The Konkan Education And Medical ... vs State Of Maharashtra, The ...
2003 Latest Caselaw 202 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. Patil, learned Assistant Government Pleader, appears and waives service of notice of rule on behalf of respondent Nos. 1 to 5. Mr. S.B. Shenoy, learned counsel, appears and waives service of notice of rule on behalf of respondent No. 6. Mr. R.V. Govilkar, learned counsel, appears and waives service of notice of rule on behalf of respondent No. 7. In the facts and circumstances, the matter is taken up for final hearing.

2. This petition is filed by the petitioners directing respondent Nos. 1 to 5 (state authorities) and respondent No. 7, Maharashtra University of Health Sciences ordering them to grant permission/sanction and affiliation to the increase intake capacity of 25 seats in the first year BHMS Course for the academic year 2002-03.

3. The case of the petitioners is that it is a Public Charitable Trust duly registered under the Bombay Public Trust Act, 1950. Its object is to run hospitals, colleges and institutions imparting medical education. According to the petitioners, in 1989, the State of Maharashtra, respondent No. 1 herein, granted permission to the petitioners to start Homoeopathy Course. The Central Council of Homoeopathy ("CCH" for short), respondent No. 6 herein, after inspecting petitioners college, hospital and infrastructure, granted permission to the petitioners to run Homoeopathy Degree Course (BHMS) having 50 intake capacity. In 1996, the first respondent granted permission to the petitioners to start BHMS Degree Course of having 50 intake capacity. In the year 2000, respondent No. 6 allowed increased intake capacity from 50 to 75 seats. All the other respondents also accepted the decision and it could be implemented.

4. According to the petitioners, respondent No. 6 thereafter visited the petitioners college and hospital and after verification of infrastructure, etc. in the meeting of its Executive Committee held on 30th September, 2002, allowed intake capacity to 100 students from 75 students for the academic year 2002-03. The said order is at Exhibit-A to the petition. The petitioners, therefore, on 1st October, 2002, made a representation to the State authorities (respondent Nos. 1 to 5) requesting them to allow increase of 25 seats from 75 to 100. The respondent authorities, however, informed the petitioners by a letter dated 3rd October, 2002, to obtain permission from respondent No. 7- University. Hence, the petitioners made such an application to respondent No. 7-University on 14th October, 2002 for increase of 25 seats and also sent a demand draft of Rs.50,000/-. On 21st October, 2002, respondent No. 7 returned the petitioners application for affiliation along with the demand draft (Exhibit-F). In the said letter, it was mentioned by respondent No. 7 that the University does not accept the proposal for increase in intake capacity for academic year 2002-

03. It was then stated;

"you have to apply afresh, for increase in intake capacity for Academic Year 2003-2004 with a proposal in the University format before 31st Oct. 2002 along with D.D. of Rs.25,000/-"

The petitioners again sent several reminders to respondent Nos. 1 to 5 as well as to respondent No. 7 for grant of permission to increase intake capacity, but no action was taken by those respondents. Hence, they are constrained to approach this Court by filing the present petition.

5. We have heard the learned counsel for the parties.

6. The learned counsel for the petitioners contended that it is settled law that once the expert body grants permission to increase intake capacity, it was neither open to the State authorities nor to the University to refuse such permission and the action of respondent Nos. 1 to 5 State authorities as well as of respondent No. 7- University is illegal, unlawful and deserves interference by this Court. It was also contended that respondent No. 6-CCH was also conscious of the said fact and vide a letter dated October 21, 2002 (Exhibit-E), issued directions that the Education Committee of the Council in its meeting dated September 9, 2002 had noted "with great concern" that majority of Universities/Colleges/State Governments were not following the Regulations of Central Council. A request was, therefore, made to ensure that all authorities concerned should follow the relevant Regulations of Central Council applicable to run BHMS/M.D. (Hom.) Courses. The said letter is also annexed at Exhibit-E to the petition. The counsel submitted that once the expert body had permitted increase in intake capacity, mere consequential actions were required to be taken by State authorities as well as by University. They had no power to sit over the decision taken by the expert body. Such an action is clearly inconsistent with statutory provisions as also several decisions of the Supreme Court and of this Court.

7. The counsel in this connection relied upon a decision in State of Tamil Nadu & Anr. etc. etc. vs. Adhiyaman Educational & Research Institute & Ors. etc. etc., . A reference was also made to a decision of the Division. Bench of this Court in Writ Petition NO. 7332 of 2002, Disha Shikshan-V-Vikas Kendra vs. Maharashtra University of Health Sciences and Ors., decided on January 21, 2003. A prayer was, therefore, made to issue appropriate directions to respondent Nos. 1 to 5- State authorities and to respondent No. 7 to take appropriate action in the light of the decision arrived at by respondent No. 6-CCH. It was also stated that the final round of admission will be taken up shortly and hence an order may be passed directing the respondents to take immediate action.

8. The learned counsel for the respondents, on the other hand, submitted that a decision has been taken by the respondents in accordance with the provisions of the Maharashtra University of Health Sciences Act, 1998 (hereinafter referred to as "the Act"), and since application was made in October, 2002, for increase in intake capacity, it could not be accepted and implemented for the academic year 2002-03. The petitioners were, therefore, informed to apply afresh for increase in intake capacity for the academic year 2003-04. Such an action cannot be said to be illegal or contrary to law and the petitioners cannot make grievance.

9. Having heard the learned counsel for the parties, in our opinion, it cannot be said that the action taken by the respondents and particularly by respondent No. 7-University is illegal, unlawful or otherwise unreasonable. It is true that respondent No. 6-CCH had granted permission for increase in intake capacity from 75 to 100. At the same time, however, it cannot be ignored that the decision has been taken only in the end of September, 2002. It also cannot be overlooked that in accordance with the provisions of the Act, permission of respondent No. 7-University is necessary. Reading the relevant provisions of the Act and the decision of the Supreme Court in Adhiyaman Educational & Research Institute and Ors. (Supra), it is clear to us that though in respect of matters relating to technical education, norms and standards for such courses, curricula, staff pattern, qualifications, assessment and examinations etc., it is the Central Act and the Central Council which have jurisdiction. However, the provisions of the Act regarding affiliation, etc. are within the domain of University and in those matters, it is the University which can take appropriate action by making appropriate orders. It is specifically stated by the University vide its communication dated 21st October, 2002, that proposal for increase in intake capacity for academic year 2002-03 could not be accepted in October, 2002. The petitioners were, therefore, informed that if they were interested in getting increase in intake capacity for academic year 2003- 04, it would be open to them to apply afresh. Such an action, in our opinion, cannot be said to be unreasonable. It may also be stated that academic year 2002-03 had already started in June,2002. Substantial time has elapsed and the petition was filed on December 11, 2002. Notices were issued on 19th December, 2002. The Respondents appeared and the matter was argued on February 3, 2003. In the circumstances, in our opinion, even if the final stage of admission is still not over, it would not be appropriate now to direct the State authorities and the University to grant permission for the academic year 2002-03 as there would not be sufficient time for students to get adequate and sufficient education and knowledge which is required for such course. Keeping in mind that consideration also, in our opinion, it would not be appropriate to issue directions to the respondents. It is, however, open to the petitioners to apply afresh as conveyed by respondent No. 7-University in its communication dated October 21, 2002, for the academic year 2003-04. If such an application is made, the respondents will take appropriate decision thereon.

10. For the foregoing reasons, in our opinion, the petition deserves to be disposed of and is accordingly disposed of. Rule is discharged. In the facts and circumstances, however, there shall be no order as to costs.

Certified copy expedited.