- (1.) The petitioners who have established Ayrveda Medical Colleges with their respective intake of 50 seats at the relevant time have sought for a mandamus to be issued for additional 10 seats for BAMS course for the session 2014-2015. It is an admitted case that in the periodic inspection that was required to be done, the petitioner-Institutes have been inspected for 2014-2015 and at the time when inspections have been carried out, the amended regulation have been broughtforth through a policy decision issued by the Government of India, Ministry of Health and Family Welfare, Department of AYUSH. As per the amended policy dated 11.6.2013, the approval of the Government is for two slabs, namely upto 60 seats and from 61 to 100 seats. The approval for the year 2014-2015 which has been issued on 3.7.2014 on the norms to be applied as per the revised policy. The contention of the petitioners is that when the approval for 2013- 2014 was given, it has perforce to apply the norms as per the policy and the permission given must be taken as fulfilling the norms for additional intake of 10 seats as well. The petitioners would contend that the inspection of Central Council of India Medicine (CCIM) has also been undertaken and the permission granted by the Central Government has taken note of the inspection done by the CCIM for all the infrastructural facilities that has set forth in Schedule I to VII. The matter that is required to be inspected as per the regulation issued through the notification dated 18.7.2012 would refer to the total constructed area of the hospital building, the lab facilities that have to be attached, the staff that have to be employed, etc. The petitioners' contention is that when the regulation stipulate a minimum intake of 60 seats and the fulfillment of all the norms for such intake are complied with, it must be taken that the permission granted must be applicable for additional intake of 10 seats as well. The petitioners would refer to two other circumstances as making possible the petitioners' claim, namely of an earlier instance of a plea by Shree Lakshmi Narayan Ayurvedic Colleges Versus The Union of India and others in CWP No. 23288 of 2013 decided on 17.2.2014 that pleaded for scaling down for infrastructure requirement to 50 seats or 40 seats for sessions 2013-2014 and its plea that fulfillment of norms 60 was unreasonable. This court was considering the objection taken by the Central Government that the infrastructure shall be for a minimum of 60 intake and it will not be possible to scale down the requirement. The petitioners would, therefore, contend that when the permission was granted for 2014-2015 although for the original intake for 50 which was sanctioned, it must be taken as having done being fully satisfied about the existence of the norms for intake of 60. The reliance of the petitioners is also to a similar plea made by the Mannam Ayurveda Co-operative Medical College before the Kerala High where in the light of the amended regulation and the notification, a Single Judge of the Kerala High Court had held that the permission must be taken as for the minimum strength of 60 and though this order was set aside by a Division Bench in WA No. 1701 of 2012 by decision on 12.8.2013, the Supreme Court has granted stay of the operation of the Division Bench ruling and restored the order of the Single Judge allowing for 60 students.
(2.) The learned Counsel on behalf of the Central Government would forcefully contend that there is a particular scheme which is contemplated under the Indian Medicine Central Council Act, 1970 and Section 13-A is the governing provision for a permission for establishment of a new medical college, new course of study etc. Section 13-A deals also with an increase for admission capacity in any course of study or training and such increase of seat capacity cannot be made except with the previous permission of the Central Government. Admittedly, the application for permission for an additional strength has been submitted by the petitioners only on 3.4.2014 (Annexure P/7) and they have forwarded the same to the CCIM to secure its recommendation. There is again a time schedule which is prescribed under the Regulation 5 and the last date of receipt of publication shall be from 1st April to 30th April of any year and the the issue of letter of permission by the Central Government shall be within a year, the last date being 31st March of the following year. Since the petitioners have submitted the application only in April 2014, the permission could be granted only before 31st March, 2015.
(3.) The learned counsel appearing on behalf of the Central Government would also argue that there is no challenge to Section 13-A itself and if the permission of the Central Government is necessary, it has to follow the particular rigmarole, namely of having to forward the same to the CCIM, which after its inspection, would make recommendation for the additional intake and such an inspection shall have to take into account not merely the teachers strength or the building etc. but must also involve examination of the laboratory equipments and other facilities which will become possible only after an application is made. The inspection carried out already and the permission granted for 2014-2015 was only for 50 students and it cannot be taken for an additional intake of 10 more seats. The counsel would also refer me to the judgment of the Supreme Court in Medical Council of India Versus JSS Medical College and another (Civil Appeal No. 274 of 2012 delivered on 11.1.2012), where the Supreme Court had observed that the High Court should not issue interim order granting permission for increase of seats which will have a cascading effect. It would result in a awkward situation, if the approval is not granted for the additional intake and that will be against the welfare of the students. The courts cannot by its fiat increase the seats, a task entrusted to the Board of Governors and that too by an interim order.;