Ravi Nair Physiotherapy College vs State Of Maharashtra Through Its ...
2001 Latest Caselaw 851 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Shri Manohar, the learned Counsel for the petitioner, Shri Gavai, the learned Government Pleader for respondent No. 1 and Smt. Khade, the learned Counsel for respondent No. 2.

2. The present Civil Application No. 5536 of 2001 is filed by the petitioner seeking direction to respondent No. 1-State Government to restore the intake capacity of the petitioner College from 50 to 100 students.

3. Shri Manohar, the learned Counsel for the petitioner, contended that the Trust, which runs petitioner College, viz. Smt. Radhikabai Meghe Memorial Medical Trust, Sawangi (Meghe), Wardha, applied to the State Government for starting a Physiotherapy College and the permission for opening the said College was granted by the Nagpur University vide its letter dated 30-12-1995. The learned Counsel contended that the State Government also issued resolution dated 4-7-1998 granting such permission to the said trust from Academic Session 1998-99 and the permission was granted for a period of three years with an intake capacity of 40 students each year.

4. The learned Counsel for the petitioner further contended that the petitioner College admitted 40 students and also applied to respondent No. 2 University for increase in intake capacity of the College from 40 to 100 students. Due inspection was carried out and after inspection, respondent No. 2 University recommended vide its communication dated 22-12-1999 to the State Government to allow the petitioner College to increase its intake capacity from 40 to 100 students from Academic Session 2000-01. However, the decision in this regard was to be taken by the Government.

5. The learned Counsel for the petitioner contended that the State Government vide its resolution dated 17-7-2000 accepted the recommendations of respondent No. 2 University for increase in intake capacity from 40 to 100 students. It is further contended that the permission granted by the State Government vide its resolution dated 17-7-2000 was subject to approval of the Maharashtra University of Health Sciences.

6. It is contended by the learned Counsel for the petitioner that in view of the abovereferred recommendations of the University dated 22-12-1999 and resolution of the Government dated 17-7-2000, the petitioner College was entitled to admit 100 students for Academic Session 2000-01. However, the applications were only of 85 students and, therefore, 85 students were admitted for the said academic session. It is contended that the increased intake capacity of 100 students includes 15 per cent of the NRI quota, which is permitted to be filed in by the petitioner College under the Rules.

7. The learned Counsel for the petitioner contended that the State Government issued an advertisement for admission to the first year courses in the Health University for payment seats in the State of Maharashtra for Academic Session 2001-02 and as far as the petitioner College is concerned, the State Government in the prospectus mentioned the intake capacity of the petitioner College for Academic Session 2000-01 as 50.

8. The learned Counsel for the petitioner further contended that being aggrieved by this act of the State Government, the petitioner College was constrained to file Writ Petition No. 2441 of 2001 in this Court. The writ petition was listed for admission on 14-9-2001 and during the course of hearing of the said writ petition, the petitioner had canvassed the abovereferred grievance and contended that the action of the State Government in reducing, unilaterally the intake capacity of the petitioner College from 100 to 50 students is arbitrary and bad in law. It was also pointed out to the Court the communication dated 9-8-2001 addressed to the Vice Chancellor by the Government, wherein the Government had disclosed its intention to continue the permission granted in the previous year for 100 students for Academic Session 2000-02. During the course of hearing of Writ Petition No. 2441 of 2001, it was, therefore, contended by the learned Counsel for the petitioner that the action of the Government in reducing the intake capacity the petitioner College from 100 to 50 students is also inconsistent with the abovereferred communication dated 9-8-2001 and is totally arbitrary.

9. The learned Counsel for the petitioner contended that this Court disposed of the writ petition on the basis of the statement made by the learned Assistant Government Pleader that the intake capacity of the petitioner College as 50 students, as shown in the prospectus, which is Annexure-C to the petition, is by mistake; however, the intake capacity of the petitioner College is 100 students. On the basis of this statement, the petitioner College was sought permission to withdraw Writ Petition No. 2441 of 2001 and the same was disposed of as withdrawn vide order dated 14-9-2001.

10. The learned Counsel for the petitioner further contended that the petitioner College was under impression that the intake capacity of 50 students shown in the prospectus due to inadvertence would be corrected by the State Government. However, when the State Government did not rectify the mistake, the petitioner College approached the State Government for necessary rectification. Instead of rectifying the mistake, the petitioner College was informed that they are not permitted to admit more students than 50 for Academic Session 2001-02. Since the petitioner College was left with no other alternative, they have again approached this Court by filing the present civil application for necessary orders.

11. Shri Gavai, the learned Government Pleader appearing for respondent No. 1, contended that the statement, which was made by the learned Assistant Government Pleader, was on the basis of the fax message dated 13-9-2001 received by the Office of Government Pleader. The learned Government Pleader further contended that the intake capacity of the petitioner College was increased from 40 to 100 students for Academic Session 2000-01 only and which is also reflected in Government Resolution dated 17-7-2000. It is further contended that the statement, which was made by the learned Assistant Government Pleader referred to hereinabove, was not based on facts and, therefore, the State Government is also not bound by the said statement.

12. The learned Government Pleader contended that the procedure in regard to the conditions for affiliation and recognition is contemplated in section 63 of the Maharashtra University of Health Sciences Act, 1998 (for the sake of brevity, hereinafter referred to as "the Act"), the procedure for permission is provided in section 64 and the procedure for affiliation is provided under section 65 of the Act. The learned Government Pleader contended that sub-section (5) of section 65 of the Act contemplates that the procedure referred to in sub-sections (1) to (6) of section 64 shall apply, mutatis mutandis, for the permission to open new courses, additional faculties, new subjects and additional divisions. On the basis of these provisions, the learned Government Pleader tried to canvass before us that it was necessary for the petitioner College to obtain necessary permission for admitting students above the sanctioned intake capacity of the petitioner College granted by the University and approved by the State Government. It is contended that since initial sanctioned intake capacity of the petitioner College was 40 students, the petitioner College was not entitled to admit more than 40 students for Academic Session 2001-02 without obtaining necessary permission from the respondent Health University. The learned Government Pleader states that though in the prospectus, the Director of Medical Education has given the figure of 50 students as the intake capacity of the petitioner College for Academic Session 2001-02, the same is by mistake and due to inadvertence; in fact the Director ought to have mentioned that the petitioner College is only entitled to admit 40 students, which is the sanctioned intake capacity of the petitioner College. It is further contended that appropriate action against the director concerned is underway.

13. The learned Government Pleader further states that the communication dated 9-8-2001 does not reveal that the Government has granted permission to the petitioner College to admit 100 students for Academic Session 2001-02. It only conveys the intention of the Government that the Government would not have any objection if the permission granted to the petitioner College in the previous year for admitting the students is continued for Academic Session 2001-02. It is further contended that this communication dated 19-8-2001 is between the State Government and the Vice Chancellor. The learned Government Pleader, therefore, contended that the petitioner College is entitled to admit only 50 students for Academic Session 2001-02 as per the prospectus published by the State Government.

14. Smt. Khade, the learned Counsel appearing for respondent No. 2-Health University, contended that the recommendations dated 22-12-1999 made by the respondent/University, whereby the petitioner College was permitted to increase the intake capacity of the students from 40 to 100 was for Academic Session 2000-01. However, the respondent/University has to follow the procedure before issuing such recommendations as contemplated in sub-section (3) of section 64 of the Act. It is contended that sub-section (3) of section 64 of the Act contemplates that the management 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. Similarly, sub-section (4) of section 64 of the Act contemplates that 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. The learned Counsel for the respondent/Health University contended that after going through the abovereferred procedure contemplated in sub-sections (3) and (4) of section 64 of the Act and on the basis of the recommendations of the Management Council, the University issued the communication dated 22-12-1999, whereby the intake capacity of the petitioner College was increased from 40 to 100 students from Academic Session 2000-01.

15. The learned Counsel appearing for respondent No. 2 further contended that after the recommendations forwarded by the University, it is for the Government to take necessary decision in this regard. The learned Counsel further contended that the procedure, which deals with post-permission granted by the State Government, is contemplated in section 65 of the Act. It is contended that sub-section (1) of section 65 of the Act contemplates that 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 final decision is required to be taken by the Academic Council in this regard. It is further contended that sub-section (2) of section 65 of the Act contemplates that the Academic Council needs to constitute a Committee for this purpose and as per sub-section (3) of the said section, the Academic Session needs to further decide (a) whether affiliation should 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 and (d) conditions, if any, which may be stipulated, while granting the affiliation.

16. The learned Counsel for respondent No. 2/University contended that sub-section (4) of section 65 of the Act further provides that the Registrar shall communicate the decision of the Academic Council to the applicant management with a copy of the Secretary, Medical Education and Drugs Department, and if the application for affiliation is granted, along with an intimation regarding (a) the subjects 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. It is contended by the learned Counsel for respondent No. 2/University that the procedure regarding post-permission contemplated in section 65 of the Act is yet to be completed for Academic Session 2000-01 as well as Academic Session 2001-02. The learned Counsel states that in view of the permission granted by the State Government vide its Resolution dated 17-7-2000 for the increase in intake capacity to the extent of 100 students on the basis of the recommendations of the University dated 22-12-1999, as per the provisions of section 65 of the Act, a Committee contemplated by sub-section (2) of section 65 of the Act is constituted by the University on 7-9-2001. The said Committee is considering the aspect contemplated in sub-section (3) of section 65 of the Act-whether affiliation should be granted or not-and the report of that Committee is awaited. The learned Counsel for the respondent/University, therefore, contended that the procedure contemplated in section 65 of the Act is not yet over in respect of grant of affiliation to the petitioner College in regard to the increase in intake capacity of the petitioner College to the extent of 100 students from 40 students and, therefore, at this stage, it is not possible to point out whether the Committee would take favourable or otherwise decision. However, any decision taken by the Committee would be communicated to the petitioner College as contemplated in sub-section (4) of section 65 of the Act in respect of both the Academic Sessions, that is 2000-01 and 2001-02.

17. We have considered the various contentions canvassed by the respective Counsel. On the basis of the contentions advanced by the respective Counsel, we allow Civil Application No. 5536 of 2001 and revoke the earlier order dated 14-9-2001, since the same was passed by us on misconception of facts. The Court is entitled to revoke any order, which is passed on the basis of misconception of facts, fraud, misrepresentation, etc. Since the learned Government Pleader pointed out to us that the order dated 14-9-2001 was passed on misconception of facts, we have recoked the said order and heard Writ Petition No. 2441 of 2001 on merits.

18. Rule. Returnable forthwith. Heard finally with the consent of parties.

19. The learned Counsel appearing for the petitioner as well as the respondents contended that even on merits they want to adopt the same arguments, which they have advanced, while arguing the civil application.

20. We have given our anxious thoughts to the contentions advanced by the respective Counsel. In the backdrop of the abovereferred facts, which were placed before us, the following undisputed facts emerge:

That in the year 1998-99, the petitioner College was granted permission to start a Physiotherapy College with an intake capacity to the extent of 40 students. The petitioner College applied to the University for increase in intake capacity from 40 to 100 students. The respondent No. 2, in order to consider the request of the petitioner College for increase in intake capacity, undertook the procedure contemplated in sub-sections (3) and (4) of section 64 of the Act. It appears that the Planning Board as contemplated in sub-section (4) of section 64 of the Act, after necessary scrutiny, forwarded the application of the petitioner institution to the Government with the recommendations of the Management Council. The recommendations dated 22-12-1999 forwarded by the University to the State Government show that the permission for increase in intake capacity to the extent of 100 students was recommended by the University to the Government from Academic Session 2000-01 and not only for Academic Session 2000-01. On the basis of these recommendations, the Government issued Resolution dated 17-7-2000 permitting the petitioner college to increase its intake capacity to the extent of 100 students for the Academic Session 2000-01.

21. The communication dated 9-8-2001 addressed to the Vice Chancellor of respondent No. 2/Health University reads thus:

"Government on 17th July, 2001 had given permission for 100 seats for a period of one year and this was to be confirmed on the basis of reports from you. By now, I think, you would have completed your survey/inspection and reached at a conclusion. Government is also of the view that the permission granted previous year for 100 seats should be continued. However, you should give affiliation for 100 seats for the current year also."

22. On the basis of these undisputed facts, it is clear to us that the recommendations dated 22-12-1999 forwarded by the University referred to hereinabove for increase in intake capacity of the petitioner College to the extent of 100 students is after complying with the procedure contemplated in sub-sections (3), (4) and (5) of section 64 of the Act. The recitals in the said recommendations do not, in our opinion, restrict the same only to the year 2000-01. On the other hand, the content of the said recommendations reveal that they are applicable from Academic Session 2000-01 onwards.

23. It is, however, true that vide Government Resolution dated 17-7-2000, there is a stipulation that the permission is granted by the Government for increase in intake capacity to the petitioner College on a temporary basis and for a period of one year. However, the communication dated 9-8-2001 clearly demonstrates the intention of the Government to continue the said permission for increase in intake capacity to the extent of 100 seats for Academic Session 2001-02.

24. In view of these vital facts, it is difficult for us to accept the contention of the learned Government Pleader that the State Government did not intend to continue the permission for increase in intake capacity to the extent of 100 students for Academic Session 2001-02. On the other hand, the documents placed before us speak otherwise. It is not in dispute that the communication dated 9-8-2001 is issued by the Secretary, Medical Education and Drugs Department, Mantralaya, Bombay, which is addressed to the Vice Chancellor and the recitals in the said communication do convey the intention of the Government to continue the permission for 100 seats even for the current Academic Session, that is 2001-02.

25. The contention canvassed by the learned Government Pleader that due to inadvertence of the Director of Medical Education, the intake capacity of the petitioner College is shown as 50 students in the prospectus, which is published for the Academic Session 2001-02, is also without any basis and justification. There is nothing to show that the University has either withdrawn its earlier recommendations in respect of increase in intake capacity, or there is any other contingency on the basis of which, the Government was required to reduce the intake capacity from 100 to 50 students. The only reason putforth before us by the learned Government Pleader in this regard is that the mistake occurred in the prospectus was due to inadvertence of the Director. It is very difficult to accept the said contention, particularly when the intention of the Government appears to be to continue the permission for 100 students for the present Academic Session, is clear from the communication dated 9-8-2001. In our opinion, this reduction in intake capacity of the petitioner College from 100 to 50 students is arbitrary and without any valid reason or justification.

26. It is now doubt true that even if the Government has granted permission for increase in intake capacity to the extent of 100 students for Academic Session 2000-01 as well as Academic Session 2001-02, the same is not final and is subject to procedure contemplated in section 65 of the Act. It is really unfortunate that the University has not even taken any decision in respect of affiliation whether to be granted or not-as contemplated in section 65 of the Act for the increase in intake capacity to the extent of 100 students for Academic Session 2000-01. We are really surprised that though the recommendations were forwarded by the University for permission to increase in intake capacity to the extent of 100 students to the State Government vide its communication dated 22-12-1999 and the permission was also granted by the State Government and the students were also admitted by the petitioner College on the basis of the recommendations made by the University and the permission granted by the State Government for the Academic Session 2000-01 in the faculty of Physiotherapy, the University has not taken any decision uptill now regarding grant of affiliation, as contemplated in section 65 of the Act. It is difficult to imagine the plight of the students if the decision regarding affiliation required to be taken by the University under section 65 of the Act goes against the petitioner College for any valid reason. It is the authorities, those who are associated and connected with the entire process, are responsible for such lapses and for their lapses, ultimately, the students are likely to be vitally affected. We expect that all such decisions, which adversely affect the future of the students, should be taken within the stipulated period and at its earliest in order to avoid the uncalled for repercussions on the career of the students, without their faults.

27. For the reasons stated hereinabove, we pass the following order:

28. We direct respondent No. 1/State to grant permission to the petitioner College to admit students to the extent of 100 for Academic Session 2001-02 and also make it clear that at the time of grant of permission to the students, they should be informed that the same would be subject to affiliation from the University, as contemplated in section 65 of the Act. The correction in the prospectus should be made forthwith accordingly. We also direct respondent No. 2/University to take a decision in respect of grant of affiliation to the increase intake capacity of the petitioner College to the extent of 100 students for Academic Session 2000-01 as well as Academic Session 2001-02 within a period of eight weeks from today, as per the procedure contemplated in section 65 of the Act and inform the same forthwith to the petitioner College.

29. Rule is made absolute in aforesaid terms. No order as to costs.

30. Certified copy expedited.