Bombay High Court
Maharashtra Medical Education ... vs Union Of India And Ors on 10 August, 2016
Bench: Ranjit More
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`IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1981 of 2016
1. Maharashtra Medical Education &
Research Centre
a registered Public Trust, through its
Joint Secretary, Dr. Mushtaque Mukadam
Age Adult, Occ: Joint Secretary,
Having its office at 2390-B.
K.B.Hidayatullal Road,
New Modikhana,
Azam Campus, Camp,
Pune 411 001
2. Maharashtra Medical Education &
Research Centre's
Z.V.M. Unani Medical College
and Hospital,
through its Principal,
Hkm Jalis Ahmad,
Age Adult, Occ: Service,
having its office at 2390-B,
K.B.Hidayatullal Road,
New Modikhana,
Azam Campus, Camp,
Pune 411 001 .. Petitioners
v/s.
1. Union of India
through the Secretary,
Ministry of Health & Family Welfare,
Ministry of AYUSH,
IRCS Building,
1 Red Cross Road,
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New Delhi 110 001.
2. Central Council of Indian Medicine,
A statutory body, constituted under
Section 3 of the Indian Medicine
Central Council Act, 1970
having its office at 61-65
Institutional Area, Opposite D- Block,
Janakpuri, New Delhi 110 058.
3. The State of Maharashtra,
through the Secretary,
Department of Medical Education & Drugs,
9th Floor, G.T. Hospital Campus,
Lokmanya Tilak Road,
Mumbai 400 001.
4. Maharashtra University of Health Science,
Nashik, through its Registrar,
Mhasrul, Dindori Road,
Nashik. ..Respondents
Shri S.R.Ganbhavle i/b. Sangramsingh Yadav for the Petitioner.
Mr. Rui Rodriques a/w. Pranil Sonawanve for the Respondent No.1.
Mr.R.V.Govilkar for the Respondent No.4.
Mr. P.P.Kakde, AGP for the State.
CORAM : SHRI RANJIT MORE &
SMT. ANUJA PRABHUDESSAI, JJ.
RE$ERVED ON : JUNE 23, 2016.
DATED : AUGUST 10, 2016.
JUDGMENT (PER ANUJA PRABHUDESSAI, J.):
1. Rule, With consent of parties matter taken for hearing.
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2. The petitioners, being aggrieved by order dated 5.1.2016 issued by
the respondent no.4 Maharashtra University of Health Sciences- Nashik,
have sought direction to the respondent no.4 to grant affiliation to the two
seats of Ilmul Quabalat-Wa-Amraz-E-Niswan, Post Graduate Unani course
from the academic year 2015-2016.
3. The petitioner no.1 is a public trust registered under the Bombay
Public Trust Act, 1950. The petitioner no.2 is a private partly aided Unani
Medical College run by the petitioner no.1 trust since the year 1984-85.
The petitioner no.2 was desirous of starting a post graduate Unani course in
the subject of Ilmul Qabalat-Wa-Amraz-E-Niswan, (hereinafter referred to
as "Post Graduate course"). The petitioner submitted the application to the
respondent no.2 Central Council seeking permission to start the said post
graduate course for the academic year 2015-16. On the basis of the
recommendation of the medical Council, the respondent no.1 vide
permission/recognition dated 29.10.2015, granted permission to the
petitioner no.2 to start post graduate course with intake of two students for
the year 2015-16.
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4. By letter dated 30.10.2015, the petitioners requested the respondent
no.4 to grant affiliation for the two students/seats for the said Post Graduate
course. The respondent no.3 issued a Government Resolution on
11.12.2015 communicating its permission to start a new Post Graduate
course, for the academic year 2015-16. Vide letter dated 01.01.2016 the
petitioners again requested the respondent no.4 MHUS to take necessary
action to grant affiliation to the post graduation course.
5. By letter/ communication/ order dated 5.1.2016 the respondent no.4
university refused to grant affiliation for the said Post Graduation course on
the ground that the last date for admission for the students was scheduled
on 07.12.2015 and that the respondent no.3 had issued G.R. on 11.12.2015,
hence it would not be possible for the respondent no.4 to carry out
necessary inspection for granting affiliation. The petitioners were
informed that it should secure permission from the respondent nos.1 to 3 for
the academic year 2016-17 so as to enable it to start the process of
affiliation. Being aggrieved by the said communication, the petitioners
have invoked the writ jurisdiction of this court under Article 226 of the
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Constitution of India, 1950.
6. Shri Ganbhavale, the learned Counsel for the petitioners has taken us
through the relevant provisions of Indian Medicine Central Council Act,
1970 (for short MCC Act, 1970), the Maharashtra University of Health
Sciences Act. 1999 (for short MUHS Act, 1999) and Establishment of New
Medical College, Opening of New Higher Secondary Course of Study or
Training and Increase of admission capacity by Medical College
Regulations, 2003 (in short "Regulations 2003"). He has challenged to the
impugned order/communication mainly on the following grounds.
i) The MCC is the final authority to grant permission to open a new or
higher course of study. The State or the University cannot enact any
provision or impose any condition which is inconsistent with the provisions
of the MCC Act and the conditions imposed by the MCC.
ii) The petitioners had complied with all the relevant statutory
requirements, the respondent no.3 had issued no objection and the
respondent no.4 had issued the consent of affiliation for starting a post
graduate course.
iii) The respondent no.1 which is a primary statutory body having granted
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permission to start the Post Graduation course, it was imperative for the
respondent nos.3 and 4 to grant permission/affiliation for the first academic
year 2015-2016.
iv) The respondent no.4 was not justified in rejecting the affiliation on
the grounds stated in the impugned communication, particularly when it
had issued the consent of affiliation after inspecting the institution/campus.
The consent of affiliation was valid till 29.8.2016.
v) The petitioners were not responsible for the delay in issuance of G.R.
by the respondent no.3. The petitioners have incurred huge infrastructure in
appointment of faculty/staff etc. The decision to deny affiliation is
arbitrary and unreasonable.
vi) The respondent no.4 could not have over turned the decision of the
statutory authority. It was within the powers of the respondent no.4 to grant
conditional affiliation for the first year. In the facts and circumstances of
the present case, such power was coupled with the duty to exercise the
same.
vii) The respondent no.4 has refused affiliation, without placing the same
before the Academic Council. The action of the respondent no.4 is ultra
vires, besides being arbitrary and unjust.
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7. He has relied upon the pronouncements of the Apex Court in
i) Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Education and Charitable Trust v.
State of Tamil Nadu & ors. (1996) 3 SCC 15
ii) State of Maharashtra vs. Sant Dnyaneshwar Shikshan
Shastra Mahavidyala & Ors. (2006) 9 SCC 1
iii) Parshvanath Charitable Trust & Ors. v. AICTE & Ors.
(2013) 3 SCC 385
iv) Maa Vaishno Devi Mahila Mahavidyalaya vs. State of
Uttar Pradesh & Ors. (2013) 2 SCC 617
As well as the decisions of Division Bench of this Court in
v) Shri Shivaji Education Society and anr. v.
Maharshtra University of Health Sciences and ors. 2012(1)
Mh.L.J. 799
vi) Syadwad Education Society, Washim v. State of
Maharashtra & Anr. 2014(3) Mh.L.J. 333
vii) Sinhagad Technical Education Society and anr. vs.
Maharashtra University of Health Science & Ors. 2014(3)
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Mh.L.J. 470
8. The gist of submissions of Shri Govilkar, the learned Counsel for the
respondent no.4 is as under :
i) The respondent no.4 has not refused affiliation. Since the G.R. dt.
11.12.2015 was received after the last date of admission i.e. 7.12.2015, it
was not possible for the respondent no.4 University to inspect the
institution/campus. In view of which the petitioners were informed to seek
fresh permission from the respondent nos.1 to 3 for the academic year 2016-
2017. It was therefore not necessary to place the matter before the
Academic Council.
ii) The affiliation is not a mere formality. The statutory powers of the
respondent no.4 to grant or refuse affiliation are independent and distinct
from the powers of the Council to grant or refuse permission or recognition.
iii) The role of the University is well defined. It was within the domain
of the University to inspect the campus and examine the availability of
infrastructural, institutional and instructional amenities.
iv) The G.R. dated 11.12.2015 was received after the last date of
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admission i.e on 7.12.2015 and hence the University did not have sufficient
time to carry out the inspection which was essential for grant of affiliation.
v) The University has no powers to grant conditional/ provisional
affiliation and in such circumstances the only course open for the petitioners
was to secure permission /affiliation for the next academic year.
vi) It was not permissible for the petitioner to admit students without
affiliation and such illegal act cannot be protected by granting ex-post facto
affiliation.
9. Before adverting to the issues raised by the respective parties, it
would be advantageous to refer to the relevant provisions of the Indian
Medicine Central Council Act, 1970 (in short MCC Act) and The
Establishment of New Medical College, opening of New or Higher Course
of Study or Training and Increase of Admission capacity by a Medical
College Regulations, 2003 relating to permission for a higher course.
Chapter 2A of MCC Act deals with permission for new medical college,
courses etc. Section 13A of IMCC Act, 1970 reads as under:
Section 13 A. Notwithstanding anything contained in this Act or any other
law for the time being in force
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(a) ......
(b) no medical college shall-
(i) open a new or higher course of study or training, including
a post-graduate course of study or training, which would
enable students of such course or training to qualify himself
for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or
training including a post-graduate course of study or training.
except with the previous permission of the Central
Government obtained in accordance with the provisions of this
section.
Explanation 1. - For the purposes of this section, "person"
includes any University or a trust, but does not include the
Central Government.
Explanation 2. - For the purposes of this section, "admission
capacity", in relation to any course of study or training,
including post-graduate course of study or training, in a
medical college, means the maximum number of students as
may be fixed by the Central Government from time to time for
being admitted to such course or training.
(2) Every person or medical college shall, for the purpose of
obtaining permission under sub-section (1), submit to the
Central Government a scheme in accordance with the
provisions of sub-section (3) and the Central Government shall
refer the scheme to the Central Council for its
recommendations.
(3) The scheme referred to in sub-section (2), shall be in such
form and contain such particulars and be preferred in such
manner and accompanied with such fees, as may be
prescribed.
(4) On receipt of a scheme from the Central Government under
sub-section (2), the Central Council may obtain such other
particulars as may be considered necessary by it from the
person or medical college concerned, and thereafter, it may-
(a) if the scheme is defective and does not contain necessary
particulars, give a reasonable opportunity to the person or
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medical college concerned for making a written representation
and it shall be open to such person or medical college to
rectify the defects, if any, specified by the Central Council;
(b) consider the scheme, having regard to the factors referred
to in sub-section (8) and submit it to the Central Government
together with its recommendations thereon within a period not
exceeding six months from the date of receipt of the reference
from the Central Government.
(5) The Central Government may, after considering the scheme
and recommendation of the Central Council under sub-section
(4) and after obtaining, where necessary, such other particulars
as may be considered necessary by it from the person or
college concerned and having regard to the factors referred to
in sub-section (8), either approve the scheme with such
conditions, if any, as it may consider necessary or disapprove
the scheme and any such approval shall constitute as a
permission under sub-section (1) :
Provided that no scheme shall be disapproved by the Central
Government except after giving the person or medical college
concerned a reasonable opportunity of being heard:
Provided further that nothing in this sub-section shall prevent
any person or medical college whose scheme has not been
approved by the Central Government to submit a fresh scheme
and the provision of this section shall apply to such scheme, as
if such scheme had been submitted for the first time under sub-
section (2).
(6) .....
(7) ....
(8) The Central Council while making its recommendations
under clause (b) of sub¬section (4) and the Central
Government while passing an order, either approving or
disapproving the scheme under sub-section (5), shall have due
regard to the following factors, namely:-
(a) whether the proposed medical college or the existing
medical college seeking to open a new or higher course of
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study or training, would be in a position to offer the minimum
standards of medical education as prescribed by the Central
Council under section 22;
(b) whether the person seeking to establish a medical college
or the existing medical college seeking to Open a new or
higher course of study or training or to increase its admission
capacity has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment,
accommodation, training, hospital or other facilities to ensure
proper functioning of the medical college or conducting the
new course of study or training or accommodating the
increased admission capacity have been provided or would be
provided within the time-limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the
number of students likely to attend such medical college or
course of study or training or the increased admission capacity
have been provided or would be provided within the time-limit
specified in the scheme;
(e) whether any arrangement has been made or programme
drawn to impart proper training to students likely to attend
such medical college or the course of study or training by
persons having recognised medical qualifications;
(f) the requirement of manpower in the field of practice of
Indian medicine in the college;
(g) any other factors as may be prescribed.
(9) Where the Central Government passes an order either
approving or disapproving a scheme under this section, a copy
of the order shall be communicated to the person or medical
college concerned.
10. The Establishment of New Medical College, Opening of New
or Higher Course of Study or Training and Increase of Admission
capacity by a Medical College Regulations, 2003 are the regulations
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framed in exercise of powers under Section 36 of the MCC Act. The
regulations relevant to decide the petition are as under :
3. The permission for establishment of a medical college,
opening of new or higher course of study or training and
increase of admission capacity -
Any person intending to establish a medical college or any
medical college intending to open a new or higher course of
study or training or intending to increase admission capacity in
any course of study or training shall follow the procedure and
criteria mentioned in regulations 4 to 6 and submit a scheme to
the Central Government along with an application in the form
specified in regulation 4.
4. Application Form of scheme -
(1) ...
(2) Any medical college intending to open a new or higher
course of study or training shall submit the scheme along with
an application in Form - 2.
(3) ..
5. Authority to whom the scheme and application is to be
submitted -
Applications and schemes under regulation 4 shall be
submitted to the Secretary to the Government of India,
Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha
and Homoeopathy (AYUSH) as per the schedule annexed to
the regulations.
6. Eligibility for making an application -
(1) For making an application under sub-regulation (1) of
regulation 4, a person or a medical college shall be eligible if, -
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(a) .....;
(b) ......;
(c) has obtained 'No Objection Certificate' in Form- 4 from the
concerned State Government for establishing a new medical
college at the proposed site;
(d) has obtained a 'Consent of Affiliation' in Form- 5 for
establishing a new medical college from a University
established under any Central or State statute;
(e) ......
(f) .....
(g) .....
(2) For making an application under sub-regulation (2) of
regulation 4, a medical college shall be eligible if, - .....
7. Recommendation of the Central Council -
On receipt a scheme from the Central Government under sub-
section (2) of section 13 A, the Central Council shall submit its
recommendations to the Central Government in Form-6.
8. Fee to be submitted along with application -
An application and scheme to be submitted under regulation 4
shall be accompanied by the following admission fee by way
of a demand draft/pay order payable to the 'Central Council of
Indian Medicine' New Delhi :-
(a) ... ...
(b) to open a new or higher course of study or training- Rupees
Two lakhs per course.
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(c) ... ...
9. Permission Order- The order passed by the Central
Government under sub-section (9) of section 13A shall clearly
indicate the preliminary requirement about setting up of
buildings, infrastructural facilities, medical and allied
equipments, faculty and staff before admitting the first batch of
students.
11. In so far as the University is concerned, it would be apposite to refer
to the provisions of the Maharashtra University of Health Sciences Act,
1998 relating to affiliation of colleges, courses etc
S-63. Conditions for Affiliation and Recognition
(1) The management applying for affiliation or recognition,
and management whose college or institution has been
granted affiliation or recognition, shall give and comply with
the following undertaking :
(a) that the provisions of the Act and Statutes, Ordinances
and Regulations thereunder and the standing orders and
directions of the university shall be observed.
(b) that there shall be a separate local managing committee
provided for an affiliated college as provided by section 67.
(c) that the number of students admitted for courses of
study shall not exceed the limits prescribed by the university
and the State Government from time to time.
(d) that there shall be suitable and adequate physical
facilities such as buildings, laboratories, libraries, books,
equipment required for teaching and research hostels,
gymnasium, as may be prescribed by statutes.
(e) that the financial resources of the college or institution
shall be such as to make due provision for its continued
maintenance and working.
(f) that the strength and qualifications of teaching and non-
teaching staff of the affiliated colleges and recognised
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institutions and the emoluments and the terms and
conditions of service of the staff of affiliated colleges shall be
such as prescribed by the university and which shall be
sufficient to make due provision for courses of study,
teaching or training or research, efficiently.
(g) that the services of all teaching and non-teaching
employees and the facilities of the college to be affiliated
shall be made available for
conducting examinations and for promoting other activities
of the university.
(h) that the directions, and orders issued by the Chancellor,
Vice-Chancellor and other officers of the university in
exercise of the powers conferred on them under the
provisions of the Act, Statutes, Ordinances and Regulations
shall be complied with.
(i) that there shall be no transfer of the management
without previous permission of the university.
(j) that the college or institution shall not be closed without
previous permission of the university.
(k) that in the event of disaffiliation or derecognition or
closure of the college or institution under section 74, all the
assets of the college or institution including building and
equipment which have been constructed or created out of
the amount paid as a grant-in-aid by the State Government
or University Grants Commission shall vest in the State
Government.
S-65. Procedure for Affiliation
(1) On receipt of the permission from the State 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 decision
of the Academic Council in this regard shall be final.
(2) For the purpose of considering the application for the
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grant of affiliation the Academic Council shall cause an
inquiry by a committee constituted for the purpose by it.
(3) The Academic Council shall 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;
(d) conditions, if any, which may be stipulated while
granting or for granting the affiliation.
(4) The Registrar shall communicate the decision of the
Academic Council to the applicant management with a copy
to the Secretary, Medical Education and Drugs Department,
and if the application for affiliation is granted, alongwith 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 fulfillment of which
the approval is granted.
(5) The procedure referred to in section (1) to (6) of section
64 shall apply, mutatis mutandis, for the permission to open
new courses, additional faculties, new subjects and
additional divisions.
(6) No students shall be admitted by the college or
institution unless the first time affiliation has been granted
by the university to the college or institution.
(7) The procedure referred to in sub-sections (1) to (4)
shall apply, mutatis mutandis, for the consideration of
continuation of affiliation, from time to time."
12. We may also briefly refer to the judgments of the Apex Court dealing
with the issue. In Adhiyaman Education and Research Institute (supra), the
challenge was to the constitutional validity of some of the provisions of
Tamilnadu Pvt. College (Regulation) Act 1976, Madras University Act
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1923, and the Rules framed thereunder on the ground that the same were
inconsistent with the provisions of the AICTE Act 1987. The Apex Court
has held that:
"the provisions of the State Act which impinge upon the
provisions of the Central Act are void and, therefore,
unenforceable".
The Apex Court further held that after coming into operation of the Central
Act, the provisions of the University Act would be deemed to have become
unenforceable in case of technical colleges like the engineering colleges. It
was however held that:
"The provisions of the University Act regarding affiliation
of technical colleges like the engineering colleges and the
conditions for grant and continuation of such affiliation by
the University shall, however, remain operative but the
conditions that are prescribed by the University for grant
and continuance of affiliation will have to be in conformity
with the norms and guidelines prescribed by the Council
in respect of matters entrusted to it under Section 10 of the
Central Act."
These principles were reiterated in Jai Gokul and Thirumuruga
Kirupananda and approved by a three Judge Bench of the Apex Court in
Sant Dnyaneshwar (supra), and followed in Parshawanath (supra).
13. In Maa Vaishnodevi Mahila Mahavidyalay (supra) the Apex Court,
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while considering the issue of functioning of three principal bodies viz.
NCTE, the State Government and the affiliating body or the University
regarding grant of recognition, permission and affiliation of teacher
training course, held that under the Act each of these three principle bodies
have been assigned a definitive role and even the stage at which such role is
required to be prescribed. The Apex Court observed that:
"to put it simply, the NCTE is a supreme body and is vested
with wide powers to be exercised with the aid of its expertise,
in granting or refusing to grant recognition to an educational
institution. NCTE is the paramount body for granting the
approval /recognition not only for commencing of fresh
courses but even for increase in intake, etc. The council has
to ensure maintenance of educational standards as well as
strict adherence to the prescribed parameters for imparting
of such educational courses including the infrastructure. The
provisions and scheme of the NCTE Act are in para materia
with that of the Medical Council of India Act 1986 and All
India Council for Technical Education Act 1987, etc."
14. In para 59 the Apex Court has observed as under:
"59. The above enunciated principles clearly show that
the Council is the authority constituted under the Central
Act with the responsibility of maintaining education of
standards and judging upon the infrastructure and
facilities available for imparting such professional
education. its opinion is of utmost importance and shall
take precedence over the views of the State as well as that
of the University. The concerned Department of the State
and the affiliating University have a role to play but it is
limited in its application. they cannot lay down any
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guideline or policy which would be in conflict with the
central statute or the standards laid down by the Central
body. State can frame its policy for admission to such
professional courses but such policy again has to be in
conformity with the directives issued by the Central body.
in the present cases, there is not much conflict on this
issue, but it needs to be clarified that while the State grants
its approval, and University its affiliation, for increased
intake of seats or commencement of a new course/college,
its directions should not offend and be repugnant to what
has been laid down in the conditions for approval granted
by the Central authority or Council. What is most
important is that all these authorities have to work ad idem
as they all have a common object to achieve i.e. of
imparting of education properly and ensuring maintenance
of proper standards of education, examination and
infrastructure for betterment of educational system. only if
all these authorities work in a coordinated manner and
with cooperation, will they be able to achieve the very
object for which all these entities exist."
15. In para 77 and 79 of the judgment the Apex Court has further held as
follows :
"To put it simply, the requirements which have been
examined and the conditions which have been imposed by
the NCTE shall prevail and cannot be altered, re-examined
or infringed under the garb of the State law. The
affiliating /examining body and the State Government must
abide by the proficiency and command of the NCTE's
directions. To give an example, existence of building library,
qualified staff, financial stability of the institution,
accommodation, etc. are the subjects which are specifically
covered under Section 14(3)(b) of the Act. Thus, they would
not be open to re-examination by the State and the
University. If the recognition itself was conditional and
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those conditions have not been satisfied, in such
circumstances, within the ambit and scope of Sections 46
and 16 of the Act, the affiliating body may not give
affiliation and inform the NCTE forthwith of the
shortcomings and non-compliance of the conditions. In such
situation, both the Central and the State body should act in
tandem and, with due coordination, come to a final
conclusion as to the steps which are required to be taken in
regard to both recognition and affiliation... But certainly,
the State Government and the University cannot act in
derogation to the NCTE.
79 .... .Once it grants recognition, then such grant attains
supremacy viz-a-viz the State Government as well as the
affiliating body. Normally, these questions cannot be re-
agitated at the time of grant of affiliation. Once the
University conducts inspection in terms of its Statutes or Act,
without offending the provisions of the Act and conditions of
recognition, then the opinion of the State Government at the
second stage is a mere formality unless there was a drastic
and unacceptable mistake or the entire process was vitiated
by fraud or there was patently eminent danger to life of the
students working in the school because of non-compliance of
a substantive condition imposed by either of the bodies. In
the normal circumstances, the role of the State is a very
formal one and the State is not expected to obstruct the
commencement of admission process and academic courses
once recognition is granted and affiliation is found to be
acceptable."
16. Reverting to the facts of the present petition, it is not in dispute that
the petitioner no.2 is a private partly aided medical college, which was
imparting education of Unani medicines since the year 1984-1985. The
petitioner, in accordance with the provisions of IMCC Act, 1970 and the
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Regulations, 2003 submitted a scheme along with application dated
28.6.2014 and sought permission for starting a postgraduate degree course
for the academic year 2015-2016. The petitioner obtained no objection
certificate of the Respondent no.3 State Government in Form IV, for
opening the post-graduation course. The local committee of the
Respondent No.4-University inspected the Petitioner No.2-Institution and
recommended affiliation. Accordingly Respondent No.4-University issued
consent of affiliation in form V for opening the said post-graduation course.
The validity of the said consent affiliation which was for a period of one
year, was by letter dated 31.10.2014 extended till 29.8.2016.
17. It is a matter of fact that the respondent no.2 visited and inspected the
medical college and on 31.10.2014 it communicated its recommendations to
the respondent no.1. On assessment of the visitation report of the respondent
no.2 CCIM, the respondent no.1 noted some deficiencies and issued a notice
to the petitioner in terms of sub section 5 of Section 13A of MCC Act, 1970.
The petitioner no.2 was given a personal hearing. The petitioner clarified
compliance of the said deficiencies noted by the Respondent no.1.
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18. In the interregnum the respondent no.1 on 5.5.2015, took a policy
decision to grant conditional permission under the amended regulation no.9
of Regulation 2003 to colleges whose visitation reports were obtained by it
prior to 23.3.2015. The visitation report of the Petitioner No.2 College was
obtained by respondent No.1 on 31.10.2014. The Petitioners were therefore
entitled for the grant of benefit of the policy decision dated 5.5.2015. The
respondent no.2 was also instructed to convey the said decision to the
Respondent no.3 State Government, the respondent no.4 University the and
to place the same on the website of the respondent no.2 for wider publicity.
19. The respondent No.1 also issued a letter dt. 29.10.2015 thereby
granting permission to start the post graduate course with intake of two
students from the academic year 2015-2016. The copy of the said
permission was forwarded to the respondent no.2-CCIM and the Registrar
of the respondent no.4 University. On 30.10.2015 the Petitioners requested
the respondent no.4 University to grant affiliation for the post graduate
course with intake of two students. In view of the said permission and
consent of affiliation, the petitioner, admitted two students for the said post
graduation course.
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20. The respondent No.3 issued the Government resolution on
11.12.2015 granting permission to start the post graduation course. The
Petitioners have claimed that they received the said GR dated 11.12.2015 on
31.12.2015. Accordingly, on 1.1.2016 they once again requested the
respondent No.4 university to grant affiliation to the post graduate course.
The vice chancellor of the respondent no.4-University, vide letter dated
5.1.2016 informed the petitioners that it had received the GR dated
11.12.2015 on 31.12.2015. The petitioners were also informed that since
the last date for admission for the academic year 2015-16 was 7.12.2015, it
would not be possible for the local committee to inspect the premises. The
respondent no.4-University instructed the petitioners to secure
approval/permission of respondent Nos.1 to 3 for the academic year 2016-
2017 and submit the same to respondent no.4-University so as to enable it to
start the process of affiliation for the academic year 2016-2017.
21. The above referred facts which are not in dispute, reveal that the
petitioners had complied with all the requirements under the statute and
Regulations, 2003. The respondent no.2 being satisfied that the petitioner
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no.2 had all essential infrastructural and institutional facilities,
recommended grant of permission. Accordingly the respondent no.1
granted conditional permission to the petitioner no.2 to open a new post
graduate course from the academic year 2015-2016. The college was also
permitted to permit admissions for the said post graduation course along
with already permitted courses for the academic year 2015-2016. The
college administration was directed to ensure availability of sufficient
qualified teachers as prescribed in the CCI and Regulations, before
admitting students in the above mentioned Post Graduation course.
22. Primarily the controversy is over refusal of affiliation by respondent
no.4 University as communicated to the petitioners vide communication
dated 5.1.2016. We cannot accede to the contention of the learned Counsel
Shri Govilkar that the respondent has not refused affiliation. It is pertinent
to note that by the impugned communication the respondent no.4 university
had instructed the petitioner college to initiate the process for permission
and affiliation for the next academic year 2016-2017. This is nothing but a
point blank refusal of affiliation of the post-graduate course for the
academic year 2015-2016.
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23. We do not dispute the contention of the learned Counsel Shri
Govilkar that affiliation is not a mere formality. In fact, in Parshvanath
Charitable Trust (supra) the Apex court while reiterating the principles in
Omnikrishnan JP vs. State of AP 1993 (1) SCC 645 has held that :
"...the right to establish an educational institution does not
carry within it the right to recognition or the right to
affiliation. Grant of recognition or affiliation is neither a
matter of course nor is it a formality. Admission to the
privileges of a university is a power to be exercise with great
care keeping in view the interest of the public at large and
the nation. Recognition has to be as per the statutory
prescribed conditions and their strict adherence by all
concerned. These conditions of recognition and the duly
notified direction controlling the admission process are to be
construed and applied stricto sensu. They cannot be varied
from case to case".
24. Similarly, in Maa Vaishnodevi (supra) the Apex Court has held that:
"It cannot be said that affiliation is insignificant or mere a
formality on the part of the examining body. It is the
requirement of the law that affiliation should be granted by
the affiliating body in accordance with the prescribed
procedure and upon proper application of mind.
Recognition and affiliation are expression of distinct
meaning and consequences. In Bharatia Education Society
Vs. State of H.P. 2011 4 SCC 527 this Court held that "19.
The purpose of 'recognition' and 'affiliation' is different. In
the context of NCTE Act, 'affiliation' enables and permit an
institution to send its students in public examination
conducted by the examining body and secure the
qualification in the nature of degrees, diplomas and
certificates. On the other hand 'recognition' is the license to
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the institution to offer a course of training and teaching
education".
The court also emphasized that the affiliating/examining
body does not have any discretion with reference to any of
the factors which have been considered by NCTE while
granting recognition.
...Despite that recognition itself covers the larger precepts
of affiliation, still the affiliating body is not to grant
affiliation automatically but must exercise its description
fairly and transparently while ensuring that conditions of
the law of the university and the functions of the affiliating
body should be complimentary to the recognition of NCTE
and ought not to be in derogation thereto. "
25. It is to be noted that in terms of Regulations 6(1) (d) of Regulation
2003, a consent of affiliation in form V is one of the essential eligibility
conditions for making an application under sub regulation (1) or (2) of
Regulation 4. Furthermore while issuing consent of affiliation in form V
the university is required to provide a detailed inspection report of the
proposed medical college. This mandate, clearly fortifies that affiliation is
not a mere formality.
26. In the instant case, the respondent no.4 University had rejected
affiliation on the sole reason that the G.R. dated 11.12.2015 was issued after
the last date of admission, viz. 7.12.2015, hence there was no sufficient time
for the Committee to inspect the college campus. It is not in dispute that the
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local Committee of the respondent no.4 had inspected the petitioner no.2
college and prepared a detailed list of the available faculty and the other
infrastructural amenities for starting the Post Graduate course. The local
Committee did not notice any deficiencies but observed that infrastructural
facilities available with college is sufficient for starting of Post Graduate
degree course. Accordingly, the Committee prepared a detailed report,
based on which the respondent no.4 University granted consent of
affiliation and thereby agreed in principle to affiliate the proposed Post
Graduate course with intake capacity of two students subject to permission
by the Government of India under Section 13A of Indian Medicine Central
Council Act and final permission with the Government of Maharashtra. The
said consent of affiliation is valid till 29.8.2016. It is true that consent of
affiliation cannot be equated with the final affiliation. Nonetheless,
issuance of consent of affiliation is in fact an acknowledgment that the
college fulfilled all the requisite conditions of affiliation and the University
in principle agreed to affiliate the higher course, subject to grant of
permission /recognition by the Central Council.
27. We may state at this stage that the expert committee of the
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respondent no.2 Council had also inspected the petitioner no.2 college and
being satisfied that the Petitioner college had all the essential facilities and
amenities as per the norms, it communicated its recommendation to the
respondent no.1. The respondent No.1 pointed out certain deficiencies, and
upon satisfying the respondent no.1 on compliance of the said deficiencies,
the respondent no.1 being the final Competent Authority under the Act,
granted permission to the petitioner no.2 to start the Post Graduate course
for the academic year 2015-2016 and permitted admission for academic year
2015-2016.
28. In view of the permission granted by the statutory authority, the
condition in the consent of affiliation was fulfilled. Hence, the respondent
No.4 was bound to grant affiliation to petitioner no.2 college unless there
was any valid and genuine reason to refuse such affiliation. In the instant
case, as stated earlier, the only reason assigned by the University was that
there was no sufficient time for the local committee to inspect the campus.
It is true that the fact that the local committee of the University had
inspected the college for the purpose of granting consent of affiliation is not
an embargo for a subsequent inspection for the purpose of grant of
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affiliation. Nevertheless, as stated earlier, the facts of the present case
indicate that the local committee had not noticed any deficiencies and the
consent of affiliation was not subject to removal of deficiencies. Under
these circumstances, the subsequent inspection at the most would be to
verify whether the facilities and amenities which existed at the time of the
previous inspection were available at the time of grant of affiliation.
29. Furthermore, the copy of the permission dt. 29.10.2015 granted by
respondent no.1 was already marked to the Registrar of the university. The
petitioner no.2 by letter dated 30.10.2015 had also requested the respondent
no.4 university to grant affiliation. The respondent no.4 therefore had
ample time to inspect the college and ascertain or verify whether the
college fulfilled all the essential conditions/ requirements for affiliation. It
was not necessary for the respondent no.4 to wait for the issuance of the
GR to carry out such inspection as the State could not have taken any
contrary decision. Reference can be made to Mata Gujari Memorial
College Vs. State of Bihar (2009) 16 SCC 309 wherein the Apex Court has
held that:
"Having regard to the purpose for which the Indian
Medical Council Act has been enacted and looking at the
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procedure adopted by the said Council before granting the
permission in question as engrafted in the regulation
referred to earlier, it would be difficult for us to hold that
notwithstanding the stringent provisions and stringent
requirements being complied with and the medical council
on being satisfied, yet the State Government has its say in
the matter of affiliation of the institution to the University in
exercise of its powers under the second proviso to section 21
of the Act."
30. In the instant case the Petitioner having complied with all the
requirements under the Act and the regulations, the Respondent No.2, which
is the Apex body granted permission under sub section 9 of section 13(A)
of the MCC Act 1970. The petitioners by letter dated 30.10.2015
communicated this decision to the respondent no.4 University and requested
for affiliation. There was no statutory bar for the respondent no.4
University to cause an inqury by a committee constituted for the purpose
during the pendency of issuance of GR/Permission by the State, since the
State Government did not have any say in the matter and the permission of
the state government or issuance of GR was only a formality. There was
also no impediment, either legal or otherwise, in granting affiliation after
the last date of admission particularly when the Government had issued the
G.R. and granted permission and the consent of affiliation was valid till 29th
August, 2016. Under the circumstances, Respondent No.4 was not justified
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in rejecting the affiliation for the reasons stated in the impugned
communication .
31. It is also to be noted that in terms of Section 65 of the Maharashtra
University of Sciences Act, 1998, the decision of grant or refusal of
affiliation is to be taken by the Academic Council. In the present case, the
application for affiliation was rejected by the Vice Chancellor of the
University without even placing the same before the Academic Council.
The
action of the respondent no.4 University is arbitrary, mechanical,
unjust and unreasonable. In Maa Vaishnodevi (supra) the Apex Court has
held that all authorities are required to function ad idem as they have a
common object of imparting education and ensuring maintenance of proper
standards of education. However, once the Apex body, IMCC, as in the
present case, grants permission/recognition, such grant attains primacy vis-
a-vis State Government as well as the affiliating body. Normally the
questions looked into and accepted at the stage of recognition cannot be
revisited by the State Government or the affiliating body. Whilst, each of
the three authorities may have a role to play, once CMCC grants
recognition, neither the State Government nor the University can frustrate
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the same on ground of some alleged delay or due to lack of inter se co-
ordination between the authorities.
32. The petitioners had complied with all the requirements under the
statute and the regulation. The petitioners were not responsible for the delay
in issuance of GR or the delay in communicating the GR to the respondent
no.4. In fact, the petitioners have been placed in these unfortunate
circumstances because of the failure of the respondent no.4 University to
carry out the inspection as well as on account of the delay on the part of the
respondent no.3 State in communicating the GR to respondent no.4. The
petitioners have already invested huge amount in infrastructure,
appointment of teaching and non-teaching staff, etc. The petitioners have
also admitted the students in view of the permission granted by the
respondent no.1 and the consent of affiliation, which was valid till 29th
August, 2016. Under these circumstances, the respondent no.4 was not
justified in directing the petitioners to go through the entire rigmarole for
seeking permission and affiliation for the academic year 2016-2017.
Furthermore, the interest of the students cannot be jeopardized because of
lack of co-ordination between the State Government and the University.
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33. In view of these peculiar facts and circumstances, the petition is
allowed.
i) The communication /order dated 5/6/2016 is hereby quashed and set
aside.
ii) Pending the final affiliation, the respondent no.4 university is directed
to grant provisional affiliation to the Petitioner No.2 college w.e.f.
29.10.2015, to start a new Post Graduate degree Course Ilmul Quabalat-
WA-Amraj-E-Niswan with intake capacity of two students for the
academic year 2015-2016.
iii) The respondent no.4 university to send the local committee to inspect
the petitioner no.2 college within a period of 7 days from the date of the
receipt of this order.
iv) The Academic Council of the university shall thereafter take the
appropriate decision on the issue of affiliation.
Rule is made absolute in above terms.
(ANUJA PRABHUDESSAI, J.) (SHRI RANJIT MORE, J.)
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At this stage Mr. Govilkar, learned Counsel for the respondent no.4 seeks
stay of this order. Since the consent of affiliation is valid only upto
29.08.2016, we are not inclined to stay this order. The request is therefore
rejected.
(ANUJA PRABHUDESSAI, J.) (SHRI RANJIT MORE, J.)
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