Swami Pranavanand Homeopathe Medical College And Hospital vs Union Of India

R. S. Jha, J.

These bunch of petitions involve a common question for adjudication and are, therefore, heard and decided concomitantly by this common order.

These bunch of petitions have been filed by the petitioners challenging the orders passed by respondent no.1, i.e. the Union of India, Ministry of Ayurveda Yoga & Naturopathy, Unani, Siddha & Homeopathy (AYUSH), New Delhi, of various dates relating to the different petitioners whereby they have been refused permission for taking admission in the BHMS course for the academic session 2016-17 and 2017-18. The petitioners have filed these petitions alleging that all the petitioners are Colleges that have been established long back for imparting education in Homeopathy and are granting BHMS Degree.

It is stated that all the Colleges have been running since long after having obtained the necessary recognition, affiliation, permission, etc. It is submitted that the respondent Central Council of Homeopathy, in exercise of the powers vested in it under Clause (j) of section 33 of the Homeopathy Central Council Act, 1973, and in supersession of the Homeopathy (Minimum Standards of Education) Regulations, 1983, published the Homeopathy Central Council (Minimum Standards Requirement of Homeopathic Colleges and attached Hospitals) Regulations, 2013 (hereinafter referred to as the Regulation of 2013’) in the Gazette of India (Extraordinary) dated 8.3.2013. It is stated that the Council by way of the Regulations of 2013 has prescribed certain additional conditions and minimum standards in respect of infrastructure, teaching and training facilities for the purposes of granting permission for running a Homeopathic College.

It is submitted by the learned counsel for petitioners that though the petitioners had obtained the necessary permission under the old Regulation of 1983 and fulfilled all the necessary criteria and standards prescribed therein, in view of prescription of the additional minimum standards and requirements of infrastructure, teaching and training facilities by the Regulations of 2013, the petitioners were required to take necessary steps for fulfilling the same.

It is submitted that the Regulation 3(4) of the Regulation of 2013, provided that the existing Colleges and their attached hospitals established prior to 28.01.2003 and recognized by the Central Council of Homeopathy shall upgrade their minimum standards of infrastructure, teaching and training by

31.12.2014. It is stated that this period of 31.12.2014 was subsequently extended upto December, 2015 and has been extended subsequently by the Central Council for the session 2016-17 as well. It is stated that though the petitioners possessed the necessary minimum standards prescribed under the Regulation of 2013, the respondent no.1/Union of India, on the basis of the inspection conducted by them, has passed orders prohibiting the petitioners to undertake admission in the academic session of 2016-17 and in some cases 2017-18.

All the petitioners have also stated that even after filing of the petitions and during their pendency, the petitioners have upgraded their institutions and as on date fulfill the necessary minimum standards regarding infrastructure, teaching faculties and training facilities, inspite of which the respondents/authorities are not permitting them to take admission.

The petitioners have also challenged the constitutional validity of Regulations 3(4) and 3(9) of the Regulation of 2013, on the ground that the said Regulations travel beyond the scope and ambit of the Act of 1973, as there is no provision in the Act empowering the Central Government or the Council to prohibit and prevent a Homeopathic College from undertaking admissions without withdrawing or cancelling the recognition and permission granted to it. It is submitted that the respondent no.1, by the impugned orders, has not cancelled or withdrawn the recognition or permission granted to the petitioners but has simply prohibited and prevented the College from undertaking admissions in exercise of powers under Regulations 3(4) and 3(9) of the Regulations of 2013, and in such circumstances Regulations 3(4) and 3(9) of the Regulations of 2013, be declared unconstitutional and ultra vires to the provisions of the parent Act i.e. the Homeopathy Central Council Act, 1973.

The respondent no.1/Union of India as well as the Central Council have filed returns and have stated that the responsibility of ensuring proper standards of Homeopathic education as well as prescribing the minimum standards and requirements to be possessed by the institutions imparting education in Homeopathy is vested with the respondent/Central Government as well as the Council and for the purposes of improving and upgrading as well as ensuring that the standard of Homeopathic Education and treatment is maintained and also keeps pace with the latest research, the respondents/authorities have formulated the Regulations of 2013, and with a view to implement the AYUSH policy of the Central Government prescribed the minimum standards necessary for running a homeopathic college and hospital.

It is submitted that the expert body has examined and studied the matter thoroughly and after extensive research has prescribed the minimum standards with a view to ensure that proper standard of Homeopathic education is maintained and that the institutions imparting homeopathic education possess the necessary infrastructure, teaching and training facility for the purposes of imparting the same.

It is stated that after the notification of the Regulation of 2013, the authorities granted time to all the existing institutions to upgrade their minimum standards and requirements in accordance with and in tune with the Regulation of 2013, upto 31.12.2014. It is also stated that, on the request of the Homeopathic Institutions all over the country, this period has been extended subsequently and as informed by the learned counsel appearing for the respondents no.1 and 2 the same has been extended upto the session 2017-18. It is stated by the learned counsel appearing for the parties that they have no information as to whether any further extension in this regard has been made by the respondents or not.

It is submitted by the learned counsel of the respondents that the petitioner/Institutions were inspected and as they had not upgraded their minimum standards and requirements and got them in line with the Regulation of 2013, by the cut-of date of December 2014, therefore in exercise of powers under Regulation 3, the authorities have prohibited the Colleges from undertaking the admissions in the current sessions with a stipulation that they shall not be permitted to do so unless and until they upgrade their Institutions and bring them in accordance with the minimum standards prescribed under the Regulations of 2013. It is stated that, in such circumstances, as the Expert Body has taken this decision and as such technical and scientific issues are beyond the purview of this Court under Article 226 of the Constitution of India, therefore, the issues raised by the petitioners in respect of fulfillment of criteria, etc., by the petitioners, which has already been subjected to scrutiny by the Expert body, does not call for any interference and, therefore, the petitions be dismissed.

The learned counsel for the parties have also brought to the notice of this Court order dated 17. 07.2018 passed by the Supreme Court in Civil Appeal No.6734/2018 (The Temple of Hanemann Homeopathic Medical College and Hospital Vs. Union of India and others), wherein the Supreme Court has considered the import of Section 17 of the Act of 1973, as well as the provisions of the Regulations and has held that while the Central Government has the power to take a decision to conduct an inspection of any Homeopathic Institution, the power to appoint the members of the Inspecting team vests with the Council and not with the Central Government.

We have heard the learned counsel for the parties at length.

From a perusal of the facts and documents on record, as well as the rival submissions of the learned counsel for the parties, it is an admitted and undisputed fact that the petitioner/Colleges have been granted recognition and permission by the respondents as well as the competent authorities and on that basis they are running their Homeopathic Colleges and Hospitals.

It is also undisputed that by the Regulations of 2013, the Council has prescribed certain additional upgraded minimum standards in respect of the infrastructure, teaching and training facilities that are required to be provided by the Homeopathic Colleges and Hospitals. It is also an undisputed fact that by way of a transitory provision Regulation 3(4) of the Regulations of 2013, has provided that existing Homeopathic Colleges and Hospitals shall upgrade their infrastructural teaching and training facilities and bring them in tune with the Regulations of 2013, by 31st of December, 2014.

It is also apparent from the documents filed by the petitioners as well as the respondents, specifically the letter dated 26.8.2016 of the Central Council of Homeopathy regarding implementation of the provisions of the Regulation of 2013, that the Central Government on taking note of the fact that Homeopathic Medical Colleges were not able to comply with the requisite norms as prescribed under the Regulations of 2013 as well as the fact that they needed some more time to fulfill the standards prescribed therein, has granted amnesty to the existing colleges for non-enforcement of the Regulations of 2013, for the academic session 2013-14.

Thereafter, by letter dated 25.7.2014, on the basis of the same premises and also taking note of the fact that there was no enabling provisions in the Act of 1973, for granting permission on annual basis to the existing colleges, the period of amnesty for enforcement of the Regulations of 2013, was extended upto the year 2014-15 to all existing Homeopathic Colleges. By letter dated 29.5.2015 the period of amnesty has been extended by the respondents for the academic session 2015-16. The respondents have also placed on record letter dated 11.3.2016 by which the authorities have been directed not to take any action for the academic session 2016-17 as well.

Admittedly, whether this period has been extended any further by the respondents or not has not been informed to this Court nor has any document in this regard been placed before us.

It is also an undisputed fact that by the impugned orders passed by the respondent no.1, the recognition/permission granted to the Homeopathic Colleges and Hospitals has not been withdrawn and they have only been ordered not to undertake admission for a particular academic session.

From a perusal of the aforesaid admitted facts, it is apparent that while the respondent/authorities have notified the Regulations of 2013, taking note of the fact that the existing colleges have not been able to upgrade their infrastructure, teaching and training facilities, in terms of the Regulations of 2013, they have been granted amnesty upto the Session 2016-17 with a further observation to take action, if any, against the college concerned, after obtaining the latest status regarding availability of infrastructure, equipment facilities, teaching facilities, hospital staff, etc.

In the instant case, as all the petitioners have stated that they have taken steps for bringing their institutions in tune with the Regulations of 2013, and as the latest inspection reports and recommendations in respect of these institutions are not available in terms of the directions issued by the respondent no.1 on 11.3.2016 and taking note of the fact that this Court, in view of the amnesty granted to the Homeopathic Colleges/Institutions, had granted interim orders permitting them to make admissions, the present petitions filed by the petitioners are disposed of with a direction to the effect that the respondent no.1 as well as the respondent no.2 shall hereinafter take steps in terms of the Regulations of 2013, as well as the law laid down by the Supreme Court in the case of The Temple of Hanemann Homeopathic Medical College and Hospital (supra), as well as any further orders issued by the Central Government extending the period of amnesty, if any, and thereafter take action and pass orders in terms of the Act and the Regulations.

In view of the directions issued by us and as the present bunch of petitions are being disposed of by issuing the said directions, we do not propose to go into the validity of the provisions of the Regulations 3(4) and 3(9) of the Regulations of 2013, raised by the petitioners in the present petitions and the issue in respect of the same are left open to be taken up and decided in appropriate proceedings.

With the aforesaid direction/observation, the petitions filed by the petitioners stand disposed of.