power of the Central Government to appoint a team of
Medical Inspectors for the purpose of inspection of
colleges etc. or it is within the power of the Central
Council of Homoeopathy (CCH) to appoint a team of
Inspectors.
In order to decide the aforesaid question, we have
to consider the ambit of the powers under the relevant
statute the Homoeopathy Central Council Act, 1973 (in
short referred to as ‘the Act’) provides for constitution
of Central Council of Homeopathy and the functions of
Central Council of Homeopathy and other matters connected
therewith. The constitution of Central Council has been
provided under Section 3 of the said 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 is provided under Section 7 of the Act. There are
various Committees as provided under the Act to be formed
by the Central Council for the discharge of the functions
enjoined upon it.
Section 12A in Chapter II A of the Act of 1973,
provides for the grant of permission for establishment of
new medical institution, new courses of study, etc.
Permission of Central Government is required to be
obtained in accordance with the provisions contained in
Section 12 of the Act. Explanation 2 of Section 12A (1)
provides that the admission capacity in relation to any
course of study or training (including post-graduate
course of study or training) in a medical institution
means the maximum number of students as may be decided by
the “Central Council” from time to time for being
admitted to such course or training.
It is also provided in Section 12A (2)(a) that if
any scheme is placed before the Central Government in
accordance with the provisions of clause (b) of sub-
Section 1 of Section 12A(a), the Central Government shall
refer the scheme to the Central Council for obtaining its
recommendation, meaning thereby that the function of
Central Government is a supervisory one and it is the job
of the Central Council to make the requisite
recommendations. A detailed procedure is also given in
Section 12A (3) of the Act to be adopted by the Central
Council on receipt of such a scheme. The recommendations
will have to be made under sub-Section 4 of the said
Section 12A by the Central Council to the Central
Government. Thereafter, it would be for the Central
Government to approve or disapprove the scheme, after
giving the person or medical institution a reasonable
opportunity of being heard, as per proviso contained in
Section 12A (4) of the Act. The Central Council while
making its recommendation under clause (b) of sub-Section
3 of Section 12A and the Central Government while passing
the order either disapproving or approving the scheme,
shall have the due regard to the factors as enumerated in
Section 12A (7) of the Act.
Section 13 deals with the recognition of medical
qualifications granted by certain medical institutions in
India. Section 14 deals with the recognition of medical
qualifications granted by medical institutions in States
or countries outside India. Section 15 deals with the
rights of persons possessing qualifications included in
Second or the Third Schedule to be enrolled by the
Central Council.
Section 17 of the Act of 1973 provides in its
unequivocal terms that power to appoint Medical Inspector
is with CCH and not with Central Government. The
provisions of section 17 are extracted hereunder:
“Section 17(1) The Central Council shall
appoint such number of medical inspectors as
it may deem requisite to inspect any medical
college, hospital or other institution where
education in Homoeopathy is given, or to
attend any examination held by any
University, Board or medical institution for
the purpose of recommending to the Central
Government recognition of medical
qualifications granted by that University,
Board of medical institution.
(2) The medical inspectors shall not
interfere with the conduct of any training or
examination but shall report to the Central
Council on the adequacy of the standards of
education including staff equipment,
accommodation, training and other facilities
prescribed for giving education in
Homoeopathy, as the case may be, or on the
sufficiency of every examination which they
attend.
(3) The Central Council shall forward a copy
of any such report to the University, Board
or medical institution concerned, and shall
also forward a copy with the remarks of the
University, Board or medical institution
thereon to the Central Government.
Under Section 18 there is exclusive power with the
Central Council to appoint the visitors at examinations.
The section is extracted under:
“18(1) The Central Council may appoint such
number of visitors as it may deem requisite
to inspect any medical college, hospital or
other institution where education in
Homoeopathy is given or to attend any
examination for the purpose of granting
recognized medical qualification.
(2) Any person, whether he is a member of
the Central Council or not may be appointed
as a visitor under this Section but a person
who is appointed as an inspector under
Section 17 for any inspection or examination
shall not be appointed as a visitor for the
same inspection or examination.
(3) The visitors shall not interfere with the
conduct of any training or examination but
shall report to the President of the Central
Council on the adequacy of the standards of
education including staff, equipment,
accommodation, training and other facilities
prescribed for giving education in
Homoeopathy or on the sufficiency of every
examination which they attend.
(4) The report of a visitor shall be treated
as confidential unless in any particular case
the President of the Central council
otherwise directs:
Provided that if the Central Government
requires a copy of the report of a visitor,
the Central Council shall furnish the same.
It is only on the basis of a report submitted by a
team of Inspector or visitors as it appears that the
Central Council to make a recommendation under Section 19
of the Act of 1973.
Section 19 is extracted hereunder:
Section 19 (1) When upon a report by the
inspector or the visitor it appears to the
Central Council;
(a) that the courses of study and examination
to be undergone in or the proficiency required from candidates at any examination held by any University, Board or medical institution, or
(b) that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University, Board or medical institution or in any college or other institution affiliated to the University.
Do not conform to the standard prescribed by the Central Council, the central Council shall make a representation to that effect to the Central Government.
(2) After considering such representation, the Central Government may send it to the government of the State in which the University, Board or medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the University, Board or medical institution with an intimation of the period within which the University, Board or medical institution may submit its explanation to the State Government.
(3) On the receipt of the explanation or where no explanation is submitted within the period fixed then on the expiry of that period the state government shall; make its recommendations to the Central Government.
(4) The Central Government after making such further inquiry, if any, as it may think fit, may b notification in the Official Gazette, direct that an entry shall be made in the Second Schedule against the said medical qualification declaring that it shall be a recognized medical qualification only when granted before a specified college or institution affiliated to any University shall be recognized medical qualification
only when granted before a specified date or
as the case may be, that the said medical
qualification shall be recognized medical
qualification in relation to a specified
college or institution affiliated to any
University only when granted after a
specified date.”
It is clear from the provisions contained in the
Sections 17 and 18 that Inspectors can only be appointed
under the Act of 1973 by the Central Council in order to
enable it to make the requisite recommendation to the
Central Government. Appointment of visitors can also be
made exclusively by the Central council alone and not by
the Central Government. The Act does not confer upon the
Central Government to appoint a team of inspectors to
inspect the colleges etc. or visitors at the examination
for making the recommendation for recognition or for
withdrawal dealt with under the aforesaid provisions of
Sections 17, 18 and 19.
The Regulations called the Homoeopathy Central
Council (Minimum Standards Requirement of Homoeopathy
Colleges and attached Hospitals) Regulations, 2013
(hereinafter referred to as Regulations, 2013) has been
framed in exercise of powers conferred under Section 33
(j) of the Act.
Regulation 3 deals with the fulfillment of the
minimum standard requirement. 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 minimum standards
requirements of infrastructure and teaching
and training facilities referred to in the
regulations 4 to 13.
(2) For exposure of the students in the
clinical field and to understand the depth of
operative surgery and operative Gynecology or
Obstetrics as well as management in critical
illnesses, a college shall have a Memorandum
of Understanding with a reputed nearby
located super-specialty hospital (of modern
medicine) with all required facilities of
operation theatre, labor room, Intensive Care
Unit and other required facilities for the
management of critical patients.
(3) In case an attached hospital of a
college does not have the facilities to
handle operation theatre and other critical
patients, the students of such a college can
be deputed under the strict supervision of
concerned teaching faculty of the college for
the required exposure in the said field to
the attached super-specialty hospital.
(4) The existing colleges and their attached
hospitals established under Section 12A of
the Act and those colleges and their
hospitals established prior to the 28th
January, 2003 and recognised by the Central
Council of Homoeopathy shall fulfill the
minimum standards requirements of infrastructure teaching and training facilities referred to in these regulations by the 31st December, 2014 for consideration of grant of permission for undertaking admission in the coming academic years.
(5) If a college fulfills the requirement by 31st December 2014 as per these regulations, it shall be granted permission to undertake admissions for a period not exceeding five years during which the college shall not be inspected, except for random checks on receipt of any complaint, or otherwise as deemed necessary either by the Central Government or by the Central Council of Homoeopathy.
(6) The Central Council shall visit the college Suo moto three months before the expiry of permission.
(7) The conditional permission shall be granted only to those colleges which are fulfilling at least the requirement of teachers as specified in Schedule-IV, the requirement of functional hospital as specified at sub-regulation (2) of regulation 7 and availability of equipment as specified in schedule-III for each academic year 201314 and 2014-15 on the basis of the separate inspections to be carried out by the Central Council of Homoeopathy after the 15th May, 2013 for the academic year 2013-14 and after the 31st December, 2013 for the academic year 2014-15.
(8) Such conditional permitted colleges or those colleges which have been denied permissions during the academic year 2013-14 and/or 2014-15 will be required to fulfill the requirements as specified in these regulations by the 31st December 2014.
(9) All the existing colleges, which are not
able to achieve full compliance of the
requirement as specified in these regulations
by the 31st December, 2014, shall be denied
permission from academic year 2015-16 onwards
and action as envisaged under Section 19 of
the Act shall be initiated against all such
colleges apart from rejection of their
applications under Sections 12A, which have
been under consideration by way of
conditional permission or denials.”
It is apparent from Regulation 3(5) that no
inspection to be made once permission has been granted
which may be up to 5 years, as the case may be, except as
considered necessary either by Central Government or CCH.
The provision only confers power on Central Government
and CCH that inspection be ordered in the aforesaid
period in case exigency happens i.e. random checks, on
receipt of any complaint, or otherwise as may be
considered necessary. The regulation does not deal with
who will inspect and who will appoint a team of medical
inspectors that is dealt with in S.17 of the Act of 1973.
The Single Bench of the High Court has opined
that Inspectors cannot be appointed by the Central
Government in exercise of powers to cause inspection
under Regulation 3 (5) of the aforesaid Regulations,
2013, whereas the Division Bench has opined that
Regulation 3(5) has to be given effect to as such the
Central Government has the power to appoint a team of
inspectors in order to grant permission and to approve
the particular scheme. The decision of the Division
Bench of the High Court at Patna is questioned in appeal.
We have heard the learned counsel for the parties
at length. It was submitted by the learned counsel
appearing on behalf of the appellants that the provisions
contained in Section 17 has to prevail and the
interpretation of Regulation 3 (5) of the Regulations,
2013 has to be made in the context of the Act not
repugnant thereto. Even if it is held that Central
Government can order the inspection to be made but for
that request would only be made by Central Government to
Central Council. The Central Government cannot exercise
the power to appoint a team of Inspectors and that is
specifically conferred under section 17 on the CCH.
Learned counsel appearing on behalf of the
respondent Shri Balasubramanian tried in vain to salvage
the situation by placing reliance upon the judgment
rendered by the Division Bench of the High Court as well
as the object of the Act and regulations. He has
vehemently contended that Central Government is empowered
to appoint the inspectors as per Regulation 3(5) and the
regulation cannot be said to be in violation of
provisions contained under Sections 17, 18 or 19 of the
Act of 1973. Thus, no case for interference is made out.
After hearing the learned counsel for the
parties, we are of the considered opinion that various
legislations enacted by the Central Government, it has
provided for constitution of statutory bodies, experts to
deal with such matters of various kinds of education in
the country for Medical Education, Medical Council of
India has been constituted. Similarly, for legal
education, power has been given under the Advocates Act
to the Bar Council of India and with respect to other
technical courses, power has been given to the AICTE and
other bodies.
The Central Government has not reserved the power
to appoint Inspectors with it under the main enactment
itself, i.e., the Act of 1973.
A bare reading of the provisions contained under
Section 17 makes it clear that as per statutory
provision, duty has been enjoined upon the CCH to appoint
a team of Inspectors. Such a power has been specifically
conferred on such Expert Bodies under various enactments
also. It is the function of the expert bodies in the
field and they are supposed to appoint a team of
Inspectors and it is for expert bodies to make the
recommendations to the Central Government. The role of
the Central Government is a supervisory one and not to
start an investigation by making the appointment of a
team of Inspectors, as that is not envisaged under the
Act of 1973 itself.
Regulation 3(5) of the 2013 Regulations envisages
random checks to be ordered on receipt of a complaint or
otherwise as deemed necessary either by the Central
Government or by the CCH. In case, CCH or Central
Government receives any complaint, random checks can be
ordered, but the regulations stop at that. It does not
deal with the aspect who will appoint a team of
inspectors for the purpose of inspection to be carried
out. In our considered opinion, it is only the Central
Council which is empowered to appoint a team of
inspectors under Section 17 and visitors for the
examination under Section 18 for making recommendation to
the Central Government on the basis of report submitted
by the team of inspectors or visitors as envisaged under
Sections 17 and 18 of the Act.
Regulation 3(5) of Regulations of 2013 has to be
harmoniously interpreted with the provisions of section
17 of the Act not repugnant thereto. The provision of
section 17 is not capable of interpretation empowering
the Central Government to appoint a team of inspectors at
all. Thus, the power conferred under section 17 has to be
exercised only by the CCH. Any other interpretation would
be against the legislative mandate. The regulations have
to be subservient to the provisions of the Act. No other
provision could be pointed out under which the Act may
have conferred the power upon the Central Government to
appoint a team of Medical Inspectors.
Thus, the Division Bench of the High Court has
clearly erred in holding that the power to appoint the
Inspectors is with the Central Government while
interpreting Regulation 3(5) of the Regulations, 2013.
The Central Government cannot appoint a team of
Inspectors as this power has not been conferred upon the
Central Government either under the said Regulation 3 (5)
or any of provisions contained in the Act. It is only CCH
which can appoint a team of inspectors as per Section 17
if the request is made by the Central Government under
Regulation 3(5).
In our opinion, though Central Government on a
complaint or otherwise, as contemplated under Regulation
3(5) of the Regulations, 2013 may cause inspection would
mean only that inspection to be made by a team to be
appointed by CCH. A team of inspectors or visitors as the
case may be, can be appointed by CCH under Section 17 or
18 of the Act. However, after an inspection is made,
action has to be taken on the basis of the report as
provided under the Act and the Regulations by the Central
Government on the basis of the recommendation made by the
CCH.
The appeals are allowed. The impugned judgment and
order passed by the division bench are set aside and that
of the Single Bench is restored. No costs.
Petition(s) for Special Leave to Appeal (C) No(s).11755/2018
(Arising out of impugned final judgment and order dated 13-03-2018 in LPA No. 1801/2017 passed by the High Court Of Judicature At Patna)
THE TEMPLE OF HANEMANN HOMOEOPATHIC MEDICAL COLLEGE AND HOSPITAL Petitioner(s)
UNION OF INDIA & ORS. Respondent(s)
(With appln for exemption from filing c/c of the impugned judgment)
ITEM NO.15:
Date : 17-07-2018 These matters were called on for hearing today.
CORAM :
For Petitioner(s) Mr. A. Mariarputham,Sr.Adv.
Mr. Yusuf Khan,Adv.
Mr. Akshay C. Shrivastava,Adv.
Mr. K. V. Muthu Kumar, AOR
Ms. Sarvshree,Adv.
Ms. Niranjana Singh,Adv.
For Respondent(s) Mr. R.Balasubramanian,Adv.
Mr. S.S.Rizvi,Adv.
Ms. Aarti Sharma,Adv.
Mr. Prabhas Bajaj,Adv.
Mr. Abha R.Sharma,Adv.
Mr. D.S. Parmar,Adv.
Mr. M.Abdullah,Adv.
Mr. Sunil Narula,Adv.
Mr. D.P.Chaturvedi,Adv.
Mr. S.N.Bhat,Adv.
UPON hearing the counsel the Court made the following
Leave granted.
The reportable appeals are allowed in terms of the
signed order.
(Signed order is placed on the file)