Indian Medical Association, ... vs State Of Maharashtra And Ors.
2001 Latest Caselaw 551 Bom

JUDGMENT

B.H. Marlapalle, J.

1. This petition under Article 226 of the Constitution has been filed by the Indian Medical Association, Nandurbar Branch through its President, Dr. Sunil Shah. The petitioner No. 1 is the branch of Association of Medical Practitioners at the national level and the petition is filed in public interest by the said association at Nandurbar. The Indian Medical Association at the national level is a legal entity, the petitioner No. 2 is the resident of village Dangri, Tq. Amalner. The petitioner No. 3 is the resident of Kopargaon, District Ahmednagar. The petitioners have challenged the decision of the Government of Maharashtra to establish Government Medical College with 100 seats intake capacity at Kolhapur and have further sought directions against respondents Nos. 1 and 2 to establish a new Medical College or increase the seats available in the existing Medical Colleges for M.B.B.S. course in the Marathwada and Vidarbha regions. The petitioners have also sought a Writ of Mandamus against the State authorities for implementation of the statutory perspective plan framed by the Maharashtra University of Health Sciences (respondent No. 2) for establishment of new Medical Colleges in the State of Maharashtra . For the reasons stated in our order dated 5th October 2000, we had framed the following issues for our decision.

"(A) Whether the impugned decision is contrary to provisions of Section 64 of the Act and if so whether it is required to be quashed and set aside by us in view of this judgment of this Court in the case of "Dhananjay Kulkarni".

(B)    Whether the State Government has the power to start a Government Medical College in addition to the colleges proposed in the perspective plan framed by the University of Health Sciences under the Act.
 

(C)    Whether the State Government can take a plea that it is not bound by the perspective plan prepared by the University of Health Science.
 

(D)    Whether the government resolution to establish the Government Medical College at Kolhapur is required to be interfered with and stayed, as at present," 
 

2. It has been contended by the petitioners that the respondent No. 2 has framed a perspective plan for the year 2000-2001 and establishment of a new Medical College or enhancing the existing seats in any medical course is required to be in keeping with such a plan formulated by the University. Similarly, the provisions of Section 64 of the Maharashtra University of Health Sciences Act, 1998 (the Act for short) are binding for starting any new Medical College either by the Government or by any private management and the impugned decision of the State Government to establish a new Government Medical College at Kolhapur (the said new college for short) is contrary to the perspective plan framed by this University and it has been taken without complying with the provisions of Section 64 of the Act. The said provisions are in pari materia with the provisions of Section 82 of the Maharashtra Universities Act, 1994 and therefore, the law laid down by this Court in the case of Dhananjay R. Kulkarni and Ors. v. State of Maharashtra and Ors., 1999(2) Mh.LJ. 323 is squarely applicable to the instant case, thereby warranting interference in the impugned decision of the State Government. It is further contended that once the University has formulated a perspective plan while discharging its statutory duty under the Act, the said plan is binding on the State Government and no new Medical College could be established even by the State Government in disregard or contrary to such a perspective plan. The Government cannot rely upon the proviso to Sub-section (5) of Section 64 of the Act and claim that it has absolute powers to decide the location of a new Government Medical College at any place as per its choice and for whatever reasons. The State Government cannot take a plea that it is not bound by the perspective plan prepared by the University governing the medical education or education in any of the Medical Sciences including the issue of starting a new Medical College or increasing medical seats in existing Medical Colleges, Nandurbar is a newly created District carved out of the old Dhule District and it is a declared tribal area. The Parliament seat has been always reserved for Scheduled Tribe and out of the five Assembly seats, four seats are reserved for tribals. It is part of the Khandesh area which consists of three Districts namely Dhule, Nandurbar and Jalgaon. The educational facilities in Health Sciences and more particularly, in Medical Sciences are inadequate inasmuch as barring the two Medical Colleges at Dhule with 150 intake capacity, there are no Medical Colleges catering to the needs of Jalgaon or the Nandurbar Districts which are tribal dominated. Even the overall distribution of medical seats is totally imbalanced and Khandesh region has been neglected by the State Government while catering for higher education in Medical Sciences. The Government of Maharashtra is on the other hand, under political pressures or for political reasons, concentrating its attention to create more and more such facilities of higher learning in the developed areas like Kolhapur, where there already exists a private Medical College with 100 seats intake capacity and in its neighbourhood there is a Government Medical College at Miraj (distance between Kolhapur and Miraj is about 40 kms.) and another private Medical College at Karad (distance between Kolhapur and Karad is about 90 kms.) each with 100 seats intake capacity. The petitioners therefore, urged before us that the decision of the Government to start the said new College is not only required to be quashed and set aside but the Government is also required to be directed to take steps either to shift the proposed Medical College to Khandesh area and more so to Nandurbar District or establish a new Government Medical College in the said region.

3. The State Government has filed affidavit-in-reply through the Under Secretary, Medical Education and Drugs Department and an additional affidavit of the Secretary in the said Department. The defence of the Government as is reflected in these returns could be summarised as under :--

"(a) The perspective plan prepared by the University under the Act is not binding on the State Government.

(b)     The State Government has discretionary powers under Section 64(5) of the Act to start a Government Medical College at any place of its choice.
 

(c)     The State Government has overall residuary powers under the provisions of Section 96 of the Act, and, therefore, even if the University has not considered a location/region for starting a new Medical College, the powers of the Government to select such a location not mentioned in the perspective plan are intact and the perspective plan does not come in its way.
 

(d)     The perspective plan framed by the University is not based on true and correct assessment of the relevant facts and circumstances and therefore, the same is ex-fade unsustainable and not binding on the State Government for its implementation.
 

(e)     The perspective plan as relied upon by the petitioners was only for one academic year i.e. 2000-2001 and therefore, the necessary inputs, ingredients and considerations did not weigh satisfactorily in preparing the said plan which is a short term plan contrary to the perspective plan which is required to be prepared for five years under the Act.
 

(f)     The State Government had constituted an Indicator Committee and the said Committee pointed out the deficiencies in providing medical education in the Western Ghat area of the State of Maharashtra. The population doctor ratio in this Ghat section has not been considered by the University while framing the perspective plan and therefore, the Government has independently taken a decision to establish a new Medical College at Kolhapur, so as to cater to these 62 Talukas in the Western Ghat (list of these Talukas has been placed on record during the course of arguments by the learned special counsel for the State Government).
 

(g)     The State Government proposes to introduce a model Government Medical College which will be self-financing and would not be a burden on the exchequer inasmuch as 15% of the intake quota would be reserved for the N.R.I. students and sufficient funds would be generated, so as to meet the recurring financial outlay.
 

(h)    The physical infrastructure available at Kolhapur does meet the requirements of a new Government Medical College and more particularly the capacity of beds in the three existing hospitals namely E.S.I. Hospital, C.P.R Hospital and Service Hospital. These Hospitals have a capacity of 475 beds and this has been further increased by issuing a G.R. dated 21-6-2000, whereby the beds capacity in C.P.R. Hospital has been increased from 426 to 625 beds. The new college would not be a burden on the State Government for the financial outlay.
 

(i)     While establishing a new Medical College at Kolhapur, the Government has also taken into consideration the needs of other under-developed areas like Vidarbha and Marathwada and the Government has already taken a decision to start a Government Medical College in Marathwada as well as Vidarbha regions. In addition, essentiality certificates have been issued to private management in each of these two regions for starting one additional private Medical College and
 

(j)      As per the Indicator Committee set up by the Government, the area under the Shivaji University comprising of Sangli, Satara, Kolhapur and Solapur Districts has a backlog of 119 medical seats vis-a-vis the rest of Maharashtra region including the Khandesh region and therefore, State Government has rightly decided to establish a new Government Medical College at Kolhapur and the said decision does not call for any interference at the hands of this Court. 
 

4. The Medical Council of India has been represented by Shri Salunke, learned counsel, who has placed before us a copy of the notification issued by the Medical Council of India, on 20 September, 1993 in exercise of its powers under Section 10A read with Section 33 of the Indian Medical Council Act, 1956 (M.C.I. Act for short). The Medical Council of India (the Council for short) has framed "the establishment of new Medical Colleges, opening of higher courses of studies and increase of admission capacity in Medical Colleges Regulations, 1993" (the Regulations 1993 for short). It is also submitted by the learned counsel that in view of the provisions of Section 10A of the M.C.I. Act, no new Medical College either by the Government or any private management can be established, unless the Central Government in consultation with the Council grants permission and the process of granting such permission involves submission of an application in the prescribed form and to meet the requirements of the scheme which has been framed under the Regulation of 1993. The Council has not yet granted such permission/approval to start the new college at Kolhapur, though the State Government has stated in its affidavits that it has approached the Council, seeking such permission/approval. We do not have the benefit of going through any such applications or an application submitted by the State Government to the Council for establishing the said new College either before the impugned decision was taken or subsequently thereafter and the correspondence, if any, with the said Council in that regard is also not placed on record.

5. The Government of India enacted the M.C.I. Act, 1956 which came to be amended in 1983 and was further drastically amended in 1993. Section 10A of the Act states "Notwithstanding anything contained therein or any other law for the time being in force, no person shall establish a Medical College except with the previous permission of the Central Government obtained in accordance with the provisions of the said section or no Medical College shall open a new higher 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 increase its admission capacity in any course of study or training except with the previous permission of the Central Government. For the purpose of Section 10A the term "person" includes any University or a trust but does not include the Central Government. There is no dispute that the provisions of section 10A are mandatory even to start a new Government Medical Coilege and therefore, the State Government is required to follow the procedure therefor as prescribed by the Council in the Regulations of 1993 and unless the Government obtains such a permission, it cannot undertake admissions in the proposed Medical College.

6. In the Regulations of 1993 there is a scheme provided governing the procedure for dealing with applications for permission to start new Medical Colleges. The applications are required to be submitted in the prescribed forms and while considering these applications, they must satisfy the qualifying criteria and accompanied by the prescribed fees. The applications received are registered by the Ministry of Health and Family Welfare forwarded to the Council for evaluation and recommendations if they are found complete in all respects. The scheme provides for evaluation by the Council and grant of permission in the following words :

"Evaluation by M.C.I.":

"Medical Council of India will evaluate part I of the application in the first instance to establish the desirability and prima facie feasibility of setting up Medical College at the proposed location and the capability of the applicant to provide the necessary sources and infrastructure for the scheme, while evaluating each part of the application, the Council may seek further information/clarification or additional documents from the applicant as considered necessary or may carry out physical inspection to verify the information." "Grant of permission"

"The Central Government on the recommendation of the Medical Council of India may issue a letter of intent to set up a new Medical College with such conditions by modification in the original proposal as may be considered necessary. The formal permission will be granted after the above conditions and modifications are accepted and the performance bank guarantees for the required sums are furnished by the applicant....."

7. The Government of Maharashtra found it expedient to establish and incorporate an independent University of Health Sciences for the purposes of ensuring proper and systematic instructions, teaching, training and research in modern medicine and Indian Systems of Medicine in the State of Maharashtra, and to have balanced growth in the medical sciences so also a uniformity in various courses in medical faculty in the State, and to provide for matters connected therewith, and incidental thereto and therefore, enacted the Act which has come into force on 3-6-1998. Section 2 of the Act, deals with definitions and the relevant terms defined in the said section are reproduced as under :

"Management" means the trustees, or the managing or governing body, by whatever name called of any trust registered under the Bombay Public Trusts Act, 1950 or any society registered under the Societies Registration Act, 1860 under the management of which one or more colleges or recognised institutions or other institutions are conducted and admitted to the privileges of the University :

Provided that, in relation to any college or institution established or maintained by the Central Government or the State Government or a local authority such as a Zilla Parishad, Municipal Council or Municipal Corporation, it means respectively, the Central Government or the State Government or the concerned local authority that is the Zilla Parishad, Municipal Council or Municipal Corporation, as the case may be;

"University" means the Maharashtra University of Health Sciences established under Section 3 of this Act;

"college" means a college imparting education in Health Sciences conducted by the University or affiliated to the University situated in the State Government of Maharashtra;

8. Section 4 deals with the objects of the University and it states that the objects of the University shall be to disseminate, create and preserve knowledge and understanding by teaching, research, extension and service and by effective demonstration and influence of its corporate life on society, in general, and in particular the objects shall be :

"(e) to extend the benefits of knowledge and skills for development of individuals and society by associating the University closely with local and regional problems of development;

 (g)     to promote equitable distribution of facilities of Health Sciences education; 
 

Section 5 deals with the powers and duties of University. Section 6 deals with the jurisdiction and admission to privileges of University and it is reproduced as under:
  

"6. Jurisdiction and admission to privileges of University. -- (1) No college in the State of Maharashtra imparting education in Health Sciences shall, save with the consent of the University and the sanction of Government, be associated in any way with or seek admission to, any privileges of any other University in India or abroad.
 

(2) Any such privilege enjoyed from other University before the date of commencement of this act by any Medical College or institution of Health Sciences situated in the State shall be deemed to be withdrawn with effect from such date.
 

(3) On and from the date of commencement of this Act, all colleges and autonomous Institutions of Health Sciences previously admitted to the privileges of or affiliated to the Universities specified in the Scheme appended to this Act, shall be deemed to be admitted to the privileges of or affiliated to, the Maharashtra University of Health Sciences established under Section 3 of this Act." 
 

Section 9 provides for the control of Government. Chapter III deals with the Officers of the University including the Chancellor, Pro-Chancellor and other officers, Vice-Chancellor and Pro-Vice-Chancellor. The Chancellor is the Governor of the State, Pro-Chancellor is the Minister in-charge for Medical Education in Maharashtra and appointment of the Vice-Chancellor is covered by the provisions of Section 14. Chapter IV deals with the authorities of the University like the Senate, Management Council, Academic Council, Planning Board, Board of Studies and the Board of Examinations etc. The Senate shall be the principal authority for all financial estimates and budgetary provisions as well as providing social feed back to the University on currant and future academic programmes and it consists of amongst others the Chancellor, Pro-Chancellor, the Vice-Chancellor, the Secretary to Government, Medical Education and Drugs Department, the Director of Medical Education and Research, the Director of Health Services, the Director of Ayurveda, three Members of the Maharashtra Legislative Assembly one each from the areas of three Development Boards and two Members of Maharashtra Legislative Council elected from amongst themselves, six persons to be nominated by the Pro-Chancellor from amongst the graduates of Health Sciences being one each representing Mumbai, Pune, Aurangabad, Nagpur, Amravati and Nashik Revenue Divisions of the State, six professors elected from amongst the six revenue divisions of the State and 12 Principals of affiliated Colleges by rotation, being two each representing these Revenue Divisions and one person nominated by each University governed by the Maharashtra Universities Act, 1994. The Management Council consists of, amongst others, the Vice-Chancellor, the Secretary, Medical Education and Drugs Department, the Director of Medical Education and Research, the Director of Health Services, four experts in the field of Health Sciences to be nominated by Chancellor on the recommendations of the Vice-Chancellor, one each from the Vidarbha, Marathwada, Western Marathwada and Konkan Regions. Section 27 set out the powers and functions of the Management Council and Sub-clause (aa) states that Management Council has to consider the perspective plan for the Academic development of the University prepared by the Planning Board. Section 29 deals with the powers and duties of the Academic Council and Sub-section (2) thereof states that the Academic Council shall exercise powers to recommend to the Management Council regarding institution of degrees, diplomas, certificate and other academic distinctions and to make proposals for the establishment of conducted colleges under the University, prescribe norms for granting affiliation and grant such affiliation to the new colleges. Chapter IX deals with the issues of permission, affiliation and recognition of new colleges/institutions. Section 64 sets out the procedure for permission and Section 65 procedure for affiliation. The said two sections are reproduced as under for ready reference :

"64. Procedure for permission. -- (1) The University shall prepare a perspective plan for educational development for the location of institutions of higher learning in a manner ensuring equitable distribution of facilities of Health Sciences Education having due regard, in particular, to the needs of unserved and under developed areas within the jurisdiction of the University. Such plan shall be prepared by the Academic Council and shall be placed before the Senate through the Management Council and shall be updated every five years.

(2) No application for opening a new college or institution of higher learning which is not in conformity with such plan, shall be considered by the University.

(3) The management seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of University before the last day of October of the year preceding the year from which the permission is sought.

(4) All such applications received within the aforesaid prescribed time limit shall be scrutinised by the Planning Board and be forwarded to the Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council.

(5) Out of the applications recommended by the University, the Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of Health Sciences learning. Provided however that, in exceptional cases and for the reasons to be recorded in writing, any application not recommended by the University may be approved by the State Government for starting new college or institution of Health Sciences learning.

(6) No application shall be entertained directly by the Government for the grant of permission for opening a new college or institution of Health Sciences learning.

65. Procedure for affiliation -- (1) On receipt of the permission from the Government under Section 64, the Academic Council of the University shall consider grant of first time affiliation to the new college or institution by following the prescribed procedure given in Sub-section (2) and after taking into account whether and the extent to which the stipulated conditions have been fulfilled by the college or institution. The decision of the Academic Council in this regard shall be final.

(2) For the purpose of considering the application for the grant of affiliation, the Academic Council shall cause an inquiry by a committee constituted for the purpose by it.

 

(3) The Academic Council shall decide,
  

(a)     whether affiliation shall be granted or rejected;
 

(b)     whether affiliation should be granted in whole or part;
 

(c)     Subjects, courses of study, the number of students to be admitted;
 

(d)    Conditions, if any, which may be stipulated, while granting, or for granting the affiliation. 
 

(4) The Registrar shall communicate the decision of the Academic Council to the applicant management with a copy to the Secretary, Medical Education and Drugs Department, and if the application for affiliation is granted, along with an intimation regarding,
  

(a)     the subject and the courses of study approved for affiliation;
 

(b)     the number of students to be admitted;
 

(c)     the conditions, if any, subject to the fulfilment of which the approval is granted. 
 

(5) The procedure referred to in Sub-section (1) to (6) of Section 64 shall apply, mutatis mutandis, for the permission to open new courses, additional faculties, new subjects and additional divisions.
 

(6) No students shall be admitted by the college or institution unless the first time affiliation has been granted by the University to the college or institution.
 

(7) The procedure referred to in Sub-section (1) to (4) shall apply, mutatis mutandis, for the consideration of continuation of affiliation, form time to time." 
 

Chapter XIII provides for the Transitory powers and Section 93 thereunder deals with the Transitory powers of the first Vice Chancellor. Section 96 provides for removal of difficulties and both these sections read thus :
  

93. Transitory powers of the first Vice-Chancellor. -- (1) It shall be the duty of the first Vice Chancellor to make arrangements for constituting the Management Council and other authorities of the University within six months from the date of commencement of this Act or such longer period not exceeding one year as the Government may, by notification direct.
 

(2) The first Vice-Chancellor shall, in consultation with the Chancellor make such Rules as may be necessary for the functioning of the University.
 

(3) It shall be the duty of the first Vice-Chancellor to draft such Statutes as may be immediately necessary and submit them to the Senate for approval.
 

(4) Notwithstanding anything contained in this Act and until such time an authority is duly constituted under this Act, the first Vice-Chancellor may appoint any officer or constitute any committee temporarily to exercise and perform any of the powers and duties of such authority under this Act.
 

96. Removal of difficulties. -- If any difficulty arises in giving effect to the provisions of this Act, the Government may, as occasion requires, but not later than two years from the date of commencement of this Act, by order do anything not inconsistent with the objects and purposes of this Act, which appears to it to be necessary or expedient for the purpose of removing the difficulty. 
 

9. On the touchstone of these statutory provisions, the regulations and the factual data that has been placed before us including the Perspective plan, we now deal with the issues which have been framed by us. At the out set we must note that a copy of the impugned Government Resolution dated 30-8-2000 setting out the State Government's decision to establish the said new College was placed before us for the first time during the course of oral arguments of the learned Special Council for the State Government. It was pointed out to us that the perspective plan of 2000-2001 which was the basis for this petition was not any more relevant specially when the academic year 2001-2002 has already commenced and the University has framed the perspective plan for the years 2001-2006. On the basis of this new plan, the Government contended that the petition did not survive. This submission is required to be considered only for being rejected. Even if we proceed on the basis of new perspective plan, the points framed by us are required to be considered and dealt with for deciding the petition. It was also contended that the petition cannot be treated to be a Public Interest Petition inasmuch as by cancelling the impugned decision, no public interest will be served in fact, the State will lose a Government Medical College with 100 seats intake capacity. We must clarify that we are addressing to the issues framed by us and more particularly to examine whether the impugned decision of the Government of Maharashtra is in keeping with the provisions of the Act and the Constitutional mandate. The petitioner No. 1 is certainly a body connected with Health Sciences and Medical Education. Its locus to challenge the decision of the Government to establish a new Medical College cannot be doubted and any resident of the State has a right to invoke our powers under Article 226 of the Constitution so as to point out that the State Government has failed to follow the legal mandate and more particularly the mandate of Article 371 of the Constitution. We therefore, overrule the preliminary objections as raised by the State Government regarding the maintainability of this petition.

10. The relevant observations in the perspective plan for 2000-2001 as prepared by the University have reflected in our earlier order dated 5-10-2000 and even in the new perspective plan placed before us the emphasis of the University has been on maintaining regional balance for providing opportunities of higher learning in Medical Education/Health Sciences facilities with an emphasis to cater to the underserved and under represented areas of the State. The perspective plan does keep in mind the mandate of Article 371 and also the needs of different Revenue Divisions with special considerations in favour of the underdeveloped areas like Marathwada and Vidarbha as well as the thickly populated tribal areas. In its introduction the perspective plan states that under Section 64(1) it is the duty of the University to prepare a perspective plan for educational development for the location of institutions of higher learning in a manner ensuring equitable distribution of facilities of health sciences education having due regard in particular to the needs of underserved and under-developed areas in the State and such a plan on being prepared by the Academic Council is placed before the Senate through the Management Council and it is updated every five years. While dealing with the objects of the perspective plan it, inter alia, proposes as under :

(a)     establishment of new institutions of Health Sciences on the basis of the need of the region.
 

(b)    Within the region the under developed areas shall be considered for such establishment of new institutions on priority.
 

(c)     priority shall be given for establishment of the institutions for underserved population.
 

(d)     it proposes the establishment of the institutions run by Government and   Semi-Government    organisations    in    respective    revenue divisions so that the poor and the needy people can have regular access to the facility of treatment for common diseases so as to achieve equity in health science education facility and of quality health care in the State. 
 

11. Table 42 in the perspective plan indicates excessive/deficit intake capacity of various regions in respect of the seats in different medical courses. It reveals that for M.B.B.S. course Marathwada and Vidarbha have a deficit, whereas the rest of Maharashtra area has surplus seats. For B.D.S. course Marathwada has deficit alongwith the rest of Maharashtra and the Vidarbha -region has surplus. In the B.A.M.S. course the Marathwada region has the deficit, whereas other two regions have the surplus seats and for B.H.M.S. course the Marathwada and Vidarbha regions have surplus and the rest of Maharashtra region has a deficit in seats. The perspective plan in its proposals states, inter alia, that,

(a) permission may be granted to establish new institutions only in the regions with deficit intake capacity to the extent of covering the deficit. Further within the region the preference for starting such institution shall be given to the revenue division/districts where facilities of health science education do not exist,

(b) during the pendency of the establishment of the institutions as proposed above the seats from the excess shall be available for the deficit areas to the extent of covering the deficit whereby an equity is achieved at least in terms of providing equal opportunity of admission to the deserving candidates of each region,

(c) to permit the establishment of institutions in the revenue divisions which have deficit, in per capita expenditure currently on health science education facility to the extent of compensating the deficit to the level of state level per capita expenditure. For this purpose the deficit per capita expenditure will have to be computed towards the number of seats and such institution should be allowed to have suitable intake capacity,

(e) the organisations proposing to start the institutions in the tribal and backward regions shall be given preference over those who are desirous of starting such institutions in other areas.

12. Under Sub-section 1 of Section 64 the University is required to prepare a perspective plan for educational development for the location of institutions of higher learning in a manner ensuring equitable distribution of facilities of health sciences education having due regard, in particular, to the needs of unserved and underdeveloped areas within the jurisdiction of the University. Such plan shall be prepared by the Academic Council and shall be placed before the Senate through the Management Council and shall be updated every five years. No application for opening a new college or institution of higher learning which is not in conformity with the perspective plan shall be considered by the University and the management seeking such permission to open a new college or institution of higher learning is required to apply in the prescribed form to the Registrar of the University before the last day of October of the year preceding the year from which the permission is sought. The term Management includes the State Government as well and the University has prescribed the application form so as to apply for permission to open a new college or institution. The applications so received shall be scrutinised by the Planning Board and forwarded to the Government with the approval of the Management Council on or before the last day of December of the year with such recommendations (duly supported by reasons) as are deemed appropriate by the Management Council and out of the applications recommended by the University, the Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the Government's budgetary resources, suitability of the management seeking permission to open new institutions and the State level priorities with regard to location of institutions of health sciences learning. The scheme of Section 64 of the Act, is in pari materia with the scheme of Section 82 of the Maharashtra Universities Act, 1994 except substitution of the relevant terms. Section 82 of the Maharashtra Universities Act, 1994 reads as under:

"82(1) The University shall prepare a perspective plan for educational development for the location of institutions of higher learning in a manner ensuring equitable distribution of facilities for Higher Education having due regard, in particular, to the needs of unserved and underdeveloped areas within the jurisdiction of the university. Such plan shall be prepared by the Academic Council and shall be placed before the Senate through the Management Council and shall be updated every 5 years.

(2) No application for opening a new college or institution of higher learning, which is not in conformity with such plan, shall be considered by the university,

(3) The managements seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of the university before the last day of October of the year preceding the year from which the permission is sought.

(4) All such applications received within the aforesaid prescribed time limit, shall be scrutinized by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council.

(5) Out of the applications recommended by the university, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the State Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning:

Provided, however, that in exceptional cases and for the reasons to be recorded in writing any application not recommended by the university may be approved by the State Government for starting a new college or institution of higher learning.

(6) No application shall be entertained directly by the State Government for the grant of permission for opening new college or institutions of higher learning."

13. A Division Bench of this Court in the case of Dhananiay R. Kulkarni (supra) had an occasion to interpret the provisions of Section 82 of the Maharashtra Universities Act. A plea was taken by the State Government in the said case that (a) the perspective plan prepared by the University was not binding on the State Government, (b) under proviso to Sub-section 5 of Section 82, the State Government had the absolute discretion to grant permission to a new college irrespective of the perspective plan and (c) the State Government has the powers to grant permission to locate an institution/college at any place though, such a place is not mentioned in the perspective plan. On considering the rival contentions, this Court (Sabharwal C.J. and Shah J.) answered all the issues raised in the following words :

(a) when applications are submitted by the Management, Section 82 contemplated three situations namely, (i) the applications not considered by the University, (ii) applications considered and recommended by the University and (iii) applications considered and not recommended by the University. The power of the State Government under the proviso to Sub-section (5) of Section 82 is in respect of the applications which are considered and not recommended and not in respect of the applications which are not even considered and therefore, the applications/proposals which were not routed through the University cannot be considered by the State Government.

(b)     The State Government has no power to grant permission for starting of a new college or institution of higher learning, in cases where applications are not in conformity with the perspective plan.
 

(c)     The State Government has no power to accord approval to an institution which is not within the perspective plan. 
 

14. In the case of Shikshan Samiti Gadhinglaj v. State of Maharashtra and Ors., 2001(1) Mh.L,J. 36, an order passed by the State Government permitting a private management to shift its college from Kanadewadi to Nesri in the same taluka, was challenged. As per the perspective plan prepared by the University concerned under Section 82of the Maharashtra Universities Act, there was no college recommended at Nesri. A Division Bench of this Court (Shah and Daga, JJ.) relying upon the earlier judgment in Dhananjay Kulkarni's case (supra) held that the order of transfer permitting the location of a college at a place which was not recommended in the perspective plan was unsustainable and reiterated the law that the perspective plan prepared by the University was binding on the State Government as per the scheme of Section 82 of the Maharashtra Universities Act. It is thus well settled that the perspective plan prepared by the University under Section 82 of the Maharashtra Universities Act, 1994 is binding on the State Government, an application/proposal not submitted to the University for starting a new college cannot be entertained and considered by the State Government directly under its purported discretionary powers set out in the proviso to Sub-section 5 of the said section and while exercising the discretion under the said proviso, there is no absolute power vested in the Government to entertain an application which did not meet the recommendations of the perspective plan or which application was not submitted to the University. The provisions of Section 64 of the Act are in pan materia with the provisions of Section 82 of the Maharashtra Universities Act. A distinction was sought to be made by the learned Special Counsel appearing for the State Government on the ground that the Act deals with establishment of professional courses of higher learning and not any other colleges contemplated within the scheme of Section 82 of the Maharashtra Universities Act and therefore, the law laid down by this Court in the cases of Dhananjay Kulkarni and Shikshan Samiti (supra) was not applicable while interpreting the scheme of Section 64 of the Act. These submissions do not commend to us. An institution of higher learning whether it is in social science, or health science cannot be distinguished or one cannot be treated above the other while examining the procedure for establishment of such institution as set out in the Maharashtra Universities Act or under the Act. A proposal for starting a new Medical College cannot be treated on a higher pedestal than a proposal to state new college in Arts or Science or even for that matter an Engineering College. The irresistible conclusion that we draw is that the perspective plan framed by the Health University under Section 64(1) of the Act is binding on the State Government and the State Government cannot entertain an application directly unless it is considered and recommended by the University concerned. In the instant case there is nothing on record to show that the State Government had ever submitted an application in the prescribed format to the University for proposal to start the said new College. It is revealed from the record that on 18-1-2000 the Government of Maharashtra had approached purportedly seeking. No Objection Certificate for affiliation and the same was turned down by reply dated 19-1-2000.

On the very next day i.e. 20-1-2000, the University has given no objection for affiliation subject to the State Government granting permission to start the college and fulfilment of the norms prescribed by the Council. Unless the provisions of Section 64 of the Act are complied in toto, there is no question of jumping over to the provisions of Section 65 of the Act for affiliation. The State Government, on one hand takes a plea that it is not bound by the provisions of Section 64 and on the other hand takes shelter of Section 65 of the Act and says that it has been granted the necessary no objection by the University. The stand of the State Government is self contradictory. The proviso to Sub-section 5 of Section 64 can not be read independent of the entire section and they have to be read in conjunction with the total scheme therein. On one hand it is stated that it is not bound by the provisions of Section 64 and in the same breath it says that it has exercised its discretionary powers under the proviso to Section 64(5) of the Act. We are dismayed by such defence taken by the State Government. The term "management" as used in Section 64(3) of the Act covers in its ambit the State Government as is clear from its definition in Section 2(21) and therefore, it was required for the State Government to apply to the University in the prescribed form before the end of October 1999 and the University in turn could have considered the said proposal in keeping with the perspective plan, the overall need of medical education keeping in mind the regional balance and to serve the underdeveloped and unserved areas on priority. The Act says so in no uncertain words and it can not be rendered meaningless by the State which is answerable to the legislature which has enacted the statute.

15. After the impugned notification dated 30-8-2000 was issued by the State Government, it issued a subsequent G.R. on 4th September 2000 transferring some teaching staff from various Government Medical colleges in the State to the proposed college at Kolhapur. These colleges are from Mumbai, Aurangabad, Nagpur, Miraj, Nanded Ambejogai, Pune and Solapur. Practically from every existing medical college some teachers were sought to be transferred by the said G.R. dated 4-9-2000 to the said new College. These staff members were also relieved by the concerned Deans under instructions from the State Government. In the affidavit-in-reply submitted before us, it is stated that there were some surplus teaching staff members in the Government Medical Colleges at Pune, Miraj, Solapur and Mumbai in view of the revised norms brought in force by the Council and therefore, to meet the infrastructural requirements for M.C.I. sanction, these posts were transferred to the proposed medical College and the Government Medical Colleges in the backward regions like Marathwada and Vidarbha were not disturbed, However, a copy of the fresh G.R., if any, revising or modifying the G.R. dated 4-9-2000 is not before us.

16. In the State of Maharashtra there are in all 33 Medical Colleges and 11 of them are Government Medical Colleges. In Vidarbha region there are six Medical Colleges (three of them being Government Medical Colleges and remaining three private Medical Colleges), in the Marathwada region there are five Medical Colleges (three Government Medical Colleges and two private Medical Colleges). As against this in the rest of Maharashtra area there are 22 Medical Colleges (five Government Medical Colleges and 16 private Medical Colleges). The intake capacity for M.B.B.S. seats in the Colleges of Vidarbha region is 650, for Marathwada region 450 and for rest of Maharashtra it is 2255 seats. The rest of Maharashtra area consists of 15 districts, Vidarbha consists of 11 districts and Marathwada region consists of 8 districts with three Revenue Divisions in rest of Maharashtra, two Revenue Divisions in Vidarbha and one Revenue Division for the Marathwada area. The State Government in its additional affidavit has stated that under the Shivaji University territorial area consisting of four districts namely Kolhapur, Satara, Sangli and Solapur, there is inadequate facility of higher learning in medical education and therefore, the Government of Maharashtra on the basis of the Indicator Committee's report has decided to establish the said new College. This ground is fallacious. At Kolhapur there already exists a private Medical College with 100 seats, at Solapur there is a Government Medical College with 100 seats capacity, in Sangli District there is a Government Medical College at Miraj for 100 seats capacity and in Satara District there is a private Medical College at Karad with 100 seats capacity. Thus in the Shivaji University area at Kolhapur, there are already four Medical Colleges with 400 seats for the M.B.B.S. course with one college in each district. The socalled Indicator Committee's report was not presented before us and it is not known when such a report was prepared, though some extracts from that report have been placed on record and on the basis of population ratio the report shows that there is a backlog of 192 seats for the rest of Maharashtra, 211 seats for Marathwada and 199 seats for Vidarbha region. Even if this report is taken as it is, the backlog is more in Marathwada and Vidarbha as compared to rest of Maharashtra area and we fail to understand as to why such a report was not made available to the Maharashtra Health University in which the Pro-Chancellor is the Minister for Heath and the Secretary in the Department of Medical Education and Research, Director of Health Services and Director of Medical Education and Research are member in the Senate. The State Government has a major say in the administration of the Health University which obviously implies that the State Government does have the authority to influence or mould the decisions/recommendations/reports including perspective plan prepared by the University, if regards be had to the scheme of the Act.

17. The Government has yet another report and that is Swaminathan Committee which purportedly had identified the backward areas in the Western Ghat consisting of 61 Talukas. The distribution of 61 Talukas in the Western Ghat region districtwise is as under :

Thane

Raigad

Ratnagiri

Sindhudurg

Nasik

Dhule

Ahmednagar

Pune

Satara

Sangli

Kolhapur

This report was obviously prepared before the Nandurbar District was carved out of the Dhule District and we do not know in what year it is prepared. The fact remains that for Thane and Raigad districts there are three Medical Colleges in new Mumbai and one Medical College at Thane with a total intake capacity of 360 seats. In Pune district, there are three Medical Colleges with a total capacity of 400 seats in addition to the autonomous college of Bharti Vidyapeeth. In Nashik district, there is one Medical College with 120 seats, in Ahmednagar district, there is one Medical College with 152 seats, in Satara district there is one Medical College with 100 seats. So far as Sindhudurg, is concerned there is one Ayurvedic College and it is obvious that there is no Medical College providing M.B.B.S. courses in Ratnagiri and Sindhudurg districts. For Sangli district, there is one Medical College at Miraj and for Kolhapur district there is one Medical College at Kolhapur as observed hereinabove. Therefore, the contentions of the Government that it decided to start an additional Government Medical College at Kolhapur to cater to the requirements of the 62 Talukas in the western Ghat region is equally fallacious. The Health University, as is evident from the perspective plan for 2001-2006, has obviously addressed to all the relevant issues while preparing the said plan and it therefore, suggested that there is a need to start additional Medical Colleges for M.B.BS. courses in the Marathwada and Vidarbha regions.

As has been observed by us in our earlier order dated 5-10-2000 three districts of Khandesh namely Dhule, Nandurbar and Jalgaon have two Medical Colleges at Dhule with intake capacity of 150 seats. Even if we consider the distribution of medical seats/medical colleges on the basis of Revenue Divisions, Kolhapur falls under the Pune Revenue Division whereunder, there are Medical Colleges in Pune, Solapur, Satara, Sangli and Kolhapur districts, which means all the Districts under the Pune Revenue Division do have Medical Colleges as at present. The University considered the mandate of Article 371 of the Constitution while incorporating its final proposals in the perspective plan and proposed formation of Medical Colleges in the unserved and underdeveloped areas with an emphasis to cater on priority to the underdeveloped areas. Its emphasis on selecting the locations of such institutions of higher learning is based not only on the density of population vis-a-vis the availability of health facilities but also the social considerations including the tribal population. The perspective plan also keeps in mind the concept of maintaining a regional balance. The constitution of various authorities under the Health University as set out under the Act, takes into consideration the different revenue Divisions and the regions like Vidarbha, Marathwada and rest of Maharashtra. The University therefore, had in its mind the overall perspective of the State and having deliberated on these issues it prepared a perspective plan. The State Government contends before us that such a plan is not binding on it for an additional reason that it is without application of mind, the concerned authorities as provided under the Act do not exist at present and it is based on outdated figures. It would be useful to reproduce the reply by the University in this regard and it reads thus :

"3. I say that as per the provisions of Section 64(1) of the Maharashtra University of Health Sciences Act, 1998, this respondent University has prepared a Perspective Education Plan for opening new Colleges/Institutions of higher learning to ensure equitable distribution of facilities of education in health science for the academic year 2000-2001, copies of which were submitted to the respondent No. 1, State of Maharashtra for necessary action and the information. I say that however, the respondent No. 1 State of Maharashtra did not suggest any change in the said perspective plan. I say that the said perspective plan was prepared by the Academic Council and was approved by the Management Council and Senate which were formed by the Hon'ble Vice-Chancellor in view of the powers vested in him under Sub-section (4) of Section 93 of the said 1998 Act. I further say that the State Government had also sent a letter dated 28-8-2000 confirming that committees which have been appointed by the Vice-Chancellor in exercise of his power under Section 93(4) are duly empowered and authorised to use the appropriate power vested in them under the said Maharashtra Health Universities Act, 1998. Hereto annexed and marked as EXHIBIT R-I is the copy of the said letter dated 28-8-2000.1 say that therefore, it is not proper on the part of the respondent No. 1 State of Maharashtra to state that "even otherwise the academic bodies which are required to be involved in preparing the said plain, do not exist as on today with the University contracts the contents of its letter mentioned above and the Act."

18. We are informed by the learned counsel for the University that the Vice-Chancellor has invoked his transitory powers under Section 93 of the Act and constituted the authorities concerned like the Management Council, Academic Council, Planning Board, Board of Studies and Board of Examinations etc. and the perspective plan for 2001-2006 as well as the earlier plan has been prepared strictly in keeping with the mandate of the Act. On one hand the State Government relies upon the perspective plan of 2001-2006 and contends before us to dismiss the petition on the basis of that plan and on the other hand, it contends that the said perspective plan is not binding on it. We do not know where the State Government stands and surely, it is bound by the perspective plan prepared by the University. Even on the basis of the perspective plan for 2001-2006 the decision of the State Government impugned in this petition is ill-founded. In table 42, the rest of Maharashtra region has been shown surplus M.B.B.S. seats and there is deficit in the Vidarbha and Marathwada regions as has been quoted earlier.

19. The learned Special Counsel for the State Government has taken up yet another ground in support of the impugned decision. It was submitted that once the State Government has taken a policy decision, it does not call for interference by this Court and this Court should be slow in interfering with such policy decisions in a petition under Article 226. In support of these arguments, reliance was placed on the following enunciations :

1) Hindi Hitrashak Samiti and Ors. v. Union of India and Ors., . 2) State of H. P. v. H. P. State Recognised and Aided Schools Managing Committees and Ors., . 3) M. P. Oil Extraction and Anr. v. State of M. P. and Ors., .

It is urged that the right to free education is available only to children until they complete the age of 14 years and thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development and therefore, starting -of such institutions of higher learning is always subject to the economic capacity of the State. The State Government is not required to provide for the facilities of higher learning irrespective of its financial capacities. In the case of M. P. Oil Extraction (supra) the Apex Court inter alia observed :

"The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State."

In the case of Hindi Hitrakshak Samiti (supra) the Apex Court stated thus :

"It is well settled that judicial review, in order to enforce a fundamental right, is permissible of administrative, legislative and governmental action or non-action, and that the rights of the citizens of this country are to be judged by the judiciary and judicial forums and not by the administrators or executives. But it is equally true that citizens of India are not to be governed by the judges or judiciary. If the governance is illegal or violative of rights and obligations, other questions may arise but whether, as mentioned hereinbefore, it has to be a policy decision by the government or the authority and thereafter enforcement of that policy, the Court should not be, and we hope would not be an appropriate forum for decision."

20. In the instant case the policy decision of the State Government of establishing a new Government Medical College is not only contrary to the provisions of the Act but indeed it does not meet the constitutional mandate of maintaining regional balance as contemplated under Article 371 of the Constitution. The State Government by an affidavit takes a stand before us that it is not bound by the statutory provisions inasmuch as the perspective plan framed by the University under Section 64(1) of the Act, is not binding on it, notwithstanding the law laid down by this Court in the case of Dhananjay Kulkarni as well as Shikshan Samiti (supra). The decisions of the Apex Court as relied upon by the learned Special Counsel for the State Government in fact, go against the decision impugned before us. When a democratically elected State Government takes a stand that it is not bound by the statutory provisions under the name of absolute discretion, we are afraid, the democratic governance falls in peril as the governance based on law is one of the basic foundations on which a democracy survives. The State Government came with supplementary reasons to state that the perspective plan was illegally prepared and we have dealt with this contention as well. Such a contention does not go well with an elected Government, to say the least, specially when it has a major participation in the governance of the University and policy decisions that it takes. We understand the Government's political compulsions and we do appreciate that every political decision need not be interfered per say, but when such decisions are supported on the ground that the Government has discretionary powers notwithstanding the statutory provisions, this Court as one of the protectors of the Constitution must step in to correct the situation and it is for these reasons that such decisions are required to be interfered with by invoking our powers under Article 226 of the Constitution.

21. In the case of Babaji Kondaji Garad and Ors.. v. Nashik Merchant Co-operative Bank Ltd., , the Supreme Court held that if the statute stipulates an act to be done in a particular manner, it has to be done in that manner alone. In the case of Chandra Kishore Jha v. Mahavir Prasad and Ors., the Supreme Court after referring to the earlier judgments in the case of Nazir Ahmend v. King Emperor , Rao Shiv Bahadur Singh v. State of V. P., , has restated the same principle. In the case of Dhananjaya Reddy v. State of Karnataka, 2001 AIR SCW 1217, the Apex Court once again held that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. If the Act has provided a methodology for establishing a new Medical College by any management which includes the State Government, the College has to be established in that manner alone or not at all. If any management ventures to start a Medical College in disregard to the provisions of Section 64 of the Act, such an action will have to be interfered with and set aside. The decision of the State Government to start Government Medical College at Kolhapur, fails on all counts and even on the grounds urged before us, there is no justification in support of the said decision. We wonder whether it could be really termed as a policy decision in the circumstances that have been urged before us by the petitioners. The perspective plan prepared by the University under Section 64(1) is binding on the State Government and more so for the reasons stated in paras 10 and 11 of this judgment. The Government cannot circumvent the statutory requirements prescribed for establishing a new College. The provisions of Section 64 of the Act cannot be put on hold under the pretext of the State's discretionary powers and the said provisions cannot be read down as is claimed by it. The provisions of Section 96 of the Act cannot be stretched to the extent the State Government believes. The State Government has powers to do anything which is not inconsistent with object and purpose of the Act and that too not later than two years from the date of commencement of the Act. This provisions does not assist the State in defending the impugned decision. When the Legislature has created an apex body like the University, the State Government cannot render that intention of the Legislature otiose or redundant under the garb that the availability of physical facilities supports the decision to start the new college at Kolhapur and contrary to the perspective plan formulated by the University. Once the Legislature's intention is translated in an enactment, the Government is bound to follow the mandate of the said statute. It is pertinent to note that 400 beds available with the Civil Hospital at Kolhapur have been attached to the existing private medical college at Kolhapur, as per the order passed by this Court in Writ petition No. 2324 of 2000 and these beds are likely to be released in phases by July 2003.

22. To conclude we hold that:

(a)     The decision of the State Government to establish a Government Medical College at Kolhapur is contrary to the provisions of Section 64 of the Act and against the law laid down by this Court in the case of Dhananjay (supra),
 

(b)    the State Government does not have a power to establish a Government Medical College at a location which is not proposed in the perspective plan and permission for such new College to be granted by the State Government ought to be in keeping with the said plan, as per the scheme of Section 64 of the Act,
 

(c)     The State Government is bound by the perspective plan for considering any proposal to start an institution of higher learning in health sciences irrespective of whether such proposal is submitted by a private management or by the State Government. A proposal for opening a new college and which is not submitted to the University under Section 64(3) is non est and therefore, a new College  cannot  be  established  under  a  proposal  therefor  is submitted to and considered by the University.
 

(d)     The impugned decision is unsustainable on all counts and therefore, deserves to be interfered with by invoking our powers under Article 226 of the Constitution as the said decision has been arrived at without following the procedure as set out under Section 64 of the Act and in disregard to the perspective plan formulated by the University for the year 2000-2001 as well as 2001-2006. 
 

23. In the result, the decision of the State Government as announced vide .G.R. dated 30-8-2000 to establish a Government Medical College at Kolhapur is hereby quashed and set aside and we partly allow the petition by making Rule absolute in terms of prayer Clause (D).
 

24. This was a petition, moved in public interest and having regard to the stand taken before us by the State Government, in support of its impugned decision, we have no hesitation to hold that this is a fit to grant costs and therefore, we direct the State Government to pay costs of Rs. 5,000/- to the petitioner No. 1 which shall use this money for rendering medical assistance to the poor patients or for holding medical camps in tribal areas. This amount be deposited by the Secretary in the Department of Medical Education and Health within a period of two weeks from today.

25. Shri Sawant, learned Government Pleader at this stage, presented an oral application for stay to our judgment for a period of four weeks. We do not find any substance in this prayer, more so because in the admission Rules for the current academic year the proposed College is not included and the Medical Council of India has not yet granted permission/approval under Section 10A of the Medical Council of India Act. The prayer is therefore, rejected.