Disha Shikshan-V-Vikas Kendra ... vs Maharashtra University Of Health ...
2003 Latest Caselaw 82 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. Prafulla Shah, learned counsel, appears and waives service of Rule on behalf of respondent No. 1.

2. In the facts and circumstances, matter was taken up for final hearing.

3. This petition is filed by the petitioners for an appropriate writ, direction or order directing the Maharashtra University of Health Sciences, respondent No. 1 herein, to forthwith grant 'continuation of affiliation' to the petitioner college for the academic year 2002-2003. A prayer is also sought directing the Directorate of Medical Education and Research to permit the petitioners to enroll 50 students in Part-I of BHMS Degree College for the academic year 2002-2003 in the third round of admission.

4. The case of the petitioner is that petitioner No. 1 is a Trust duly registered under the Public, Trust Act, 1950 and since 1991 it runs petitioner No. 2 - Homeopathic College at Gadhinglaj, Dist. Kolhapur. The college was compelled to be closed down from the second term of academic year 2000-2001 as the college had not been recognised by the Central Council of Homeopathy ("CCH", for short). On account of non-recognition by CCH, the Government of Maharashtra also did not permit the petitioner college to admit students. It resulted in filing of Writ Petition No. 4122 of 2002 by the petitioners. The petition was disposed of by a judgment and order dated 12th October, 2002, wherein the petitioners were directed to close down its Homeopathic Medical College. The Government was directed to absorb student in other Government colleges. Thereafter having fulfilled necessary norms and requirements to run Homeopathic Medical College, the petitioners requested the Secretary, CCH, New Delhi to carry out necessary inspection so that recognition to the college could be granted from academic year 2002-2003. It was decided by CCH to inspect college and to take appropriate decision in accordance with law. The petitioners have stated that in September, 2002, the Visiting Committee of CCH inspected the teaching staff, equipments, accommodation in the petitioner-college etc. and as an apex body, in its meeting dated 19th September, 2002 decided to allow recognition to the petitioner college as Homeopathic Medical College by granting admission to not more than 50 students in first BHMS Degree Course from 2002-2003 onwards. The petitioner college then addressed a letter to the State Government informing it that CCH had granted recognition to the petitioner college for the academic year 2002-2003 onwards and called upon the Government to grant permission to admit students. Similarly, the petitioners also sent a demand draft of Rs. 60,000/- to the University towards payment of affiliation fee arrears upto March, 2002 so that necessary action can be taken by the University for continuation of affiliation. The said demand draft was acknowledged by the University. The University stated vide its letter dated 11th October, 2002 that it was true that CCH had granted recognition to the petitioner college vide its letter dated 20th September, 2002 for the academic year 2002-2003 onwards but the petitioner college was informed that it should approach the University only after the Government would give recognition. According to the petitioners, in spite of request to the Government and even reminder, the State Government had not issued necessary notification of recognition to petitioner college immediately. On 1st November, 2002, a notification was issued by the State Government and permission was granted to the petitioners to re-start the college for academic year 2002-2003 onwards. It is the case of the petitioners that though for the purpose of affiliation, the college was required to submit an application in prescribed form to the University latest by 31st October, 2002, it could not be done in view of the fact that University had asked the petitioners to approach it only after the State Government granted recognition. As soon as the notification was issued by the Government in November, 2002, the petitioners requested the University to expedite the process and take immediate action for "continuation" of affiliation of the college for the academic year 2002-2003. Along with the letter, a demand draft of Rs. 20,000/- was also sent but University did not accept the amount. The petitioners again requested the University to consider its case for grant of continuation of affiliation but nothing was done by the University. Meanwhile, on 7th November, 2002, respondent No. 2, Directorate of Medical Education, informed the petitioners that unless and until affiliation was granted by respondent No. 1 University, no step should be taken for giving admission. In reply, the petitioners informed respondent No. 2 that petitioners' institution was not a "new college" as it had been established since 1991 arid the case was of "continuation" and "re-starting" of the college. It was also stated that even the State Government in its notification dated 1st November, 2002 had stated regarding "re-starting" of the college and not establishment of new college.

5. At the time of hearing, the learned counsel for the petitioners produced on record a communication dated 26th December, 2002 by the University wherein it was stated that since the application of the petitioners was received after the prescribed period, it was rejected. The petitioners have, therefore approached this Court by filing the present petition and for the reliefs as mentioned hereinabove.

6. We have heard the learned counsel for the parties. The learned counsel for the petitioners contended that the respondents have committed an illegality and have taken an action contrary to law inasmuch as they had failed to appreciate that the case of the petitioners was of continuation of affiliation and not initial grant of affiliation. It was also submitted that the case was not of closure, as contended by the University, and hence the University was bound to apply its mind to the relevant provisions of the Maharashtra University of Health Sciences Act, 1998 (hereinafter referred to as "the Act"), relating to continuation of affiliation and to take an appropriate decision in accordance with law. It was urged that the petitioners did everything which was required to be done by them but since it was the University which directed the petitioner college to apply only after the State granted recognition, no application could be made within the stipulated period i.e. end of October, 2002 and it was only after the notification dated 1st November, 2002 by the State Government that immediate actions were taken by the petitioners which cannot come in the way of the petitioners in getting continuation of affiliation. It was stated that now admission of final round to the first year Health Sciences course has started and if the relief will not be granted to the petitioner college, it would seriously prejudice not only to the college but to the students. Once the expert body had granted permission, it was neither open to the State Government nor to the University except to proceed on the basis of the action taken by CCH. On all these counts, the petition deserves to be allowed.

7. The learned counsel for the respondent No. 1, on the other hand, submitted that the petitioners have not made out any case and as actions have been taken in accordance with law, the petition deserves to be dismissed. In an affidavit filed by the Deputy Registrar of respondent No. 1 - University, it was stated that the petitioners were granted permission in September, 1991 to start Homoeopathic College with 50 students and the college started functioning. But in 1997-98, certain discrepancies were found by CCH during the inspection and, therefore, it did not grant permission for admission of students for that year. The above action resulted in filing of a Writ Petition. The college then complied with the requirements and permission was granted for admission of students for the academic year 1999-2000, subject to fulfilment of directions specified in the report. Again, during inspection in 2000, CCH observed serious infirmities and deficiencies and directed the petitioners not to admit students. A petition being Writ Petition No. 4122 of 2002 was filed against the said action and this Court directed the petitioners to "close down" the college. Accordingly, the Government issued an order on 24th January, 2001, closing down the Homeopathic College of the institution as per the order of the High Court.

8. In paragraph 5 of the counter, it was stated that since the college was closed down, a proposal for again starting "new college" amounted to a "fresh application" for starting of the new college and it was, therefore, necessary for the institution to follow the provisions of the Act. It was also stated that such an application ought to have been made in the prescribed form before the last date i.e. 31st October, 2002. Since it was not done, the application was rightly rejected by the University.

9. The question to be considered by us as to whether the first respondent University is right in contending that the application made by the petitioner college was a "new application" for the purpose of "grant of affiliation" or was in the nature of "continuation of affiliation" and whether an order rejecting the application at the threshold by the first respondent University without entering into the merits of the matter only on the ground that it was made after 31st October, 2002, was in accordance with the provisions of the Act.

10. In this connection, our attention was invited by the learned counsel for the parties to the relevant provisions of the Act. Chapter IX of the Act deals with permission, affiliation and recognition. Section 63 of the Act lays down conditions for affiliation and recognition. It provides that the management applying for affiliation or recognition must comply with the conditions laid down in the said section. Whereas Section 64 provides procedure for permission, Section 65 for affiliation. Section 66 speaks of procedure for recognition of institutions. Sub-section (3) of Section 64, which is relevant, reads as under:

"64. Procedure for permission.

(1)     .... ....        ....        ....
 

(2)     .... ....        ....        ....
 

(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 the University before the last day of October of the year preceding the year from which the permission is sought." 
 

Section 68 deals with continuation of affiliation or recognition. The said section may be quoted in extenso.
  "68. Continuation of affiliation or recognition. -- The affiliated college or recognised institution may apply for continuation of affiliation or recognition for the courses of study for which affiliation or recognition was granted ordinarily six months prior to the date of expiry of such affiliation or recognition. The University shall follow the procedure, prescribed in Statutes, so far the applicable, for grant of continuation." 
 

Section 73 provided for withdrawal of affiliation or recognition and Section 74 cover cases of closure of colleges or recognised institutions.
 

11. The learned counsel for the petitioners submitted that the present case falls under Section 68 of the Act for continuation of affiliation and not starting of a new college and grant of affiliation for the first time. The counsel submitted that once an affiliation was granted, it was for the petitioners to apply for continuation of affiliation in accordance with Section 68 of the Act and it was incumbent on the University to pass an appropriate order and take an action in accordance with law. According to the counsel, neither the provisions of Section 73 nor of 74 would be attracted in the instant case. The University was not right in relying on Section 74 of the Act and as the application of the petitioners was rejected only on the ground of 'limitation', the said action deserves to be quashed and set aside by directing the University to reconsider the matter on merits and take an appropriate decision in accordance with law.

12. We find considerable force in the argument of the learned counsel for the petitioners. To us, it is clear that once an affiliation was granted, what was expected of the petitioner college was to apply for continuation of affiliation, which has been done in the present case. In our view, Section 73 has no application to the case on hand. The said section deals with withdrawal of affiliation or recognition and a bare reading of the said section makes it clear that such an action can be taken by the University, which is penal or punitive in nature, if the University is satisfied that such action is called for. It, therefore, provide for notice, explanation and observance of principles of natural justice. It is not even the case of the respondent-University that by invoking the provisions of Section 73, proceedings had been initiated against petitioner college for withdrawal of affiliation and after complying with the provisions of that section, an order was passed withdrawing the affiliation.

13. The second question relates to closure. The University, no doubt, in its affidavit has stated that it was a case of closure. The learned counsel for the University also supported the stand of the University reflected in the affidavit in reply. We must, however, admit that we are not impressed by that argument. In our view, the "closure" contemplated by Section 74 of the Act is voluntary closure and the Act lays down certain conditions under which the management can be permitted to take action of closure of a college or recognised institution. Admittedly, in the instant case, no such prayer had ever been made by the petitioner college to the University for closing down its college. On the contrary, when the action was taken by CCH in past, the college was aggrieved by the said action and had approached this Court. The college was closed down not under Section 74 of the Act but by the order of this Court in Writ Petition No. 4122 of 2002. The High Court after considering the deficiencies, directed the petitioners to close down "forthwith" its Homeopathic College and asked the State Government to absorb the affected students of the petitioner college in any other Government recognised College so as to enable them to pursue further study. Hence, the argument of the petitioners that it was a case of closure and Section 74 would be attracted is misconceived and ill-founded.

14. Once the expert body i.e. CCH had granted permission, the petitioner college was fully justified in making an application to the University for continuation of affiliation. It is also clear from the record that as soon as such permission was granted by the CCH, the petitioner college took all necessary steps. It requested the State Government to grant permission to admit students as per the decision of the CCH. It also requested the University to grant continuation of affiliation. The University asked the petitioners that it was only after the Government would give recognition to the petitioner college that the application of the petitioners could be considered. The State Government granted permission to the petitioner college to 're-start' the college only on 1st November, 2002. In the circumstances, the petitioners could not take action before 31st October, 2002. From the facts in their entirety, it is abundantly clear that the case was neither of withdrawal of affiliation nor of closure by the management and the action was taken in pursuance of an order passed by this Court. The learned counsel for the petitioners is, therefore, right in submitting that even the State Government has used the expression "re-start" of the College. The University thus had committed an error of law in rejecting the application, though such application ought to have been considered under Section 68 of the Act.

15. So far as Section 68 is concerned, the affiliated college has to apply for continuation of affiliation "ordinarily six months prior to the date of expiry of such affiliation". The language of Section 68 is different from the language used in sub-section (3) of Section 64 of the Act. In the instant case, as the State Government issued notification only on 1st November. 2002, obviously the application of the petitioner college for continuation of affiliation falling under Section 68 of the Act could not have been rejected on the ground that it was not made before October, 31, 2002. The said action, therefore, deserves to be quashed and set aside and is hereby set aside.

16. For the foregoing reasons, the petition deserves to be allowed and is accordingly allowed and the action of the University in rejecting the application of the petitioner college is set aside. The respondent University is directed to consider the application of the petitioner college under Section 68 of the Act and to take an appropriate decision in accordance with law. Since the last round of admission to the first year BHMS Degree Course has started, the respondent-University is directed to take appropriate decision in accordance with law as expeditiously as possible so that the students may not suffer. Rule is made absolute. In the facts and circumstances, however, there shall be no order as to costs.

Parties be given copies of this judgment duly authenticated by the Sheristedar/Private Secretary.