Homeopathic Medical College, Abohar v. Union of India & Ors.
Delhi High Court·01 Mar 2023·2023:DHC:1510-DB
Satish Chandra Sharma; Subramonium Prasad
LPA 150/2023
2023:DHC:1510-DB
administrativeappeal_dismissedSignificant
AI Summary
The Delhi High Court held that a homeopathic college cannot admit students without statutory approval and remanded the matter for fresh consideration due to procedural lapses by the authorities.
Full Text
Translation output
Neutral Citation Number: 2023/DHC/001510
LPA 150/2023 HIGH COURT OF DELHI Date of Decision: 01.03.2023
LPA 150/2023 HOMEOPATHIC MEDICAL COLLEGE, ABOHAR ..... Appellant Through: Mr. Animesh Kumar, Mr. Nishant Kumar, Ms. Charu Modi and Mr.Saurabh Singh, Advocates.
VERSUS
UNION OF INDIA & ORS ...... Respondents Through: Ms. Monika Arora, CGSC with Ms.Geetanjali Tyagi, Mr.Yash Tyagi and Mr. Subhrodeep, Advocates for Respondent/ UOI. Mr. Sunil Narula and Ms. Isha Thakur, Advocates for Respondents No.2 & 3.
CORAM:
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD SATISH CHANDRA SHARMA, CJ. (ORAL)
CM APPL. 9927/2023
JUDGMENT
1. Exemption allowed, subject to all just exceptions.
2. The Application stands disposed of. LPA 150/2023 & CM APPL. 9926/2023
3. The present Letters Patent Appeal (LPA) has been filed to challenge Digitaaly the order dated 17.02.2023 passed by the learned Single Judge in W.P.(C.) No. 1605/2023 titled Homeopathic Medical College, Abohar Vs. Union of India & Others.
4. The facts of the case reveal that the Appellant institution is a Homeopathic College offering under-graduate courses and is recognized by the National Commission for Homeopathy (NCH) as well as the Ministry of AYUSH. The statutory provision governing the field is contained under the National Commission for Homeopathy Act, 2020 (earlier governed under the Homeopathy Central Council Act, 1973).
5. The Appellant institution applied to NCH for permission to start under-graduate course/ Bachelor of Homeopathic Medicine and Surgery Course (BHMS) with intake capacity of 60 seats for the Academic Year 2022-23. Finally, an inspection was carried out by the Inspecting Team of the NCH and a notice was served on 17.11.2022 by the NCH pointing out certain deficiencies with respect to renewal of permission for BHMS with intake capacity of 60 seats.
6. It was contended by the Petitioner before the learned Single Judge that the deficiencies pointed out by the NCH were properly explained while submitting the representation/ reply on 21.11.2022, and finally, an order was passed by the NCH on 28.11.2022 denying permission to the Appellant/ Petitioner institution to start under-graduate BHMS Course with intake capacity of 60 seats for the Academic Year 2022-23.
7. The Appellant institution preferred an appeal in the matter before the NCH and the said first appeal was rejected on 27.12.2022. Thereafter, a second appeal was preferred and the same was rejected on 25.01.2023. Digitaaly
8. Various grounds were argued before the learned Single Judge and the learned Single Judge has allowed the writ petition. Paragraphs 5 to 20 of the order passed by the learned Single Judge read as under:
“5. I have heard the learned counsel appearing on behalf of
the parties and perused the record.
6. The notice dated 17.11.2022 issued to the petitioner-
institution would show that the deficiencies observed in the
petitioner-institution relate to teaching staff, Dr. Vinod Kumar
Mahipal. The miscellaneous deficiencies are with respect to
Employees' Provident Fund (in short, EPF), acquittance not
14,456 characters total
provided, salary bank statement of only 01 staff, Form- 16 not
being made available and the website not functional with
respect to the students' date and the result of one year was no
updated as on 17.11.2022. Another deficiency which has been
pointed out relates to patients' availability in IPD; therefore,
the functioning of IPD was found to be in doubt. It was also
observed therein that certain corrective measures were to be
taken by the concerned hospital, as were observed in the
inspector's observations.
Extract of notice dated 17.11.2022 is reproduced as under:
Deficiencies observed in Homeopathic Medical College,
Hanumangarh Road, Near Bye Pass, Opposite BS Campus,
Abohar - 152116, Punjab are as follows:
A. Teaching Staff: Dr. Vinod Kumar Mahipal (Guest Reader, Practice of Medicine): Previous full-time experience not provided.
B. Miscellaneous:
a) EPF - e-challan of only 15 members provided.
b) Acquittance not provided - Salary sheet provided but signature of concerned staff not provided.
c) Salary bank statement of only 01 staff provided.
d) Form-16 not available.
Digitaaly e) Website functional but Students' data and last 01-year result not updated as checked on 17.11.2022.
C. Video recording of Physical Inspection is showing no patients in admitted in IPD. Therefore functioning of IPD is doubtful.
D. Inspector's Observations: a) IPD needs to change the following - Discharge sheets should be improved, IPD case record, diet charts, OPD case records and medical record room should be improved. b) Physical verification of all teachers could not be done due to exam duty as per College Principal. No document submitted on absence of teachers who attended exam duty. c) On physical verification, hospital was not found functioning and only limited staff was available.
7. The petitioner explained the aforesaid deficiencies by way of representation dated 21.11.2022. He has specifically pointed out against each noted point, its explanations and it was submitted that the hospital was functional and required member of staff was also available. According to the petitioner, various documents were also submitted with respect to the past five years including ledger and bill etc. It is seen that respondent No.2-NCH in terms of order dated 28.11.2022 has noted the submissions made by the college and in the hearing observations/remarks column, it was found that various deficiencies were persisting. In general observation, it was noted that the Principal of the college was absent for the virtual hearing instead the hearing was attended by a representative of the management of the college from Chandigarh.
8. It was found that the representative was from a faraway place from the college campus. A total of 10 points were forwarded for the virtual hearing and the general impression of the hearing committee was found to be that the deficiency persists for 70% of inspection points. It was noted that the college authorities properly clarified the position with respect to Dr. Vinod Kumar Mahipal and his experience certificate etc. Therefore, the said deficiency was found to be non-existent. Digitaaly
9. The Authority in original, however, found that in view of the adverse report from the inspection and hearing conducted by the Board on 01.11.2022, and on 28.11.2022, the functionality of the collegiate hospital was in doubt. Many shortfalls were found to be persisting and considering those shortfalls, it was found that the same was in violation of the National Commission of Homeopathy Act, 2020 and the HCC (Amendment) Act, 2018 and accordingly, the Authority in original denied the permission for undergraduate BHMS course with intake capacity of 60 seats for the academic year 2022-23.
10. When the order in original was challenged before the 1st Appellate Authority, the said Authority in terms of the order dated 27.12.2022 made the following overall observations: Overall observation:
1. Based on the submission made by Principal, Abohar Homeopathic Medical College & Hospital, Abohar, Punjab on 29.11.2022, the documents have been carefully examined as per the provisions of the Homeopathy Central Council (minimum Standards Requirement of Homeopathic Colleges and attached Hospitals) regulations, 2013 and the relevant regulations made there under and on the basis of observation (s.NO. 1-5) college is not complying to the MSR 2013 regulation.
2. Now, THEREFORE, the Commission has decided to reiterate the decision of MARBH vide letter dated 28.11.2022, as denial of permission for continuation of 1st BHMS course with intake capacity of 60 seats by Homeopathic Medical College by Abohar Homeopathic Medical College & Hospital, Abohar, Punjab for the academic session 2022-23.
3. Accordingly, your representation dated 29.11.2022 to Commission against order of MARBH vide letter dated 28.11.2022 stands disposed of.
4. If aggrieved by the decision communicated the applicant may further make a second appeal to the Digitaaly Central Government within 7 days of issue of this decision as per NCH Act 2020 sub-section (6) of Section
29.
11. The 2nd Appellate Authority in terms of the impugned order has made the following overall observations: Overall Observations:
1. The College is not deducting EPF/ESI for 34 Medical, Paramedical & Non-teaching staff as per documents submitted along with inspection report.
2. Acquittance roll and account transfer document not provided.
3. College has not provided any documents to justify hospital functioning.
4. IPD case record, diet charts, OPD case recordsrelated documents not submitted to justify their claim.
5. Shortcoming observed during Inspection regarding doubt of actual presence of staff and genuine functioning of hospital cannot be denied, hence, genuine functionality of Hospital could not be established. Therefore, in view of the above, it is observed that the deficiency that the hospital is NOT genuinely functional and it is still persisting as mentioned above.
12. It is to be noted that the inspection report, in the instant case, was not provided. It is also to be seen that when the Authority in original passes an order, the hearing committee observations/remarks column only records that the deficiency persists. The submissions of the college have been noted and there is no corresponding reason as to why the said submission is not acceptable. If the deficiency with respect to the EPF echallan with respect to certain members is examined, the same would indicate that the college specifically pointed out that as per the Government rules regarding EPF, only 15 staff members are eligible for EPF. The reason for non-acceptance of the petitioner's explanation, as can be seen from the order Digitaaly dated 28.11.2022, would indicate that the copy of the relevant regulations was not provided by the petitioner-institution. The petitioner, however, has filed a copy of the relevant regulations in the first appeal and in the second appeal. The 1st Appellate Authority and the 2nd Appellate Authority have not extended any personal hearing to the petitioner-institution.
13. This court in W.P(C) 1580/2023, while taking into consideration almost similar facts and circumstances that the inspection report was not provided in the first place and the personal opportunity of hearing was not made available by any of the Appellate Authorities, has taken the view to remand the matter to the Authority in original.
14. Under the facts of the present case, this court finds that the case of the petitioner also deserves to be remitted back to the Authority in original for the reason recorded in the preceding paragraphs and also for the same reasons as have been mentioned in the order dated 17.02.2023 in W.P.(C) 1580/2023.
15. In view of the aforesaid, the order passed by the Authority in original dated 28.11.2022 (P-12) and orders dated 27.12.2022 and 25.01.2023 passed by the 1st Appellate Authority and the 2nd Appellate Authority, respectively are hereby quashed. The matter is remitted back to the Authority in original i.e. respondent No.3-Medical Assessment and Rating Board for Homoeopathy for fresh consideration with the following directions:-
(i) The respondent No.3-Board is directed to furnish the inspection report and the list of deficiency by 20.02.2023.
(ii) The petitioner-institution would submit its explanation by
23.02.2023. Thereafter, depending upon the submissions to be made by the petitioner-institution, if the respondent No.3-Board feels that the same is not properly explained, the petitionerinstitution will be given further opportunity of hearing by 27.02.2023.
(iii) The entire exercise be completed and the order regarding grant or non-grant of approval be passed by 02.03.2023. Digitaaly
(iv) If in case the petitioner-institution is not satisfied with the order to be passed by respondent No.3-Board, the petitionerinstitution would be entitled to take appropriate recourse in accordance with law.
19. It is made clear that unless the petitioner-institution is granted permission for the academic year 2022-2023 by all statutory authorities, it shall not be entitled to admit the students.
20. The petition is disposed of along with pending application.”
9. The order passed by the learned Single Judge makes it very clear that the copy of the inspection report was not provided to the Appellant institution; the order passed by the Appellate Authority was a non-speaking order; and as reasons for non-acceptance of the institution’s explanation were also not recorded, he had remanded the matter back to the Respondent No.3 Board to furnish the inspection report and the list of deficiencies by 20.02.2023. The learned Single Judge – while remanding the matter back, has also directed the Respondent No.3/ Medical Assessment and Rating Board for Homoeopathy, NCH, to grant an opportunity to the Appellant and to complete the entire exercise by 02.03.2023 in the matter of grant of approval. Meaning thereby, the issue of grant of approval is yet to be decided by the Respondents.
10. The present LPA has been filed by the Appellant institution for grant of permission to the Appellant institution to participate in the ongoing counseling and to admit the students.
11. In the considered opinion of this Court, the institution in question, at this juncture, does not have the permission to grant admission in respect of under-graduate course BHMS with intake capacity of 60 seats and a final Digitaaly order is yet to be passed by the Respondent No.3 Board in the matter. Meaning thereby, if the relief prayed for is granted to the Appellant institution, it will amount to admitting students in an institution which does not have valid sanction of law to impart education in respect of undergraduate course (BHMS).
12. No statutory provision of law has been brought to the notice of this Court which empowers the institution – either under the National Commission for Homeopathy Act, 2020 or the Regulations framed thereunder, to grant such type of provisional permission to admit students even though no approval has been granted to the institution by the Competent Authority to impart education for under-graduate course (BHMS).
13. In the considered opinion of this Court, the learned Single Judge was justified in holding that the Appellant/ Petitioner institution is not entitled to admit students unless and until the institution is granted permission by the statutory authorities for the Academic Year 2022-23.
14. This Court does not find any reason to interfere with the order passed by the learned Single Judge. The appeal is, accordingly, dismissed.
SATISH CHANDRA SHARMA, CJ
SUBRAMONIUM PRASAD, J.
MARCH 01, 2023
B.S. Rohella
Digitaaly
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