Dr. (Ms) Sonal S. Agrawal And Ors. vs Secretary, Department Of Health ...
2007 Latest Caselaw 715 Bom

JUDGMENT

R.C. Chavan, J.

1. Rule. Rule is made returnable forthwith and is heard by consent of parties. Service on respondents No. 2 and 5 is not necessary, as they are proforma respondents.

2. Eight students, prosecuting studies for Degree of Master of Physio Therapy in respondent No. 5 College, have challenged by this petition the syllabus dated 13-1-2007 framed by respondent No. 4 Maharashtra University of Health Sciences, whereby the University has fixed the duration of the course of three years, as against two years' duration in vogue in past.

3. It is the petitioners' case that they were admitted to Two-Year Course of Master of Physio Therapy with respondent No. 5 College between 177-2006 and 28-9-2006. The course was to be conducted under the affiliation to respondent No. 3 Rashtrasant Tukdoji Maharaj Nagpur University. Accordingly, the petitioners started prosecuting their studies. The Governor of Maharashtra by Ordinance No. IX of 2005 dated 31-10-2005 deleted Sub-sections (4) and (5) of Section 6 of the Maharashtra University of Health Sciences Act, 1998 (for short, hereinafter referred to as 'the Act'). These sub-sections had enabled the parent Universities to continue courses in Institutions affiliated to those Universities, notwithstanding coming into force of the Act, whereby a separate Health Sciences University was established for the students, who were already enrolled on the date on which the Amending Acts No. XXIX of 2001 and XV of 2002 came into force.

4. On 5-7-2006, respondent No. 4 University of Health Sciences informed respondent No. 5 College regarding continued affiliation of the College to the University subject to securing permission from the Central Council. According to the petitioners, Central Council means respondent No. 2, Indian Association of Physio Therary. Respondent No. 2 Indian Association of Physio Therapy had, according to the petitioners, granted recognition to respondent No. 5 College for a Two-Year Course of Master of Physio Therapy. According to the petitioners, in the Universities outside the Maharashtra, the course is of two years' duration.

5. The petitioners state that they came to know only on 13-1-2007 that the duration of course is three years, which jeopardized them. According to the petitioners, the relevant provisions of the Act and the rules made thereunder mandate that the University should settle the syllabus at least six months before the start of academic session. Since this was not done, the petitioners claim that they are entitled to continue to prosecute studies for a Two-Year Course of Master of Physio Therapy. Therefore, by this petition, they sought to have the ordinance and regulations of respondent No. 4 dated 13-1-2007 quashed and set aside and a direction that they should be held to continue to be governed by Ordinance No. 14 of 2003 of respondent No. 3 Rashtrasant Tukdoji Maharaj Nagpur University.

6. Upon notice, the respondents appeared. Respondent No. 4 Maharashtra University of Health Sciences has filed submissions and additional submissions opposing the petition pointing out that the petitioners have not furnished factually correct information in respect of duration of the course and the dates when the relevant decisions were taken. According to respondent No. 4, a reference to respondent No. 2, as the authority from whom recognition was to be sought, is not correct, inasmuch as it is not a Central Council, as defined in Sub-section (8) of Section 2 of the Act. Sub-section (8) of Section 2 of the Act defines Central Councils to mean various Councils of Health Sciences constituted by the Central Government and would obviously exclude respondent No. 2, which is an Association, registered as a Public Trust and does not have any statutory status. It is not shown that the Indian Association of Physio Therapists is constituted by the Central Government.

7. Respondent No. 4 next submitted that in view of the ordinance dated 31-10-2005, whereby Sub-sections (4) and (5) of Section 6 of the Act were deleted, the Colleges imparting education in Health Sciences came to be re- affiliated to respondent No. 4. Maharashtra University of Health Sciences and, therefore, respondent No. 4, to the exclusion of respondent No. 3. Rashtrasant Tukdoji Maharaj Nagpur University, had the authority to prescribe duration and syllabi for various courses.

8. Accordingly, respondent No. 4. Maharashtra University of Health Sciences took up the question of duration of the course. A meeting of the Board of Studies in Physio Therapy was held on 25-5-2006, at which it was decided that the duration of the course leading to Decree of Master of Physio Therapy would be three full time academic years. Accordingly, the Vice Chancellor of respondent No. 4 Maharashtra University of Health Sciences issued Direction No. 3 of 2006 on 31-5-2006 prescribing a Three-Year Post Graduate Degree Course for Master of Physio Therapy. This decision of the Vice Chancellor was confirmed in a meeting of the Management Council held on the same date.

9. According to respondent No. 4. University of Health Sciences, this decision was conveyed to all the concerned authorities including respondent No. 5. The incumbent holding the post of Director, i.e. respondent No. 5, happens to be the Member of Board of Studies, but was absent at the meeting dated 25-5-2006. Respondent No. 5, by his letter dated 14-6-2006, expressed reservations about the duration of the course and wanted the duration to be only two years.

10. The subject of duration of course was again discussed in the meeting of the Board of Studies held on 4-9-2006, where the decision to have a Three-Year Course was re-affirmed and was further approved by the Academic Council on 13-10-2006 by Resolution No. 445 of 2006. Therefore, according to respondent No. 4. University of Health Sciences, the petitioners, who were admitted to the course after the decision to have the course duration of three years was made known to respondent No. 5 College and after Direction No. 3 of 2006 of the Vice-Chancellor was published on the web-site of respondent No. 4. University on 26-6-2006. For these reasons, there was no occasion for the students to get misled about duration of the course.

11. Respondent No. 4. University further stated that all 140 students have been admitted to this Three-Year Post Graduate Degree Course of Master of Physio Therapy in rest of the Maharashtra are prosecuting the studies without demur except present petitioners, who are eight in number. It was stated that the decision to have a Three-Year Course was taken after following procedure prescribed by the Act. The entire case of the petitioners is misconceived and the petition is, therefore, liable to be dismissed.

12. We have heard Shri G.C. Singh, learned Advocate for the petitioners; the learned AGP for respondent No. 1; Shri B.G. Kulkarni, learned Advocate for respondent No. 3; and Shri A.A. Kumbhkoni, the learned Additional Advocate General, with Advocate Shri J.B Jaiswal, for respondent No. 4.

13. The learned Advocate for the petitioners contended that Ordiance No. 9 of 2005 must have lapsed after a period of six months and, therefore, was not to be in force when the petitioners were admitted to the course. We find that the learned Advocate is mis-informed and that the ordinance had been duly converted into the Act of Legislature by Act No. L of 2005, which had received the assent of the Governor on 27-12-2005, and, therefore, Sub-sections (4) and (5) of Section 6 of the Act were not in force at the relevant time.

14. Contending that three years' duration of the course ought to have been notified at least six months before admissions commenced, the learned Advocate for the petitioners placed reliance on the judgment of this Court in Aditya Shrikant Kelkar and Ors. v. State of Maharashtra and Ors. reported in 1998 (3) Mh.L.J. 481, to support his contention that the rules for admission ought to have been published in the University Gazette or the Official Gazette at least six months before start of the academic session. The provision considered by a Division Bench of this Court in the said judgment was Section 65 of the Maharashtra Universities Act, 1994, which is in pari materia with Section 54 of the Act. The learned Additional Advocate General for respondent No. 4. University of Health Sciences submitted that the rules for admissions cannot be mistaken for the duration of the course. He submitted that Section 65 of the Maharashtra Universities Act itself begins with a reference to reservation policy of the State and provides that admissions shall be made on the basis of the competitive merit in accordance with the rules, which, the proviso requires, shall be published at least six months before start of the academic session. We find that the reliance on the provision of Section 65 of the Maharashtra Universities Act, 1994 is unhelpful, since the judgment as well as the provision relied on refers to admission procedure and not prescription of course duration. The observations in the judgment cannot be stretched to cover prescription of duration of the course. Same holds good about the judgments in Vijyendra Hiralal Kabra v. State of Maharashtra and Ors. , and Suhas Bhimrao Gadhave v. State of Maharashtra and Ors. reported in 1999 (1) Mh.L.J. 286.

15. The learned Advocate for the petitioners next submitted that the decision to have a Three-year Course was itself taken after the petitioners had taken the admissions on 13-1-2007. Therefore, the prayer of the petitioners is to quash and set aside the ordinance and regulations dated 13-1-2007. The learned Advocate for the petitioners also took an exception to the description of Annexure L, which was placed on internet on 13-1-2007, as a mere syllabus and neither an ordinance nor a regulation. in para 8 of the additional submissions on behalf of respondent No. 4. University of Health Sciences. The learned Additional Advocate General, who appears for respondent No. 4, pointed out that Annexure L is a mere reproduction on the website of the ordinance and regulations, which had already been passed. He pointed out that the chronology of the events have already been given in the submissions and additional submissions, would show that necessary decision was taken by the Board of Studies on 25-5-2006 itself and the Vice Chancellor had issued Direction No. 3 of 2006 in pursuance of this decision on 31-5-2006. This direction had been confirmed by the Management Council of respondent No. 4. University of Health Sciences in its meeting on the same day. He pointed out that the Vice Chancellor had the authority to issue such a direction under Sub-section (8) of Section 16 of the Act. This decision had also been placed on the website on 26-6-2006, as may be seen from Annexure R-3.

16. The learned Additional Advocate General for respondent No. 4. University of Health Sciences next pointed out that all the petitioners were admitted to respondent No. 5 College between 17-7-2006 and 28-9-2006, i.e. substantially after the decision was duly notified. Therefore, he submitted that the petitioners should not have laboured under any misunderstanding that they were seeking admission to a Two-Year Course. He pointed out that in any case when respondent No. 5, who had entered into correspondence with respondent No. 4. University about the duration of the course, was under no misunderstanding and, therefore, must have and was under obligation to inform the students while admitting them in his College that respondent No. 4. University had by then decided to have the course duration of three years.

17. In view of this factual position, there is absolutely no substance in the contention of the learned Advocate for the petitioners that respondent No. 4 University had taken a decision, which prejudiced the petitioners after they were admitted to the Course. Reliance on the judgment of the Supreme Court in State of Bihar and Ors. v. Dr. Sanjay Kumar Sinha and Ors. reported in 1950-91 (3) AIEC 509, by the learned Advocate for the petitioners is misplaced, since in that case, the question was of State of Bihar not following the directions of the Supreme Court while drawing up the prospectus, and fixing up a qualifying date beyond the date of commencement of the Course. The decision in Prabha Kalyandeo Verma v. Nagpur University, Nagpur and Ors. reported in 1992 Mh.L.J. 1345, is equally of no help to the petitioners, because in that case, the Admission Committee had applied criteria for admission process without making them known to the candidates before the process commenced. Same is the case with the judgment of the Division Bench of this Court in Taneshwar Singh Chahal v. Dean, Goa Dental College and Hospital and Ors. , because in that case, it was found, on facts, that the condition of residence in State of Goa for ten years was contained in the form, but not in the prospectus.

18. To sum up, we find that the petition was filed under a mistaken belief that the duration of the course was two years when the petitioners took admission and that it was subsequently changed with retrospective effect. Respondent No. 4. University of Health Sciences has pointed out that the decision to prescribe a Three-Year Course was taken on 25-5-2006 and was duly notified well before the petitioners were admitted to the said course by respondent No. 5, who was fully aware of the decision taken by respondent No. 4 University.

19. In view of this discussion, there is no merit in the petition and the rule is discharged. In the circumstances, the parties shall bear their own costs.