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TMI Blog2001 (12) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... n the State. The aforesaid questions arose in the context of the decision taken on 30.8.2000 by the government of Maharashtra to set up a government medical college at Kohlapur. This decision of the government was challenged by the respondents through a Public Interest Litigation before the High Court of Bombay at Aurangabad. The challenge in the writ petition was, inter alia, on the ground that the State Government having not submitted any application to the University as required under Section 64 of the Act, the decision taken by the State Government to set up a government run medical college at Kohlapur is invalid, and, that, the resolution of the State Government to set up government run medical college at Kohlapur being contrary to the perspective plan prepared by the University, the impugned decision was illegal. The High Court was of the view that the State Government having not submitted any application for permission of the State Government to the University for establishing a government run medical college at Kohlapur as required under Section 64 of the Act, the impugned decision of the government is invalid and further the decision of the State Government to set up a me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he eligibility and qualifying criteria for setting up a medical college. Para 3 of the Regulation runs as under : "that Essentiality Certificate regarding the desirability and feasibility of having the proposed medical college at the proposed location has been obtained and that the adequate clinical material is available as per Medical Council of India requirements has been obtained by the applicant from the respective State Government or the Union Territory Administration." A perusal of para 3 of the Regulation shows that it is mandatory on the part of an institution or a management desirous of establishing a medical college to obtain Essentiality Certificate from the respective State Government or the Union Territory Administration, as the case may be. The requirement of Essentiality Certificate provided under para 3 of the Regulation concerns with among other requirements the desirability of having the proposed medical college at the proposed location. The desirability of having medical college at the proposed location under para 3 of the Regulation is required to be decided by the State Government. Excepting the desirability of location of the proposed medical coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard, in particular, to the needs of unserved and under developed areas within the jurisdiction of the University. Such plan shall be prepared by the Academic Council and shall be placed before the Senate through the Management Council and shall be updated every five years. (2) No application for opening a new college or institution of higher learning which is not in conformity with such plan, shall be considered by the University. (3) The management seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of University before the last day of October of the year preceding the year from which the permission is sought. (4) All such applications received within the aforesaid prescribed time limit shall be scrutinised by the Planning Board and be forwarded to the government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council. (5) Out of the applications recommended by the University, the Government may grant permission to such institutions as it may con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. . Shri S. Ganesh, learned senior advocate appearing for the respondents brought to our notice the definition of the expression 'management' as contained in sub-section (21) of Section 2 of the Act, which runs as under: "Section 2. In this Act, unless the context otherwise requires,-- .. . (21) 'Management' means the trustees, or the managing or governing body, by whatever name called, of any trust registered under the Bombay Public Trusts Act, 1950 Bom. XXIX of 1950 or any society registered under the Societies Registration Act, 1860 21 of 1800 under the management of which one or more colleges or recognised institutions or other institutions are conducted and admitted to the privileges of the University. Provided that, in relation to any college or institution established or maintained by the Central Government or the State Government or a local authority such as a Zilla Parishad, municipal council or municipal corporation, it means, respectively, the Central Government or the State Government or the concerned local authority that is the Zilla Parishad, municipal council or municipal corporation, as the case may be." On the strength of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself for grant of permission to set up a government medical college through the University. Similarly it would also mean the State Government applying to itself for grant of Essentiality Certificate under para 3 of the Regulation. We are afraid the defined meaning of the expression "management" cannot be assigned to the expression "management" occurring in Section 64 of the Act. In the present case, the context does not permit or requires to apply the defined meaning to the word 'management' occurring in Section 64 of the Act. . However, after the government run medical college is established, necessarily there has to be management or body of persons to run the affairs of the medical college and for such a situation the expression 'management' as defined in Section 2 (21), is contemplated under Section 65 of the Act. In the context of the provisions of Section 65 of the Act, the management of the government run medical college has to apply for grant of affiliation to the University which may be the State Government. It is not disputed that the State Government (Management) did apply for grant of affiliation to the University which was granted. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... college. The State Government while granting an Essentiality Certificate or permission to establish a new medical college acts as a sovereign and discharges its constitutional obligation. In this context, if the argument of learned counsel for the appellant is accepted, it would mean the State government is required to apply to itself for permission when it decides to set up a new government run medical college when the State Government is the only authority to grant permission to set up a new medical college at a proposed location. Further, the argument that the State Government when it decides to set up a new government run medical college is required to submit an application to the University for grant of permission by the State Government would be repugnant to the object behind para 3 of the Regulations and legislative intent for which Section 64 of the Act has been enacted. Coming to the decision in Superintendent & Legal Remembrancer, State of West Bengal vs. Corporation of Calcutta (supra), cited by learned counsel for the respondents, only this much safely can be stated that its reliance by the appellant's counsel is totally misplaced. In the said case, the State of We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said provisions it was urged that a perspective plan prepared by the University under Section 64 of the Act being under the mandate of Article 371 (2) (c) of the Constitution and, therefore, was binding on the State Government and any decision by the State Government contrary to the perspective plan would be rendered invalid. The first argument of learned Solicitor General is that the expression 'technical education' occurring in Article 371 (2) © of the Constitution is distinct and different from 'medical education' and, therefore, Article 371 (2) (c) of the Constitution has no application when the University prepared a perspective plan under section 64 of the Act. We are not deposed to go into the said argument although the argument appears to be attractive. So far as the second and third arguments are concerned, it is necessary to look into the provisions of the Act. Section 5 (ww) of the Act provides that the University shall comply with and carry out any directives issued by Government from time to time, with reference to the powers, duties and responsibilities of the University. Section 7 (2) of the said Act provides that the University shall adopt Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Act lays down that no management of a college or recognised institution shall be allowed to close down the college or recognised institution without prior permission of the State Government. We shall now examine Section 64 of the Act for the purpose whether the perspective plan prepared by the University is binding on the State Government when it resolves to set up a government run medical college within the State in light of provisions of the Act stated hereinbefore and other relevant provisions. The aforesaid noted provisions of the Act show that the State Government exercises considerable control over the running of the affairs of the University and inasmuch as the University is prohibited from framing any statutes laying down the qualifications, recruitment, terms of office and conditions of service of employees and officers of the Government run institutions. We have already held in preceding paragraphs of this judgment that the defined meaning of the expression 'management' cannot be assigned to the expression 'management' occurring in Section 64 of the Act and as and when the State Government decides to set up a government run medical college, it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the perspective plan for the year 2000- 2001 are thus: ".The tribal areas in Khandesh and Western Maharashtra and in Vidarbha need special consideration. Therefore it is suggested that permission to start any new college has to be considered only for Vidarbha and Marathawada. Under any circumstances not more than 1 college for each region (Vidarbha and Marathwada) with an intake capacity of 100 per annum be permitted." It may be stated that the State while maintaining regional imbalances is also required to maintain intra regional imbalances being the welfare State. In the light of the aforesaid recommendations, the State Government in a decision dated 30.8.2000 stated that out of 34 medical colleges in the State, 11 colleges are government colleges and since the year 1989-90, no government medical college was opened. It was further stated therein that in the Western Ghat there are 62 Talukas in hilly area where the residents of said Talukas have to face difficult conditions and the students coming from that area are lower in terms of merit than the other students of the State. It was, therefore, decided to keep 20% seats reserved for residents of said 62 Taluka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the perspective plan was binding on the State Government also, which is not the case here. In the present case, we are concerned with setting up of a government run medical college which is not a private management within the meaning of 'management' occurring in Section 64 of the Act read with para 3 of the Regulation and, therefore, reliance of the decision in Dhananjay's case (supra) is totally misplaced. Lastly, it was urged that since in Dhananjay Kulkarni's case (supra), no appeal was filed by the State government and in fact the State Government has accepted the said judgment and therefore, this appeal deserves to be dismissed. Learned counsel also relied upon a decision of this Court in Union of India vs. Satish Panalal Shah 2001 ITR (249), 221 in support of his argument. We do not find any merit in this submission. We have already held that the decision in Dhananjay Kulkarni's case (supra) related to a private management and has nothing to do with the setting up of a new government run medical college and, therefore, the decision in Dhananjay Kulkarni's case (supra) has no application in the present case. In that view of the matter acceptance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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