Central Council For Indian Medicine vs Karnataka Ayurveda Medical College

CENTRAL COUNCIL FOR INDIAN MEDICINE ...APPELLANT(S) VERSUS

KARNATAKA AYURVEDA MEDICAL COLLEGE AND OTHERS ...RESPONDENT(S) WITH

CIVIL APPEAL NO. 2895 OF 2022 [Arising out of SLP(C) No. 4447 of 2021]

CIVIL APPEAL NO. 2894 OF 2022 [Arising out of SLP(C) No. 3742 of 2021]

CIVIL APPEAL NO. 2893 OF 2022 [Arising out of SLP(C) No. 4346 of 2021]

CIVIL APPEAL NO. 2897 OF 2022 [Arising out of SLP(C) No. 20181 of 2021]

CIVIL APPEAL NO. 2896 OF 2022 [Arising out of SLP(C) No. 20453 of 2021]

JUDGMENT

B.R. GAVAI, J.

1. Leave granted in all the Special Leave Petitions.

1

2. The present appeals challenge the following:

(i) judgment dated 21st December 2020 passed by

the Division Bench of the High Court of

Karnataka in Writ Appeal Nos. 541 of 2020

(EDN­REG) and 542 of 2020 (EDN­REG),

thereby dismissing the writ appeals filed by the

present appellant­Central Council for Indian

Medicine, which was in turn filed, challenging

the order dated 24th September 2020 passed

by the learned Single Judge in Writ Petition

No.50772 of 2018 (EDN­REG­P), thereby

allowing the writ petition filed by the

respondent No.1 herein­Karnataka Ayurveda

Medical College; and

(ii) judgment dated 24th September 2020 passed

by the learned Single Judge of the High Court

of Karnataka in Writ Petition Nos. 50828 of

2018 (EDN­EX) thereby allowing the writ

petition filed by the petitioner therein and Writ

2 Petition No.50772 of 2018 (EDN­REG­P),

thereby allowing the writ petition filed by the

respondent No.1 herein­Karnataka Ayurveda

Medical College.

3. For the sake of convenience, we refer to the facts as are

found in civil appeal arising out of SLP(C) No.4618 of 2021.

4. The respondent No.1 herein had applied to the respondent

No.4­State Government, respondent No.3­Rajiv Gandhi

University of Health Sciences and the appellant herein for

permission to start Post­Graduate course for the academic year

2014­15. The appellant granted permission to start five new

Post Graduate Ayurvedic disciplines with five seats each in

accordance with the then prevalent Indian Medicine Central

Council (Post­Graduate Ayurveda Education) Regulations, 2012

(hereinafter referred to as “2012 Regulations”). These 2012

Regulations came to be superseded by the Indian Medicine

Central Council (Post­Graduate Ayurveda Education)

Regulations, 2016 (hereinafter referred to as “2016

Regulations”).

3

5. As per 2016 Regulations, it was a requirement that an

institution should possess a Central Research Laboratory and

an Animal House. The 2016 Regulations provided that the

Animal House could be either owned by the institution or it

could be in collaboration with any other institution.

Accordingly, the respondent No.1 collaborated with Sri

Dharmasthala Manjunatheshwara College of Ayurveda, Udupi,

which permitted respondent No.1 the usage of Animal House

set up by it. As such, the appellant and the respondent No.2­

Union of India, continued permission to respondent No.1 for

the academic years 2016­17 and 2017­18. The Union of India

directed the appellant to inspect the facilities available with the

respondent No.1 in accordance with the relevant Regulations

and submit its recommendations and the inspection report to

it. This was to be done by the end of March 2018 so that the

matter pertaining to grant of permission for the academic year

2018­19 could be considered before the start of the next

academic year. The appellant inspected the facilities available

with the respondent No.1 on 2nd February 2018 and again on

4 23rd­24th May 2018. On the basis of the said inspection, the

Union of India issued a notice dated 3 rd August 2018, which

was received by respondent No.1 on 16 th August 2018. Vide the

said notice dated 3rd August 2018, certain deficiencies were

pointed out. The respondent No.1 was given an opportunity of

hearing on 24th August 2018 before the designated Hearing

Committee. After the hearing, the Union of India, vide order

dated 5th September 2018, rejected the permission to

respondent No.1 to admit students to the Post Graduate

courses for the academic year 2018­19 on the ground of non­

availability of Central Research Laboratory and Animal House.

However, vide the said order dated 5th September 2018, the

Union of India granted permission to respondent No.1 to admit

students to Under Graduate (BAMS) Course with an intake of

50 seats for the academic year 2018­19 subject to it fulfilling

the deficiencies mentioned therein by 31 st December 2018.

6. The respondent No.1 therefore filed a writ petition being

Writ Petition No. 50772 of 2018 (EDN­REG­P) before the

learned Single Judge of the High Court of Karnataka. It is to be

5 noted that in the interregnum, the Union of India granted

permission to the respondent No.1 to admit students for the

Post Graduate Course for the academic year 2019­20. The

learned Single Judge, relying on the judgments of the Division

Bench of the High Court of Karnataka in the cases of Bahubali

Vidyapeeths JV Mandal Gramin Ayurvedic Medical College

v. Union of India and Others1 and Central Council of

Indian Medicine v. Union of India and Others2, wherein the

Division Bench held that if the permission was granted for the

subsequent years, the benefit should enure in respect of the

previous year also, allowed the said writ petition. The same

was carried in an appeal by the present appellant before the

Division Bench of the High Court of Karnataka, which was

dismissed vide the impugned judgment. Hence, the appellant

approached this Court by way of the present appeals.

7. This Court, while issuing notice in the present matter,

recorded the statement of Smt. Aishwarya Bhati, learned

Additional Solicitor General (for short “ASG”), appearing on

1 Writ Petition No. 107076/2018 (EDN­ADM) dated 01.07.2019 2 Writ Appeal No. 736/2011 6 behalf of the appellant that the students who have been

granted admission in the respondent No.1 college for the Post

Graduate Ayurveda courses for the academic year 2018­19, will

not be disturbed. The learned ASG, however, requested that

the question of law arising in these matters needs consideration

by this Court. As such, by the said order dated 19th April 2021,

this Court issued notice.

8. We have heard Smt. Aishwarya Bhati, learned ASG

appearing on behalf of the appellant, Smt. Madhavi Divan,

learned ASG appearing on behalf of the Union of India and Shri

Chinmay Deshpande, learned counsel appearing on behalf of

respondent No.1.

9. Smt. Bhati submitted that the said 2016 Regulations were

made by the appellant in exercise of the powers conferred by

clause (j) of Section 36 of the Indian Medicine Central Council

Act, 1970 (hereinafter referred to as the “said Act”) with the

previous sanction of the Central Government. She submitted

that the 2016 Regulations prescribe the requirements of

minimum standard for grant of permission. The learned ASG

7 submitted that unless the institution applying possess the

required minimum standards, it would not be entitled for

permission. It is submitted that the minimum standards, as

required, are to be fulfilled for the particular academic year and

in the event, such minimum standards are not fulfilled for the

relevant academic year, the institution would not be entitled for

permission. The learned ASG submitted that merely because

for the subsequent academic year, the requirements were

fulfilled, it cannot efface the deficiencies that were found in the

previous academic year. It is therefore submitted that the view

taken by the High Court of Karnataka, that if the permission is

granted for a subsequent academic year, it would also be

available for the previous year and such an institute would be

entitled for permission even for the earlier year in which the

deficiencies were found to have existed, does not lay down a

correct proposition of law. She submitted that though a

judgment of this Court in the case of Ayurved Shastra Seva

Mandal and Another v. Union of India and Others3, was

pointed out to the learned Single Judge and the Division Bench 3 (2013) 16 SCC 696

8 of the High Court of Karnataka, they have failed to apply the

law laid down in that judgment and as such, the judgment and

order of the Division Bench and the Single Judge are liable to

be set aside.

10. Smt. Divan, learned ASG appearing on behalf of the Union

of India, also supported the submissions made on behalf of the

present appellant.

11. Shri Deshpande, learned counsel appearing on behalf of

respondent No.1, on the contrary, submitted that the view

taken by the Division Bench of the High Court of Karnataka is

taken on the basis of its earlier judgment and as such, no

interference is warranted in the present appeal.

12. For appreciating the rival submission, it will be necessary

to refer to the background in which the said Act came to be

enacted. The Union of India, after noticing that the minimum

standards for admission, duration of courses of training, details

of curricula and syllabi of studies and the title of the degree or

diploma, vary from State to State and even from institution to

institution in the same State, had appointed various

9 Committees to consider problems relating to the Indian system

of medicine and Homoeopathy. The said Committees had

recommended that a statutory Central Council, on the lines of

the Medical Council of India for modern system of medicine,

was a pre­requisite for the proper development of these systems

of medicine. It was noticed that though some States have

constituted State Boards or Councils, either by legislation or by

executive orders for the purpose of registration of practitioners

in the various systems of Indian Medicine and Homoeopathy as

well as recognition of qualifications, there was, however, no

central legislation for the regulation of practice or for minimum

standards of training and conduct of examinations in these

systems of medicine on an all­India basis. It was also noticed

that in the absence of such legislation, there was no effective

control over the large number of unregistered practitioners in

these systems. In June 1966, the Central Council of Health, in

its 13th meeting, while discussing the policy on Ayurvedic

education, has recommended the setting up of a Central

Council for Indian systems of Medicine to lay down and

10 regulate standards of education and examinations,

qualifications and practice in these systems. In this

background, 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

Central Government was required to constitute, for the purpose

of the said Act, a Central Council consisting of the Members

specified therein. Chapter IIA of the said Act deals with

“Permission for new Medical College, Course, etc.”. The earlier

Chapter IIA of the said Act came to be substituted by new

Chapter IIA containing Sections 13A to 13C by the Indian

Medicine Central Council (Amendment) Act, 2003 (Act No. 58 of

2003). It will be relevant to refer to Sections 13A to 13C of the

said Act, which read thus:

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

(a) no person shall establish a medical college; or

(b) no medical college shall—

11

(i) open a new or higher course of study or training, including a post­ graduate course of study or training, which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training including a postgraduate 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 post­graduate course of study or training, in a medical college, means the maximum number of students as may be fixed by the Central Government from time to time for being admitted to such course or training.

(2) Every person or medical college shall, for the purpose of obtaining permission under sub­section (1), submit to the Central Government a scheme in accordance with the provisions of sub­section (3) and the Central Government shall refer the scheme to the Central Council for its recommendations. (3) The scheme referred to in sub­section (2), shall be in such form and contain such particulars and be preferred in such manner and accompanied with such fee, as may be prescribed.

12 (4) On receipt of a scheme from the Central Government under sub­section (2), the Central Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may,—

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

(b) consider the scheme, having regard to the factors referred to in sub­section (8) and submit it to the Central Government together with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government.

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

Provided that no scheme shall be disapproved by the Central Government except after giving the person or medical college concerned a reasonable opportunity of being heard:

13 Provided further that nothing in this sub­section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme as if such scheme had been submitted for the first time under sub­section (2). (6) Where, within a period of one year from the date of submission of the scheme to the Central Government under sub­section (2), no order is communicated by the Central Government to the person or medical college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted, and, accordingly, the permission of the Central Government required under sub­section (1) shall also be deemed to have been granted.

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

(8) The Central Council while making its recommendations under clause (b) of sub­section (4) and the Central Government while passing an order, either approving or disapproving the scheme under sub­section (5), shall have due regard to the following factors, namely:—

(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical

14 education as prescribed by the Central Council under Section 22;

(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;

(c) whether necessary facilities in respect of staff, equipment, accommodation, training, hospital or other facilities to ensure proper functioning of the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time­limit specified in the scheme;

(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or the increased admission capacity have been provided or would be provided within the time­limit specified in the scheme;

(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or the course of study or training by persons having recognised medical qualifications;

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

(g) any other factors as may be prescribed.

15

(9) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or medical college concerned.

13B. Non­recognition of medical qualifications in certain cases.—(1) Where any medical college is established without the previous permission of the Central Government in accordance with the provisions of Section 13­A, medical qualification granted to any student of such medical college shall not be deemed to be a recognised medical qualification for the purposes of this Act.

(2) Where any medical college opens a new or higher course of study or training including a postgraduate course of study or training without the previous permission of the Central Government in accordance with the provisions of Section 13­A, medical qualification granted to any student of such medical college on the basis of such study or training shall not be deemed to be a recognised medical qualification for the purposes of this Act. (3) Where any medical college increases its admission capacity in any course of study or training without the previous permission of the Central Government in accordance with the provisions of Section 13­A, medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall not be deemed to be a recognised medical qualification for the purposes of this Act.

13C. Time for seeking permission for certain existing medical colleges.—(1) If any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or

16 before the commencement of the Indian Medicine Central Council (Amendment) Act, 2003, such person or medical college, as the case may be, shall seek, within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of Section 13­A. (2) If any person or medical college, as the case may be, fails to seek permission under sub­section (1), the provisions of Section 13­B shall apply, so far as may be, as if permission of the Central Government under Section 13­A has been refused.”

14. The perusal of sub­section (1) of Section 13A of the said

Act, which is a non­obstante clause, would show that no person

is entitled to establish a medical college except with the

previous permission of the Central Government obtained in

accordance with the provisions of the said Section. Similarly,

no medical college can open a new or higher course of study or

training, including a post­graduate course or training, which

would enable a student of such course or training to qualify

himself for the award of any recognized medical qualification

without the previous permission of the Central Government.

Likewise, there is also a prohibition for the medical colleges to

increase its admission capacity in any course of study or

17 training, including a post­graduate course of study or training

except with the previous permission of the Central Government

obtained in accordance with the provisions of the said Section.

Explanation 1 to the said Section clarifies that the “person”

stated therein includes any University or a 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 Central

Government from time to time for being admitted to such

course or training.

15. Sub­section (2) of Section 13A of the said Act provides that

a person or a medical college, who desires to seek permission

as provided under sub­section (1) of Section 13A of the said

Act, shall submit a scheme to the Central Government in

accordance with the provisions of sub­section (3) of Section 13A

of the said Act. It further provides that the Central Government

shall refer the scheme to the Central Council for its

recommendations.

18

16. Sub­section (3) of Section 13A of the said Act provides that

the scheme shall be in such form and contain such particulars

and be preferred in such manner and accompanied with such

fee, as may be prescribed.

17. Sub­section (4) of Section 13A of the said Act provides that

on receipt of a scheme from the Central Government under

sub­section (2) of Section 13A of the said Act, the Central

Council may obtain such other particulars as may be

considered necessary by it from the person or the medical

college concerned. It further provides that if the scheme is

defective and does not contain necessary particulars, it shall

give a reasonable opportunity to the person or medical college

concerned for making a written representation. It further

provides that it shall be open to such person or medical college

to rectify the defects, if any, specified by the Central Council. It

also requires the Central Council to consider the scheme with

regard to the factors referred to in sub­section (8) of Section

13A of the said Act and submit the same to the Central

Government together with its recommendations thereon within

19 a period not exceeding six months from the date of receipt of

the reference from the Central Government.

18. It can be seen from perusal of sub­section (5) of Section

13A of the said Act, that the Central Government may, after

considering the scheme and recommendations of the Central

Council under sub­section (4) of Section 13A of the said Act

and after obtaining, where necessary, such other particulars as

may be considered necessary by it from the person or medical

college concerned and having regard to the factors referred to in

sub­section (8) of Section 13A of the said Act, either approve

the scheme with such conditions, if any, as it may consider

necessary or disapprove the scheme. It further provides that

any such approval shall constitute as a permission under sub­

section (1) of Section 13A of the said Act. The first proviso to

sub­section (5) of Section 13A of the said Act provides that no

scheme shall be disapproved by the Central Government,

without giving the person or medical college concerned, a

reasonable opportunity of being heard. The second proviso to

sub­section (5) of Section 13A of the said Act also enables the

20 person or medical college, whose scheme has not been

approved by the Central Government, to submit a fresh

scheme. It further provides that the provisions of the said

Section shall apply to such scheme as if such scheme had been

submitted for the first time under sub­section (2) of Section 13A

of the said Act.

19. Sub­section (6) of Section 13A of the said Act, which is a

deeming provision, provides that if no order is communicated

by the Central Government to the person or medical college

submitting the scheme, within a period of one year from the

date of submission of the scheme, such a scheme shall be

deemed to have been approved by the Central Government in

the form in which it was submitted. It further provides that the

permission of the Central Government required under sub­

section (1) of Section 13A of the said Act shall also be deemed

to have been granted.

20. Sub­section (7) of Section 13A of the said Act provides that

in computing the time­limit specified in sub­section (6) of

Section 13A of the said Act, the time taken by the person or

21 medical college concerned submitting the scheme, in furnishing

any particulars called for by the Central Council, or by the

Central Government, shall be excluded.

21. The perusal of sub­section (8) of Section 13A of the said

Act would show that the Central Council while making its

recommendations under clause (b) of sub­section (4) of Section

13A of the said Act and the Central Government while passing

an order, either approving or disapproving the scheme under

sub­section (5) of Section 13A of the said Act, shall have due

regard to the factors mentioned therein. Various factors have

been mentioned in clauses (a) to (g) including as to whether the

proposed medical college or the existing medical college seeking

to open a new or higher course of study or training, would be in

a position to offer the minimum standards of medical education

as prescribed by the Central Council under Section 22 of the

said Act. It could be seen that clauses (a) to (f) of sub­section

(8) of Section 13A of the said Act relate to specific factors to be

taken into consideration, whereas clause (g) thereof is a

residuary clause, which permits the Central Council and the

22 Central Government to take into consideration any other

factors that may be prescribed.

22. Sub­section (9) of Section 13A of the said Act provides that

where the Central Government passes an order either

approving or disapproving a scheme under the said Section, a

copy of the order shall be communicated to the person or

medical college concerned.

23. At this stage, it will also be relevant to refer to Section 22

of the said Act, which reads thus:

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

(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments and the Central Council shall, before submitting the regulations or any amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid. (3) Each of the Committees referred to in clauses

(a), (b) and (c) of sub­section (1) of Section 9 shall, from time to time, report to the Central Council on the efficacy of the regulations and may recommend

23 to the Central Council such amendments thereof as it may think fit.”

24. It can thus be seen that under sub­section (1) of Section

22 of the said Act, the Central Council is entitled to prescribe

the minimum standards of education in Indian medicine,

required for granting recognized medical qualifications by

Universities, Boards or medical institutions in India. Sub­

section (2) of Section 22 of the said Act would reveal that the

copies of the draft regulations and of all subsequent

amendments thereof shall be furnished by the Central Council

to all State Governments. It further provides that before

submitting the regulations or any amendment thereof, to the

Central Government for sanction, the Central Council shall

take into consideration the comments of any State Government

received within three months from the furnishing of the copies

as aforesaid. Sub­section (3) of Section 22 of the said Act

provides that each of the Committees referred to in clauses (a)

to (c) of sub­section (1) of Section 9 of the said Act, shall, from

time to time, report to the Central Council on the efficacy of the

24 regulations and may recommend to the Central Council such

amendments thereof as it may think fit.

25. Section 36 of the said Act empowers the Central Council

“to make regulations” to carry out the purposes of the said Act,

which reads thus:

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

(a) ….……..

(b) …………

(c) …………

(d) …………

(e) …………

(f) …………

(g) …….......

(ga) ………..

(gb) any other factor under clause (g) of sub­section (8) of Section 13­A;

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

(i) the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be

25 obtained, in any University, Board or medical institutions for grant of recognised medical qualifications;

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

(k) ………..

(l) …………

(m) ……….

(n) ………..

(o) ………..

(p) ………..

(2) The Central Government shall cause every regulation made under 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 a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be;

so, however, not any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.”

26. It can be seen that such regulations are to be made by the

Central Council with the previous sanction of the Central

26 Government. Clause (gb) of sub­section (1) of Section 36 of the

said Act enables the Central Council to make regulations with

regard to any other factor as provided under Clause (g) of sub­

section (8) of Section 13A of the said Act. Clause (i) of sub­

section (1) of Section 36 of the said Act enables the Central

Council to make regulations providing for the courses and

period of study and of practical training to be undertaken, the

subjects of examination and the standards of proficiency

therein etc. It can further be seen from the perusal of Clause (j)

of sub­section (1) of Section 36 of the said Act that the Central

Council, with the previous sanction of the Central Government,

is entitled to make regulations prescribing for the standards of

staff, equipments, accommodation, training and other facilities

for education in Indian medicine. Sub­section (2) of Section 36

of the said Act requires the Central Government to cause every

regulation made under the said Act to be laid, as soon as after

it is made, before each House of Parliament. It reserves the

power of both the Houses of Parliament to make any

modification in the regulations.

27

27. It could thus clearly be seen that Section 13A read with

Sections 22 and 36(1)(j) of the said Act provides a complete

scheme for establishment of medical college, opening a new or

higher course of study or training, including a post­graduate

course of study or training, and also increasing the admission

capacity. From the perusal of the scheme of the aforesaid

provisions, it is clear that no person is entitled to establish a

medical college except with the previous permission of the

Central Government. Similarly, no medical college can open a

new or higher course of study or training, including a post­

graduate course of study or training without the previous

sanction of the Central Government. Likewise, no medical

college can increase its admission capacity in any course of

study or training, including a post­graduate course of study or

training. Sub­sections (2) to (5) of Section 13A of the said Act

prescribe a detailed procedure for submitting a scheme and

consideration thereof by the Central Council and the Central

Government. It also provides for in­built safeguards inasmuch

as the principles of natural justice are provided at two stages,

28 one before the Central Council and another before the Central

Government. The second proviso to sub­section (5) of Section

13A of the said Act also enables a person or medical college

whose scheme has not been approved by the Central

Government, to again submit a fresh scheme, which is required

to be considered as if the same is made for the first time under

sub­section (2) of Section 13A of the said Act. Sub­section (6)

of Section 13A of the said Act provides that when no order is

communicated within a period of one year from the date of

submission of the scheme, by a deeming provision, such

scheme shall stand approved and it will be deemed that the

permission of the Central Government as required under sub­

section (1) of Section 13A of the said Act has been granted.

Sub­section (7) of Section 13A of the said Act provides for

exclusion of the period for the time taken by the person or

medical college concerned to furnish any particulars called by

the Central Council, or by the Central Government. Sub­

section (8) of Section 13A of the said Act provides the factors to

be taken into consideration. Sub­section (9) of Section 13A of

29 the said Act provides for 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 college

can open a new or higher course of study or training, including

a post­graduate course, except with the previous permission of

the Central Government. Prior to such a permission being

granted, the procedure as prescribed under Section 13A has to

be followed.

29. The legislative intent is further clarified by the provisions

made in Section 13B of the said Act. Sub­section (1) of Section

13B of the said Act provides that where any medical college is

established without the previous permission of the Central

Government in accordance with the provisions of Section 13A of

the said Act, medical qualification granted to any student of

such medical college shall not be deemed to be a recognized

medical qualification for the purposes of the said Act. Likewise,

sub­section (2) of Section 13B of the said Act provides that

where any medical college opens a new or higher course of

30 study or training including a post­graduate course of study or

training without the previous permission of the Central

Government in accordance with the provisions of Section 13A of

the said Act, medical qualification granted to any student of

such medical college on the basis of such study or training

shall not be deemed to be a recognised medical qualification for

the purposes of the said Act. Likewise, sub­section (3) of

Section 13B of the said Act provides that where any medical

college increases its admission capacity in any course of study

or training without the previous permission of the Central

Government in accordance with the provisions of Section 13A of

the said Act, medical qualification granted to any student of

such medical college on the basis of the increase in its

admission capacity shall not be deemed to be a recognised

medical qualification for the purposes of the said Act.

30. It could further be seen that the legislature itself has

taken care of a situation, where any person has established a

medical college or any medical college has opened a new or

higher course of study or training, or increased the admission

31 capacity prior to the commencement of the Indian Medicine

Central Council (Amendment) Act, 2003. It has provided that

such person or medical college, as the case may be, shall seek,

within a period of three years from the said commencement,

permission of the Central Government in accordance with the

provisions of Section 13A of the said Act.

31. The impugned judgment of the Division Bench and the

Single Judge of the High Court of Karnataka, so also the other

judgments of the High Court of Karnataka, which are relied on

by the Division Bench, do not take into consideration the

scheme of Section 13A of the said Act.

32. It could further be relevant to notice Regulation 3(1)(a) of

the 2016 Regulations, which reads thus:

“3. Requirements of Minimum Standard to grant of permission­ (1)(a) The Ayurveda colleges established under Section 13A and existing under Section 13C of the Act and their attached hospitals shall fulfill the requirements of minimum standard for infrastructure and teaching and training facilities referred to in the Regulations 4 to 11 up to the 31 st December of every year for consideration of grant of permissions for undertaking admissions in the coming academic session.”

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33. It could thus clearly be seen, that Regulation 3(1)(a) of the

2016 Regulations specifically provides that the Ayurveda

colleges established under Section 13A and existing under

Section 13C of the said Act and their attached hospitals shall

fulfill the requirements of minimum standard for infrastructure

and teaching and training facilities referred to in the

Regulations 4 to 11 up to 31st December of every year for

consideration of grant of permissions for undertaking

admissions in the coming academic session. It is thus clear

that in order to be eligible for grant of permission for

undertaking admissions in a particular academic session, the

institution must fulfill the requirements of minimum standard

as on 31st December of the earlier year. For example, if the

institution is seeking grant of permission for undertaking

admissions for the academic session 2022­23, it must have

fulfilled the requirements of minimum standard as on 31 st

December 2021. It could thus be seen that the finding that the

permission granted for a subsequent academic year would also

enure to the benefit of earlier academic year though the said

33 institution was not fulfilling the criteria of minimum standard,

is totally erroneous.

34. We further find that the High Court has also erred in not

correctly applying the law laid down by this Court in the case of

Ayurved Shastra Seva Mandal (supra). In the said case, the

petitioner Ayurved Shastra Seva Mandal had approached the

Bombay High Court being aggrieved by the refusal by the

Government of India to grant permission to the colleges to

admit students for the academic year 2011­12. Such

permission was refused on account of various deficiencies

relating to infrastructure and teaching staff, which had not

been rectified and brought into line with the minimum

standard norms.

35. It is further to be noted that in paragraph (10) of the said

judgment, this Court had specifically observed that the

petitioner therein tried to impress upon that the deficiencies

had already been removed and that is why permission was

specifically given for the admission of students for the academic

year 2012­13. It was therefore urged that there was no reason

34 for withholding the permission for the academic year 2011­12.

This Court specifically noticed that a large number of students

had applied for admission for the academic year 2011­12 and

that too with the leave of this Court. However, this Court found

that the privilege granted to the candidates could not be

transformed into a right to be admitted in the course for which

they had applied. While dismissing the 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 a particular institution fulfilled the necessary criteria for being eligible to conduct classes in the discipline concerned or not. That is for the experts to judge and according to the experts the institutions were not geared to conduct classes in respect of the year 2011–2012. It is also impractical to consider the proposal of the colleges of providing extra classes to the new entrants to bring them up to the level of those who have completed the major part of the course for the first year. We are not, therefore, inclined to interfere with the orders of the High Court impugned in these special leave petitions and the same are, accordingly, dismissed.”

36. It can be seen from the conjoint reading of various

paragraphs of the said judgment that the contention that since

the deficiencies stood already removed and the permission

35 granted for the academic year 2012­13, the said permission

should also be construed as having been granted for the

academic year 2011­12, was not accepted by this Court.

37. We are at pains to say that though the judgment in the

case of Ayurved Shastra Seva Mandal (supra) was specifically

relied on by the appellant herein, the learned Single Judge and

the Division Bench of the High Court of Karnataka have chosen

to rely on the earlier judgments of the Division Bench of the

same High Court rather than a judgment of this Court.

38. It will further be relevant to note that this Court in the

case of Ayurved Shastra Seva Mandal (supra) has also

referred to the amended provisions of the said Act. It will be

relevant to refer to paragraphs (5) to (9) of the said judgment,

which read thus:

“5. As far as medical institutions are concerned, the procedure relating to the recognition of medical colleges as well as admission therein was governed by the Indian Medicine Central Council Act, 1970 (hereinafter referred to as “the 1970 Act”), which was amended in 2003, to incorporate Sections 13­A, 13­B and 13­C, which provided the procedure for establishing new colleges and making provision for seeking prior permission of the Central Government

36 in respect of the same. The amendment also attempted to bring in reforms in the existing colleges by making it mandatory for them to seek permission from the Central Government within a period of three years from their establishment.

6. Having regard to the said amendments, the Central Council of Indian Medicine, with the previous sanction of the Central Government, framed Regulations, in exercise of the powers conferred on it by Section 36 of the 1970 Act. The said Regulations were named as the Establishment of New Medical College, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations, 2003 (hereinafter referred to as “the 2003 Regulations”). Regulation 6(1)(e) of the 2003 Regulations provides for applications to be made by a medical college owning and managing a hospital in Indian medicine containing not less than 100 beds with necessary facilities and infrastructure.

7. The Central Council of Indian Medicine further framed Regulations in 2006 called as the Indian Medicine Central Council (Permission to Existing Medical Colleges) Regulations, 2006 (hereinafter referred to as “the 2006 Regulations”). Regulation 5(1)(d) of the 2006 Regulations provides that the applicant College would have to be owning and managing a minimum of 100 beds for undergraduate courses and 150 beds for postgraduate courses, which conforms to the norms relating to minimum bed strength and bed occupancy for in­patients 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 the deficiencies. The 2006

37 Regulations provided a further period of two years to remove the deficiencies and even relaxed the minimum standards in that regard. Even after the expiry of two years, the colleges were given further opportunities to remove the shortcomings by granting them conditional permission for their students for the academic years 2008–2009, 2009– 2010 and 2010–2011. It is only obvious that the minimum standards were insisted upon by the Council to ensure that the colleges achieved the minimum standards gradually.

9. It may be noted that there was little or no response from the institutions concerned in regard to removal of the deficiencies in their respective institutions and it is only when the notices were given to shut down the institutions that they woke up from their slumber and approached the courts for relief. In many of these cases, permission was given by the courts to the institutions concerned to accept admission forms, but they were directed not to pass any orders thereupon till the decision of this Court in these special leave petitions.”

39. We are, therefore, of the considered view that the learned

Single Judge as well as the Division Bench have grossly erred

in not taking into consideration the scheme of the said Act so

also the judgment of this Court in the case of Ayurved

Shastra Seva Mandal (supra).

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40. In the result, the appeals are allowed. The common

judgment and order dated 21st December 2020, delivered by the

Division Bench of the High Court of Karnataka in Writ Appeal

No. 542 of 2020 (EDN­REG) and Writ Appeal No.541 of 2020

(EDN­REG), and the judgment and order dated 24 th September

2020 passed by the Single Judge in Writ Petition No. 50772 of

2018 (EDN­REG­P) and Writ Petition No. 50828 of 2018 (EDN­

EX) are quashed and set aside. The writ petitions filed by the

original writ petitioners in the High Court are dismissed.

41. Pending application(s), if any, shall stand disposed of in

the above terms. No order as to costs.

……..….......................J. [L. NAGESWARA RAO]

…….........................J. [B.R. GAVAI]

NEW DELHI;

APRIL 11, 2022.

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