JUDGMENT
Ashok A. Desai, J.
1. These four writ petitions since raise common question of facts and law have been heard together and are decided by a common judgment.
2. Pursuant to Cabinet decision, the Government by order dated 2.4.1998, directed to convert six Government Allopathic Medical Colleges into each individual autonomous Societies and to transfer of properties and equipments of Medical Colleges to the corresponding Societies. Minister of Medical Education, in each Society has been nominated as Chairman of Board of Governors. Model bye-laws to be prepared by the Government, have to be adopted by the concerned Society. Accordingly, vide Circular dated 14.9.1998 model bye-laws were issued. On 17.10.1998, six societies were independently registered under Societies Registration Act, 1860 (hereinafter referred to the Act). These petitions have questioned validity, propriety and motivation of these decisions.
3. During the course of hearing, the learned Advocate General presented affidavit sworn by Shri Amarjit, Deputy Secretary of Medical Education who has averred in paragraph 2 as thus :
“That the Government has only entrusted the management and user of its Medical Colleges property including equipment to the societies for use by the respective Medical Colleges to be run by the said societies. The ownership or interest in the property of the Government Medical Colleges is not transferred to the societies nor is intended to be transferred to the societies. The ownership of the properties of the Government Medical Colleges shall continue to remain vested in the State Government.”
In view of the change in deciston challenge of the petitioner, which relates to competence of the Government under Article 298 of the Constitution, to the transfer of property of Government Medical Colleges to the Societies, does not survive.
4. The learned Advocate General at the outset questioned focus of the petitioner to maintain the instant petition. According to him, petitioner No. 1 in Civil Misc. Writ Petition No. 3604 of 1998 a Teachers Association, is not a registered organisation. The organisation cannot challenge the decision of the Government on behalf of the teachers. It is reported the U. P. Medical College Teachers Association (Writ Petition No. 2263 of 1999) is a registered organisation and other associations are its branches. The organisation even if not registered, the members thereof are the members of the public. The decision under challenge is of vital and public importance. Public interest is substantially involved in the petitions. Even as teachers, they are substantially interested in Medical Education and academic affairs of the Colleges. Petitioner No. 1 organisation and petitioner No. 2 as its President, therefore, can maintain the petitions.
5. S./Sri L. P. Naithani and Sunil Ambwani tried to urge that the decision to convert Government Medical Colleges into Society is vlolative of Article 21 of the Constitution. The Government under Article 47 has a primary duty to improve public health, which is an
Integral part of right to life of the member of public. The impugned decision, to convert Government Medical Colleges into Societies, therefore, violates Article 21 of the Constitution.
By the impugned decision, the management of the Medical Colleges along with the teaching hospitals are being transferred to the respective Societies. These institutions are not being withdrawn or closed down by the Government. As such, it does not in any manner violate the right under Article 21 of the Constitution.
6. According to the petitioner, the decision to convert Government Medical Colleges into Societies has been induced by mala fides. The only design, which is explicit. is to commercialize the Medical Education. Prevailing experience testifies that private Medical Colleges have become money-generating institutions. High rate of tuition fee, charging of capitation and extraction of donation somehow become the recognized and assured devices to float money. Design of the impugned decision is to bring Government Medical Colleges in line with those Private Colleges. Reasons assigned for taking Impugned decision are non-real and non germane. Decision is completely misuse of the executive power and taken more for wrongful gain. It is tainted with malice and operates as fraud on public as well public resources.
7. The learned Advocate General made endeavour to resist the submissions. He referred to entry No. 25 of Third List of Seventh Schedule and contended that the medical education is equally within the domain of the State Government. The Government within its executive authority is competent to decide the policy. Referring to AIR 1973 SC 585 (9) submission made is what ought to be the policy cannot be matter of judicial review. Moreover, the change in policy itself could not be a ground for challenge. Reliance is placed on 1995 (4) SCC 15 (17). It is asserted that under the changing circumstances, there is need to change in the policy. It cannot be
called in question unless It suffers from arbitrariness or violation of constitutional guarantee. Reference is made to 1998 (4) SCC 117 (23).
8. Competence of the Government to change the policy can hardly be debated. What ought to be the policy cannot be subjected to strict judicial review. Still to change a decision or policy, which entails consequences on public interest, cannot be out of free will. The same could not be a fancy of persons in power, entrusting management of the Government Medical Colleges to the Societies is certainly a drastic change of far reaching consequences. It has a definite bearing on the public interest. The Government is, therefore, not exonerated from obligation to prima facie demonstrate that the change as undertaken was necessary having regard to the facts and aspects relevant thereto. The Government is also under obligation to display that the proposed change was brought to attain the better interest of the public as well of Medical Education. We may not attempt to probe into sufficiency of reasons but certainly look into the relevancy of the aspects, which necessitated the Government to take impugned decision.
9. The counter-affidavit of the Government maintains that existing system was not adequate for promotion of Health and Medical Education.
Note submitted on 25.5.1999 has conveyed that the general reputation of Medical College Hospitals had gone from bad to worst. The main reasons assigned therefor are delay in promotion and recruitment, nonavailability of equipments, lack of work culture, emphasis of the staff has been more on right than duty, political interference, rigid compartmentalisations of budgetary grant, procedure for getting grant and utilization is cumbersome and time consuming. Further the Medical Education is not being considered as an important department and hence It does not get priority either with the U. P. Public Service Commission or in the Government. The note tried to
emphasize that the Engineering Colleges, Nirman Nigam. Jal Nigam are operating successfully under the various bodies.
10. In paragraph 15 of counter-affidavit, a statement is made that
after thorough investigation and enquiry, the Government has taken a policy decision for granting autonomous status to these Medical Colleges taking due note of the deteriorating standard or education in these institutions because of unnecessary and extra dose of involvement of the State Government. In paragraph 22. it is averred that the decision is taken with an intention to improve the condition of Medical Colleges run by the Government and to provide them independent and more effective management by reducing Government hustles.
11. The preamble of Impugned decision declares that the decision is taken to improve efficiency of Government Medical Colleges, to increase representation of financial and administrative authority and speed up work. The Government by counter-affidavit attempted to explain that :
“To decentralize the day-to-day management of the Medical Colleges and to make the Board and authority on the spot more functionary and effective in order to improve the standard of education in medical field.
To tone up the entire medical education and to bring the same to the parameters of Medical Council of india.”
12. All these statements are general in nature, without any specifications.
More apparent is that the Government is canvassing grievance against its own style of functioning and taking it as a basis for the impugned decision. It is not explained that apart from the department of medical education as to how the Government as sovereign body could not surmount difficulties as canvassed? It is not shown that the Government with its prerogative
was incapable to bring reform or modulate their own administration and procedure so as to bring betterment in the management of Colleges. Apparent it is that the Government has become victim of their own niceties and modalities.
13. More emphasis it appears to be that the Government is fed up to manage administration of the Government Colleges because of their own hustle, interference and involvement and to escape the responsibility, they have entrusted the management to the Society. It is more an alibi on the part of Government. It is not explained how the Government could not eliminate all that hazards which have adverse effect on the administration. No explanation is offered as to how the prevalent system which was satisfactorily operating for years, become inadequate. Reasons adopted for impugned decision, therefore, appear to be more a camouflage.
14. The Board of Governors as constituted under the impugned order are of the Government officials. The Medical Colleges hereinafter are to run according to direction of the Board. The impugned order also specifies approval of the Government for creation of the post by the Society. The counter-affidavit asserts that Society created by the impugned order for all practical purposes would continue to be of the Government, and the Medical Colleges even after grant of autonomous status shall continue to be of the State Government and are not private Institutions. Logic of the statement is in serious difficulty. Apart from that, clause V (iii) of bye-laws provides that in the event of dissolution of society, residue or remaining to be disposed of according to the determination of the Government.
If the Government exercises wholesale control on all affairs, we do not see any rational, how the Government can avoid all those ill-practices complained of by merely converting Government Medical Colleges into Societies. It appears to be a venture of jumping from oven to frying pan.
15. In the Medical Colleges converted into Societies, building, equipments and instruments are of the Government. Impugned order in clause IV provides that even after conversion into society, planned and non-planned budget which are being given at present by the Government shall continue to be made available. Peculiarity is that impugned order does not refer to transfer of attached Hospital to the Society. However, the bye-laws have included the same. Deputation of staff is contrary to settled norms. Practically everything connected with the college including manpower is of the Government. Even then it is peculiar to note that in clause V. the income of the College at present shall not be required to be deposited in Government treasury. The same shall be deposited in the account of the College.
16. “Still more unusual feature is reflected in document dated 2.1.1999” (Annexure-2 of rejoinder-affidavit). The Government entered into a compromise with the Association of employees of Class 111 and Class IV declaring that though they render services to the Society, they shall continue to be the Government servants. It is a puzzle as to how Government can bear the burden of salary of the personnel who are rendering services to the private institutions. Since these employees are not on deputation, the Society cannot even exercise any disciplinary authority. All affairs would be in chaos.
Still worst is as to how the Government can handover all its asset to Society to manage the Colleges without consideration of any kind, but with licence to make commercial gain? The Board of Governors virtually assumes the character of ostensible owner of the Government property. The conduct is more than charitable and fraud on executive power of the Government.
17. Petitioner particularly in paragraph 11 has accused that the policy was modified with mala fide intention of charging exorbitant amount as capitation fee and to misuse and misutillse the properties.
land and resources of the State Medical Colleges. The respondent though stoutly denied in counter-affidavit, however, could not repel the accusation successfully. Possibility of exploiting Government resources for private benefit is very much potent.
18. As discussed above, the income of the College though out of Government resources are to be deposited in the account of the society. The College shall be entitled to borrow the loan subject to permission of the competent authority. The College has the authority to accept donation and gifts from different sources. Accepting donations as a consideration for admission, therefore, cannot be ruled out. Similarly, one of the objects of the Society as enumerated in bye-laws (clause III (vii) provides for to fix and demand such fee and other charges as laid down by the society. This is sufficiently indicative that the Society is competent to make a demand of capitation fee or such exorbitant fee. Probability to fix certain admission seats only for monetary consideration would be more certain. To raise funds, the society may also charge patients of the attached hospital making it more as private clinic. The Society being a private person need not respond to the Directive principles to promote and improve general Public Health. This further exposes that the Government resources are kept at the disposal of the society for trading in Medical Education, and Medical services.
19. The Society registered. In terms of Section 12 of the Act, can alter or abridge the purpose or amalgamate with some other Society. Clause XXXIX of the bye-laws provides for amendment in the objects of a Society. No doubt, this is made subject to approval of the Government. The same could be superfluous since the statute itself has authorized to bring a change. In view of this, the Board of Directors are capable to completely abrogate the purpose. Since they can do this being the members of the Board, they could not be accountable to the State
Government as their officials. Danger is potent and inevitable.
20. From the counter-affidavit, notes and arguments advanced, more emphasis has been given on the aspect of consultation with the Public Service Commission in the matter of recruitment of teaching staff. Feeding target of staff could not be achieved through U.P.S.C. for 8-10 years. The learned Advocate General stressed on the difficulties having been experienced to get the properly selected academic staff from the Public Service Commission. As a result, according to him. there could not be adequate recruitment as per the norms of the Medical Council of India. One of the Colleges at Gorakhpur, consequently had to face de-recognition. Device is, therefore, adopted to entrust the management of the Medical Colleges to the Socielies. The normal consequences thereof would be that for a recruitment hereinafter of the teaching staff would not require consultation of the Public Service Commission. Argument of the petitioners is that the Government intends to take advantage of their own follies.
21. The statement in this behalf is general and more ambiguous. No particular account is given as to how the Government expeditiously took steps, but the consultation frustrated the schedule of recruitment.
This aspect poses numerous questions. One amongst them is ; is it desirable in public interest to withdraw numerous important post of Public Employment from the purview of the Public Service Commission? After hearing the learned Advocate General at length, we could not get convincing answer in affirmative. Function of the Public Service Commission has a constitutional sanctity. The Commission functions for a laudable object, to achieve as far as possible highest degree of purity and quality in selection in public employment. The Government in the public Interest cannot have a circuitous design to marginalise the function of the Commission.
22. Pertinent it is to note that in case of emergency or grave situation.
proviso to Article 320 provides
exclusion of certain posts or class of
post from the consultation with the
Public Service Commission. In case
of such a situation, the Government
could have invoked the said provision
so as to avoid disgraceful situation of
derecognition of Government
Colleges. The Government instead of
operating precautionary
constitutional mechanism to save the
situation, by executive fiat made a
fanciful and Irrational venture to do
away with the constitutional
obligation.
23. Next according to the petitioner, formation of Societies and registration are offending the express provision of the Act. Exercise of executive power by the Government is a fraud on Legislative Scheme.
Section 1 of the Act reads thus :
“Any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in Section 20 of this Act. may, by subscribing their names to a memorandum of association, and filing the same with the Registrar form themselves into a society under this Act.”
Explicitly it conveys that the formation by any seven members who have acquaintance, with any literary, scientific, charitable purpose or as is described in Section 20 of the Act. As seen from impugned order, the Society has been formed according to the directives of the Government. Moreover, the formation is not of any seven persons, but by only those of officials who have been ordained by the Government. Even otherwise, the Impugned order does not claim that those officials were in any way acquainted or associated with any of the purposes envisaged by the provision. Still more, those persons have not voluntarily subscribed to the memorandum. They are submitting themselves to the dictate of the Government. As such, the act of the person is not voluntary, either in the letter or spirit of the provisions. Moreover, they are not qualified to form Society, as the impugned order
has not disclosed their acquaintance with the purpose as envisaged.
24. The impugned order dated 2.4.1998 itself constituted a Board of Governors as a highest decision making body. The impugned order further requires the Government to prepare model bye-laws and Society has no option but to adopt the same without demur. Obvious it is that the society had no liberty to frame bye-laws. It was to be by the Committee nominated under the impugned order, even before formation of Society. Entire conduct of the Government was more of bulldozing against statutory provisions.
25. Section 15 of the Act defines a “Member” to be a person who has been admitted according to the Rules and Regulations. Section 4 refers to Annual General Meeting of the Society. The scheme under Section 4 also provides for election of the Board of Governors or the Managing Committee. However, the impugned order or the bye-laws do not refer to any membership excepting the officials nominated. Clauses XII and Clause XIV of bye-laws refer to a member of the Board other than ex-of/icio member shall cease to be member if he resigns etc. However, from the Impugned order, it is apparent that the Board has no member other than ex-officio. Even the Society has no General Body. Bye-law does not provide for election of Board of Governors.
26. Section 3 deals with the registration of Society. Proviso thereto requires the Registrar to issue a public notice inviting objection against the proposed registration and consider them before granting. The Teachers’ Association of S. N. Medical College. Agra, on September 25. 1998 filed objection-opposing registration and requested for hearing. The Registrar, by order dated 16.10.1998 rejected objection on the ground that the registration is in accordance with the directives of the Governmenl dated 2.4.1998. The Registrar advisee! that the objection be decided at the level of State Government. The Registrar, thus, neglected to discharge statutory duty. The
Registrar has acted not as a statutory authority, but as an employee of the State Government. The entire conduct of the Registrar is totally derogatory. Section 3B of the Act requires that any dispute regarding registration or renewal to be referred to the State Government and decision thereof shall be final. Crystally it is clear that Government being the final authority under the statutory scheme itself cannot venture to form society by nominating person.
27. For all these reasons. impugned order dated 2.4.1998 of the Government and Registration of the Societies pursuant thereof cannot be sustained. Impugned order and Registration of six Societies on 17.10.1998 are hereby quashed and set aside. Petitions are accordingly allowed.