THE TEMPLE OF HANEMANN HOMOEOPATHIC MEDICAL COLLEGE AND HOSPITAL versus UNION OF INDIA & ORS. on 17 July 2018

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1. Leave granted.D

2. The question involved is with respect to the power of the CentralGovernment to appoint a team of Medical Inspectors for the purpose ofinspection of colleges etc. or it is within the power of the Central Councilof Homoeopathy (CCH) to appoint a team of Inspectors.

3. In order to decide the aforesaid question, we have to considerthe ambit of the powers under the relevant statute the HomoeopathyCentral Council Act, 1973 (in short referred to as ‘the Act’) provides forconstitution of Central Council of Homeopathy and the functions of CentralCouncil of Homeopathy and other matters connected therewith. Theconstitution of Central Council has been provided under Section 3 of thesaid Act. Central Council is a body corporate under Section 6 of the Act.It has its President and Vice-President and Members and their term isprovided under Section 7 of the Act. There are various Committees asprovided under the Act to be formed by the Central Council for thedischarge of the functions enjoined upon it.

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4. Section 12A in Chapter II A of the Act of 1973, provides for thegrant of permission for establishment of new medical institution, newcourses of study, etc. Permission of Central Government is required tobe obtained in accordance with the provisions contained in Section 12 ofthe Act. Explanation 2 of Section 12A (1) provides that the admissioncapacity in relation to any course of study or training (including post- H

graduate course of study or training) in a medical institution means themaximum number of students as may be decided by the “Central Council”from time to time for being admitted to such course or training.

5. It is also provided in Section 12A (2)(a) that if any scheme isplaced before the Central Government in accordance with the provisionsof clause (b) of sub-Section 1 of Section 12A(a), the Central Governmentshall refer the scheme to the Central Council for obtaining itsrecommendation, meaning thereby that the function of CentralGovernment is a supervisory one and it is the job of the Central Councilto make the requisite recommendations. A detailed procedure is alsogiven in Section 12A (3) of the Act to be adopted by the Central Councilon receipt of such a scheme. The recommendations will have to bemade under sub-Section 4 of the said Section 12A by the Central Councilto the Central Government. Thereafter, it would be for the CentralGovernment to approve or disapprove the scheme, after giving the personor medical institution a reasonable opportunity of being heard, as perproviso contained in Section 12A (4) of the Act. The Central Councilwhile making its recommendation under clause (b) of sub-Section 3 ofSection 12A and the Central Government while passing the order eitherdisapproving or approving the scheme, shall have the due regard to thefactors as enumerated in Section 12A (7) of the Act.

6. Section 13 deals with the recognition of medical qualificationsgranted by certain medical institutions in India. Section 14 deals with therecognition of medical qualifications granted by medical institutions inStates or countries outside India. Section 15 deals with the rights ofpersons possessing qualifications included in Second or the Third Scheduleto be enrolled by the Central Council.

7. Section 17 of the Act of 1973 provides in its unequivocal termsthat power to appoint Medical Inspector is with CCH and not with CentralGovernment. The provisions of section 17 are extracted hereunder:

“Section 17(1) The Central Council shall appoint such number ofmedical inspectors as it may deem requisite to inspect any medicalcollege, hospital or other institution where education inHomoeopathy is given, or to attend any examination held by anyUniversity, Board or medical institution for the purpose ofrecommending to the Central Government recognition of medicalqualifications granted by that University, Board of medicalinstitution.

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(2) The medical inspectors shall not interfere with the conduct ofany training or examination but shall report to the Central Councilon the adequacy of the standards of education including staffequipment, accommodation, training and other facilities prescribedfor giving education in Homoeopathy, as the case may be, or onthe sufficiency of every examination which they attend.

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(3) The Central Council shall forward a copy of any such reportto the University, Board or medical institution concerned, and shallalso forward a copy with the remarks of the University, Board ormedical institution thereon to the Central Government.

8. Under Section 18 there is exclusive power with the CentralCCouncil to appoint the visitors at examinations. The section is extracted under:

“18(1) The Central Council may appoint such number of visitorsas it may deem requisite to inspect any medical college, hospitalor other institution where education in Homoeopathy is given orDto attend any examination for the purpose of granting recognizedmedical qualification.

(2) Any person, whether he is a member of the Central Councilor not may be appointed as a visitor under this Section but a personwho is appointed as an inspector under Section 17 for anyEinspection or examination shall not be appointed as a visitor forthe same inspection or examination.

(3) The visitors shall not interfere with the conduct of any trainingor examination but shall report to the President of the CentralCouncil on the adequacy of the standards of education includingstaff, equipment, accommodation, training and other facilitiesFprescribed for giving education in Homoeopathy or on thesufficiency of every examination which they attend.

(4) The report of a visitor shall be treated as confidential unless inany particular case the President of the Central council otherwisedirects:

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Provided that if the Central Government requires a copy of thereport of a visitor, the Central Council shall furnish the same.

9. It is only on the basis of a report submitted by a team of Inspectoror visitors as it appears that the Central Council to make arecommendation under Section 19 of the Act of 1973.

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“Section 19 is extracted hereunder:

Section 19 (1) When upon a report by the inspector or the visitorit appears to the Central Council; (a) that the courses of study and examination to be undergone inor the proficiency required from candidates at any examinationheld by any University, Board or medical institution, or (b) that the staff, equipment, accommodation, training and otherfacilities for instruction and training provided in such University,Board or medical institution or in any college or other institutionaffiliated to the University.

Do not conform to the standard prescribed by the Central Council,the central Council shall make a representation to that effect tothe Central Government.

(2) After considering such representation, the Central Governmentmay send it to the government of the State in which the University,Board or medical institution is situated and the State Governmentshall forward it along with such remarks as it may choose to maketo the University, Board or medical institution with an intimationof the period within which the University, Board or medicalinstitution may submit its explanation to the State Government.

(3) On the receipt of the explanation or where no explanation issubmitted within the period fixed then on the expiry of that periodthe state government shall; make its recommendations to theCentral Government.

(4) The Central Government after making such further inquiry, ifany, as it may think fit, may by notification in the Official Gazette,direct that an entry shall be made in the Second Schedule againstthe said medical qualification declaring that it shall be a recognizedmedical qualification only when granted before a specified collegeor institution affiliated to any University shall be recognized medicalqualification only when granted before a specified date or as thecase may be, that the said medical qualification shall be recognizedmedical qualification in relation to a specified college or institutionaffiliated to any University only when granted after a specifieddate.”

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A10. It is clear from the provisions contained in the Sections 17 and18 that Inspectors can only be appointed under the Act of 1973 by theCentral Council in order to enable it to make the requisite recommendationto the Central Government. Appointment of visitors can also be madeexclusively by the Central council alone and not by the CentralGovernment. The Act does not confer upon the Central Government toBappoint a team of inspectors to inspect the colleges etc. or visitors at theexamination for making the recommendation for recognition or forwithdrawal dealt with under the aforesaid provisions of Sections 17, 18and 19.

11. The Regulations called the Homoeopathy Central CouncilC(Minimum Standards Requirement of Homoeopathy Colleges and attachedHospitals) Regulations, 2013 (hereinafter referred to as Regulations, 2013)has been framed in exercise of powers conferred under Section 33 (j) ofthe Act.

12. Regulation 3 deals with the fulfillment of the minimum standardDrequirement. Regulation 3 (5) deals with respect to the Inspectors.Regulation 3 is extracted hereunder:

“Regulation 3. Fulfillment of minimum standard requirement: -

(1) The college and attached hospital(s) shall fulfill the minimumEstandards requirements of infrastructure and teaching and trainingfacilities referred to in the regulations 4 to 13.

(2) For exposure of the students in the clinical field and tounderstand the depth of operative surgery and operativeGynecology or Obstetrics as well as management in criticalillnesses, a college shall have a Memorandum of UnderstandingFwith a reputed nearby located super-specialty hospital (of modernmedicine) with all required facilities of operation theatre, laborroom, Intensive Care Unit and other required facilities for themanagement of critical patients.

(3) In case an attached hospital of a college does not have thefacilities to handle operation theatre and other critical patients,the students of such a college can be deputed under the strictsupervision of concerned teaching faculty of the college for therequired exposure in the said field to the attached super-specialtyhospital.

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(4) The existing colleges and their attached hospitals establishedunder Section 12A of the Act and those colleges and their hospitalsestablished prior to the 28th January, 2003 and recognised by theCentral Council of Homoeopathy shall fulfill the minimum standardsrequirements of infrastructure teaching and training facilitiesreferred to in these regulations by the 31st December, 2014 forconsideration of grant of permission for undertaking admission inthe coming academic years.

(5) If a college fulfills the requirement by 31st December 2014 asper these regulations, it shall be granted permission to undertakeadmissions for a period not exceeding five years during which thecollege shall not be inspected, except for random checks on receiptof any complaint, or otherwise as deemed necessary either by theCentral Government or by the Central Council of Homoeopathy.

(6) The Central Council shall visit the college Suo moto threemonths before the expiry of permission.

(7) The conditional permission shall be granted only to thosecolleges which are fulfilling at least the requirement of teachersas specified in Schedule-IV, the requirement of functional hospitalas specified at sub-regulation (2) of regulation 7 and availabilityof equipment as specified in schedule-III for each academic year2013-14 and 2014-15 on the basis of the separate inspections tobe carried out by the Central Council of Homoeopathy after the15th May, 2013 for the academic year 2013-14 and after the 31stDecember, 2013 for the academic year 2014-15.

(8) Such conditional permitted colleges or those colleges whichhave been denied permissions during the academic year 2013-14and/or 2014-15 will be required to fulfill the requirements asspecified in these regulations by the 31st December 2014.

(9) All the existing colleges, which are not able to achieve fullcompliance of the requirement as specified in these regulationsby the 31st December, 2014, shall be denied permission fromacademic year 2015-16 onwards and action as envisaged underSection 19 of the Act shall be initiated against all such collegesapart from rejection of their applications under Sections 12A, whichhave been under consideration by way of conditional permissionor denials.”

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A13. It is apparent from Regulation 3(5) that no inspection to bemade once permission has been granted which may be up to 5 years, asthe case may be, except as considered necessary either by CentralGovernment or CCH. The provision only confers power on CentralGovernment and CCH that inspection be ordered in the aforesaid periodin case exigency happens i.e. random checks, on receipt of any complaint,Bor otherwise as may be considered necessary. The regulation does notdeal with who will inspect and who will appoint a team of medicalinspectors that is dealt with in S.17 of the Act of 1973.

14. The Single Bench of the High Courthas opined that Inspectorscannot be appointed by the Central Government in exercise of powersCto cause inspection under Regulation 3 (5) of the aforesaid Regulations,2013, whereas the Division Bench has opined that Regulation 3(5) hasto be given effect to as such the Central Government has the power toappoint a team of inspectors in order to grant permission and to approvethe particular scheme. The decision of the Division Bench of the HighDCourt at Patna is questioned in appeal.

15. We have heard the learned counsel for the parties at length.It was submitted by the learned counsel appearing on behalf of theappellants that the provisions contained in Section 17 has to prevail andthe interpretation of Regulation 3 (5) of the Regulations, 2013 has to beEmade in the context of the Act not repugnant thereto. Even if it is heldthat Central Government can order the inspection to be made but forthat request would only be made by Central Government to CentralCouncil. The Central Government cannot exercise the power to appointa team of Inspectors and that is specifically conferred under section17on the CCH.F

16. Learned counsel appearing on behalf of the respondent ShriBalasubramanian tried in vain to salvage the situation by placing relianceupon the judgment rendered by the Division Bench of the High Court aswell as the object of the Act and regulations. He has vehementlycontended that Central Government is empowered to appoint theGinspectors as per Regulation 3(5) and the regulation cannot be said to bein violation of provisions contained under Sections 17, 18 or 19 of theAct of 1973. Thus, no case for interference is made out.

17. After hearing the learned counsel for the parties, we are ofthe considered opinion that various legislations enacted by the Central H

Government, it has provided forconstitution of statutory bodies, expertstodeal with such matters of various kinds of education in the country forMedical Education, Medical Council of India has been constituted.Similarly, for legal education, power has been given under the AdvocatesAct to the Bar Council of India and with respect to other technicalcourses, power has been given to the AICTE and other bodies.

18. The Central Government has not reserved the power to appointInspectors with it under the main enactment itself, i.e., the Act of 1973.

19. A bare reading of the provisions contained under Section 17makes it clear that as per statutory provision, duty has been enjoinedupon the CCH to appoint a team of Inspectors. Such a power has beenspecifically conferred on such Expert Bodies under various enactmentsalso. It is the function of the expert bodies in the field and they aresupposed to appoint a team of Inspectors and it is for expert bodies tomake the recommendations to the Central Government. The role of theCentral Government is a supervisory one and not to start an investigationby making the appointment ofa team of Inspectors, as that is notenvisaged under the Act of 1973 itself.

20. Regulation 3(5) of the 2013 Regulations envisages randomchecks to be ordered on receipt of a complaint or otherwise as deemednecessary either by the Central Government or by the CCH. In case,CCH or Central Government receives any complaint, random checkscan be ordered, but the regulations stop at that. It does not deal with theaspect who will appoint a team of inspectors for the purpose of inspectionto be carried out. In our considered opinion, it is only the Central Councilwhich is empowered to appoint a team of inspectors under Section 17and visitors for the examination under Section 18 for makingrecommendation to the Central Government on the basis of reportsubmitted by the team of inspectors or visitors as envisaged underSections 17 and 18 of the Act.

21. Regulation 3(5) of Regulations of 2013 has to be harmoniouslyinterpreted with the provisions of section 17 of the Act not repugnantthereto. The provision of section 17 is not capable of interpretationempowering the Central Government to appoint a team of inspectors atall. Thus, the power conferred under section 17 has to be exercised onlyby the CCH. Any other interpretation would be against the legislativemandate. The regulations have to be subservient to the provisions of the AB

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AAct. No other provision could be pointed out under which the Act mayhave conferred the power upon the Central Government to appoint ateam of Medical Inspectors.

22. Thus, the Division Bench of the High Court has clearly erredin holding that the power to appoint the Inspectors is with the CentralBGovernment while interpreting Regulation 3(5) of the Regulations, 2013.The Central Government cannot appoint a team of Inspectors as thispower has not been conferred upon the Central Government either underthe said Regulation 3 (5) or any of provisions contained in the Act. It isonly CCH which can appoint a team of inspectors as per Section 17 ifthe request is made by the Central Government under Regulation 3(5).

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23. In our opinion, though Central Government on a complaint orotherwise, as contemplated under Regulation 3(5) of the Regulations,2013 may cause inspection would mean only that inspection to be madeby a team to be appointed by CCH. A team of inspectors or visitors asthe case may be,can be appointed by CCH under Section 17 or 18 of theDAct. However, after an inspection is made, action has to be taken onthe basis of the report as provided under the Act and the Regulations bythe Central Government on the basis of the recommendation made bythe CCH.

24. The appeals are allowed. The impugned judgment and orderEpassed by the division bench are set aside and that of the Single Benchis restored. No costs.

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Kalpana K. Tripathy Appeals allowed.

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