Mangla Kamla Homeopathic College and Hospital, Srinagar, Siwan vs The State of Bihar and Others

V.N. Sinha, J.—Heard Sri Chittaranjan Sinha, Senior Advocate for the petitioner-Homeopathic College, Sri S.K. Ghosh, A.A.G. II for the State of Bihar and its functionaries and Sri A.K. Sinha, Senior Advocate for the Central Council of Homeopathy, Respondent No. 4. Petitioner is aggrieved by the order, bearing Memo No. 487 dated 12.6.2004, Annexure-10 passed by the State Government in compliance of the orders of this Court dated 6.5.1998, passed in C.W.J.C. No. 2562 of 1996 and six other analogous cases, as contained in Annexure-A to the counter affidavit, whereunder it has been categorically held that the petitioner Homeopathic College does not fulfill the norms required for establishing Homeopathic College in terms of the Homeopathy (Minimum Standards of Education) Regulation, 1983 framed under the Homeopathy Central Council Act, 1973 (hereinafter referred to as ''1973 Act'').

Learned counsel for the petitioner has assailed the said order on the ground that the same is violative of the provisions contained in Section 12A of the Homeopathy Central Council (Amendment) Act, 2002, whereunder Chapter IIA was inserted in the 1973 Act empowering only Central Government and Central Council of Homeopathy to consider the case of any Homeopathic College for grant of recognition as thereunder the grant of recognition is to be considered by the Central Government after verification of the Scheme/inspection by the Central Council of Homeopathy. Under the amended provision the State Government has no role at all to play in either inspection or recognition.

The State Counsel, however, notwithstanding the aforesaid legal position submitted that the impugned order dated 12.6.2004, Annexure-10 has been passed in compliance of the orders of this Court dated 6.5.1998, which is contained in Annexure-A to the counter affidavit filed on behalf of the State and this Court should be slow in setting aside the same. Perusal of the order dated 6.5.1998, Annexure-A indicates that the same was passed taking into account the provisions as it existed in the 1973 Act on the date the aforesaid writ petition was disposed of when admittedly the State Government had powers to consider the grant of permission to establish a college and appreciating those provisions this Court had issued the orders dated 6.5.1998, Annexure-A to the counter affidavit. In this connection, he also referred to the subsequent order issued by the Central Government in the light of the 2002 Amendment in the 1973 Act which is dated 16th April, 2004, 18th August, 2004 and 25th September, 2004 to establish that the Government of India has so far recognized only eight of the Homeopathic Colleges in the State of Bihar and petitioner institution is not amongst those already recognized by the Central Government.

The amending provisions were notified in the Gazette of India on 9.12.2002 and the Gazette is contained in Annexure-B to the counter affidavit filed on behalf of the Central Council of Homeopathy, Respondent No. 4, perusal of Chapter IIA containing Section 12 makes it abundantly clear that the State Government has no role to play in the matters of recognition/ inspection/permission to establish a Homeopathic College. It is thus evident from the provisions set out in Chapter MA as inserted in the 1973 Act that the State Government has no role to play and in the circumstances, the order passed by the State Government dated 12.6.2004, Annexure-10 is ultra vires the provisions contained in Chapter IIA of the 1973 Act and is, accordingly, held to be non est in the eye of law.

The aspect whether the petitioner institution is one which has been recognized by the Central Government, is not to be gone into by me at this stage as presently the petitioner has challenged the correctness and validity of the order dated 12.6.2004, Annexure-10 which admittedly had been passed without noticing 2002 Amendment made in the 1973 Act and in the circumstances the same for the reasons indicated above is held to be non est in the eye of law and is accordingly, quashed. In the result, this application is allowed. No cost.