Patna High Court
Mata Gujri Memorial Medical College And ... vs State Of Bihar And Ors. on 1 November, 1994
Equivalent citations: 1995(1)BLJR530
JUDGMENT Nagendra Rai, J.
1. Both the aforesaid cases are connected matters and, as such, with the consent of the parties, they have been heard together and are being disposed of at the stage of admission by this common order.
2. C.W.J.C. No. 5566/93 was originally filed with a prayer to direct the Respondent-State of Bihar to grant approval to the proposal of the affiliation of the College of the petitioner Mata Gujri Memorial Medical College and Lions Seva kendra Hospital, Kishanganj, and for commanding the Respondent No.2-B.N. Mandal University, Madhepura, to affiliate the said College to the University.
3. It appears that the petitioner had earlier come to this Court in C.W.J.C. No. 5516/93 [1993(2) PLJR 645] for the similar reliefs in C.W.J.C. No. 5566/93, which was disposed of on 4.11.1993 by a Division Bench. The order passed by the Division Bench runs as follows:
This is a question of affiliation of college under Section 21(2)(d) read with the proviso. On behalf of the petitioner reference is made to Paragraphs 13 and 14 of the petitions. It was submitted on behalf of the State Government that a proper application was to be made. However, on behalf of the petitioner it is stated that they have already submitted papers and no further papers are required to be submitted.
We direct the State Government to take decision on the basis of the papers already before it and decide the matter on the basis of the same. If the applications are defective and proper materials and documents have not been filed, decision shall be taken accordingly which shall be communicated by 4th of December, 1993.
A copy of the said order is annexed as Annexure-1 to the M.J.C. application. According to the petitioner, the aforesaid order given by a Division Bench of this Court was not complied with within the time given in the order and thereafter the aforesaid M.J.C. application (M.J.C. No. 2038/93) was filed on 21.12.1993. A show cause was filed in the aforesaid M.J.C. application; wherein, a statement has been made that the final decision has been taken on -15.1.1994 in accordance with the direction given by this Court in the earlier writ application. Thereafter, the petitioner filed an amendment, petition on 28.1.1994 in C.W.J.C. No. 5566/93 for making amendment in the prayer portion of the writ application. In the amendment petition, apart from stating the additional facts, the petitioner has prayed for issuance of a writ of certiorari for quashing the order of the Additional Secretary dated 15.1.94, a copy of the order is annexed as Annexure-15 to the amendment petition, and for a direction to the Respondent-State to grant approval to the proposal of affiliation of the petitioner-College and commanding the University to affiliate the College to the University, that is how both these matters have been ordered to be heard together.
4. The petitioner claims itself to be a minority institution established by he Sikh community in the year 1990. The College started functioning initially at Rukunpura, in the town and district of Patna and later on it was shifted to Kishanganj at Lions Seva Kendra Hospital. According to the assertion made in the petition, the petitioner fulfills all the requirements which are essential for recognition of a minority College by the State Government and affiliation by the University. It is also asserted, apart from the teaching and non-teaching staffs employed in the Institution, the petitioner's Institution also possessed a good Hospital and other immovable properties
5. On 20.6.1991 an application was filed by the Secretary of the College to the Chief Minister for grant of affiliation. Again on 25.2.1992 the Secretary of the College made an application to the Vice-Chancellor of the Respondent-University for inspection of the College by the University. Inspection fee of Rs. 5, 000/- was deposited (vide Annexure-1) and on 8.4.1992 the Secretary deposited Rs. 5 lacs through a demand draft as a reserve fund and affiliation fee (vide Annexure-2). On 25.6.1992 the Secretary made an application to the Vice-Chancellor of the University requesting him to give a necessary direction to the University for holding examination of the students of the College in M.B.B.S. Phase-1 Course of 1990-92 batch. On 10.7.1992 the President of the College made art application to the Chancellor (Respondent No.3) requesting him for issuance of necessary order for inspection of the College and holding examination of the students of the College under Transitory Statutory Regulation. The Officer on Special Duty, Governor's Secretariat, Bihar, wrote a letter annexing the letter of the President of the College to the Vice-Chancellor (Respondent No.4) of the University and requested him to send a report in the matter for consideration by the Chancellor at the earliest. On 7.9.1992 the College was inspected by a team of Medical Experts and the Inspector of Colleges, B.N. Mandal University. The team of Medical Experts submitted a report to the effect that the College fulfills all the criteria as per Medical Council of India Regulations and examination of the Students may be conducted at the earliest. The said report was submitted by the Convenor of the Team to the Vice-Chancellor, a copy of the said report is annexed as Annexure-3 to the writ application. According to the petitioner, the State Government has also called for certain reports from the District Magistrate, Kishanganj, who has entrusted the inquiry to Sri R.N. Singh, Magistrate, who submitted his inquiry report on the basis of which the District Magistrate submitted a report to the State Government. In the said report the District Magistrate has stated that if after inspection of the college by the Medical Council of India and the Registrar of the L.N. Mithila University, it fulfills the criteria laid down by them and further fulfills the declared policy of the State Government, then the Government may take a decision regarding recognition matter. On 19.9.1992, the Inspector of the Colleges sent a letter to the District Magistrate to send the said report and on 20.4.1992 the District Magistrate sent the report with a forwarding letter. The copies of the forwarding letter and the report have been annexure as Annexure-4 to the writ application.
6. On 10.9.1992, the Registrar of the University wrote a letter to the Officer on special Duty, Raj Bhawan stating that the inspection of the College was held by a team of Inspectors appointed by the University and the College fulfils all the requirements in law and as such approval may be granted under Section 39 of the Universities Act for conducting 1st M.B.B.S. examination. He also recommended that the College may be granted permission after affiliation. A copy of the said letter is annexed as Annexure-5 to the writ application. A copy of the said letter has also been sent to the Medical Council of India.
7. The Vice-Chancellor of the Respondent -University proposed a Transitory Regulation to conduct Phase-I examination of Bachelor of Medicine and Bachelor of Surgery for the students of the said College. The Chancellor of the University approved the Transitory Regulation of the University by issuing a Notification dated 25.12.1992 in exercise of power conferred upon him Under Section 39 (2)(ii) of the Bihar State Universities Act (hereinafter referred to as 'the Act'). In the said Transitory Regulation it was directed to conduct Phase-I examination of M.B.B.S. course, 1992 for the students of the petitioner-College, a copy of the aforesaid Transitory Regulation has been made Annexure-7 to the writ application. In spite of the aforesaid transitory regulation, the Controller of B.N. Mandal University issued a notification on 6.5.1993 fixing the date for filing forms and fees only for the students of Katihar Medical College for the first year M.B.B.S. examination of 1989-91 batch. It was stated in the said notification that the first year M.B.B.S. examination of 1990-92 batch of the petitioner-College will be conducted after the completion of the examination of 1989-91 batch of the Katihar Medical College, a copy of the said Notification is annexed as Annexure-8 to the writ application.
8. It is contended on behalf of the petitioner that the respondent-State is acting illegally in not granting approval to affiliation and the University was also acting illegally in not granting approval to affiliation and the University was also acting illegally is not affiliating the College to it, even though the College fulfills all the conditions imposed by the relevant law for its affiliation. The action of the State amounts to a clear violation of the provisions of Article 30 of the Constitution of India. As die State Government, in the meantime, passed an order dated 15.1.1994 refusing to grant approval to the affiliation, the petitioner has challenged the aforesaid notification on the ground that the reasons given for refusing to grant approval of affiliation are wrong and malafide. It was also stated that the order was not passed by the State Government within the time granted by this (court, and, as such, the order is void. It was also sated that though the petitioner was not required to file an application under Section 3 of the Bihar Medical Education Institution (Regulation and Control) Act, the application was filed before the State Government and it has been wrongly stated in Annexure-15 that no such application was filed.
The stand of the B.N. Mandal University is that without permission of the State Government to open a medical course of study as required under the proviso to Section 2 of the Bihar Medical Education Institution (Regulation and Control) Act, 1981 (hereinafter referred to as the 'Bihar Act'), the college started functioning and admitting the students, According to the respondent the University was created on 15.1.1992. It adopted the Statutes, Regulations, Ordinances and other Rules of L.N. Mithila University, which was approved by the Vice-Chancellor (vide Annexure-1 to the counter-affidavit). However, the University was not. included in the first schedule of the Indian Medical Council Act, 1956, nor the University has applied to the Central Government for its inclusion in the said schedule under the said Act. The University has no medical faculty till date and, as such, the petitioner-College could not be granted affiliation.
10. The stand of the State Government is that no prior permission of the State Government has been taken before establishing the College in accordance with the provisions of the Bihar Act. The report submitted by the team of Inspectors is also invalid, as the report was submitted by the team of experts in violation of the provisions of Section 21(2)(d) of the Bihar State University Act, 1976, which requires prior approval of the Suite Government before considering the affiliation of any Medical College. The College cannot be recognized in view of the amendments brought in the Indian Medical Council Act, by Amendment Act, 1993, By the said amendment Sections 10(A), 10(B) and 10(C) have been added and the aforesaid provisions require, inter alia, that no Medical College can be established in the country without the previous sanction of the Central Government Section 10 (C) further provides, inter alia, that if a person has established a Medical College after 1.6.1992, the date on which the Indian Medical Council Amendment Ordinance came into force and before he commencement of Indian Medical Council (Amendment) Act, 1993, such person has to take permission of the Central Government in accordance with the provision of Section 10(A) within one year from the date of the commencement of the Indian Medical Council (Amendment) Ordinance, 1992, failing which Section 10(B) will apply. Section 10(B) provides that if a Medical College is established except with the previous permission of the Central Government, the Medical qualification granted shall not be recognized for the purposes of this Act. It is also asserted that the grounds given for rejecting the claim of the petitioner for establishing of a Medical College in the order dated 15.1.1994 are valid grounds.
11. The petitioner filed rejoinder/reply to the counter-affidavits and supplementary petition and asserted that the assertion of the University that it has no Medical Faculty is wrong, as the B.N. Mandal University has appointed Dr. N.L. Das as the Dean, Faculty of Medicine. It has also been asserted that the petitioner's Institution being a minority Institution, the provision of the Bihar Act is not applicable. The Institution is in existence before coming into force of the provision of the Indian Medical Council (Amendment) Ordinance, 1992, and as such Sections 10(A), (B) and (C) do not apply to the petitioner-College.
12. An intervention petition has been tiled by the students of the petitioner-Medical College, wherein, they have asserted die same thing which has been stated by the petitioner, and, as such, it or not necessary to repeat the said facts.
13. It would be proper to mention that when the Chancellor approved the transitory provision proposed by the Vice-Chancellor and directed the University to conduct examination of M.B.B.S. Phase-I of 1990-92 batch of the petitioner-College, the Registrar of the respondent-University issued a notification that the examination of the students of the petitioner-College will be held after the examination of the First Year M.B.B.S. students of the Katihar Medical College. The said notification was challenged by the petitioner in C.W.J.C.; No. 5516/93 and a Division Bench of this Court, after noticing that the petitioner-Institution has not been granted permission/affiliation/ recognition either by the State Government or the Central Government according to the relevant provisions of law dismissed the aforesaid writ application and held the action of the Vice-Chancellor and the Chancellor in framing the Transitory Regulation permitting the students of unrecognized Medical College and Dental College to appear in the examination is ultra vires the underlying policy and mandatory provisions of the University Act and is contrary to the law laid down by the Supreme Court. A copy of the said judgment has been annexed as Annexure-A to the counter-affidavit.
14. So far as M.J..C. application is concerned, according to the petitioner, the respondent-State and its officers deliberately did not obey the direction given by this Court in C.W.J.C. No. 5566/93 to take a final decision in recognition/affiliation matter and to communicate the same by 4th December, 1993 to the petitioner within the time. In this connection it has been asserted that after the aforesaid order dated 4.11.1993 was passed in C.WJ.C. No. 5566/93, the Secretary of the College sent a letter to the Government of Bihar on 16.11.1993 requesting for the compliance of the aforesaid order. In the said letter he also stated the other details and filed the relevant documents to show that the College is a genuine one. The Additional Secretary (Opp. Party No.3 in the M.J.C. application) instead of complying with the order on 4.12.1993 which was the last date for disposing of the mater regarding approval of the affiliation, sent a letter to the Secretary, Medical Council of India, seeking the decision of the Medical Council of India and the Government of India regarding the permission and/or affiliation to set up the proposed medical college and hospital of the petitioner. The aforesaid action on the part of the Addl. Secretary shows deliberate attempt to violate the order of this Court and as such the Secretary of the Health (Respondent No.2) as well as the Additional Secretary (Respondent No.3) may be punished for the contempt of this Court. Shows cause has been filed by the Secretary, Health Services and the Addl. Secretary and they have tendered unqualified apology and further stated stated that there was no deliberate attempt on their part to violate the order passed by this Court. According to their stand, as per amendment to their Medical Council Act, permission of Government of India was essential Under Section 10(A) of the Act before establishing the Medical College and, accordingly, the Government of Bihar sought a decision of the Medical Council of India and Government of India, Ministry of Medical Education and Family Welfare, Government of India, New Delhi regarding the permission under Section 10 (A) of the Act to set up a proposed Medical College. According to them, even under Section 6 of the Bihar Act the Government has to obtain opinions of the Indian Medical Council and the Government of India before grant of permission and as such steps were taken to obtain permission of the aforesaid authorities. In this connection it was mentioned that the letter dated 16.11.93 sent by the petitioner was received along with a copy of the order of this High Court on 17.11.1993. The same was endorsed to the Addl. Secretary (Respondent No.3) on 18.11.1993 with a direction to keep in mind the time fixed by the High Court. Thereafter the file moved to different authorities and on 4.12.1993 it was put "up before the Secretary and who thought it necessary to obtain the opinion of the Medical Council of India and the Govt. of India and accordingly letter (Annexure-3) was sent on the same day. The Medical Council of India sent reply on 16.12.1993 to the effect that the State Government may lake a decision on its own level in the light of the direction of the High Court and thereafter the matter was examined in detail and was finally rejected on 15.1.1994. The decision was communicated to the petitioner vide Annexure-A to the show cause. Thus, there was no deliberate attempt to sit over the order of this Court.
15. Firstly, I would like to dispose of the contempt matter. this Court, as sated above, on 4.11.93, directed the respondent-State to dispose of he matter with regard to grant of approval to the affiliation, as provided under Section 21(2)(d) of the Bihar Slate Universities Act. From the counter-affidavit it appears that the matter was put up before the different officers of the department and the Secretary noticed that the provisions of the Indian Medical Council Act have been amended and Sections 10(A), (B) and (C) have been incorporated in the Act and, according to Section 10(A), permission of the Central Government is necessary for establishing a Medical College and, accordingly, decided to take the opinion of an expert body, i.e. Medical Council of India as well as of the Central Government and sent a letter on 4.12.93. When the Medical Council of India did not render any opinion and asked the State Government to take a decision of its own in the light of the decision of the High Court, the matter was disposed of on 15.1.1994. It cannot be said that the respondent-officers deliberately sat over the file in the sense that there was no movement of file to dispose of the matter within the time fixed by the; Court. The averments made in the show cause reveal that every efforts were made to comply with the order of this Court, the decision of the Secretary and the Additional Secretary of Health Services, Government of Bihar, to seek opinion of the Medical Council of India and the Government of India, in view of the amended provisions of the Medical Council of India Act, may be a wrong decision on their part, but, on that basis, it cannot be inferred that they deliberately and contemptuously did it to violate the order of. the High Court. An error of judgment in deciding the question by an authority will not lead to an inference of wilful disobedience, especially when I find that in view of amended provisions of the Medical Council of India Act, the permission of Central Government is necessary to open a Medical College. In that view of the matter, in my opinion, no case for punishing the opposite parties for violating the order of this Court is made out and, accordingly, the M.J.C. application is dismissed.
16. After the amendment of the writ application, has petitioner has now prayed for quashing the order of the Government dated. 15.1.1994, contained in Annexure-15, and for a direction to the respondent-State to grant approval to the affiliation to the College in terms of Section 21(2)(d) proviso (2) of the Bihar State Universities Act (hereinafter referred to as the 'Universities Act'. The Government by the aforesaid order has rejected the prayer of the petitioner primarily on the following grounds:
(i) After insertion of Sections 10(A), 10(B) and 10(C) by amendment in Medical Council of India Act, the power to grant permission for opening a medical , college vests in the Central Government;
(ii) According to the letter of the Medical Council of India dated 5.4.1989, the Government of India and Medical Council of India are not in favour of opening of new medical colleges;
(iii) The petitioner has filed an application for affiliation of the College in question to B.N. Mandal University, which is not an University named in the first schedule of the Medical Council of India Act and as such the University is not competent to confer degree in M.B.B.S.;
(iv) The inspection conducted by B .N. Mandal University for grant of affiliation was in violation of 2nd proviso to Section 21(2)(d) of the Universities Act, and, as such, the inspection report has no value in the eye of law;
(v) The State Government got the inspection conducted by the District Magistrate, who, by letter 829/C dated 6.5.1992, reported that though the College is equipped with a Hospital of 450 beds for establishing a medical college but it does not have a minimum infrastructure as per the criteria laid down by the Medical Council of India and
(vi) No application has been filed before the State Government for taking permission for opening a medical college under the Bihar Medical Educational Institution (Regulation and Control) Act, 1981.
17. learned Counsel' for the petitioner contended that the order of the State Government refusing approval to the proposal of affiliation of the petitioner-College with the B.N. Mandal University is arbitrary and malafide. The petitioner being a minority institution is entitled to protection. Under Article 30(1) of the Constitution of India, as the minority has right to establish and administer institution of its own choice. He also submitted that Sections 10(A), 10(B) and 10(C) of the Medical Council Act brought by amendment has no application in the case of the petitioner, as the institution was established much prior to the aforesaid amendment in the year 1992. As, according to Section 10(C), the amended provision applies to only those institutions which were established after 1st June, 1992. He also contended that the institution has all the infrastructures and fulfills all the criteria for the establishment and running of a medical college.
18. learned Counsel for the State, on the other hand, contended that after the amendment of the Medical Council of India Act, the power to give permission to establish medical college vests in the Central Government and unless the permission ii granted by the Central Government, there is no question of giving approval to the affiliation in terms of proviso 2nd to Clause (d) of Section 21. He also contended that the petitioner even if a minority institution has no unfettered of absoluted right to administer its educational illusion under Article 30(1) of the Constitution of India, the said right subject to reasonable regulatories for the benefit of the institutions. It is also submitted that the Central Government or the State Government has to see that minority institution: in truth have been established and they are not only masked phantoms. The petitioner institution does not fulfil the necessary infrastructure justifying grant of approval to the proposal of affiliation to the B.N. Mandal University. It was also submitted that B.N Mandal University is not included in Schedule-1 of the Medical Counsel and as such i is not recognised University by the Medical Counsel of India to grant degree in M.B.B.S and as such no permission is granted for affiliation to the petitioner-College.
19. Before adverting to the respective submissions advanced at the bar, it would b apt to mention the relevant provisions having bearing on the question to be determined Section 21 of the Bihar Slate Universities Act, 1976 (hereinafter referred to as the 'Universities Act') defines the power and duties of the Senate and the power is now been exercised by the University by virtue of statutory provisions, as the Senate is not existence. Section 21(2)(d) runs as follows:
Section 21(2) : In particular and without prejudice to the generality of the foregoing powers, the Senate shall exercise the following powers and perform the following duties, namely-
(d) of exercising the powers for the purpose of control in Colleges and Tols, and of Superintendence which include affiliation and disaffiliation of Colleges:
Provided that affiliation or disaffiliation of Colleges or Tols shall not take effect, unless it is approved by the State Government;
Provided further that no medical college shall be affiliated except without the prior approval of the Slate Government.
20. The Indian Medical Council (Amendment) Ordinance, 1992, being Ordinance No. 13 of 1992, was issued by the President of India on 27th August, 1992, Sections 10(A) , 10(B) and 10(C) have been added besides other amendments. The aforesaid newly added provisions 10(A), 10(B) and 10(C) read as follows:
10-A. (1) Notwithstanding anything contained in this Act or any other law for the time being in force :
(a) no person shall establish a medical college; or
(b) no medical college shall:
(i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student 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 purpose 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 that may be fixed by the council from time to time for being admitted to such course or training.
(2)(a) Every person or medical college shall, for purpose of obtaining permission under Sub-section (1), submit to the Central Government a scheme in accordance with die provisions of Clause (b) and the Central Government shall refer the scheme to the Council for its recommendation.
(b) The scheme referred to in Clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme by the Council under Sub-section (2), 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--
(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or 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 Council;
(b) 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.
(4) The Central Government may, after considering the scheme and the recommendations of the Council under Sub-section (3) 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 (7), either approve (with such conditions, if any, as it may consider necessary or disapprove the scheme and any such approval shall be a permission under Sub-section (1):
Provided that no scheme shall be disapproved by the Central Government except after giving the person or 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 Central Government to submit a fresh scheme and the provisions of the section shall apply to such scheme, as if such scheme, has been submitted for the first time under Sub-section (1) (5) Where, within a period of one year from the date of submission of the scheme to the Central Government under Sub-section (1), no order passed by the Central' Government, has been communicated to the person or college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted, and accordingly, the permission of the Central Government required under Sub-section (1) shall also be deemed to have been granted.
(6) In computing the time-limit specified in Sub-section (5), the time taken by the person or college concerned submitting the scheme, in furnishing any particulars called for the council, or by the Central Government, shall be excluded.
(7) The Council, while making its recommendations under Clause (b) of Sub-section (3) and the Central Government while passing an order, either approving or disapproving the scheme under Sub-section (4), shall have due regard to the following factors, namely:
(a) whether the proposed medical college or the existing medical college seeking to open a hew or higher course of study or training would be in a position to offer the minimum standards of medical education as prescribed by he council under Section 19(A) or, as the case may be, under Section 20 in the case of post-graduate medical education;
(b) whether the person seeking to establish a medical college or the existing medical college seeking tot 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 and 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 as a result of 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 course of study or training by persons having the recognised medical qualification ;
(f) the requirement of man power in the field of practice of medicine; and
(g) any other factors as may be prescribed.
(8) 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 college concerned.
10. (B) Non-recognition of medical qualifications in certain cases, --(1) Where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of Section 10(A), no medical qualification granted to any student of such medical college shall be a recognised medical qualification for the purpose of this Act.
(2) Where any medical college opens a new or higher course of study or training (including a post-graduate course of study or training) except with the previous permission of the "Central Government in accordance with the provisions of Section 10(A), no medical qualification granted to any student of such medical College on the basis of such study or training shall be recognised medical qualification for the purposes of this Act.
(3) Where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provisions of Section 10(A), no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purpose of this Act.
Explanation, --For the purposes of this section, the criteria for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed.
10(C). Time for seeking permission for certain existing medical colleges, etc.--(I) It, after the 1st day of June, 1992 and on and before the commencement of the Indian Medical Council (Amendment) Ordinance, 1992 any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity, such person or medical college, as the case may be, shall seek, within a period of one year from the commencement of the Indian Medical Council (Amendment) Ordinance, 1992, the permission of the Central Government in accordance with the provisions of Section 10 (A) of the Principal Act.
(2) If any person or medical college, as the case may be, fails to seek the permission under Sub-section (1) of this Ordinance the provisions of Section 10(B) of the Principal Act shall apply, so far as may be, as if permission of the Central Government under Section 10(A) of the Principal Act has been refused.
21. The State Government has also enacted the Bihar Medical Education Institution (Regulation and Control) Act, 1964 (hereinafter referred to as 'Bihar Act'). Clause (a) of Section 2 provides that except as otherwise provided in the Act, no person shall organise, maintain, manage, provide or offer any institution in the branches of learning known as medical education or allied branches of learning in modern medicines. Clause (c) provides that no person shall provide instructions, lectures, tutorials, practical work in the Laboratories in medical institution irrespective of whether it leads to an examination and grant of degrees etc. to medical science or allied branches of learning. First proviso to Section 2(c) provides that no medical courses of study shall be opened by any individual or body or institution or agency without the prior permission of the State Government, and the second proviso provides that the said permission has to be obtained before admitting or enrolling any student for the purported course of medical study.
22. Clause (1) of Article 30 of the Constitution of India confers right on the minorities to establish and administer educational institutions of their own choice. Now, it is well settled by a catena of decisions of he Apex Court that this right is not an absolute right, it is subject to reasonable regulations for the better administration of the institution. The right to administer does not mean the right to mal-administer. In the case of Sidhrajbhai v. State of Gujarat A.I.R. 1963 SC 540), it was held as follows :
All minorities, linguistic or religious have by Article 30(1) an absolute right to establish and administer education institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would, to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions; it is a right to establish and administer what are in truth educational institutions-institutions which cater to the educational needs of the citizens, or sections thereof. Regulations made in the true interests of efficiency of instructions, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institutions, in matters educational.
(underline is mine) In the case of Ahmedabad St. Xaviers College v. State of Gujrat it was held as follows :
The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C.J. to the-Kerala Education Bill case, 1959 SCR 995 A.I.R. 1958 SC 956) (Supra) summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-administer.
Again the Supreme Court in the case of A.P.C.M.E, Society v. Govt. of A.P. held as follows:
The Government, the University and ultimately the court have the undoubted right to pierce the minority veil with due apologies to the Corporate Lawyers and discover whether there is lurking behind it no minority at all and in any case, no minority institution; The object of Article 30(1) is not to allow bogies to be raised by pretenders but to give the minorities a sense of security and a feeling of confidence not merely by guaranteeing the right to profess, practice and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their choice. These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantom. They may be institutions intended to give the children of the minorities the West general and professional education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provisions are made to the advantage and for the advancement of the minority children. They may be institutions where "the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the partners expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities. We have already said that in the present case apart from the half a dozen words as a Christian minorities institution occurring in one of the objects recited in the memorandum of association, there is nothing whatever, in the memorandum or the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational institution. As already found by us there half a dozen words were introduced merely to found a claim on Article 30 (10. They were a smoke-screen.
In the case of AW Bihar Christian Schools Association v. State of Bihar it was held by the Supreme Court, as follows :
In view of these decisions it is now well settled that minorities based on religion or language have fundamental freedom to establish and manage educational institutions of their own choice, but the State has right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers, ensuring health, hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities' fundamental right of administering their educational institutions; instead, they seek to ensure that such institution is administered efficiently, and that students who come out of minority institution after completion of their studies are well equipped with knowledge and training so as to stand at par in their avocation in life without any handicap. If regulatory provisions indirectly impinge upon minorities' right of administration of their institutions, it would not amount to interference with the fundamental freedom of the minorities as he regulatory provisions are in the interest of the minority institutions themselves.
The same view has been reiterated by the Apex Court in the case of State of Maharashtra v. Vikas Sahebrao Roundale and Ors. . In Paragraph 8 it was held as follows:
In All Bihar Christian Schools Association v. State of Bihar , this Court, when the ill-equipped and mismanaged schools were taken over by an Act whose validly was challenged on the anvil of Article 30 of the Constitution, held that even the minority institutions are subject to statutory regulations and establishment and maintenance of such an educational institution should be in conformity with the statute and the State is entitled to regulate the establishment of the educational institutions and the admission of the students in those education institutions. It was held that the educational institutions of the minorities have no right to mal-administration. Any rule or direction issued by the Government to prevent mal-administration would be valid.
23. A Full Bench of this Court has also considered the scope of Article 3 (1), in the case of Rahmania Primary Teachers Training College v. State of Bihar (1991 (1) PLJR 595, and held that the right of minorities to establish and administer educational institution of their choice can be claimed only in respect of institutions which are educational institutions hi truth and reality. If the institution does not fulfil the prescribed norms required for imparting education in the desired faculty, they they cannot claim right conferred under the aforesaid Article.
24. Thus, it is clear that the right conferred under Article 30 (1) is not an absolute right and the same is subject to statutory regulation for ensuring educational excellence and other allied matters. At the stage of affiliation or recognition the State has power to make regulatory provision for the limited purpose of seeing as to whether the institution is an educational institution in truth and reality or it is a mere masked Phantom. At the stage of administration regulatories can be made for securing educational excellence, conditions of employment of Teachers, discipline, morality, public order and other allied matters. However, in the garb of regulating the right of minorities to establish and administer the institution, the State or the authority cannot make a provision, the effect of which is a total abridgement of the right on the minorities. The regulatory provisions should be made with the object that minority institutions are administered efficiently. The institution should be such as it should be identified as an educational institution of the minorities. In order words, it should not be a business venture with the sole object to earn money, but it should be a minority institution in truth and reality.
25. It is well settled that though the minorities have right to establish a institution of their own, but they cannot claim recognition or affiliation as a matter of right. If they want recognition or affiliation, they have to comply with the regulations regarding the recognition and affiliation. However, it is to be mentioned that recognition and affiliation should not be such as its effect would be total deprievement of the right conferred on the minority under Article 30(1) of the Constitution. In the case on Ahmedabad St. Xaviers College (supra) it was held that the right to establish an educational institution does not carry with it the right to recognition or affiliation.
26. Again in the famous case of Unni Krishnan, J.P. v. State of Andhra Pradesh the Apex Court in Para 169 has held as follows:
We must, however, make it clear, and which is of crucial importance herein, that the right to establish an education institution does not carry with it the right to recognition or the right to affiliation. In St. Xaviers College v. State of Gujarat it has been held uniformly by all the nine learned Judges that there is no fundamental right to affiliation. Ray, C. J., stated that this has been "the consistent view of the court". They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, .... is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them. But he, or the educational institution has no right to insist that the certificates or degrees (if they can be called as such) awarded by such institution should be recognised by the State-much less they have the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formally. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government, or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated above, its certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except an University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University. The idea is that if such students pass the. said examination, the Government/University will award its degree/diploma/ certificate to them. These educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees/ qualifications. They prepare their students for , University/Government to permit them to appear at the examination conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised/affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building on grasses, bridges etc. In short, the position is this : No educational institution except an University can award degrees (Sections 22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory-in die interest of general public upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/ affiliating authority is the 'State', it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis Or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions.
26. In the light of the aforesaid decision it has to be seen as to whether the provisions of Section 21(2)(d) of the Universities Act, which requires prior approval of the State Government before grant of affiliation to the Medical College is valid in the eye of law or not. From bare perusal of the aforesaid provision, it would appear that at the time of granting approval to the affiliation of the Medical College to the University, the State Government has to be satisfied that in truth and reality the institution has been established. As it is clearly stated therein that before granting approval for affiliation of a Medical College, the State Government shall consider the financial viability of the College, the nature and form of the proposed management of the College, the viability of the academic standard and all other conditions which are likely to have adverse effect on the interest of students admitted to such a College. The investigation on the aforesaid points by the State Government before approval applies to the minorities' institutions also. The aforesaid investigations are in. the nature of regulatory measures to find out as to whether a college which is asking for permission for grant of affiliation has come into existence in truth or reality or not. In other words, the enquiry envisaged by the aforesaid provision is with the sole object to find as to whether the norms or standard required for establishing and administering a medical college is possessed by the college or not. The State Government after considering the aforesaid aspect of the matter can refuse to grant permission if it comes to the conclusion that the institution even if established by the minorities which have right under Article 30 (1) to establish and administer educational institution of their own choice, does not fulfil the standard requirements essential for a medical college. Accordingly, the submissions advanced on behalf of the learned Counsel for the petitioner that the aforesaid provisions do not apply to the minorities institution is repelled. As stated above, the State Government has found that the infrastructure and other facilities as prescribed by the Medical Council of India for the opening of the medical college is lacking in the college in question and as such it was justified to refuse to grant permission for affiliation of the college in question to the University.
27. As noticed above, after the addition of Sections 10(A) to 10(C) in the Indian Medical Council Act by amendment, no medical college shall be established without previous permission of the Central Government. Section 10 (A) provides, inter alia, that notwithstanding anything contained in this Act or any other law for the time being in force, no medical college shall be established without the previous permission of Central Government. The elaborate procedure has been provided in the said section for grant of permission after consultation with the Medical Council of India. Section 10 (B) provides for non-recognition of medical qualification and Section 10 (C) provides that if any medical college has opened a new or higher course of study or training or increased the admission capacity after 1st of June, 1992 and on or before the commencement of the Indian Medical Council (Amendment) Ordinance, 1992, shall seek permission of the Central Government in accordance with the provisions of Section 10 (A) of the Act.
28. The State Government relying upon this provision had held that as no permission has been given by the Central Government to establish a Medical College, the petitioner's college cannot be granted permission for affiliation to the University. learned Counsel for the petitioner contended that the amended provisions have no application to the present institution, which has been established in the year 1990. It was also stated that the aforesaid provisions will not apply to the minorities institution, as no permission is required before establishing of the minorities institution. The question is as to whether the amended provisions, i.e., Sections 10(A), 10(B) and 10(C) will apply to the institution of the petitioner or not. No doubt, the petitioner states that the institution was established in the year 1990 as a minority institution, the materials before the State Government do not show that any medical institution/college in question was established in the year 1990. The word "established" is not defined in the Constitution, but it means to bring into existence the educational institution which means an educational institution in substance or reality. The only, assertion made on behalf of the petitioner will not amount to establishment of an institution. The State Government after verification has found that, as a matter of fact, no institution in truth and reality has come into existence. In that view of the matter, it cannot be held that the college of the petitioner has been established before coming into force of the amended provisions of the Indian Medical Council Act. The provisions of Sections 10(A), 10(B) and 10(C) of the Indian Medical Council Act are applicable in he case of the petitioner's institution. This apart, a Division Bench of this Court in the case of Syed Wetayat Hussain v. State of Bihar 1994 (1) PLJR P.1) has already held that the amended provisions of the Indian Medical Council Act shall apply to the institutions which established prior to 1st of June, 1992. It was held as follows:
Section 19(C) of the said Act embraces within its fold even such cases where Medical Institutions have been established before the 1st day of June, 1992, A right to obtain affiliation is not an absolute right and the same would depend upon the fulfilment of the conditions laid down therefor by reason of the relevant statutes. As before the affiliation to the said college could be granted, a Parliamentary statute has come into force which should prevail over the State Legislation. An affiliation can be granted only upon fulfilment of the terms and conditions as laid down by the Parliamentary Legislation. This view is being taken for the simple reason that admittedly, the Medical Council of India has absolute right to lay down the standard of education which in turn means that it has also the right or jurisdiction to lay down such conditions for the purpose of grant of affiliation to a Medical Institution in order to see that the Institutions are properly equipped to impart medical education to the students as per the standard of excellence laid down by it.
Provisions of Sections 10(A), 10(B) and 10(C) of the Medical Council of India Act have to be viewed in the light of the power of the Medical Council of India in terms of Sections 10(A), 20 and 33 (J.and K.) thereof.
In this view of the matter, the contention of Mr. Basudeo Prasad to the effect that Sections 10(A), 10(B) and 10(C) of the Act are unconstitutional, cannot be accepted.
29. It is to be mentioned that the submission advanced on behalf of the petitioner that the provisions of amended Act will not apply to the minority institution is devoid of any substance. These amendments contain regulatory measures only. From bare perusal of Section 10(A) it will appear that the matters which the Medical Council and the Central Government has to take into consideration before granting permission for the establishment of a medical college are designed to ensure that properly equipped institution is established before it is permitted to impart medical education. The measures are regulatory in nature and it does not infringe the right of the minority.
30. It was submitted by the learned Counsel for the petitioner that one of the grounds given for non-affiliation of he college that no prior permission for the establishment of institution was taken by the State Government in accordance with the provisions of proviso to Clause (C) of Section 2 of the Bihar Act is not tenable in law for the reason that no prior permission is required for establishing a minority institution in view of the provision of Article 30(1) of the Constitution of India. The submission is well founded. The provision requiring prior permission for establishing a minority institution is void, as it is violative of fundamental right guaranteed under Article 31 (1) of the Constitution of India. A Full Bench of this Court in the case of Rahmani Primary Teacher's Training College (Supra), while dealing with a similar provision contained in Bihar Non-Government Physical Training College and Non-Government Teachers' Training College and Non Government Primary Teachers' Education Colleges (Control and Regulation) Act, 1992, held that it will not apply to minority institutions. Thus, it is held that the proviso to Clause (c) of Section 2 of the Bihar Act does not apply to minority institutions. However, as I have held that the amended provisions of the Indian Medical Council Act are applicable in the case of the petitioner's institution, the non-applicability of the aforesaid provisions of the Bihar Act is of no help to the petitioner. This apart, after the addition of amended provisions 10(A), 10(B) and 10(C) in the Indian Medical Council Act, the said provisions in the Bihar Act regarding prior permission for the establishment of the medical college, either in the case of minority or in the case of majority, has become inoperative. Article 66 of List-I of 7th Schedule of the Constitution empowers the Parliament to make legislation regarding co-ordination and determine the standards in institution for higher education or research and scientific and technical insituations. Entry 25 of List III (concurrent list) relates to technical education, medical education and University and the same is subject to the provisions of Entries 65 and 66 of List-I. Entry 66 vests power to see that the required standard of higher education in the country is maintained. The Parliament has exclusive power to make legislation on the said subject. If the Parliament has already made a law which falls under Entry 66 of the list, then the State Government cannot make a parallel enactment under Entry 25 of List III. The Central Government has already enacted law (Sections 10(A) to 10 (C)) of the Indian Medical Council Act) for co-ordination and determination of excellence in the standard in institutions of medical education. The similar provision in the Bihar Act will be void. In that view of the matter, the provision of the Bihar Act has become inoperative after the addition of amended provisions in the Medical Council of India Act, which falls under Entry No. 66 of List-I.
31. Though the petitioner has stated in the writ application that it is a majority institution, but there is nothing on the record to show that in truth and reality it is minority institution.
32. After having considered the matter in depth and after having given thoughtful consideration to the submissions advanced by the learned Counsel for the petitioner, I am or the view that the State Government has rightly refused approval to the grant of affiliation to the petitioner's college.
33. In the result, I do not find any merit in this application, it is dismissed, accordingly, hi the facts and circumstances, there shall be no order as to costs.
Choudhary S.N. Misra, J.
34. I agree.