radiologist, anesthetist, gynecologist, surgeon, pharmacologist and chemist should be appointed on contract basis/part time/full time.
It was made clear in the letter-dated 09.08.2010 that the fulfillment of the conditions attached to permission given, may be made within the time period specified i.e. 31st December, 2010. It was also mentioned in the letter that CCIM will verify that the conditions have been fulfilled by means of suo-moto inspection and submit a report in the matter to the Department of Ayush. In the letter dated 09.08.2010, it was also mentioned that CCIM had carried out an inspection in the petitioner on 13/14.02.2010 to verify the rectification of shortcomings intimated to the college and after careful consideration of the recommendations and inspection report of the CCIM and compliance report, it was found that the College is fulfilling the minimum requirements of 80% teaching staff, 100 bedded hospital, 100 patients per day in OPD and 40% bed occupancy in IPD. Thus, it is clear that the conditions mentioned in the letter-dated 20.07.2009 were fulfilled by the petitioner and therefore permission for the Session year 2010-11 was granted. It appears that visiting team inspected the petitioner on 28/29.03.2011 and submitted its report. Thereafter, on 14.06.2011 a show cause notice was issued to the petitioner, indicating therein that the college of the petitioner is not fulfilling the basic eligibility conditions as under:
On perusal of CCIM''s visitation report, it is observed that the college authorities have no IPD records and they have not provided the related records of IPD documentation as it was required as per the CCIM performa and labour room is not functional. Accordingly, it appears that the college does not have the genuinely functional Ayurvedic Hospital with IPD patients.
The petitioner was given opportunity of hearing in terms of the provisions of the first proviso to Sub-Section 5 of Section 13(A) of the Act and was asked to appear on 23.06.2011 at 11:00 a.m./p.m. before the designated Hearing Committee in the Department of Ayush. Petitioner was given an opportunity to present its case and to show cause as to why the permission to take admissions in BAMS course u/s 13C of the Act for the year 2011-12 should not be denied. Petitioner was asked to submit its oral and written submissions on that day with all the valid documents and records/proof.
From the perusal of this show cause notice also, it appears that the conditions mentioned in the letter dated 09.08.2010, were fulfilled by the petitioner, as there is no mention made about such shortcomings in the show cause notice. On 22.06.2011, the petitioner submitted reply to the above show cause notice in which it was mentioned that the record of treatment/prescription of the patients is enclosed with the reply. Again on 23.06.2011, at the time of hearing, the Principal of the petitioner submitted reply in writing also. Reply of the petitioner was considered and vide letter-dated 16.08.2011, the petitioner was informed that permission for undertaking admission during academic year 2010-11 has been denied. In the said letter, it was informed that the college is provided time upto 30.11.2010 (wrongly written as 31.11.2011) to fulfill the following deficiency, so that CCIM may carry out inspection of the college during December, 2011 to January, 2012 for consideration of matter for granting conditional permission for undertaking admissions during the academic year 2012-13:
(i) Full complement of teachers including required number of higher faculty in various teaching departments as per norms of the CCIM shall be available.
(ii) Other staff, infrastructure, equipment, instruments, furniture and essential facilities for various components of an Ayurveda college like hospital, hostel, laboratories, library, herbal garden, teaching pharmacy and quality testing laboratory and other relevant component of the college as per the CCIM norms shall be available.
From the reading of letter-dated 16.08.2011, it is clear that the deficiencies to be removed, mentioned in the letter-dated 16.08.2011, are different to those mentioned in the order on which basis the permission for the session year 2010-11 was denied. It is surprising that the deficiencies, on which basis permission has been declined for the session year 2010-11, have not been mentioned in the order for removing grant of permission for the year 2010-11. In the order, it is mentioned that following deficiency was communicated to the petitioner by show cause notice dated 14.06.2011:
On perusal of the CCIM''s visitation report, it is observed that the college authorities have no IPD records and they have not provided the related records of IPD documentation as it was required as per the CCIM performa and labour room is not functional. Accordingly, it appears that the college does not have the genuinely functional Ayurvedic hospital with IPD patients.
In reply to this, the submissions made by the petitioner have been mentioned in the following manner:
All the IPD/OPD and hospital related records are computerized in our institute and hence, separate manual registers are not maintained. We had offered the soft copy of the records to CCIM visiting team for examination, however, they insisted for the registers. We have brought printouts of Department-wise patients'' entries for about 6 months and printouts of Jan, Feb, April, May, Nov, Dec 2010. We have data of 198087 patients in the soft form for the period of Jan to Dec 2010. The data being very large, printout of all these patients could not be brought at the time of hearing, however, we have brought the soft copy of the entire data in the form of CD. The Central register is not available at the time of hearing. The IPD case registers and IPD case records are not maintained and we assure to improve the records in future. The discharge cards are not maintained in our hospital. Most of the patients attending our hospital are having chronic ailments like hypertension, diabetes, cancer, arthritis etc. the cases like ante-natal care (ANC) did not come to our hospital in the year 2010.
On the submissions made by the petitioner, the following observations were made by the Hearing Committee:
The college representatives had brought only partial records of the OPD department wise register and scanned copies of OPD case papers. The central register was not available. IPD related documents like case papers of the patients admitted in the hospital, discharge card were not available in support of the claim of having 43.88% of bed occupancy as reported to CCIM. The IPD register has no record of date of admission, date of discharge, the ward in which the patient is admitted, name of the attending physician, treatment given etc.
On the basis of submission made by the college and observation made by the Hearing Committee, the respondents put their remarks in the impugned order in the following manner:
In reference to the statement given by the college representatives and in absence of the requisite records, the claim of the college representatives of functioning IPD could not be substantiated.
Thereafter, on the ground that the petitioner could not produce sufficient supporting documents to substantiate its claim to have a genuinely functioning IPD, permission for the academic year 2011-12 was denied.
The submission of Shri Rajendra Dobhal, learned Senior Advocate for the petitioner is that in view of the fact that shortcomings mentioned at the time of grant of permission for the academic sessions 2009-10 and 2010-11 were removed by the petitioner, which is apparent from the subsequent orders, the petitioner has a valid case for grant of permission for the session 2011-12. With regard to the shortcomings in the show cause notice and finding given in the impugned order, the learned Senior Advocate submitted that the petitioner, in his reply dated 23.06.2011, has categorically stated that all the IPD/OPD and hospital related records are computerized in petitioner college, hence, separate manual registers are not maintained. Petitioner had offered the soft copy of the records to CCIM visiting team for examination, however, they insisted for the registers. He further submitted that it is not the case of the respondents that CD''s supplied by the petitioner were inspected and after inspecting the CD''s, they did not find anything. He also submitted that the respondents passed the impugned order without application of mind, which is apparent in the impugned order, in which time for fulfilling deficiencies has been given upto 31.11.2011, whereas there are only 30 days in the month of November. It has also not been considered by the respondents that students of IInd year and IIIrd year are studying and 24 admissions have also been made by the petitioner under management quota in pursuance of the examination held by the Uttarakhand Council of Entrance Examination in two counselling dated 10.07.2011 and 07.08.2011.
On the other hand, Shri V.B.S. Negi, Assistant Solicitor General for Union of India/respondents submitted that it is admitted case of the petitioner that IPD case registers and IPD case records are not maintained in petitioner hospital. It is also admitted case of the petitioner that discharge cards are not maintained in the petitioner hospital, which is evident from the reply-dated 23.06.2011. He further submitted that petitioner is not maintaining the IPD case registers and IPD case records and is not giving discharge certificates to the patients and in view of this, the claim of the petitioner that they are treating the patients inside their hospital is totally false. He further submitted that when the petitioner is not maintaining the IPD case registers and IPD case records of the patients, how could they say that what type of treatment was given to the patients admitted in the hospital. He submitted that it is also not clear that when the patients were admitted and when they were discharged. He further submitted that the case of the petitioner is totally false and in view of this fact, the respondents have rightly rejected their claim for grant of permission for the session year 2010-11 and for the session year 2011-12.
Learned Senior Advocate for the petitioner then submitted that the future of the students is involved and the respondent No. 2 vide its order dated 29.07.2011 provided time upto 31.10.2011 for the admission. He submitted that though the shortcomings mentioned were not in existence as CD''s provided by the petitioner were not looked in by the respondent authority. He submitted that after passing of the impugned order, the petitioner has also started maintaining all registers in the from 01.09.2011. He submitted that the shortcoming for not maintaining manual record has been removed by the petitioner. He submitted that in view of this fact, direction be issued to the respondents to consider the case of the petitioner afresh, so that future of the students, who have been admitted in the management quota, may not be ruined.
On the other hand, Shri V.B.S. Negi, Assistant Solicitor General for Union of India/respondents strongly opposed this prayer and submitted that in the impugned order itself, time upto 30.11.2010 has been given to the petitioner to remove the shortcomings and now the case of the petitioner will be considered for the session year 2011-12.
After considering the submissions of the learned counsel for the parties and specially considering the fact that the shortcomings mentioned in the order dated 20.07.2009, by which the petitioner was granted permission for the academic session 2009-10, were removed by the petitioner, as there is no mention of those shortcomings in the order dated 09.08.2010 by which permission was granted for the academic session 2010-11 and also keeping in mind the fact that the shortcomings mentioned in the letter dated 09.08.2010 were removed, as those shortcomings were not mentioned in the show cause notice dated 14.06.2011 and also in the interest of justice, I think it just and proper to direct the respondents to reconsider the case of the petitioner for the academic session 2011-12 under the 2nd proviso of Sub-Section (5) of Section 13(A) of the Act on or before 28th October, 2011. It is also directed that the decision taken by the respondents shall be communicated to the petitioner by fax same day. The writ petition is, accordingly, disposed of. Stay application (CLMA No. 9509 of 2011) also stands disposed of.
Let a certified copy of the order be supplied to the learned counsel for the parties within 24 hours on payment of usual charges