CASE NO.: Appeal (civil) 6167 of 2001 PETITIONER: THE STATE OF MAHARASHTRA Vs. RESPONDENT: INDIAN MEDICAL ASSOCIATION & ORS DATE OF JUDGMENT: 06/12/2001 BENCH: V.N. Khare & B.N. Agrawal JUDGMENT:
V. N. KHARE, J.
This appeal which is directed against the judgment of Bombay High
Court passed in the writ petition gives rise to following two questions for
our decisions 1) whether the State Government is required to submit an
application to the Maharashtra University of Health Sciences (hereinafter
referred to ‘the University’) under Section 64 of the Maharashtra University
of Health Sciences Act, 1998 (hereinafter referred to as the ‘Act’) for
obtaining permission from itself, when it decides to establish a government
run medical college within the State; and 2) whether the perspective plan
prepared by the University under the Act for educational development for
the location of higher learning is binding on the State Government when the
State Government resolves to set up a government run medical college
within the State.
The aforesaid questions arose in the context of the decision taken on
30.8.2000 by the government of Maharashtra to set up a government medical
college at Kohlapur. This decision of the government was challenged by the
respondents through a Public Interest Litigation before the High Court of
Bombay at Aurangabad. The challenge in the writ petition was, inter alia,
on the ground that the State Government having not submitted any
application to the University as required under Section 64 of the Act, the
decision taken by the State Government to set up a government run medical
college at Kohlapur is invalid, and, that, the resolution of the State
Government to set up government run medical college at Kohlapur being
contrary to the perspective plan prepared by the University, the impugned
decision was illegal. The High Court was of the view that the State
Government having not submitted any application for permission of the
State Government to the University for establishing a government run
medical college at Kohlapur as required under Section 64 of the Act, the
impugned decision of the government is invalid and further the decision of
the State Government to set up a medical college at Kohlapur being contrary
to the perspective plan prepared by the University which is binding on the
State Government, the impugned decision suffers from legal infirmity.
Consequently, the decision of the State Government to set up a government
run medical college at Kohlapur was set aside and the writ petition was
allowed. It is against the said judgment, the State of Maharashtra has
preferred this appeal.
Coming to the first question, the setting up a medical college and the
medical education in our country is governed by the Indian Medical Council
Act, 1956 and Regulations framed thereunder. In the year 1993, Section
10A, 10B and 10C were inserted in the Indian Medical Council Act by
amending Act 31 of 1993. Sub-section (1) of Section 10A provides that no
person shall establish a medical college or no medical college shall open a
new or higher course of study or training or increase its admission capacity
in any course of study or training except with the previous permission of the
Central Government obtained in accordance with the provisions of the Act.
Sub-section (2) thereof provides that every person or medical college
desirous of opening a medical college shall submit to the Central
Government a scheme in accordance with the provisions of the Act and the
Central Government shall refer the scheme to the Medical Council for its
recommendation. Sub-section (3) of Section 10A further provides that on
receipt of a scheme by the Medical Council, the Council may obtain such
other particulars as may be considered necessary by it from the person or the
medical college concerned and thereafter it may consider the scheme, having
regard to the factors referred to in sub-section (7), and submit the scheme
together with its recommendations thereon to the Central Government. Sub-
section (4) of Section 10A enables the Central Government either to approve
or disapprove the scheme. Section 33 of the Act empowers the Medical
Council to make Regulation for carrying out the purposes of the Act. The
Medical Council, in exercise of power conferred by Section 33 read with
Section 10A of the Act, has framed Regulation known as ‘The
Establishment of New Medical Colleges, Opening of Higher Courses of
Study and increase of Admission Capacity in Medical Colleges Regulation,
1993 (hereinafter referred to as the ‘Regulation’). The Regulation provides
the eligibility and qualifying criteria for setting up a medical college. Para 3
of the Regulation runs as under :
“that Essentiality Certificate regarding the
desirability and feasibility of having the proposed
medical college at the proposed location has been
obtained and that the adequate clinical material is
available as per Medical Council of India
requirements has been obtained by the applicant
from the respective State Government or the Union
Territory Administration.”
A perusal of para 3 of the Regulation shows that it is mandatory on the part
of an institution or a management desirous of establishing a medical college
to obtain Essentiality Certificate from the respective State Government or
the Union Territory Administration, as the case may be. The requirement of
Essentiality Certificate provided under para 3 of the Regulation concerns
with among other requirements the desirability of having the proposed
medical college at the proposed location. The desirability of having medical
college at the proposed location under para 3 of the Regulation is required to
be decided by the State Government. Excepting the desirability of location
of the proposed medical college and certificate that adequate clinical
material is available as per Medical Council of India at the proposed medical
college are to be decided by the State Government and all other aspects
regarding establishment of a new medical college and imparting of the
education therein are covered by the Central Act and Regulations framed
thereunder. In other words, in the matter of establishment of a medical
college and medical education the field, that is open where a State
Government has any role to play is only in regard to decide the desirability
of the location of the proposed medical college and grant of certificate that
adequate clinical material is a available as per Medical Council at the
proposed medical college. Thus, the State Government is the only authority
under the Regulations to which we are concerned to decide the location of a
new proposed medical college within the State. The State Government,
therefore, is the only judge to decide where the proposed medical college is
to be located. For that purpose, the State Government neither can delegate
its function to any other authority nor can create a statutory authority under a
State Act. If it does so, it would be repugnant to the Central Act. However,
it is true that the State Government in order to maintain inter or intra
regional imbalances within the State and to remove the chances of
arbitrariness can lay down guidelines or prepare a perspective plan for its
own guidance for selecting locations for a proposed new medical college
within the State.
Another object behind the necessity to obtain the Eligibility
Certificate from the State Government under para 3 of the Regulations is
that in the event a private management becomes incapable of setting up the
proposed medical college or impart education therein, such a Certificate by
the State Government casts an obligation on the State Government to take
over the affairs of such a private medical college and discharge the
obligations of the private management. It is in these context, Section 64 of
the Act is required to be read and understood. Section 64 of the Act runs as
under:
” 64. Procedure for permission.— (1) the
University shall prepare a perspective plan for
educational development for the location of
institutions of higher learning in a manner ensuring
equitable distribution of facilities of Health
Sciences Education having due regard, in
particular, to the needs of unserved and under
developed areas within the jurisdiction of the
University. Such plan shall be prepared by the
Academic Council and shall be placed before the
Senate through the Management Council and shall
be updated every five years.
(2) No application for opening a new
college or institution of higher learning which is
not in conformity with such plan, shall be
considered by the University.
(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 University before the last day of
October of the year preceding the year from which
the permission is sought.
(4) All such applications received within
the aforesaid prescribed time limit shall be
scrutinised by the Planning Board and be
forwarded to the government with the approval of
the Management Council on or before the last day
of December of the year, with such
recommendations (duly supported by relevant
reasons) as are deemed appropriate by the
Management Council.
(5) Out of the applications recommended
by the University, the Government may grant
permission to such institutions as it may consider
right and proper in its absolute discretion, taking
into account the Government’s budgetary
resources, the suitability of the managements
seeking permission to open new institutions and
the State level priorities with regard to location of
institutions of Health Sciences learning.
Provided however that, in exceptional cases
and for the reasons to be recorded in writing, any
application not recommended by the University
may be approved by the State Government for
starting a new college or institution of Health
Sciences learning.
(6) No application shall be entertained
directly by the Government for the grant of
permission for opening a new college or
institution of Health Sciences learning.
A perusal of Section 64 shows that it provides for procedure for
obtaining permission by the State Government for setting up a new medical
college and confers exclusive power on the State Government for grant of
permission to a management to establish a new medical college. The power
of the State Government to grant permission to set up a new medical college
under Section 64 of the Act is substantially the power of the State
Government to grant Essentiality Certificate to a management or an
institution who intends to establish a new medical college at a proposed
location. If Section 64 of the Act is read along with para 3 of the
Regulations it would show that the requirement of Essentiality Certificate or
approval by the State government is required when a private management or
any other person other than the State government intends to set up a medical
college. The State Government being the authority to accord approval for
setting up a medical college within the State cannot apply to itself for grant
of approval when it proposes to establish a new medical college within the
State. It’s decision to set up a government run medical college tantamounts
to an approval or permission as contemplated under Section 64 of the Act
and grant of Essentiality Certificate to the extent of location of the proposed
medical college which is required to be furnished under para 3 of the
Regulation. The language of Section 64 is plain and simple. The expression
‘management’ occurring in Section 64 shows that it refers to a private
management other than the State Government when it seeks permission of
the State Government to open a new medical college within the State. .
Shri S. Ganesh, learned senior advocate appearing for the respondents
brought to our notice the definition of the expression ‘management’ as
contained in sub-section (21) of Section 2 of the Act, which runs as under:
“Section 2. In this Act, unless the context
otherwise requires,–
.. .
(21) ‘Management’ means the trustees, or the
managing or governing body, by whatever name
called, of any trust registered under the Bombay
Public Trusts Act, 1950 Bom. XXIX of 1950 or
any society registered under the Societies
Registration Act, 1860 21 of 1800 under the
management of which one or more colleges or
recognised institutions or other institutions are
conducted and admitted to the privileges of the
University.
Provided that, in relation to any college or
institution established or maintained by the Central
Government or the State Government or a local
authority such as a Zilla Parishad, municipal
council or municipal corporation, it means,
respectively, the Central Government or the State
Government or the concerned local authority that
is the Zilla Parishad, municipal council or
municipal corporation, as the case may be.”
On the strength of the said definition of the expression ‘management’, it was
urged that the word ‘management’ occurring in Section 64 of the Act shall
also includes the State Government and as and when the State Government
proposes to set up or establish a government run medical college, it has also
to apply to the University for grant of permission by the State government.
The question then arises whether the expression ‘management’ occurring in
Section 64 of the Act would also include the State Government and the State
Government is required to submit an application to the University for
obtaining approval from itself as and when the State Government decides to
establish a government run medical college within the State.
In K. Balakrishna Rao and others vs. Haji Abdulla Sait and others
1980 (1) SCC 321, it was held that a definition clause does not necessarily in
any statute apply in all possible contexts in which the word which is defined
may be found therein. In Printers (Mysore) Ltd. and another vs. Assistant
Commercial Tax Officer and others – 1994 (2) SCC 434, it was held that it
should be remembered that the provisions which define certain expressions
occurred in the Act opens with the words “in this Act unless the context
otherwise requires” which shows that wherever the word so defined
occurred in the enactment, it is not mandatory that one should mechanically
attribute to the said expression the meaning assigned to it in the definition
clause. Ordinarily, where the context does not permit or where the context
requires otherwise, the meaning assigned to it in the said definition need not
be applied.
A bare perusal of Section 2 of the Act shows that it starts with the
words ” in this Act, unless the context otherwise requires — “. Let us find
out whether in the context of the provisions of Section 64 of the Act the
defined meaning of the expression “management” can be assigned to the
word ‘management in Section 64 of the Act. In para 3 of the Regulations,
the Essentiality Certificate is required to be given by the State Government
and permission to establish a new medical college is to be given by the State
government under Section 64 of the Act. If we give the defined meaning to
the expression “management” occurring in Section 64 of the Act, it would
mean the State Government is required to apply to itself for grant of
permission to set up a government medical college through the University.
Similarly it would also mean the State Government applying to itself for
grant of Essentiality Certificate under para 3 of the Regulation. We are
afraid the defined meaning of the expression “management” cannot be
assigned to the expression “management” occurring in Section 64 of the Act.
In the present case, the context does not permit or requires to apply the
defined meaning to the word ‘management’ occurring in Section 64 of the
Act. . However, after the government run medical college is established,
necessarily there has to be management or body of persons to run the affairs
of the medical college and for such a situation the expression ‘management’
as defined in Section 2 (21), is contemplated under Section 65 of the Act. In
the context of the provisions of Section 65 of the Act, the management of the
government run medical college has to apply for grant of affiliation to the
University which may be the State Government. It is not disputed that the
State Government (Management) did apply for grant of affiliation to the
University which was granted. We are, therefore, of the opinion that the
defined meaning of the expression ‘management’ cannot be assigned or
attributed to the word ‘management’ occurring in Section 64 of the Act. The
word ‘management’ if read in the context of the provisions of Section 64 of
the Act, means any one else excepting the State Government applying to a
State Government for permission to establish the proposed medical college
at proposed location to be decided by the State Government.
Shri Ganesh, learned senior advocate, then urged that if we take a
view that the word ‘management’ occurring in Section 64 of the Act refers
to a private management or anyone else excepting the State Government, it
would mean there are two laws – one for private management desirous of
setting up a new medical college and the other for the State Government
when it decides to establish a new medical college in the State which is not
permissible under law, and relied upon a decision in the case of
Superintendent & Legal Remembrancer, State of West Bengal vs.
Corporation of Calcutta 1967 (2) SCR 170. We do not dispute with the
broad abstract preposition of law submitted by Shri S Ganesh, learned senior
advocate. At the outset, it may be made clear that there cannot be two laws
– one for the State Government and the other for private management. But
the compliance of requirement of law either by a private management or by
the State Government depends upon the object and purpose for which
legislature has enacted the law. If viewed in this light, it is manifest that
anyone else excepting the State Government or Union Territory, desirous of
setting up a new medical college, is required to obtain Essentiality
Certificate from the State Government as regards the desirability of
proposed location where the medical college is intended to be established. It
is within the exclusive domain of the State Government to approve the
proposed location where the new medical college is to be established.
Similarly, under Section 64 of the Act, it is the State Government who has
exclusive power to grant or refuse permission to set up a new medical
college. The grant of approval or permission as contemplated under Section
64 of the Act is nothing but substantially a grant of Essentiality Certificate
under para 3 of the Regulations in so far it relates to location of the proposed
medical college. The State Government while granting an Essentiality
Certificate or permission to establish a new medical college acts as a
sovereign and discharges its constitutional obligation. In this context, if the
argument of learned counsel for the appellant is accepted, it would mean the
State government is required to apply to itself for permission when it decides
to set up a new government run medical college when the State Government
is the only authority to grant permission to set up a new medical college at a
proposed location. Further, the argument that the State Government when it
decides to set up a new government run medical college is required to
submit an application to the University for grant of permission by the State
Government would be repugnant to the object behind para 3 of the
Regulations and legislative intent for which Section 64 of the Act has been
enacted.
Coming to the decision in Superintendent & Legal Remembrancer,
State of West Bengal vs. Corporation of Calcutta (supra), cited by learned
counsel for the respondents, only this much safely can be stated that its
reliance by the appellant’s counsel is totally misplaced. In the said case, the
State of West Bengal was carrying on commercial activities as owner and
occupier of a market at Calcutta without obtaining licence as required under
Section 218 of the Calcutta Municipal Act, 1951. In that context, it was
held by this Court that the State Government was required to take licence
under Section 218 of the Calcutta Municipal Act. In the present case,
neither para 3 of the Regulations nor under Section 64 of the Act the State
Government is required to take permission from itself when it takes a
decision to establish a new government run medical college and, therefore,
reliance of the said decision is of no help to the case of the respondents.
For the aforesaid reasons, we are of the view that when the
Government by a resolution decides to establish a new government run
medical college within the State, it is not required to submit any application
to the University under Section 64 of the Act for grant of permission by
itself.
Coming to the second question whether the perspective plan as
prepared by the University was binding on the State government when it
decided to establish a government run medical college within the State, Shri
Harish N. Salve, learned Solicitor General, appearing for the appellant
advanced three arguments. His first argument is that Article 371 (2) (c) does
not provide for medical education and it is restricted only to technical
education and, therefore, Article 371 (2) (c) has no application in the present
case. The second argument is that when the State Government decides to
establish its own medical college, and the State Government not being a
‘management’ within the meaning of ‘management’ occurring in Section 64
of the Act, and not required to submit any application to the University and,
as such, any perspective plan prepared by the University is not binding on it.
According to him the perspective plan is binding on the State Government
qua private management who is required to submit an application for
permission of the State Government to open a new medical college. The
third argument is that, in any event of the matter, there was a substantial
compliance of the perspective plan when the State Government decided to
establish a government run medical college at Kolhapur. Whereas, learned
counsel for the respondents brought to our notice Article 371 (2) (c) of the
Constitution of India and on the strength of the said provisions it was urged
that a perspective plan prepared by the University under Section 64 of the
Act being under the mandate of Article 371 (2) (c) of the Constitution and,
therefore, was binding on the State Government and any decision by the
State Government contrary to the perspective plan would be rendered
invalid.
The first argument of learned Solicitor General is that the expression
‘technical education’ occurring in Article 371 (2) © of the Constitution is
distinct and different from ‘medical education’ and, therefore, Article 371
(2) (c) of the Constitution has no application when the University prepared a
perspective plan under section 64 of the Act. We are not deposed to go into
the said argument although the argument appears to be attractive. So far as
the second and third arguments are concerned, it is necessary to look into the
provisions of the Act. Section 5 (ww) of the Act provides that the
University shall comply with and carry out any directives issued by
Government from time to time, with reference to the powers, duties and
responsibilities of the University. Section 7 (2) of the said Act provides that
the University shall adopt Government policy and orders or directions issued
from time to time, in regard to the reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes for appointment to different
posts of teachers and non-teaching officers and employees and for the
purpose of admission of students in the affiliated or conducted colleges.
Sub-section (3) thereof further provides that the University shall adopt
general policy of Government in regard to the welfare of various categories
of weaker sections of the society and minorities as directed by the
Government, from time to time. Section 9 (1) provides that without prior
approval of the Government, University shall not create any new posts of
teachers, officers or other employees; revise pay, allowances, post-
retirement benefits and other benefits of its teachers, officers and other
employees, divert any earmarked funds received for any purpose other than
that for which it was received and incur expenditure on any developmental
work form the funds received from the Government or take any decision
regarding affiliated colleges resulting in increased financial liability, direct
or indirect, for the Government. Sub-section (4) of Section 9 further
provides that in case of failure of the University to exercise powers or
perform duties specified in Section 5 or where the University has not
exercised such powers or performed such duties adequately, or where there
has been a failure to comply with any order issued by government, the
Government may, on making such enquiry as it may deem fit, issue a
directive to the University for proper exercise of such powers or
performance of such duties or comply with the order and it shall be the duty
of the University to comply with such direction. Clause (8) of Section 48 of
the Act provides that the Statutes of the University may provide
qualifications, recruitment, workload, code of conduct, terms of office,
duties and conditions of service, including periodic assessment of teachers,
officers and other employees of the University and the affiliated colleges,
except those colleges or institutions maintained by the State or Central
Government. Sub-section (6) of Section 49 thereof provides that the
Chancellor, either suo motu or on the advice of the Government, may, direct
the University to make provisions in Statutes in respect of any matter
specified by him. Section 74 of the said Act lays down that no management
of a college or recognised institution shall be allowed to close down the
college or recognised institution without prior permission of the State
Government.
We shall now examine Section 64 of the Act for the purpose whether
the perspective plan prepared by the University is binding on the State
Government when it resolves to set up a government run medical college
within the State in light of provisions of the Act stated hereinbefore and
other relevant provisions.
The aforesaid noted provisions of the Act show that the State
Government exercises considerable control over the running of the affairs of
the University and inasmuch as the University is prohibited from framing
any statutes laying down the qualifications, recruitment, terms of office and
conditions of service of employees and officers of the Government run
institutions. We have already held in preceding paragraphs of this judgment
that the defined meaning of the expression ‘management’ cannot be assigned
to the expression ‘management’ occurring in Section 64 of the Act and as
and when the State Government decides to set up a government run medical
college, it is not required to submit any application to the University for
grant of permission by itself. We have also held that under para 3 of the
Regulation the State Government is not required to grant Essentiality
Certificate to itself and its decision to set up a government run medical
college at a proposed location substantially is an Essentiality Certificate to
the extent it relates to the proposed location of the medical. In that view of
the matter, the perspective plan prepared by the University under the Act is
binding on the State Government qua those who are applicants for grant of
permission to open a new medical college under Section 64 of the Act. The
State Government being not an applicant for grant of permission under
section 64 of the Act, the perspective plan prepared by the University is not
binding on it when it takes a decision to establish a new Government
medical college. However, the perspective plan prepared by the University
may not strictly binding on the State Government when it decides to set up
its own medical college, but such a perspective plan serves as a guideline
indicating therein the desirability of setting up a medical college by the State
Government in a particular region or area on account of either its
backwardness or lack of medical facilities in that region or area. Such a
guideline helps the State Government in finding out locations when it
decides to set up a medical college within the State in three ways. Firstly,
such a guideline excludes the possibility of an element of arbitrariness in
determining the location of the proposed medical college; secondly, it helps
the State Government while arriving at a decision of desirability of having a
medical college in a particular area or region on account of its backwardness
or lack of medical facilities and thirdly, such a guideline would also be in a
true spirit of Article 371 (2) (c) of the Constitution if it is held that Article
371 (2) (c) is applicable to the medical education also. The State
Government is expected to comply with the perspective plan as far as
possible. However, any single deviation from such a guideline by the State
Government when it decides to set up its own medical college within the
State would not make its decision invalid. In any case, in the present case,
we do not find any deviation from the perspective plan prepared by the
University. The recommendations of the perspective plan for the year 2000-
2001 are thus:
“.The tribal areas in Khandesh and Western
Maharashtra and in Vidarbha need special
consideration. Therefore it is suggested that
permission to start any new college has to be
considered only for Vidarbha and Marathawada.
Under any circumstances not more than 1 college
for each region (Vidarbha and Marathwada) with
an intake capacity of 100 per annum be
permitted.”
It may be stated that the State while maintaining regional imbalances is
also required to maintain intra regional imbalances being the welfare State.
In the light of the aforesaid recommendations, the State Government in a
decision dated 30.8.2000 stated that out of 34 medical colleges in the State,
11 colleges are government colleges and since the year 1989-90, no
government medical college was opened. It was further stated therein that in
the Western Ghat there are 62 Talukas in hilly area where the residents of
said Talukas have to face difficult conditions and the students coming from
that area are lower in terms of merit than the other students of the State. It
was, therefore, decided to keep 20% seats reserved for residents of said 62
Talukas in the proposed Government Medical College at Kolhapur. The
private medical colleges where 50% seats are payment seats, the component
of free seats in Government Medical Colleges in rest of Maharashtra area is
lowest, which would be clear from the following table:
Availability of Medical Seats as per population in three
Development regions of Maharashtra State.
Region No. of Govt. No. of Population No. of Seats per Colleges Seats (Yr. 2000) 10,000 popula- tion ROM 5 650 5,74,89,865 0.113 Marathawada 3 250 1,56,81,205 0.159 Vidarbha 3 400 1,97,88,331 0.202
While the State Government took decision to establish government run
medical college at Kolhapur it took decision to set up one Government run
medical college in Vidarbha region and the second government medical
college in Marathawada region in conformity with the perspective plan. Shri
Maninder Singh, learned counsel representing Medical Council of India
stated before us that the medical council shall complete all the formalities
within three months and send its report to the Central Government
immediately thereafter. Learned Solicitor General stated that as soon as the
approval of the Central Government is received the State Government shall
immediately would take steps to open Government medical colleges in
those regions. In view of the said statements, we do not find that there was
any deviation from the perspective plan prepared by the University because
both the Vidarbha and Marathawada have been provided for government
run medical college – one in each region. We, therefore, find that there was
substantial compliance of the perspective plan prepared by the University.
Learned counsel for the respondents strongly relied upon the decision
of the Bombay High Court in the case of Dhananjay R Kulkarni and others
vs. State of Maharashtra and others 1999 (2) Maharashtra Law Journal,
323, wherein it was held that the perspective plan prepared by the University
was binding on the State Government. In Dhananjay’s case (supra), the
management of a private institution was applicant for setting up a Bachelor
of Computer Science course. The University found that the location of the
proposed institution was contrary to the perspective plan and, therefore, did
not recommend the same. However, the State Government granted
permission. It is in that context, the High Court held that the perspective
plan was binding on the State Government also, which is not the case here.
In the present case, we are concerned with setting up of a government run
medical college which is not a private management within the meaning of
‘management’ occurring in Section 64 of the Act read with para 3 of the
Regulation and, therefore, reliance of the decision in Dhananjay’s case
(supra) is totally misplaced.
Lastly, it was urged that since in Dhananjay Kulkarni’s case (supra),
no appeal was filed by the State government and in fact the State
Government has accepted the said judgment and therefore, this appeal
deserves to be dismissed. Learned counsel also relied upon a decision of
this Court in Union of India vs. Satish Panalal Shah 2001 ITR (249), 221
in support of his argument. We do not find any merit in this submission.
We have already held that the decision in Dhananjay Kulkarni’s case (supra)
related to a private management and has nothing to do with the setting up of
a new government run medical college and, therefore, the decision in
Dhananjay Kulkarni’s case (supra) has no application in the present case. In
that view of the matter acceptance of the judgment in Kulkarni’s case by the
State Government does not affect the maintainability of the present appeals.
Further, the reliance of the decision in Union of India vs. Satish Panalal
Shah (supra) is totally misplaced.
To sum up, what we have held hereinbefore are these :
(A) That, the decision of the State Government to establish a
government run medical college at a proposed location
tantamounts to an Essentiality Certificate under para 3 of the
Regulations to the extent of location of the medical college;
(B) That, the defined meaning of expression ‘management’
cannot be assigned to the expression ‘management’ occurring in
Section 64 of the Act;
(C) That, the expression ‘management’ occurring in Section
64 of the Act does not include the State Government;
(D) That, when the State Government resolves to set up a
medical college at a proposed location, it is not required to
submit any application to itself for permission to establish a
Government run medical college through the University under
Section 64 of the Act;
(E) That, any perspective plan prepared by the University is
not strictly binding on the State Government when it resolves
to set up a government medical college at a proposed location
in view of the fact that the State is not the ‘management’ under
Section 64 of the Act;
(F) That, the perspective plan prepared by the University
binds the State Government qua private management or
anybody else excepting the State Government applying for
permission of the State Government to open a medical college;
(G) That, any perspective plan prepared by the University
serves as a guideline to the State Government as and when the
State Government decides to set up a new government run
medical college within the State and the State Government is
expected to abide by the said guidelines, as far as possible;
(H) That, in the present case, there was substantial
compliance of the perspective plan prepared by the University;
and,
(I) That, the decision in the present appeal is confined to the
question of establishment of a government run medical college
in the State.
For the aforesaid reasons, we are of the view that the present appeal
deserves to succeed. Consequently, the judgment under appeal is set aside
and the appeal is allowed. There shall be no order as to costs.
..J.
(V. N. KHARE)
..J.
(B. N. AGRAWAL)
6th December, 2001