C Hari Shankar, J. - (1.) The petitioner Shri Ram Krishan Paramhans Shiksha Parishad assails, by the present writ petition, order, dated 10th August, 2017, issued by the Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH) (Respondent No. 2 herein), whereby the application, of the petitioner, for permission to start a new Ayurveda college, with 100 seats, and to confer BAMS degrees, on the basis thereof, for the academic session 2017-18, has been rejected.
(2.) Statutory regime 2.1 It is necessary, at this point, to allude to the statutory regime, relevant for the purposes of the present controversy. 2.2 Section 13A of the Indian Medicine Central Council Act, 1970 (hereinafter referred to as "the IMCC Act") provides for grant of permission for establishment of new medical colleges/courses, and reads thus: "13A (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 (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 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 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 sub- section (1), submit to the Central Government a scheme in accordance with the provisions of sub-section (3) and the Central Government shall refer the scheme to the Central Council for its recommendations. (3) The scheme referred to in sub-section (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. (4) On receipt of a scheme from the Central Government under sub-section (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 sub-section (8) and submit it to the Central Government together with its recommendations thereon within a period not exceeding 6 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 sub-section (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 sub-section (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 sub-section (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: Provided further that nothing in this sub-section shall prevent any person or medical college who scheme has not been approved by the Central Government to submit a fresh scheme and the provision of this section shall apply to such scheme, as if such scheme had been submitted for the first time under sub-section (2). (6) Where, within a period of one year from the date of submission of the scheme to the Central Government under sub- section (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 sub-section (1) shall also be deemed to have been granted. (7) In computing the time-limit specified in subsection (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 sub-section (4) and the Central Government while passing an order, either approving or disapproving the scheme under sub-section (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 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 time limit 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 time limit specified in the scheme; (e) whether any arrangement has been made or program drawn to impart proper training to students likely to attend such medical college of 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 medical college; (g) any other factors as may be prescribed. (9) Where the Central government passes an order either approving or disapproving the scheme under the section, a copy of the order shall be communicated to the person or medical college concerned." 2.3 Section 36 of the IMCC Act empowers the Central Council of Indian Medicine (hereinafter referred to as "the CCIM") to make Regulations, with the previous sanction of the Central Government, for various purposes. In exercise of the powers so conferred, the CCIM framed 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"), which came into effect on 16th March, 2004. Regulation 4 of the 2003 Regulations requires every person, intending to establish a medical college, to submit a scheme, along with an application in Form-1. The authorities to whom such application is to be submitted, and the eligibility, of an applicant, to make such an application, are governed by Regulations 5 and 6 of the 2003 Regulations, which read thus: "5. Authority to whom the Scheme and application is to be submittedApplications and schemes under regulation 4 shall be submitted to the Secretary to the Government of India, Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) as per the schedule annexed to the regulations." 6. Eligibility for making an application (1) For making an application under subregulation (1) of Regulation 4, a person or a medical college shall be eligible if, - (a) his one of the objectives is to impart education about Ayurveda or Siddha or Unani Tibb; (b) owns or possesses on lease of ninety nine years, a suitable single plot of land, measuring not less than ten acres if the proposal is for admitting up to fifty students, and not less than fifteen acres, if the proposal is for admitting up to one hundred students, and undertake to establish the medical college in the said plot of land; (c) has obtained 'No Objection Certificate' in Form 4 from the concerned State Government for establishing a new medical college at the proposed site; (d) has obtained a 'Consent of Affiliation' in Form 5 for establishing a new medical college from a University established under any Central or State statute; (e) owns and manages a hospital in Indian medicines containing not less than one hundred beds with necessary facilities and infrastructure; (f) has not already admitted students in any class or standard or course or training of the proposed medical college; and (g) is in a position to provide two performance bank guarantees from a Scheduled Commercial Bank valid for a period of five years in favour of the Central Council of Indian Medicine, New Delhi as follows: JUDGEMENT_180_LAWS(DLH)12_2018_1.html 2.4 Regulation 9 of the 2003 Regulations specifically requires the order, passed by the Central Government under Section 13A(9) of the IMCC Act to "clearly indicate the preliminary requirement about setting up of buildings, infrastructural facilities, medical and allied equipments, faculty and staff before admitting the first batch of students". The said Regulation 9 of the 2003 Regulations was, inter alia, amended, by 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 (Amendment) Regulations, 2013 (hereinafter referred to as "the 2013 Regulations") to read as under: "9. Permission Order. (1) The Central Government on the recommendation of the Central Council shall issue a Letter of Intent to set up a new medical college or open new course or increase intake capacity with such conditions or modifications in the original proposal as may be considered necessary. (2) The Letter of Intent to set up a new medical college shall include a clear cut statement of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipment, faculty and staff before admitting the first batch of students. (3) The Letter of Intent to open new course or increase intake capacity shall include a clear cut statement of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipment, faculty, staff and obtaining the permission or conditional permission for existing under-graduate and/or postgraduate courses. (4) The Letter of Permission shall be issued after the above conditions and modifications specified in subregulations (2) and (3) are accepted and the performance bank guarantees for the required sums are furnished by the person and after receiving the recommendations of the Central Council of Indian Medicine. (5) The formal permission shall be include a time bound programme for the establishment and expansion of the medical college and the hospital facilities and it shall also define annual targets as may be fixed by the Central Council to be achieved by the person to commensurate with the intake of students during the following years. (6) The permission to establish a medical college and admit students shall be granted initially for a period of one year and shall be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Central Council of Indian Medicine for the purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission shall continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. However, admissions shall not be made at any stage unless the requirements of the Central Council are fulfilled. The Central Government shall at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies. (7) The Central Council may obtain any other information from the proposed medical college as it deems fit and necessary. (8) The order passed by the Central Government under sub-section (9) of section 13A of the Indian Medicine Central Council Act, 1970 shall clearly indicate the preliminary requirements about setting up of buildings, infrastructural facilities, medical and allied equipment, faculty and staff before admitting the students of first batch and subsequent batches."
(3.) In the above statutory backdrop, I proceed to reconnoiter the facts.;