CENTRAL COUNCIL FOR INDIAN MEDICINE versus KARNATAKA AYURVEDA MEDICAL COLLEGE AND OTHERS

[2022] 2 S.C.R.

ACENTRAL COUNCIL FOR INDIAN MEDICINE

KARNATAKA AYURVEDA MEDICAL COLLEGE ANDOTHERS

(Civil Appeal No. 2892 of 2022)

APRIL 11, 2022

[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]

Medicine Central Council Act,1970:s. 13A – Permission forCestablishment of new Medical College, new course study, etc. – Onfacts, Union of India rejected the permission to respondent no. 1-State Ayurvedic Medical College to admit students for the PG coursefor academic year 2018-19 on the ground of non-availability ofCentral Research Laboratory and Animal House, however, grantedpermission to admit students to Under Graduate (BAMS) CourseDwith an intake of 50 seats for the academic year 2018-19 subject toit fulfilling the deficiencies mentioned therein – Writ petition byrespondent no. 1 – Meanwhile, Union of India granted permissionto admit students for the Post Graduate course for academic year2019-2020 – Single Judge allowed the writ petition – Said orderEupheld by the Division Bench of the High Court – On appeal, held:Statutory scheme is clear that no medical college can open newor higher course of study or training, including post-graduatecourse, except with the previous permission of the CentralGovernment – Prior to such permission being granted, theprocedure as prescribed u/s. 13A has to be followed – Furthermore,Fas per Reg 3(1)(a), it is clear that in order to be eligible for grant ofpermission for undertaking admissions in particular academicsession, the institution must fulfill the requirements of minimumstandard as on 31st December of the earlier year – It cannot besaid that the permission granted for subsequent academic yearGwould also enure to the benefit of earlier academic year though thesaid institution was not fulfilling the criteria of minimum standard –Single Judge as well as the Division Bench erred in not taking intoconsideration the scheme of the Act as also the judgment of thisCourt in Ayurved Shastra Seva Mandal’s case, thus the order of theSingle Judge and the Division Bench quashed and set aside –

CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKAAYURVEDA MEDICAL COLLEGE AND OTHERS

Medicine Central Council (Amendment) Act, 2003 – MedicineCentral Council (Post-Graduate Ayurveda Education) Regulations,2012 – Medical Central Council (Post-Graduate AyurvedaEducation) Regulations, 2016 – Precedent.

Allowing the appeals, the Court

HELD: 1.1 Section 13A read with Sections 22 and 36(1)(j)of the Medicine Central Council Act, 1970 Act provides acomplete scheme for establishment of medical college, openinga new or higher course of study or training, including post-graduate course of study or training, and also increasing theadmission capacity. From the perusal of the scheme of the saidprovisions, it is clear that no person is entitled to establish amedical college except with the previous permission of theCentral Government. Similarly, no medical college can open anew or higher course of study or training, including apostgraduate course of study or training without the previoussanction of the Central Government. Likewise, no medicalcollege can increase its admission capacity in any course of studyor training, including post-graduate course of study or training.Sub-sections (2) to (5) of Section 13A of the said Act prescribea detailed procedure for submitting scheme and considerationthereof by the Central Council and the Central Government. Italso provides for in-built safeguards inasmuch as the principlesof natural justice are provided at two stages, one before theCentral Council and another before the Central Government.The second proviso to sub-section (5) of Section 13A of thesaid Act also enables person or medical college whose schemehas not been approved by the Central Government, to againsubmit fresh scheme, which is required to be considered as ifthe same is made for the first time under sub-section (2) ofSection 13A of the said Act. Sub-section (6) of Section 13A ofthe said Act provides that when no order is communicated withina period of one year from the date of submission of the scheme,by deeming provision, such scheme shall stand approved andit will be deemed that the permission of the CentralGovernment as required under subsection (1) of Section 13A of

BCD

EFG

Athe said Act has been granted. Sub-section (7) of Section 13A ofthe said Act provides for exclusion of the period for the timetaken by the person or medical college concerned to furnishany particulars called by the Central Council, or by the CentralGovernment. Subsection (8) of Section 13A of the said Actprovides the factors to be taken into consideration. Sub-sectionB(9) of Section 13A of the said Act provides for the communicationof the order approving or disapproving the scheme, to theperson or medical college concerned. [Para 27][1139-D-H; 1140-A-C]

1.2 The statutory scheme is clear that no medical collegeCcan open new or higher course of study or training, including apost-graduate course, except with the previous permission ofthe Central Government. Prior to such permission beinggranted, the procedure as prescribed under Section 13A has tobe followed. [Para 28][1140-D]

1.3 The legislative intent is further clarified by theprovisions made in Section 13B of the said Act. Sub-section (1)of Section 13B of the said Act provides that where any medicalcollege is established without the previous permission of theCentral Government in accordance with the provisions of SectionE13A of the said Act, medical qualification granted to any studentof such medical college shall not be deemed to be recognizedmedical qualification for the purposes of the said Act. Likewise,sub-section (2) of Section 13B of the said Act provides that whereany medical college opens new or higher course of study ortraining including post-graduate course of study or trainingFwithout the previous permission of the Central Government inaccordance with the provisions of Section 13A of the said Act,medical qualification granted to any student of such medicalcollege on the basis of such study or training shall not be deemedto be recognised medical qualification for the purposes of theGsaid Act. Likewise, sub-section (3) of Section 13B of the said Actprovides that where any medical college increases its admissioncapacity in any course of study or training without the previouspermission of the Central Government in accordance with theprovisions of Section 13A of the said Act, medical qualification

CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKAAYURVEDA MEDICAL COLLEGE AND OTHERS

granted to any student of such medical college on the basis of theincrease in its admission capacity shall not be deemed to be arecognised medical qualification for the purposes of the said Act.[Para 29][1140-E-H; 1141-A]

1.4 It could further be seen that the legislature itself hastaken care of situation, where any person has established amedical college or any medical college has opened new or highercourse of study or training, or increased the admission capacityprior to the commencement of the Indian Medicine CentralCouncil (Amendment) Act, 2003. It has provided that such personor medical college, as the case may be, shall seek, within periodof three years from the said commencement, permission of theCentral Government in accordance with the provisions of Section13A of the said Act. [Para 30][1141-B-C]

1.5 The impugned judgment of the Division Bench and theSingle Judge of the High Court, so also the other judgments ofthe High Court, which are relied on by the Division Bench, donot take into consideration the scheme of Section 13A of the Act.[Para 31][1141-C-D]

1.6 Regulation 3(1)(a) of the 2016 Regulations specificallyprovides that the Ayurveda colleges established under Section13A and existing under Section 13C of the said Act and theirattached hospitals shall fulfill the requirements of minimumstandard for infrastructure and teaching and training facilitiesreferred to in the Regulations 4 to 11 up to 31st December ofevery year for consideration of grant of permissions forundertaking admissions in the coming academic session. It isthus clear that in order to be eligible for grant of permission forundertaking admissions in particular academic session, theinstitution must fulfill the requirements of minimum standard ason 31st December of the earlier year. For example, if theinstitution is seeking grant of permission for undertakingadmissions for the academic session 2022-23, it must havefulfilled the requirements of minimum standard as on 31[st]December 2021. It could thus be seen that the finding that thepermission granted for subsequent academic year would also

[2022] 2 S.C.R.

Aenure to the benefit of earlier academic year though the saidinstitution was not fulfilling the criteria of minimum standard, istotally erroneous. [Para 32, 33][1141-G-H; 1142-A-B]

1.7 The High Court erred in not correctly applying the lawlaid down by this Court in the case of Ayurved Shastra SevaBMandal’s case. This Court in Ayurveda Shastra’s case hadspecifically observed that the petitioner therein tried to impressupon that the deficiencies had already been removed and that iswhy permission was specifically given for the admission of studentsfor the academic year 2012-13. It was therefore urged that therewas no reason for withholding the permission for the academicCyear 2011-12. This Court specifically noticed that large numberof students had applied for admission for the academic year 2011-12 and that too with the leave of this Court. However, this Courtfound that the privilege granted to the candidates could not betransformed into right to be admitted in the course for whichDthey had applied. It can be seen from the conjoint reading ofvarious paragraphs of the said judgment that the contention thatsince the deficiencies stood already removed and the permissiongranted for the academic year 2012-13, the said permission shouldalso be construed as having been granted for the academic year2011-12, was not accepted by this Court. [Para 34-36][1142-C,ED-F; 1143-B]

1.8 The Court is at pains to say that though the judgmentin Ayurved Shastra Seva Mandal’s case was specifically relied onby the appellant, the Single Judge and the Division Bench of theHigh Court have chosen to rely on the earlier judgments of theFDivision Bench of the same High Court rather than judgmentof this Court. The Single Judge as well as the Division Benchgrossly erred in not taking into consideration the scheme of thesaid Act so also the judgment of this Court in Ayurved ShastraSeva Mandal’s case. The judgment and order passed by theGDivision Bench of the High Court, and the Single Judge arequashed and set aside. [Para 39, 40][1144-G-H; 1145-A-B]

Ayurved Shastra Seva Mandal and Another v. Union ofIndia and Others (2013) 16 SCC 696 : [2013] 4 SCR1098 – relied on.

CENTRAL COUNCIL FOR INDIAN MEDICINE v. KARNATAKAAYURVEDA MEDICAL COLLEGE AND OTHERS

Bahubali Vidyapeeths JV Mandal Gramin AyurvedicMedical College v. Union of India and Others WritPetition No. 107076/2018 (EDN-ADM) dated01.07.2019; Central Council of Indian Medicine v.Union of India and Others Writ Appeal No. 736/2011

– referred to.

Case Law Reference

[2013] 4 SCR 1098

relied onPara 34, 37, 39

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2892of 2022.

From the Judgment and Order dated 21.12.2020 of the High Courtof Karnataka at Bengaluru in Writ Appeal No.542 of 2020 (EDN-REG).

With

Civil Appeal Nos.2895, 2894, 2893, 2897 and 2896 of 2022.

Ms. Madhvi Divan, ASG, Ms. Aishwarya Bhati, Sr. Adv., Ms.Archana Pathak Dave, Kumar Prashant, Ms. Vanya Gupta, ParmodKumar Vishnoi, Ms. Himanshi Shakya, Ms. Kirti Khangarot, GurmeetSingh Makker, Ms. Arunima Dwivedi, Ms. Nidhi Khanna, O. P. Shukla,Neela Kedar Gokhale, Advs. for the Appellant.

Devadutt Kamat, Sr. Adv., Chinmay Deshpande, AnirudhSanganeria, V. N. Raghupathy, Md. Apzal Ansari, Advs. for theRespondents.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. Leave granted in all the Special Leave Petitions.

2. The present appeals challenge the following:

(i)judgment dated 21[st] December 2020 passed by the DivisionBench of the High Court of Karnataka in Writ Appeal Nos.541 of 2020 (EDN-REG) and 542 of 2020 (EDN-REG),thereby dismissing the writ appeals filed by the presentappellant-Central Council for Indian Medicine, which wasin turn filed, challenging the order dated 24[th] September2020 passed by the learned Single Judge in Writ PetitionNo.50772 of 2018 (EDN-REG-P), thereby allowing the writ

Apetition filed by the respondent No.1 herein-KarnatakaAyurveda Medical College; and

(ii)judgment dated 24[th] September 2020 passed by the learnedSingle Judge of the High Court of Karnataka in Writ PetitionNos. 50828 of 2018 (EDN-EX) thereby allowing the writpetition filed by the petitioner therein and Writ PetitionNo.50772 of 2018 (EDN-REG-P), thereby allowing the writpetition filed by the respondent No.1 herein-KarnatakaAyurveda Medical College.

3. For the sake of convenience, we refer to the facts as are foundCin civil appeal arising out of SLP(C) No.4618 of 2021.

4. The respondent No.1 herein had applied to the respondent No.4-State Government, respondent No.3-Rajiv Gandhi University of HealthSciences and the appellant herein for permission to start Post-Graduatecourse for the academic year 2014-15. The appellant granted permissionDto start five new Post Graduate Ayurvedic disciplines with five seatseach in accordance with the then prevalent Indian Medicine CentralCouncil (Post-Graduate Ayurveda Education) Regulations, 2012(hereinafter referred to as “2012 Regulations”). These 2012 Regulationscame to be superseded by the Indian Medicine Central Council (Post-Graduate Ayurveda Education) Regulations, 2016 (hereinafter referredEto as “2016 Regulations”).

5. As per 2016 Regulations, it was requirement that an institutionshould possess Central Research Laboratory and an Animal House.The 2016 Regulations provided that the Animal House could be eitherowned by the institution or it could be in collaboration with any otherFinstitution. Accordingly, the respondent No.1 collaborated with SriDharmasthala Manjunatheshwara College of Ayurveda, Udupi, whichpermitted respondent No.1 the usage of Animal House set up by it. Assuch, the appellant and the respondent No.2-Union of India, continuedpermission to respondent No.1 for the academic years 2016-17 and 2017-G18. The Union of India directed the appellant to inspect the facilitiesavailable with the respondent No.1 in accordance with the relevantRegulations and submit its recommendations and the inspection reportto it. This was to be done by the end of March 2018 so that the matterpertaining to grant of permission for the academic year 2018-19 couldbe considered before the start of the next academic year. The appellant

inspected the facilities available with the respondent No.1 on 2[nd] February2018 and again on 23[rd]-24[th] May 2018. On the basis of the said inspection,the Union of India issued notice dated 3[rd] August 2018, which wasreceived by respondent No.1 on 16[th] August 2018. Vide the said noticedated 3[rd] August 2018, certain deficiencies were pointed out. Therespondent No.1 was given an opportunity of hearing on 24[th] August2018 before the designated Hearing Committee. After the hearing, theUnion of India, vide order dated 5[th] September 2018, rejected thepermission to respondent No.1 to admit students to the Post Graduatecourses for the academic year 2018-19 on the ground of non-availabilityof Central Research Laboratory and Animal House. However, vide thesaid order dated 5[th] September 2018, the Union of India granted permissionto respondent No.1 to admit students to Under Graduate (BAMS) Coursewith an intake of 50 seats for the academic year 2018-19 subject to itfulfilling the deficiencies mentioned therein by 31[st] December 2018.

6. The respondent No.1 therefore filed writ petition being WritPetition No. 50772 of 2018 (EDN-REG-P) before the learned SingleJudge of the High Court of Karnataka. It is to be noted that in theinterregnum, the Union of India granted permission to the respondentNo.1 to admit students for the Post Graduate Course for the academicyear 2019-20. The learned Single Judge, relying on the judgments of theDivision Bench of the High Court of Karnataka in the cases of Bahubali

Vidyapeeths JV Mandal Gramin Ayurvedic Medical College v. Unionof India and Others[1]and Central Council of Indian Medicine v.Union of India and Others[2], wherein the Division Bench held that ifthe permission was granted for the subsequent years, the benefit shouldenure in respect of the previous year also, allowed the said writ petition.The same was carried in an appeal by the present appellant before theDivision Bench of the High Court of Karnataka, which was dismissedvide the impugned judgment. Hence, the appellant approached this Courtby way of the present appeals.

7. This Court, while issuing notice in the present matter, recordedthe statement of Smt. Aishwarya Bhati, learned Additional SolicitorGeneral (for short “ASG”), appearing on behalf of the appellant that thestudents who have been granted admission in the respondent No.1 collegefor the Post Graduate Ayurveda courses for the academic year 2018-

1 Writ Petition No. 107076/2018 (EDN-ADM) dated 01.07.2019

2 Writ Appeal No. 736/2011

A19, will not be disturbed. The learned ASG, however, requested that thequestion of law arising in these matters needs consideration by this Court.As such, by the said order dated 19[th] April 2021, this Court issued notice.

8. We have heard Smt. Aishwarya Bhati, learned ASG appearingon behalf of the appellant, Smt. Madhavi Divan, learned ASG appearingBon behalf of the Union of India and Shri Chinmay Deshpande, learnedcounsel appearing on behalf of respondent No.1.

9. Smt. Bhati submitted that the said 2016 Regulations were madeby the appellant in exercise of the powers conferred by clause (j) ofSection 36 of the Indian Medicine Central Council Act, 1970 (hereinafterCreferred to as the “said Act”) with the previous sanction of the CentralGovernment. She submitted that the 2016 Regulations prescribe therequirements of minimum standard for grant of permission. The learnedASG submitted that unless the institution applying possess the requiredminimum standards, it would not be entitled for permission. It is submittedthat the minimum standards, as required, are to be fulfilled for theDparticular academic year and in the event, such minimum standards arenot fulfilled for the relevant academic year, the institution would not beentitled for permission. The learned ASG submitted that merely becausefor the subsequent academic year, the requirements were fulfilled, itcannot efface the deficiencies that were found in the previous academicEyear. It is therefore submitted that the view taken by the High Court ofKarnataka, that if the permission is granted for subsequent academicyear, it would also be available for the previous year and such an institutewould be entitled for permission even for the earlier year in which thedeficiencies were found to have existed, does not lay down correctproposition of law. She submitted that though judgment of this Court inFthe case of Ayurved Shastra Seva Mandal and Another v. Union ofIndia and Others[3], was pointed out to the learned Single Judge and theDivision Bench of the High Court of Karnataka, they have failed toapply the law laid down in that judgment and as such, the judgment andorder of the Division Bench and the Single Judge are liable to be setGaside.10. Smt. Divan, learned ASG appearing on behalf of the Union ofIndia, also supported the submissions made on behalf of the presentappellant.

H3 (2013) 16 SCC 696

11. Shri Deshpande, learned counsel appearing on behalf ofrespondent No.1, on the contrary, submitted that the view taken by theDivision Bench of the High Court of Karnataka is taken on the basis ofits earlier judgment and as such, no interference is warranted in thepresent appeal.

12. For appreciating the rival submission, it will be necessary torefer to the background in which the said Act came to be enacted. TheUnion of India, after noticing that the minimum standards for admission,duration of courses of training, details of curricula and syllabi of studiesand the title of the degree or diploma, vary from State to State and evenfrom institution to institution in the same State, had appointed variousCommittees to consider problems relating to the Indian system of medicineand Homoeopathy. The said Committees had recommended that astatutory Central Council, on the lines of the Medical Council of Indiafor modern system of medicine, was pre-requisite for the properdevelopment of these systems of medicine. It was noticed that thoughsome States have constituted State Boards or Councils, either bylegislation or by executive orders for the purpose of registration ofpractitioners in the various systems of Indian Medicine and Homoeopathyas well as recognition of qualifications, there was, however, no centrallegislation for the regulation of practice or for minimum standards oftraining and conduct of examinations in these systems of medicine on anall-India basis. It was also noticed that in the absence of such legislation,there was no effective control over the large number of unregisteredpractitioners in these systems. In June 1966, the Central Council of Health,in its 13[th] meeting, while discussing the policy on Ayurvedic education,has recommended the setting up of Central Council for Indian systemsof Medicine to lay down and regulate standards of education andexaminations, qualifications and practice in these systems. In thisbackground, the said Act came to be enacted on 21[st] December 1970.

13. As per the provisions of Section 3 of the said Act, the CentralGovernment was required to constitute, for the purpose of the said Act,a Central Council consisting of the Members specified therein. ChapterIIA of the said Act deals with “Permission for new Medical College,Course, etc.”. The earlier Chapter IIA of the said Act came to besubstituted by new Chapter IIA containing Sections 13A to 13C by theIndian Medicine Central Council (Amendment) Act, 2003 (Act No. 58of 2003). It will be relevant to refer to Sections 13A to 13C of the saidAct, which read thus:

DEF

A“13A. Permission for establishment of new medical college,new course of study, etc.—(1) Notwithstanding anythingcontained in this Act or any other law for the time being in force,—

(a) no person shall establish medical college; or

(b) no medical college shall—

(i) open new or higher course of study or training, includinga post-graduate course of study or training, which wouldenable student of such course or training to qualify himselffor the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of studyor training including postgraduate course of study ortraining,

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

Explanation 1.—For the purposes of this section, “person”includes any University or trust, but does not include the CentralGovernment.

Explanation 2.—For the purposes of this section, “admissioncapacity”, in relation to any course of study or training, includingpost-graduate course of study or training, in medical college,means the maximum number of students as may be fixed by theCentral Government from time to time for being admitted to suchcourse or training.

(2) Every person or medical college shall, for the purpose ofobtaining permission under sub-section (1), submit to the CentralGovernment scheme in accordance with the provisions of sub-section (3) and the Central Government shall refer the scheme tothe Central Council for its recommendations.

(3) The scheme referred to in sub-section (2), shall be in suchform and contain such particulars and be preferred in such mannerand accompanied with such fee, as may be prescribed.

(4) On receipt of scheme from the Central Government undersub-section (2), the Central Council may obtain such otherparticulars as may be considered necessary by it from the personor the medical college concerned, and thereafter, it may,—

(a) if the scheme is defective and does not contain necessaryparticulars, give reasonable opportunity to the person ormedical college concerned for making written representationand it shall be open to such person or medical college to rectifythe defects, if any, specified by the Central Council;

(b) consider the scheme, having regard to the factors referredto in sub-section (8) and submit it to the Central Governmenttogether with its recommendations thereon within period notexceeding six months from the date of receipt of the referencefrom the Central Government.

(5) The Central Government may, after considering the schemeand recommendations of the Central Council under sub-section(4) and after obtaining, where necessary, such other particularsas may be considered necessary by it from the person or medicalcollege concerned and having regard to the factors referred to insub-section (8), either approve the scheme with such conditions,if any, as it may consider necessary or disapprove the schemeand any such approval shall constitute as permission under sub-section (1):

Provided that no scheme shall be disapproved by the CentralGovernment except after giving the person or medical collegeconcerned reasonable opportunity of being heard:

Provided further that nothing in this sub-section shall prevent anyperson or medical college whose scheme has not been approvedby the Central Government to submit fresh scheme and theprovisions of this section shall apply to such scheme as if suchscheme had been submitted for the first time under sub-section(2).

(6) Where, within period of one year from the date of submissionof the scheme to the Central Government under sub-section (2),no order is communicated by the Central Government to the personor medical college submitting the scheme, such scheme shall bedeemed to have been approved by the Central Government in theform in which it was submitted, and, accordingly, the permissionof the Central Government required under sub-section (1) shallalso be deemed to have been granted.

(7) In computing the time-limit specified in sub-section (6), thetime taken by the person or medical college concerned submittingthe scheme, in furnishing any particulars called for by the CentralCouncil, or by the Central Government, shall be excluded.

(8) The Central Council while making its recommendations underclause (b) of sub-section (4) and the Central Government whilepassing an order, either approving or disapproving the schemeunder sub-section (5), shall have due regard to the followingfactors, namely:—

(a) whether the proposed medical college or the existing medicalcollege seeking to open new or higher course of study ortraining, would be in position to offer the minimum standardsof medical education as prescribed by the Central Council underSection 22;

(b) whether the person seeking to establish medical collegeDor the existing medical college seeking to open new or highercourse of study or training or to increase its admission capacityhas adequate financial resources;

(c) whether necessary facilities in respect of staff, equipment,accommodation, training, hospital or other facilities to ensureproper functioning of the medical college or conducting thenew course of study or training or accommodating the increasedadmission capacity have been provided or would be providedwithin the time-limit specified in the scheme;

(d) whether adequate hospital facilities, having regard to thenumber of students likely to attend such medical college orcourse of study or training or the increased admission capacityhave been provided or would be provided within the time-limitspecified in the scheme;

(e) whether any arrangement has been made or programmedrawn to impart proper training to students likely to attend suchmedical college or the course of study or training by personshaving recognised medical qualifications;

(f) the requirement of manpower in the field of practice ofIndian medicine in the college;

(g) any other factors as may be prescribed.

(9) Where the Central Government passes an order eitherapproving or disapproving scheme under this section, copy ofthe order shall be communicated to the person or medical collegeconcerned.

13B. Non-recognition of medical qualifications in certaincases.—(1) Where any medical college is established withoutthe previous permission of the Central Government in accordancewith the provisions of Section 13-A, medical qualification grantedto any student of such medical college shall not be deemed to bea recognised medical qualification for the purposes of this Act.

(2) Where any medical college opens new or higher course ofstudy or training including postgraduate course of study or trainingwithout the previous permission of the Central Government inaccordance with the provisions of Section 13-A, medicalqualification granted to any student of such medical college onthe basis of such study or training shall not be deemed to be arecognised medical qualification for the purposes of this Act.

(3) Where any medical college increases its admission capacityin any course of study or training without the previous permissionof the Central Government in accordance with the provisions ofSection 13-A, medical qualification granted to any student of suchmedical college on the basis of the increase in its admissioncapacity shall not be deemed to be recognised medicalqualification for the purposes of this Act.

13C. Time for seeking permission for certain existingmedical colleges.—(1) If any person has established medicalcollege or any medical college has opened new or higher courseof study or training or increased the admission capacity on orbefore the commencement of the Indian Medicine Central Council(Amendment) Act, 2003, such person or medical college, as thecase may be, shall seek, within period of three years from thesaid commencement, permission of the Central Government inaccordance with the provisions of Section 13-A.

(2) If any person or medical college, as the case may be, fails toseek permission under sub-section (1), the provisions of Section13-B shall apply, so far as may be, as if permission of the CentralGovernment under Section 13-A has been refused.”

BCD

A14. The perusal of sub-section (1) of Section 13A of the said Act,which is non-obstante clause, would show that no person is entitled toestablish medical college except with the previous permission of theCentral Government obtained in accordance with the provisions of thesaid Section. Similarly, no medical college can open new or highercourse of study or training, including post-graduate course or training,Bwhich would enable student of such course or training to qualify himselffor the award of any recognized medical qualification without the previouspermission of the Central Government. Likewise, there is also prohibitionfor the medical colleges to increase its admission capacity in any courseof study or training, including post-graduate course of study or trainingCexcept with the previous permission of the Central Government obtainedin accordance with the provisions of the said Section. Explanation 1 tothe said Section clarifies that the “person” stated therein includes anyUniversity or trust, but does not include the Central Government.Explanation 2 to the said Section clarifies that the “admission capacity”means the maximum number of students as may be fixed by the CentralDGovernment from time to time for being admitted to such course ortraining.

15. Sub-section (2) of Section 13A of the said Act provides that aperson or medical college, who desires to seek permission as providedunder sub-section (1) of Section 13A of the said Act, shall submit aEscheme to the Central Government in accordance with the provisions ofsub-section (3) of Section 13A of the said Act. It further provides thatthe Central Government shall refer the scheme to the Central Councilfor its recommendations.16. Sub-section (3) of Section 13A of the said Act provides thatFthe scheme shall be in such form and contain such particulars and bepreferred in such manner and accompanied with such fee, as may beprescribed.

17. Sub-section (4) of Section 13A of the said Act provides thaton receipt of scheme from the Central Government under sub-sectionG(2) of Section 13A of the said Act, the Central Council may obtain suchother particulars as may be considered necessary by it from the personor the medical college concerned. It further provides that if the schemeis defective and does not contain necessary particulars, it shall give areasonable opportunity to the person or medical college concerned forHmaking written representation. It further provides that it shall be open

to such person or medical college to rectify the defects, if any, specifiedby the Central Council. It also requires the Central Council to considerthe scheme with regard to the factors referred to in sub-section (8) ofSection 13A of the said Act and submit the same to the CentralGovernment together with its recommendations thereon within periodnot exceeding six months from the date of receipt of the reference fromthe Central Government.

18. It can be seen from perusal of sub-section (5) of Section 13Aof the said Act, that the Central Government may, after considering thescheme and recommendations of the Central Council under sub-section(4) of Section 13A of the said Act and after obtaining, where necessary,such other particulars as may be considered necessary by it from theperson or medical college concerned and having regard to the factorsreferred to in sub-section (8) of Section 13A of the said Act, eitherapprove the scheme with such conditions, if any, as it may considernecessary or disapprove the scheme. It further provides that any suchapproval shall constitute as permission under sub-section (1) of Section13A of the said Act. The first proviso to sub-section (5) of Section 13Aof the said Act provides that no scheme shall be disapproved by theCentral Government, without giving the person or medical collegeconcerned, reasonable opportunity of being heard. The second provisoto sub-section (5) of Section 13A of the said Act also enables the person

or medical college, whose scheme has not been approved by the CentralGovernment, to submit fresh scheme. It further provides that theprovisions of the said Section shall apply to such scheme as if suchscheme had been submitted for the first time under sub-section (2) ofSection 13A of the said Act.

19. Sub-section (6) of Section 13A of the said Act, which is adeeming provision, provides that if no order is communicated by theCentral Government to the person or medical college submitting thescheme, within period of one year from the date of submission of thescheme, such scheme shall be deemed to have been approved by theCentral Government in the form in which it was submitted. It furtherprovides that the permission of the Central Government required undersub-section (1) of Section 13A of the said Act shall also be deemed tohave been granted.

20. Sub-section (7) of Section 13A of the said Act provides that incomputing the time-limit specified in sub-section (6) of Section 13A of

Athe said Act, the time taken by the person or medical college concernedsubmitting the scheme, in furnishing any particulars called for by theCentral Council, or by the Central Government, shall be excluded.

21. The perusal of sub-section (8) of Section 13A of the said Actwould show that the Central Council while making its recommendationsBunder clause (b) of sub-section (4) of Section 13A of the said Act andthe Central Government while passing an order, either approving ordisapproving the scheme under sub-section (5) of Section 13A of thesaid Act, shall have due regard to the factors mentioned therein. Variousfactors have been mentioned in clauses (a) to (g) including as to whetherthe proposed medical college or the existing medical college seeking toCopen new or higher course of study or training, would be in positionto offer the minimum standards of medical education as prescribed bythe Central Council under Section 22 of the said Act. It could be seenthat clauses (a) to (f) of sub-section (8) of Section 13A of the said Actrelate to specific factors to be taken into consideration, whereas clauseD(g) thereof is residuary clause, which permits the Central Council andthe Central Government to take into consideration any other factors thatmay be prescribed.

22. Sub-section (9) of Section 13A of the said Act provides thatwhere the Central Government passes an order either approving orEdisapproving scheme under the said Section, copy of the order shallbe communicated to the person or medical college concerned.

23. At this stage, it will also be relevant to refer to Section 22 ofthe said Act, which reads thus:

“22. Minimum standards of education in Indian medicine.—F(1) The Central Council may prescribe the minimum standards ofeducation in Indian medicine, required for granting recognisedmedical qualifications by Universities, Boards or medicalinstitutions in India.

(2) Copies of the draft regulations and of all subsequentGamendments thereof shall be furnished by the Central Council toall State Governments and the Central Council shall, beforesubmitting the regulations or any amendment thereof, as the casemay be, to the Central Government for sanction, take intoconsideration the comments of any State Government receivedwithin three months from the furnishing of the copies as aforesaid.H

(3) Each of the Committees referred to in clauses (a), (b) and (c)of sub-section (1) of Section 9 shall, from time to time, report tothe Central Council on the efficacy of the regulations and mayrecommend to the Central Council such amendments thereof asit may think fit.”

24. It can thus be seen that under sub-section (1) of Section 22 ofthe said Act, the Central Council is entitled to prescribe the minimumstandards of education in Indian medicine, required for grantingrecognized medical qualifications by Universities, Boards or medicalinstitutions in India. Sub-section (2) of Section 22 of the said Act wouldreveal that the copies of the draft regulations and of all subsequentamendments thereof shall be furnished by the Central Council to allState Governments. It further provides that before submitting theregulations or any amendment thereof, to the Central Government forsanction, the Central Council shall take into consideration the commentsof any State Government received within three months from thefurnishing of the copies as aforesaid. Sub-section (3) of Section 22 ofthe said Act provides that each of the Committees referred to in clauses(a) to (c) of sub-section (1) of Section 9 of the said Act, shall, from timeto time, report to the Central Council on the efficacy of the regulationsand may recommend to the Central Council such amendments thereofas it may think fit.

25. Section 36 of the said Act empowers the Central Council “tomake regulations” to carry out the purposes of the said Act, which readsthus:

“36. Power to make regulations.— (1) The Central Councilmay, with the previous sanction of the Central Government, bynotification in the Official Gazette, make regulations generally tocarry out the purposes of this Act, and, without prejudice to thegenerality of this power, such regulations may provide for—

(a)….……..(b)…………(c)…………(d)…………(e)…………

A(f)…………

(g)…….......

(ga) ………..

(gb) any other factor under clause (g) of sub-section (8) ofSection 13-A;

(h) the appointment, powers, duties and procedure of inspectorsand visitors;

(i) the courses and period of study and of practical training tobe undertaken, the subjects of examination and the standardsof proficiency therein to be obtained, in any University, Boardor medical institutions for grant of recognised medicalqualifications;

(j) the standards of staff, equipment, accommodation, trainingand other facilities for education in Indian medicine;

(k) ………..

(l) …………

(m) ……….

(n) ………..

(o) ………..

(p) ………..

(2) The Central Government shall cause every regulation madeunder this Act to be laid, as soon as may be after it is made,before each House of Parliament, while it is in session, for totalperiod of thirty days which may be comprised in one session or intwo or more successive sessions, and if, before the expiry of thesession immediately following the session or the successivesessions aforesaid, both Houses agree in making any modificationin the regulation or both Houses agree that the regulation shouldnot be made, the regulation shall thereafter have effect only insuch modified form or be of no effect, as the case may be; so,however, not any such modification or annulment shall be withoutprejudice to the validity of anything previously done under thatregulation.”

26. It can be seen that such regulations are to be made by theCentral Council with the previous sanction of the Central Government.Clause (gb) of sub-section (1) of Section 36 of the said Act enables theCentral Council to make regulations with regard to any other factor asprovided under Clause (g) of sub-section (8) of Section 13A of the saidAct. Clause (i) of sub-section (1) of Section 36 of the said Act enablesthe Central Council to make regulations providing for the courses andperiod of study and of practical training to be undertaken, the subjects ofexamination and the standards of proficiency therein etc. It can furtherbe seen from the perusal of Clause (j) of sub-section (1) of Section 36 ofthe said Act that the Central Council, with the previous sanction of theCentral Government, is entitled to make regulations prescribing for thestandards of staff, equipments, accommodation, training and otherfacilities for education in Indian medicine. Sub-section (2) of Section 36of the said Act requires the Central Government to cause every regulationmade under the said Act to be laid, as soon as after it is made, beforeeach House of Parliament. It reserves the power of both the Houses ofParliament to make any modification in the regulations.

27. It could thus clearly be seen that Section 13A read with Sections22 and 36(1)(j) of the said Act provides complete scheme forestablishment of medical college, opening new or higher course ofstudy or training, including post-graduate course of study or training,and also increasing the admission capacity. From the perusal of the schemeof the aforesaid provisions, it is clear that no person is entitled to establisha medical college except with the previous permission of the CentralGovernment. Similarly, no medical college can open new or highercourse of study or training, including post-graduate course of study ortraining without the previous sanction of the Central Government.Likewise, no medical college can increase its admission capacity in anycourse of study or training, including post-graduate course of study ortraining. Sub-sections (2) to (5) of Section 13A of the said Act prescribea detailed procedure for submitting scheme and consideration thereofby the Central Council and the Central Government. It also provides forin-built safeguards inasmuch as the principles of natural justice areprovided at two stages, one before the Central Council and another beforethe Central Government. The second proviso to sub-section (5) of Section13A of the said Act also enables person or medical college whosescheme has not been approved by the Central Government, to againsubmit fresh scheme, which is required to be considered as if the same

Ais made for the first time under sub-section (2) of Section 13A of thesaid Act. Sub-section (6) of Section 13A of the said Act provides thatwhen no order is communicated within period of one year from thedate of submission of the scheme, by deeming provision, such schemeshall stand approved and it will be deemed that the permission of theCentral Government as required under sub-section (1) of Section 13ABof the said Act has been granted. Sub-section (7) of Section 13A of thesaid Act provides for exclusion of the period for the time taken by theperson or medical college concerned to furnish any particulars called bythe Central Council, or by the Central Government. Sub-section (8) ofSection 13A of the said Act provides the factors to be taken intoCconsideration. Sub-section (9) of Section 13A of the said Act providesfor the communication of the order approving or disapproving the scheme,to the person or medical college concerned.

28. The statutory scheme is thus clear that no medical collegecan open new or higher course of study or training, including post-Dgraduate course, except with the previous permission of the CentralGovernment. Prior to such permission being granted, the procedure asprescribed under Section 13A has to be followed.

29. The legislative intent is further clarified by the provisions madein Section 13B of the said Act. Sub-section (1) of Section 13B of theEsaid Act provides that where any medical college is established withoutthe previous permission of the Central Government in accordance withthe provisions of Section 13A of the said Act, medical qualification grantedto any student of such medical college shall not be deemed to be arecognized medical qualification for the purposes of the said Act.Likewise, sub-section (2) of Section 13B of the said Act provides thatFwhere any medical college opens new or higher course of study ortraining including post-graduate course of study or training without theprevious permission of the Central Government in accordance with theprovisions of Section 13A of the said Act, medical qualification grantedto any student of such medical college on the basis of such study orGtraining shall not be deemed to be recognised medical qualification forthe purposes of the said Act. Likewise, sub-section (3) of Section 13Bof the said Act provides that where any medical college increases itsadmission capacity in any course of study or training without the previouspermission of the Central Government in accordance with the provisionsof Section 13A of the said Act, medical qualification granted to anyH

student of such medical college on the basis of the increase in its admissioncapacity shall not be deemed to be recognised medical qualificationfor the purposes of the said Act.

30. It could further be seen that the legislature itself has takencare of situation, where any person has established medical collegeor any medical college has opened new or higher course of study ortraining, or increased the admission capacity prior to the commencementof the Indian Medicine Central Council (Amendment) Act, 2003. It hasprovided that such person or medical college, as the case may be, shallseek, within period of three years from the said commencement,permission of the Central Government in accordance with the provisionsof Section 13A of the said Act.

31. The impugned judgment of the Division Bench and the SingleJudge of the High Court of Karnataka, so also the other judgments ofthe High Court of Karnataka, which are relied on by the Division Bench,do not take into consideration the scheme of Section 13A of the saidAct.

32. It could further be relevant to notice Regulation 3(1)(a) of the2016 Regulations, which reads thus:

“3. Requirements of Minimum Standard to grant ofpermission-

(1)(a) The Ayurveda colleges established under Section 13A andexisting under Section 13C of the Act and their attached hospitalsshall fulfill the requirements of minimum standard for infrastructureand teaching and training facilities referred to in the Regulations 4to 11 up to the 31[st] December of every year for consideration ofgrant of permissions for undertaking admissions in the comingacademic session.”

33. It could thus clearly be seen, that Regulation 3(1)(a) of the2016 Regulations specifically provides that the Ayurveda collegesestablished under Section 13A and existing under Section 13C of thesaid Act and their attached hospitals shall fulfill the requirements ofminimum standard for infrastructure and teaching and training facilitiesreferred to in the Regulations 4 to 11 up to 31[st] December of every yearfor consideration of grant of permissions for undertaking admissions inthe coming academic session. It is thus clear that in order to be eligiblefor grant of permission for undertaking admissions in particular academic

Asession, the institution must fulfill the requirements of minimum standardas on 31[st] December of the earlier year. For example, if the institution isseeking grant of permission for undertaking admissions for the academicsession 2022-23, it must have fulfilled the requirements of minimumstandard as on 31[st] December 2021. It could thus be seen that the findingthat the permission granted for subsequent academic year would alsoBenure to the benefit of earlier academic year though the said institutionwas not fulfilling the criteria of minimum standard, is totally erroneous.

34. We further find that the High Court has also erred in notcorrectly applying the law laid down by this Court in the case of AyurvedShastra Seva Mandal (supra). In the said case, the petitioner AyurvedCShastra Seva Mandal had approached the Bombay High Court beingaggrieved by the refusal by the Government of India to grant permissionto the colleges to admit students for the academic year 2011-12. Suchpermission was refused on account of various deficiencies relating toinfrastructure and teaching staff, which had not been rectified and broughtDinto line with the minimum standard norms.

35. It is further to be noted that in paragraph (10) of the saidjudgment, this Court had specifically observed that the petitioner thereintried to impress upon that the deficiencies had already been removedand that is why permission was specifically given for the admission ofEstudents for the academic year 2012-13. It was therefore urged thatthere was no reason for withholding the permission for the academicyear 2011-12. This Court specifically noticed that large number ofstudents had applied for admission for the academic year 2011-12 andthat too with the leave of this Court. However, this Court found that theprivilege granted to the candidates could not be transformed into rightFto be admitted in the course for which they had applied. While dismissingthe petition and refusing to interfere with the judgment of the High Court,this Court observed thus:“17. It is not for us to judge as to whether particular institutionfulfilled the necessary criteria for being eligible to conduct classesGin the discipline concerned or not. That is for the experts to judgeand according to the experts the institutions were not geared toconduct classes in respect of the year 2011–2012. It is alsoimpractical to consider the proposal of the colleges of providingextra classes to the new entrants to bring them up to the level ofthose who have completed the major part of the course for the

first year. We are not, therefore, inclined to interfere with theorders of the High Court impugned in these special leave petitionsand the same are, accordingly, dismissed.”

36. It can be seen from the conjoint reading of various paragraphsof the said judgment that the contention that since the deficiencies stoodalready removed and the permission granted for the academic year 2012-13, the said permission should also be construed as having been grantedfor the academic year 2011-12, was not accepted by this Court.

37. We are at pains to say that though the judgment in the case ofAyurved Shastra Seva Mandal (supra) was specifically relied on bythe appellant herein, the learned Single Judge and the Division Bench ofthe High Court of Karnataka have chosen to rely on the earlier judgmentsof the Division Bench of the same High Court rather than judgment ofthis Court.

38. It will further be relevant to note that this Court in the case ofAyurved Shastra Seva Mandal (supra) has also referred to theamended provisions of the said Act. It will be relevant to refer toparagraphs (5) to (9) of the said judgment, which read thus:

“5. As far as medical institutions are concerned, the procedurerelating to the recognition of medical colleges as well as admissiontherein was governed by the Indian Medicine Central CouncilAct, 1970 (hereinafter referred to as “the 1970 Act”), which wasamended in 2003, to incorporate Sections 13-A, 13-B and 13-C,which provided the procedure for establishing new colleges andmaking provision for seeking prior permission of the CentralGovernment in respect of the same. The amendment also attemptedto bring in reforms in the existing colleges by making it mandatoryfor them to seek permission from the Central Government withina period of three years from their establishment.

6. Having regard to the said amendments, the Central Council ofIndian Medicine, with the previous sanction of the CentralGovernment, framed Regulations, in exercise of the powersconferred on it by Section 36 of the 1970 Act. The said Regulationswere named as the Establishment of New Medical College,Opening of New or Higher Course of Study or Training andIncrease of Admission Capacity by Medical College Regulations,2003 (hereinafter referred to as “the 2003 Regulations”).

Regulation 6(1)(e) of the 2003 Regulations provides for applicationsto be made by medical college owning and managing hospitalin Indian medicine containing not less than 100 beds with necessaryfacilities and infrastructure.

7. The Central Council of Indian Medicine further framedRegulations in 2006 called as the Indian Medicine Central Council(Permission to Existing Medical Colleges) Regulations, 2006(hereinafter referred to as “the 2006 Regulations”). Regulation5(1)(d) of the 2006 Regulations provides that the applicant Collegewould have to be owning and managing minimum of 100 bedsfor undergraduate courses and 150 beds for postgraduate courses,which conforms to the norms relating to minimum bed strengthand bed occupancy for in-patients and the number of out-patients.8. When the 2003 Amendment was effected to the 1970 Act,three years’ time was given to the existing colleges to remove thedeficiencies. The 2006 Regulations provided further period oftwo years to remove the deficiencies and even relaxed theminimum standards in that regard. Even after the expiry of twoyears, the colleges were given further opportunities to removethe shortcomings by granting them conditional permission for theirstudents for the academic years 2008–2009, 2009–2010 and 2010–2011. It is only obvious that the minimum standards were insistedupon by the Council to ensure that the colleges achieved theminimum standards gradually.

9. It may be noted that there was little or no response from theinstitutions concerned in regard to removal of the deficiencies intheir respective institutions and it is only when the notices weregiven to shut down the institutions that they woke up from theirslumber and approached the courts for relief. In many of thesecases, permission was given by the courts to the institutionsconcerned to accept admission forms, but they were directed notto pass any orders thereupon till the decision of this Court in thesespecial leave petitions.”

39. We are, therefore, of the considered view that the learnedSingle Judge as well as the Division Bench have grossly erred in nottaking into consideration the scheme of the said Act so also the judgmentof this Court in the case of Ayurved Shastra Seva Mandal (supra).

40. In the result, the appeals are allowed. The common judgmentand order dated 21[st] December 2020, delivered by the Division Benchof the High Court of Karnataka in Writ Appeal No. 542 of 2020 (EDN-REG) and Writ Appeal No.541 of 2020 (EDN-REG), and the judgmentand order dated 24[th] September 2020 passed by the Single Judge in WritPetition No. 50772 of 2018 (EDN-REG-P) and Writ Petition No. 50828of 2018 (EDN-EX) are quashed and set aside. The writ petitions filedby the original writ petitioners in the High Court are dismissed.

41. Pending application(s), if any, shall stand disposed of in theabove terms. No order as to costs.

Nidhi Jain(Assisted by : Tamana, LCRA)

Appeals allowed.