Shree Chhatrapati Shivaji ... vs State Of Maharashtra, The ...
2003 Latest Caselaw 1109 Bom

JUDGMENT

D.G. Karnik, J.

1. By an order dated 25th October, 2002 notice was issued to the respondents. In pursuance of the notice, parties have appeared and by consent of the parties, the petitions are heard finally.

The facts stated in brief are as follows:

2. The petitioner is a society registered under the Societies' Registration Act, 1860. The respondent No. 1 is the State of Maharashtra. The respondent No. 2 is the Maharashtra University of Health Sciences (for short, the University) established under the Maharashtra University of Health Sciences Act, 1998 (for short, the Act). The respondent No. 3 is the Vice Chancellor of the University and the respondent No. 4 is the Director of Ayurved, the State of Maharashtra. The petitioner society has its main object of establishing hospitals and medical research centres in rural areas all over India. The petitioner society has established 100 bedded Ayurvedic medical hospitals at village Mayani. Taluka Khatav, District Satara which is a drought prone area in the hilly region the most of the population suffers from social disadvantages.

3. Sometime in the month of October, 2000 the respondent No. 2 University of Health Sciences invited applications in the prescribed form for establishing medical colleges in the State of Maharashtra. The managing committee of the petitioner resolved to apply for establishing a college in ayurvedic medicine for imparting B.A.M.S. degree course. On 25th October, 2000 the petitioner submitted an application for approval of opening an ayurvedic medical college at village Mayani. The application was accompanied with a demand draft of application fee of Rs. 50,000/- and other necessary documents. The respondent No. 2 rejected the said application on the ground that it was not in consonance with the proposals made in the "perspective Plan" for year 2001 to 2006 prepared by it and intimated the refusal to the petitioner by a letter dated 29th December, 2000. It appears that respondent No. 2, university under Sub-section 5 of Section 64 of the Act, sent the necessary information to the Government of Maharashtra, about the refusal of the permission to the petitioner along with its recommendations regarding other institutions who had made applications for permission for setting up medical colleges in the State. After considering the recommendations made by the respondent No. 2 university, and after considering the need of ayurvedic hospital in the hilly region of western ghats, the Government of Maharashtra took a decision to approve the petitioner's proposal for setting up of an ayurvedic medical college at village Mayani, Taluka Khatau, District Satara. By its letter dated 14th June, 2001 the Government of Maharashtra intimated to the petitioner decision and its no objection for starting up of an ayurvedic medical college at village Mayani. A copy of the said communication was also sent to the respondent No. 2 University. The said order was purportingly passed by the State Government by virtue of the powers conferred on it under proviso to Sub-section 5 of Section 64 of the Act.

4. It appears that the respondent No. 2 accepted without demur, the decision of the State Government of granting permission to the petitioner for establishing of an ayurvedic medical college although the Perspective Plan prepared by it for years 2001 to 2006 did not contemplate establishment of a medical college in Satara district. The respondent No. 2 thereafter constituted a committee of three expert doctors for the purpose of local inspection of the existence of the hospital to be attached to the proposed college, and the various infrastructural facilities like hostel, library, laboratory, and sufficiency of teaching and non teaching staff etc. The committee was subsequently reconstituted and by a letter, dated 7th July, 2001, the respondent No. 2 intimated to the petitioner its decision of reconstitution of the committee of expert doctors for inspection. The committee appointed by respondent No. 2 made local inspection and submitted its report to the Academic Council of the University on 16th July, 2001. By a letter dated 1st August, 2001 the respondent No. 2 informed the petitioner the short comings pointed out by the local enquiry committee and directed the petitioner to establish a 50 bedded ayurvedic hospital with atleast 60% of bed occupancy, to provide hostel facility for boys and girls, appoint the necessary teaching and non teaching staff as mentioned, establish laboratory and library with 1000 books and to provide necessary furniture and fixtures. According to the petitioner, it removal all the short comings, acquired buildings for hospital and hostels for boys and girls and took steps for appointment of teaching and non teaching staff an establishment of library and laboratory with all the necessary facilities. The State Government being satisfied about the requirements of establishment of medical college and hospital as Satara issued a "Essentiality Certificate" and forwarded the same to the Central Council of Indian Medicine vide its letter dated 15th September, 2001. In the Essentiality Certificate, the Government gave the necessary details of the existing ayurvedic institutions, existing number of ayurvedic doctors (Vaidyas), ratio of practising Vaidyas to the patients and the desirability of establishing ayurvedic medical college at village Mayani in the public interest. It also certified that establishment of ayurvedic medical college at village Mayani by the petitioner was feasible. After acquiring three buildings for establishment of the hospital and separate hostels for boys and girls and appointed the necessary hospital staff and teaching and non teaching staff and appointment of teaching and non teaching staff the petitioner communicated the fulfillment of the requirements to the respondents by a letter dated 9th September, 2001. After some correspondence the petitioner rectified further short comings pointed out by the respondent No. 2. Thereafter, the respondent No. 2 informed the petitioner that the petitioner's proposal along with the compliances submitted by it to start a medical college would be placed before the Academic Council of the University. The Academic Council in its meeting held on 30th August, 2002 decided not to grant permission and nor to grant affiliation to the proposed college of the petitioner. The respondent No. 2 intimated the decision of its Academic Council to the petitioner by its letter dated 21st September, 2002.

5. The respondent No. 2 was all along was aware of the existence of perspective plan prepared by it and yet, after decision of the State Government under proviso to Sub-section 5 of Section 64 of the Act granting permission to the petitioner to open ayurvedic medical college, proceeded to appoint an expert committee of doctors for making local enquiry and inspection. It further directed the petitioner to establish ayurvedic medical hospitals, hostels for boys and girls, laboratory with equipments, library with books and to provide necessary infrastructure. The respondent No. 2 also directed the petitioner to appoint the necessary qualified teaching and non teaching staff. Ayurvedic vaidyas who are qualified to teach are scarce and the petitioner made extensive search and appointed qualified ayurvedic vaidyas as teaching staff. The petitioner also appointed non teaching staff and established a hospitals and complied with all the requirements prescribed by the respondent No. 2 According to the learned counsel, the petitioner has spent crores of rupees in establishment of hospital and providing necessary infrastructure from time to time as intimated by the respondent No. 2. The petitioner would not have incurred such huge expenditures but, for the letters written by the respondent No. 2 directing the petitioners to make the necessary arrangements. According to the petitioner, the respondent No. 2 cannot refuse the affiliation to the college to be established by the petitioner on the principle of promissory estoppel.

6. The learned counsel for the respondent No. 2 University strongly relied upon the judgment of the Supreme Court in the State of Maharashtra v. Indian Medical Association and invited our attention to the following observations made in paragraph 15 of the judgment:

"In that view of the matter, the perspective plan prepared by the University under the Act is binding in the State Government qua those who are applicants for grant of permission to open a new medical college under Section 64 of the Act."

He also referred to and relied upon a judgment of a Division Bench of this court in Dhananjay R. Kulkarni and Ors. v. State of Maharashtra and Ors. to which one of us (A.P. Shah, J) was a party. While considering Section 82 of the Maharashtra University Act, 1994 which is similar to Section 64 of the Maharashtra University of Health Sciences Act 1988, the Division Bench held that the State Government has no power to grant permission for starting of a new college or institutions of higher learning where an application is not in conformity with the Perspective Plan.

7. There can be no doubt that the perspective plan prepared by the University under Section 82 of the Maharashtra University Act, 1994 or under Section 64 of the Maharashtra University of Health Sciences Act, 1988 is binding on the State Government and the State Government cannot grant permission to open a technical college for higher technical education or a medical college contrary to the perspective plan prepared by the respective universities. However, in the present case, the State Government did grant permission to the petitioners to open ayurvedic medical colleges purportingly under proviso to Section 5 of Section 64 of the Act. It was open to the respondent No. 2 university to ignore the permission granted by the State Government as invalid and not binding on it especially as the State Government had granted the permission long after the decision of the Division Bench in Dhananjay Kulkarni's case. It however, chose to accept the Government decision and appointed a committee for local enquiry and waived the objection that permissions to open medical colleges contrary to the perspective plan prepared by the university could not have been granted by the State Government. The expert committee appointed by the respondent No. 2 University, after inspection, pointed out many shortcomings. The respondent No. 2 directed the petitioner to remove those shortcomings. The respondent No. 2 was well aware that removing of the short comings would involve a huge capital expenditure. The petitioner was directed to establish medical hospital and provide the necessary infrastructure at huge cost. The petitioner was directed to provide separate hostels for boys and girls, purchase books and laboratory equipments. It was directed to appoint teaching and non teaching staff. According to the petitioners, they complied with all the requirements provided ayurvedic hospital with all infrastructure and appointed teaching and non teaching staff. It incurred huge expenditure of several crores of rupees in removal of shortcomings at the instance of respondent No. 2 university.

8. Mr. Nitin Pawar, Executive Committee Member of the petitioner has filed further affidavit dated ...September, 2003 in which he has pointed out that the respondent No. 2 university has granted affiliation to four other medical colleges after the filing of the petition contrary to the perspective plan. The details given in the affidavit are:

(i) Lok Nete Rajarambapu Patil Shikshak Sanstha, Islampur Tal Walva District Sangli was granted permission by the State Government to establish an ayurvedic medical college at Islampur and it was granted affliation by the respondent No. 2 University on 30th August, 2002 contrary to the perspective plan.

(ii) Terna Charitable Trust was granted permission by the State Government to open a dental medical college at Nerul and the respondent No. 2 granted affiliation to it on 23rd January, 2003 contrary to the perspective plan.

(iii) ACPMs Dental College was granted permission to open a dental college at Dhule and the respondent No. 2 granted affiliation to it on 5th December, 2002 contrary to the perspective plan.

(iv) Jupiter Ayurved Medical College, Shankarpur Dist. Nagpur was granted permission to open to an ayurvedic college in Shankarpur Dist. Nagpur and the respondent No. 2 granted affiliation to it on 8th February, 2002 contrary to the perspective plan.

9. According to the petitioner, the perspective plan prepared by the respondent No. 2 university for years 2001 to 2006 does not provide medical colleges, ayurvedic, dental or otherwise at Islampur, Nerul, Dhule or Shankarpur where the four institutions were allowed to open medical colleges and granted affiliation by the respondent No. 2. The learned counsel for the respondent No. 2 university fairly conceded that in pursuance of the permission granted by the State Government to the aforesaid four institutions to open medical colleges, affiliation was granted to them though the establishment of such medical colleges was not provided in the perspective plan prepared by the university. The respondent No. 2 university has not filed any further affidavit in reply explaining as to why affiliation to the medical colleges was granted to the said four institutions contrary to the perspective plan. The petitioner alleges discrimination and arbitrariness in refusing it the affiliating resulting in infringement of Article 14 of the Constitution of India. According to the petitioner, there is no difference between it and the four institutions who were granted permission to open medical colleges and granted affiliation. Refusal of the affiliation by the respondent No. 2 to the petitioner is thus, discriminatory, arbitrary and violative to Article 14 of the Constitution of India. The petitioner has changed its position and incurred huge expenditure in establishing ayurvedic hospital with all infrastructure following the directions issued by the respondent No. 2 from time to time. The respondent No. 2 appears to have ignored the perspective plan almost in every case where the State Government has granted the Essentiality Certificate and the permission to open the medical colleges. The respondent No. 2 appears to have abandoned the perspective plan atleast qua the four colleges to whom the affiliation was given contrary to the perspective plan and also qua the ayurvedic medical college of the petitioner by asking the petitioners to establish hospitals and provide the necessary infrastructure for the ayurvedic medical college as a condition for grant of affiliation. The Act does not lay down any particular procedure for modification of the perspective plan nor does it prohibit modification. The actions of the respondent No. 2 amount to the deemed modification of the perspective plan. These are the distinguishing features distinguishing the present case from the decision of the Apex Court in the case of State of Maharashtra v. Indian Medical Association (supra) and the Division Bench decision of this court in Dhananjay Kulkarni v. State of Maharashtra supra.

11. Learned counsel for the petitioners relied upon the decision of the Apex Court in Vellore Educational Trust v. State of Maharashtra reported in 1987 (Supp) Supreme Court cases 543. The petitioner therein was refused permission to open a private engineering college on the basis of the Government policy not to grant permission for new colleges till the existing engineering colleges were stabilised and consolidated. The Supreme Court held that refusal of permission on the ground of policy of the Government was not tenable as permission had already been granted to the petitioner therein to establish a private engineering college and moreover an application was filed long ago before the policy decision was adopted by the Government. He also relied upon the decision of the Supreme Court in Shivaji University v. Bharti Vidyapeeth petitioner's application for establishment of medical college was rejected on the ground that it was not in conformity with the draft perspective plan prepared by the university under Section 82 of the Maharashtra University Act, 1994. In para 9 of the judgment, the Supreme Court observed:

"The Draft Perspective Plan is also, to more or less the (sic) effect and the refusal based thereon is, therefore also arbitrary and unreasonable."

We have already held that in the present case the respondent No. 2 university had abandoned the perspective plan or atleast treated it as modified qua the petitioner.

12. In Bharti Vidyapeeth's case, the Supreme Court held that though the permission/affiliation is wrongly rejected by the university the court should not set aside the refusal but, return the matter to the university for reconsideration in the light of its judgment. The court is not competent to grant affiliation. Accordingly, we direct the respondent No. 2 university to reconsider its decision in the light of our judgment.

13. Accordingly, the writ petitions are allowed and respondent No. 2 is directed to reconsider the petitioner's application for grant of affiliation in the light of this judgment. Respondent No. 2 shall decide the application as expeditiously as possible and preferably within a period of two months.