White Memorial Educational ... vs The Union Of India on 19 September, 2013

Madras High Court

White Memorial Educational ... vs The Union Of India on 19 September, 2013

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 19/09/2013

CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

Writ Petition (MD)No.14760 of 2012
and
M.P.(MD)Nos.2 and 3 of 2012

White Memorial Educational Society,
rep.by its Chairman, Attoor,
Veeyanoor-629 177,
Kanyakumari District.   ... Petitioner

Vs

1.The Union of India,
  rep.by its Secretary,
  Ministry of Health &
  Family Welfare, Department of
    Ayurveda Yoga & Naturopathy,
   Unani, Siddha & Homoeopathy (AYUSH),
  IRCS Annexe Building,
  1-Red Cross Road,
  New Delhi-110 001.

2.The Central Council of Homoeopathy (CCH),
  rep.by its Secretary,
  Jawaharlal Nehru Bhartiya Chikitsa
   Avum Homoeopathy Anusandhan Bhavan,
  No.61-65, Institutional Area,
  Opp.'D" Block, Janakpuri,
  New Delhi-110 058.

3.The Commissioner,
  Directorate of Indian Medicine &
   Homoeopathy, Arumbakkam,
  Chennai-600 105.

4.Tamil Nadu Dr.MGR Medical University,
  Rep.by its Registrar,
  69, Anna Salai, Guindy,
  Chennai-600 032.   ... Respondents

  
Writ petition under Article 226 of the Constitution of India praying
for issuance of a writ of certiorari, calling for the records relating to the
impugned proceedings issued by the 1st respondent Central Government in
F.No.R.13014/01/2003-EP, dated 23.09.2005 and the 4th respondent TN Dr.MGR
Medical University in Proc.No.Affln.I(3)/05759/2011, dated 22.10.2012 and
quashing the same.

!For Petitioner           ... Mr.Isaac Mohanlal
^For Respondents     ... Mr.K.K.Senthilvelan,
1 and 2             Asst.Solicitor General,
                       assisted by S.Arunkumar,
                        CGSC
For Respondent-3     ... Mr.N.S.Karthikeyan,
                         Addl.Govt.Pleader.
For Respondent-4     ... Mr.C.Karthik

:ORDER

The petitioner Society, known as White Memorial Educational Society, was originally registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and now deemed to have been registered under the Tamil Nadu Societies Registration Act, 1975. The petitioner society is running a Homoeopathy Medical College and other related educational institutions. The petitioner society established White Memorail Homoeo Medical College in the year 1978. It was recognised by the 2nd respondent, namely Central Council of Homoeopathy, New Delhi and Tamil Nadu Homoeopathy Council, Chennai, as per Homoeopathy Central Council Act, 1973.

2.Initially, the college was offering Diploma Course in Homoeopathy, with 50 seats. Later, the College applied for starting Bachelor Homoepathy Medicines and Surgery Course. For the said course, the 2nd respondent, who is the competent authority under the said Act, granted permission for the same. As per the statute of the Tamil Nadu Dr.MGR Medical University, Chennai, affiliation is to be obtained from the said University. Accordingly, the petitioner applied for affiliation for 50 seats in B.H.M.S. course and the same was also granted. Thus, from the academic year 1993 onwards, the petitioner college had been offering B.H.M.S. course with annual intake of 50 students.

3.While so, the petitioner wanted to increase the annual intake of students in B.H.M.S. course from 50 to 100. For the said purpose, the petitioner made an application to the 2nd respondent on 20.09.2002. Having considered the said request and all other relevant facts, the 2nd respondent, by its proceedings No.1/2002-CCH 18021, dated 31.10.2002, granted permission to the petitioner, as per the above said Act, however, with a direction to the petitioner to comply with the provisions of Homoeopathy (Minimum Standards f Education) Regulations, 1983, as amended till 2002. Thereafter, the petitioner applied for affiliation for the additional 50 seats with the 4th respondent, namely Tamil Nadu Dr.M.G.R.Medical University. Having considered the same, the 4th respondent, by proceedings No.Affln.I(3)/05759/2011, dated 31.08.2012, granted permission to the petitioner college to increase the annual intake of students from 50 to 100. Thereafter, the petitioner was, accordingly, running the course by having annual intake of 100 students.

4.In the meanwhile, the Homoeopathy Central Council Act, 1973 was amended by the Homoeopathy Central Council Amendment Act, 2002. By the said amendment, Section 12(A) was introduced. Since it would be suffice to have a look into Section 112(A)(1) for the purpose of this writ petition, the same is extracted hereunder.

"12A(1).Notwithstanding anything contained in the 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 high course of study of training (including postgraduate course of study or training) which would enable students of each course or training to qualify himself for the award of any recognized medical qualification; or

(ii)increase its 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."

5.The said amended Act was notified by the Central Government on 28.01.2003, giving effect to the same from the date of Notification, namely 28.01.2003. As per the above amendment, now, the competent authority to grant permission either for starting a course or to increase the annual intake of students is the 1st respondent. This provision has come into force only from 28.01.2003.

6.Subsequently, the 1st respondent, by his proceedings F.No.R.13014/01/2005/EP, dated Nil, September, 2012, has sought for clarification from the 4th respondent, as follows:

"With reference to the above the Department of AYUSH would like to seek your view on granting permission to White Memorial Homoeopathic Medical College, Attoor, Kanyakumari District, Tamilnadu to increase admission capacity in BHMS from 50 to 100 subject in the light of reference (1) where the University had directed the applicant college to produce the approval of Department of AYUSH before deciding on the issue in the university.

2.The Section 12B(3) of HCC (Amendment) Act, 2002 notified on 08.10.2002 states that 'Where any medical institution increases its admission capacity in any course of study of training without the previous permission of the Central Government in accordance with the provisions of section 12A, medical qualification granted to any student of such medical institution on the basis of the increase in its admission capacity shall not be deemed to be recognized medical qualification for the purpose of this Act' (Copy enclosed).

3.Further, upon the request of the college dated 9.12.2004 to increase admission capacity in BHMS, the Department in their letter dated 23.09.2005 conveyed that since the college had not implemented the permission granted by the CCH vide letter dated 31.10.2002 for increase intake capacity in BHMS Degree course from 50 to 100 students from the sessions 2002-03, before amendment of the HCC Act, 2002, the permission has lapsed after the amendment of the said Act. (Copy enclosed).

Therefore, you are requested to clarify your stand in granting permission to the said college for increase of admission capacity in BHMS Degree Course."

7.Based on the above letter, the 4th respondent by his proceedings in No.Affln.I(3)/05759/2011, dated 22.10.2012, has cancelled the permission granted for additional intake of 50 students and has restored the original position, thereby reducing the annual intake into 50 students, for the academic year 2012-2013. Challenging the same, the petitioner has come forward with this writ petition.

8. I have heard the learned counsel for the petitioner and the learned Assistant Solicitor General for respondents 1 and 2 and the learned Additional Government Pleader for Respondent No.3 and the learned counsel for the 4th respondent. I have also perused the records carefully.

9.The learned counsel for the petitioner would submit that the amendment to the Act came into being only from 28.01.2003; whereas permission for additional intake of 50 seats was granted by the 2nd respondent as early as on 31.10.2002 itself. It is the contention of the learned counsel for the petitioner that permission once granted by the competent authority shall be in force for ever and the same shall not stand automatically cancelled. The learned counsel would further submit that after the amendment, of course it is true that the 1st respondent has become the competent authority under the Act to grant permission but, in the case on hand, since the permission was granted by the 2nd respondent who was the competent authority prior to the coming into force of the amendment to the Act, the said permission granted will hold good and therefore the impugned order passed by respondents 1 and 4 are liable to be set aside.

10.In this regard, the learned counsel would further point out that the first respondent had sent a letter to the Health Secretaries of all State Governments under F.No.R.11011/03/2003/EP, dated 27.12.2004, wherein the 1st respondent had clarified as follows:

"I am directed to refer to this Department's letter of even number dated the 16th April (copy enclosed) on the subject mentioned above and re-iterate the Government of India's instructions given therein that permission granted by any agency (including the Central Council of Homoeopathy) other than Central Government i.e. Department of AYUSH to open a new Homoeopathic Medical College, open a new or higher course of study of training including P.G.Course or training and increase in admission capacity in any course of study as well as that for existing college after 28.1.2003 may not be treated valid in terms of provision of the HCC Act as the Central Government has been empowered under Section of the HCC (Amendment) Act, 2002 to grant permission.

You are, therefore, requested to follow the provisions of Law for seeking recognition including extension of existing colleges from this Department and inform to all concerned for similar action. It is further clarified that the colleges granted permission by CCH on onwards basis prior to amendment of HCC Act (Amendment) 2002 do not need further permission from Government of India at this stage."

11.The learned counsel would further point out that the first respondent under another letter addressed to the Registrar of the 4th respondent University, in F.No.Z.16011/01/2005-EP, dated 12.05.2005, has further clarified as follows:

"I am directed to refer to your letters No.67131/Affln.II (2)2003 dated 10-5-2005 and 23-6-2005 on the subject mentioned above and to clarify that the permission once granted either by the Central Council of Homoeopathy or the Central Government for conducting BHMS Degree Course on onwards basis may have to continue as per provision of HCC Act 1973 till the same is withdrawn as per the provisions, if any, of the Act. The action may be taken accordingly."

12.Referring to the above letters, the learned counsel would submit that it is the case of the 1st respondent himself that permission once granted for conducting B.H.M.S. Course will hold good for ever. In those circumstances, according to the learned counsel, the impugned orders of respondents 1 and 4 are liable to be set aside.

13. A detailed counter has been filed by the 1st respondent. In the counter, it is stated that it is true that permission was granted for additional intake of 50 seats by the 2nd respondent on 31.10.2012 but, subsequent to the amendment, which came into force on 28.01.2003, it is the first respondent who is the competent authority to grant permission for additional intake. Relying on the same, the learned Assistant Solicitor General would submit that after the coming into force of the amended Act, since there was no permission granted by the 1st respondent for the petitioner to have additional 50 seats, the order impugned in the writ petition was issued by the 1st respondent.

14.The learned counsel for the 4th respondent would submit that because of the letter of the 1st respondent, dated Nil September, 2012, consequential proceedings, dated 22.10.2012, came to be issued reducing the intake of students from 100 to 50.

15.I have considered the above submissions.

16.Admittedly, as on 31.10.2002, when permission was granted for the petitioner to increase 50 seats, the competent authority was, undoubtedly, the 2nd respondent. A perusal of the amendment Act would go to show that it is only prospective in nature. There is no provision introduced by means of amendment that the permission granted already, namely prior to the amendment, will either stand cancelled or nullified by means of the amendment. It is not even the case of the 1st respondent that permission once granted shall stand terminated by means of the amendment. That is why the Central Government has clarified the position to all the Health Secretaries of the States in the letter F.No.R.11011/03/2003/EP, dated 27.12.2004. Referring to the above, similarly in another letter of clarification, addressed specifically to the 4th respondent also, the 1st respondent has stated so. Having clarified the same so, it is surprising for this Court to note that strange stand has been taken in the counter stating that fresh permission is required from the 1st respondent for an additional intake of 50 students. In my considered opinion, the stand taken by the 1st respondent in the counter affidavit cannot be accepted at all. If this stand is to be accepted, then even for the 50 seats, which were originally available for the petitioner, fresh permission is to be obtained from the first respondent. This stand is totally against the Act. As I have already pointed out, amendment Act does not nullify the permission granted already by the 2nd respondent. It nowhere states fresh permission should be obtained from the 1st respondent. If that be so, the permission granted by the 2nd respondent prior to the amendment shall hold good for ever and thus there is no need for obtaining fresh permission from the 1st respondent. In such view of the matter, the impugned proceedings of the 1st respondent as well as the 4th respondent are liable to be set aside.

17.In the result, the writ petition is allowed. The impugned proceedings of the 1st and the 4th respondent are hereby set aside. No costs. Connected m.P.(MD)Nos.2 and 3 of 2012 are closed.

To The Commissioner, Directorate of Indian Medicine & Homoeopathy, Arumbakkam, Chennai-600 105.