IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 12119 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE D.H.WAGHELA Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO 1 & 2: YES; 3 TO 5: NO -------------------------------------------------------------- SHAMLAJI AROGYA SEVA TRUST Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR ND NANAVATI, Senior Advocate with MR PRADEEP PATEL for Petitioner. MR ARUN D. OZA GOVERNMENT PLEADER for Respondent No.1 to 3. MR ANANT S DAVE for Respondent No. 4 -------------------------------------------------------------- CORAM : MR.JUSTICE D.H.WAGHELA Date of decision: 24/01/2001 C.A.V. JUDGEMENT 1. This petition under Article 226 of the Constitution arises from refusal of the State Government to grant affiliation to the Homoeopathic College of the petitioner. The Education and the Health & Family Welfare Departments of the State Government are the respondents Nos.1 and 2 respectively (hereinafter referred as 'the respondent' for short), while the Chairman heading the Centralised Admission Committee is the respondent No.3 and the Central Council of Homoeopathy is subsequently joined as the respondent No.4. 2. The petitioner, a registered public trust since 1993, is running a Homoeopathic College at Godhra and proposes to open a new college at Vadodara as India's first and only women's Homoeopathic Medical College. It claims to have made initial appointments and investments for opening the new college. The M.S.University at Vadodara not having the faculty of homoeopathy, the petitioner obtained its no-objection certificate and applied for affiliation to Bhavnagar University. The Academic Council of Bhavnagar University recommended to its Executive Council to accord new affiliation to the petitioner's college on self-sufficient basis for one year from June 2000 to teach syllabus of Ist year degree course of B.H.M.S. The Executive Council of the University, by its Resolution No.7 dated 9.4.2000, accepted the recommendation of the Academic Council to accord affiliation to the petitioner's college and further resolved to take a deposit of Rs.20 lakhs. Thus, the Registrar of the University, in accordance with the provisions of Section 35 (4) of the Bhavnagar University Act, 1978 (for short the 'University Act'), forwarded on 18.4.2000 the application and all the proceedings of the Academic Council and the Executive Council to the State Government for deciding upon the question of grant of affiliation. As the State Government did not take and convey its decision despite a number of letters and representations, the petitioner approached this Court by way of Special Civil Application No.9904 of 2000, after hearing of which this Court directed the State Government to take a decision on the application of the petitioner as forwarded by the University within a period of two weeks from the date of the receipt of the order dated 25.9.2000. A pertinent observation made by this Court in the said order reads as under: " It is also submitted by learned counsel for the petitioner that, in view of the decision of the Apex Court in JAYA GOKUL EDUCATIONAL TRUST v. COMMISSIONER & SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPT. THIRUVANANTHAPURAM AND OTHERS, reported in AIR 2000 SC 1614, the requirement of approval of the Government is a mere formality. When the Executive Council of the University has recommended the affiliation, the Government cannot refuse such approval. I have gone through the aforesaid case of the Apex Court. The contention made by learned counsel for the petitioner appears to be correct. Since all the formalities have been completed and the approval of the Government is only left out, I am of the view that in the interest of the students of the State, an early decision by the Government is necessary." As the State Government still failed to take a decision, the petitioner filed an application under the Contempt of Court's Act during the proceedings of which the Government undertook to take necessary decision within a period of two weeks from 15.11.2000. In the meantime, pursuant to the aforesaid direction of this Court, the State Government directed the petitioner to deposit a sum of Rs.6 lakhs in the joint name of the Registrar of Bhavnagar University and the President of the petitioner - Trust and the same was complied on 5.10.2000. Thus, even as the process of admissions for the new term was being undertaken under the Centralised Admission System, the Government delayed its decision on affiliation of the petitioner's college and, at last, by the order dated 25.11.2000, refused to accord affiliation to the petitioner's college which is now under challenge. During the present proceedings, the process of centralised admission was put off till 15.1.2001 by virtue of a statement made on behalf of the respondent. 2.1 Even as the process of seeking affiliation to the University by the petitioner was carried on, the petitioner had moved the Central Council of Homoeopathy for recognition of its college and for prior approval to make admissions of students in First B.H.M.S. degree course for the session 2000-2001. The Executive Committee of the Council had considered the matter in light of its report of inspection and decided to grant recognition to the petitioner's college subject to certain conditions which were conveyed by its letter dated 11.9.2000. It appears from the record of the inquiry held through the State Council of Homoeopathy that the matter of granting recognition to the petitioner's college was under consideration since May 1999. In fact, as early as on 25.7.1996, the Central Council of Homoeopathy (CCH for short) had advised the petitioner to canalise their application through the State Council or the University concerned and an inspection was also carried out by the State Council on 1.6.1997 resulting into an inspection report advising the State Government to go ahead and issue permission for starting the proposed college at Vadodara. On the other hand, after refusal of the affiliation by the impugned order to the petitioner, the State Government has admittedly granted affiliation and allowed to come up for the same degree course two other colleges at Bhavnagar and Vyara. 3. Against the backdrop of facts as above, the petitioner has challenged the decision of the Government refusing affiliation as illegal, arbitrary and discriminatory and prayed for quashing the impugned decision with a writ of mandamus directing the Government to take all necessary steps for granting affiliation and allotting students for admission under the Centralised Admission System. By an amendment, it is further prayed to hold the provision of sub-section (4) of Section 35 of the Bhavnagar University Act, 1978 empowering the Government to grant or refuse the application for affiliation to be void and repugnant to the provisions of the Central Council Homoeopathy Act, 1983 and the Regulations made thereunder. 4. The CCH has taken a stand supportive to the petitioner by filing an affidavit of its Registrar-cum-Secretary. It is averred therein that the petitioner's college has been duly recognised by the Central Council and its name ought to have been included by the State Government in the Centralised Admission System and the State ought to have provided students to the petitioner's college for admission in First B.H.M.S. course. In fact, by an earlier letter dated 9.1.1992 addressed to Health Secretaries of all the States and Registrars of all the Universities having homoeopathy facilities or department, it is clarified by the CCH that it recognises a college after assessing the infrastructure and minimum facilities provided therein for degree or diploma courses and for a specified number of students. Thus, the Education and the Health & Family Welfare Departments of the State Government have emerged as the main contesting respondents and detailed affidavits are filed by the Under Secretaries of both the departments in defence of the impugned order dated 25.11.2000. 5. The impugned order denying affiliation firstly takes note of the letter dated 21.7.2000 which is supposed to be a complaint regarding the affairs of the petitioner's college running at Godhra, pursuant to which a three-member Inquiry Committee was appointed and the proposal of the affiliation is stated to have been taken for consideration in light of the report dated 1.11.2000 of the said Committee. However, the inquiry held by the said Committee is stated to be incomplete and a decision is taken to appoint a new one-member Committee. It has to be noted here that the aforesaid inquiry was in respect of another college of the petitioner - Trust and the supposed complainant himself has disowned the complaint by stating in writing that his letter-pad was misused by some unscrupulous persons in making the complaint. In the second part of the impugned order, it is stated that the subject of necessity of a homoeopathy college is under the Health & Family Welfare Department according to the Rules of business and the petitioner ought to have obtained prior approval of the State Homoeopathic Council. It is further stated that the University ought to have submitted, along with the proposal, a report under sub-section (5) of Section 28 of the Gujarat Homoeopathic Act, 1963; and that the confidential report of the State Council which was forwarded by the petitioner to the Central Council was not bearing any signatures and hence the same was found to be unacceptable. Thereafter, the impugned order relates inadequacies of the infrastructure in the college and emphasises the fact that at the time of recognition by the CCH, the petitioner did not have a no-objection certificate from the State Government, which is stated to be inconsistent with the provisions of Section 28 of the Gujarat Homoeopathic Act, 1963. It is also stated that out of the 600 existing seats in 10 existing Homoeopathic Colleges in the State, 102 seats had remained vacant in the last year and hence the prior opinion and approval of the Health & Family Welfare Department was necessary in this case; and a college exclusively for girls is stated to be unnecessary in view of the fact that six out of ten existing colleges were having hostel facilities for ladies. Again referring to the application of the petitioner submitted to the CCH, it is stated that the petitioner did not have existing infrastructure for a women's Homoeopathic College. Referring to the Resolution of the Executive Council of the University, it is stated that the recognition by Academic Council was made assuming prior sanction of the Government and such prior sanction of the Health & Family Welfare Department was not produced by the petitioner. It is also stated that the petitioner was called upon to obtain and produce the approval of the Health & Family Welfare Department and the same was not submitted. Lastly, it is stated that in view of all the facts a new college for girls appeared unnecessary and when it was decided to hold a detailed inquiry into the affairs of another college of the petitioner, the question of permitting the same Trust to open a new college could be considered only after receipt of the detailed report. Thus, on these grounds, the application of the petitioner for affiliation forwarded through the Registrar, Bhavnagar University is rejected. 6. It would be apposite and necessary to refer to the relevant legal provisions before examining the contentions of the parties regarding the main controversy. The Bhavnagar University Act, 1978 (the 'University Act' for short) is enacted to establish and incorporate a teaching and affiliating university. The provision for affiliation found in Section 35 reads as under: "Sec. 35 Affiliation:- (1) A college applying for affiliation to the University shall send a letter of application to the Registrar and shall satisfy the Executive Council and the Academic Council- (a) that the college will supply a need in the locality having regard to the type of education intended to be provided by the College, the existing provisions for the same type of education made by other colleges in the neighbourhood, and the suitability of the locality where the college is to be established; (b) that the college is to be under the management of a regularly constituted governing body; (c) that the strength and qualifications of the teaching staff and the conditions governing their tenure of office are such as to make due provision for the courses of instruction, teaching or training to be undertaken by the college; (d) that the buildings in which the college is to be located are suitable, and provision will be made in conformity with the Ordinances, for the residence in the college or in lodgings approved by the College, of students not residing with their parents or guardians and for the supervision and welfare of students; (e) that due provision has been made or will be made for a library; (f) that where affiliation is sought in any branch of experimental science, arrangements have been or will be made in conformity with the Statutes, Ordinances and Regulations for imparting instruction in that branch of science in a properly equipped laboratory or museum; (g) that due provision will, as far as circumstances may permit, be made for the residence of the Principal and some members of the teaching staff in or near the college or the place provided for the residence of the students; (h) that the financial resources of the college are such as to make due provision for its continued maintenance and efficient working; and (i) that the college rules fixing the fees, if any, to be paid by the students have not been so framed as to involve such competition with any existing college in the same neighbourhood as would be injuries to the interests of education; (j) that for recruitment of the Principal and members of the teaching staff of the college there is a selection committee of the college which shall include- (1) in the case of recruitment of the Principal, a representative of the University nominated by the Vice-chancellor, and (2) in the case of recruitment of a member of the teaching staff of the college, a representative of the University nominated by the Vice-Chancellor and the Head of the Department, if any, concerned with the subject to be taught by such member; (k) that the college shall comply with the Statutes, Ordinances and Regulations providing for conditions for service including salary scales and allowances of the teaching and other academic staff of an affiliated college, (l) such other conditions as may be specified in the Statutes in accordance with the provisions of this Act: Provided that nothing in clause (j) shall apply to a Government college, a college maintained by the Government or a college established and administered by minority whether based on religion or language. (2) The application shall contain an assurance that after the college is affiliated, any transference of management and all changes in the teaching staff and all other changes which result in any of the aforesaid requirements not being fulfilled or continued to be fulfilled shall be forthwith reported to the Executive Council. (3) On receipt of a letter of application under sub-section (1) the Executive Council shall - (a) direct a local inquiry to be made by a competent person or persons authorised by the Executive Council in this behalf in respect of the matters referred to in sub-section (1) and such other matters as may be deemed necessary and relevant; (b) make such further inquiry as may appear to it to be necessary; (c) give due consideration to the request, if any, made by the applicant for reconsideration of any of the conditions conveyed to him; (d) record its opinion after consulting the Academic Council on the question whether the application should be granted or refused either in whole or in part, stating the result of any inquiry under clauses (a) and (b) of sub-section (1); Provided that where the views of the Academic Council with regard to the affiliation of a college are not acceptable to the Executive Council, the Executive Council shall refer the matter to the Academic Council, with or without its comments, and the Academic Council shall communicate again to the Executive Council its views with regard to the affiliation of the College. (4) The Registrar shall submit the application and all proceedings, if any, of the Academic Council and the Executive Council relating thereto to the State Government which shall after such inquiry as may appear to it to be necessary grant or refuse the application or any part thereof. (5) Where the application or any part thereof is granted, the order of the State Government shall specify the courses of instruction in respect of which the college is affiliated and where the application or any part thereof is refused, the grounds of such refusal shall be recorded. (6) As soon as possible after the State Government makes its order, the Registrar shall submit to the Executive Council and the Academic Council a full report regarding the application, the action taken thereon under sub-section (3) to (5) and of proceedings connected therewith. (7) xxx xxx xxx (8) xxx xxx xxx " Provisions are made in the subsequent sections for withdrawal of affiliation where a college fails to fulfil the conditions imposed under the Ordinance made under the Act or the conditions of affiliation or if the college is conducted in a manner which is prejudicial to the interest of education. The scheme of the University Act reveals an unmistakable underlying object of ensuring a high standard of education and encouraging excellence in the academic field through establishment of an autonomous institution. 6.1 The Gujarat Homoeopathic Act, 1963 ( the 'State Act' for short) is enacted to consolidate and amend the law relating to the registration of practitioners of the Homoeopathic system of medicine in the State and mainly provides for the constitution of the State Council and registration of practitioners. The provisions which are heavily relied upon by the respondent are found in Sections 15 and 28 of which the relevant parts read as under: "Sec.15 (1): Subject to such conditions as may be prescribed by or under the provisions of this Act, the powers, duties and functions of the Council shall be :- (a) to (e) xxx xxx xxx (f) to grant degrees, diplomas and marks of honour; (g) to award stipends, scholarships, medals, prizes and other rewards; (h) to recognise institutions for the purpose of giving instructions for the courses leading to the examinations held by the Council or to cancel such recognition; (i) to recommend the inclusion of any degree, diploma, certificate or award in the First Schedule or to recommend the removal of any degree, diploma, certificate or award from the First Schedule. (j) to (s) xxx xxx xxx (2) xxx xxx xxx" "Sec.28 (1): Every institution recognised under this section shall be entitled to train students for the examinations of the Council for which it is recognized. (2) Any institution desirous of recognition under this Act shall send an application giving full information in respect of the following matters, to the Registrar, so as to reach him at least two months before the commencement of the first term of study preparatory to the examination for which recognition is sought namely:- (a) the constitution and personnel of the managing body; (b) subjects and courses in which it gives or proposes to give instruction and the examination for which it seeks recognition; (c) accommodation, equipment and the number of students for whom provision has been or is proposed to be made; (d) the strength of the staff, their salaries, qualifications and the research work carried out by them; (e) fees levied or proposed to be levied and the financial provision made for capital expenditure on buildings and equipment and for continued maintenance and efficient working of the institution; (f) facilities for clinical training and the number of beds maintained for the purpose; and (g) such other particulars as the Council may specify by regulations; Provided that no application shall be entertained by the Registrar unless the institution agrees in writing to give all facilities to any inspector, member, visitor or any other person authorised by the Council to make an inspection or enquiry or to attend any examination under sub-sections (3) to (7). (3) The Registrar shall place the application before the Council, and if an Examination Committee has been appointed, before the said Committee, and the Council or the said Committee, as the case may be, may direct the Registrar to call for any further information which it may deem necessary. The Council or the said Committee may also direct a local inquiry to be made by a competent person or persons authorised by it in this behalf. (4) After receiving the report of such local inquiry or of the Examination Committee, as the case may be, and after making such further inquiry as may be necessary, the Council shall forward the application together with its report to the State Government with its opinion whether the recognition asked for should or should not be granted. The State Government may thereupon grant or refuse the recognition or may grant it subject to such conditions as it deems fit. The decisions of the State Government shall be final. (5) It shall be the duty of the Council to secure the maintenance of an adequate standard of proficiency for the practice of the Homoeopathic system of medicine. For the purpose of securing such standard, the Council shall have authority to call on the governing body or authorities of any recognised institution to permit inspectors or any member or visitor appointed by the Council in this behalf to inspect the recognised institution and the hospitals attached to them and to attend and be present at all or any of the examinations held by the institution. Every recognized institution shall comply with any reasonable direction issued by the Council from time to time. (6) to (9) xxx xxx xxx" The Phrase "recognized institution" is defined in Section 2 (12) of this Act as under: "Sec.2 (12) 'recognized institution' means any institution recognised by the Council under section 28 for giving instructions in the courses leading to the examinations held by the Council." It is seen that the recognition of the institution for the purpose of Section 28 quoted above is, by virtue of the definition of the 'recognized institution', relevant only for the courses leading to the examinations held by the Council which is defined under Section 2 (2) to mean, "the Council of Homoeopathic System of Medicine, Gujarat, constituted under Section 3." 6.2 The Homoeopathy Central Council Act, 1973, (the 'Central Act' for short) enacted to provide for the constitution of a Central Council of Homoeopathy and the maintenance of a Central Register of Homoeopathy and for matters connected therewith contains the following provisions which are relevant: "Sec.13 (1): Recognition of medical qualifications granted by certain medical institutions in India: The medical qualifications granted by any University, Board or other medical institution in India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of this Act. (2) Any University, Board or other medical institution in India which grants a medical qualification not included in the Second Schedule may apply to the Central Government to have any such qualification recognised, and the Central Government, after consulting the Central Council, may, by notification in the Official Gazette, amend the Second Schedule so as to include such qualification therein and any such notification may also direct that an entry shall be made in the last column of the Second Schedule against such medical qualification only when granted after a specified date." The term "medical institution" is defined in Section 2 (1) (e) of the said Act as under: "Sec.2 (1)(e) 'medical institution' means any institution within or without