V. N. KHARE, J. - (1.) THIS appeal which is directed against the judgment of Bombay High Court passed in the writ petition gives rise to following two questions for our decisions-1) whether the State Government is required to submit an application to the Maharashtra University of Health Sciences (hereinafter referred to 'the University') under Section 64 of the Maharashtra University of Health Sciences Act, 1998 (hereinafter referred to as the 'Act') for obtaining permission from itself, when it decides to establish a Government run medical college within the State; and (2) whether the perspective plan prepared by the University under the Act for educational development for the location of higher learning is binding on the State Government when the State Government resolves to set up a Government run medical college within the State.
(2.) THE aforesaid questions arose in the context of the decision taken on 30-8-2000 by the Government of Maharashtra to set up a Government medical college at Kohlapur. This decision of the Government was challenged by the respondents through a Public Interest Litigation before the High Court of Bombay at Aurangabad. THE challenge in the writ petition was, inter alia, on the ground that the State Government having not submitted any application to the University as required under Section 64 of the Act, the decision taken by the State Government to set up a Government run medical college at Kohlapur is invalid, and, that, the resolution of the State Government to set up Government run medical college at Kohlapur being contrary to the perspective plan prepared by the University, the impugned decision was illegal. THE High Court was of the view that the State Government having not submitted any application for permission of the State Government to the University for establishing a Government run medical college at Kohlapur as required under Section 64 of the Act, the impugned decision of the Government is invalid and further the decision of the State Government to set up a medical college at Kohlapur being contrary to the perspective plan prepared by the University which is binding on the State Government, the impugned decision suffers from legal infirmity. Consequently, the decision of the State Government to set up a Government run medical college at Kohlapur was set aside and the writ petition was allowed. It is against the said judgment, the State of Maharashtra has preferred this appeal. Coming to the first question, the setting up a medical college and the medical education in our country is governed by the Indian Medical Council Act, 1956 and Regulations framed thereunder. In the year 1993, Section 10A, 10B and 10C were inserted in the Indian Medical Council Act by amending Act 31 of 1993. Sub-section (1) of Section 10A provides that no person shall establish a medical college or no medical college shall open a new or higher course of study or training or increase its admission capacity in any course of study or training except with the previous permission of the Central Government obtained in accordance with the provisions of the Act. Sub-section (2) thereof provides that every person or medical college desirous of opening a medical college shall submit to the Central Government a scheme in accordance with the provisions of the Act and the Central Government shall refer the scheme to the Medical Council for its recommendation. Sub-section (3) of Section 10A further provides that on receipt of a scheme by the Medical Council, the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned and thereafter it may consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government. Sub-section (4) of Section 10A enables the Central Government either to approve or disapprove the scheme. Section 33 of the Act empowers the Medical Council to make Regulation for carrying out the purposes of the Act. The Medical Council, in exercise of power conferred by Section 33 read with Section 10A of the Act, has framed Regulation known as 'The Establishment of New Medical Colleges, Opening of Higher Courses of Study and increase of Admission Capacity in Medical Colleges Regulation, 1993 (hereinafter referred to as the 'Regulation'). The Regulation provides the eligibility and qualifying criteria for setting up a medical college. Para 3 of the Regulation runs as under : "that Essentiality Certificate regarding the desirability and feasibility of having the proposed medical college at the proposed location has been obtained and that the adequate clinical material is available as per Medical Council of India requirements has been obtained by the applicant from the respective State Government or the Union Territory Administration." A perusal of para 3 of the Regulation shows that it is mandatory on the part of an institution or a management desirous of establishing a medical college to obtain Essentiality Certificate from the respective State Government or the Union Territory Administration, as the case may be. The requirement of Essentiality Certificate provided under para 3 of the Regulation concerns with among other requirements the desirability of having the proposed medical college at the proposed location. The desirability of having medical college at the proposed location under para 3 of the Regulation is required to be decided by the State Government. Excepting the desirability of location of the proposed medical college and certificate that adequate clinical material is available as per Medical Council of India at the proposed medical college are to be decided by the State Government and all other aspects regarding establishment of a new medical college and imparting of the education therein are covered by the Central Act and Regulations framed thereunder. In other words, in the matter of establishment of a medical college and medical education the field, that is open where a State Government has any role to play is only in regard to decide the desirability of the location of the proposed medical college and grant of certificate that adequate clinical material is available as per Medical Council at the proposed medical college. Thus, the State Government is the only authority under the Regulations to which we are concerned to decide the location of a new proposed medical college within the State. The State Government, therefore, is the only Judge to decide where the proposed medical college is to be located. For that purpose, the State Government neither can delegate its function to any other authority nor can create a statutory authority under a State Act. If it does so, it would be repugnant to the Central Act. However, it is true that the State Govenrment in order to maintain inter or intra regional imbalances within the State and to remove the chances of arbitrariness can lay down guidelines or prepare a perspective plan for its own guidance for selecting locations for a proposed new medical college within the State. Another object behind the necessity to obtain the Eligibility Certificate from the State Government under para 3 of the Regulations is that in the event a private management becomes incapable of setting up the proposed medical college or impart education therein, such a Certificate by the State Government casts an obligation on the State Government to take over the affairs of such a private medical college and discharge the obligations of the private management. It is in these context, Section 64 of the Act is required to be read and understood. Section 64 of the Act runs as under : "64. Procedure for permission.- (1) the University shall prepare a perspective plan for educational development for the location of institutions of higher learning in a manner ensuring equitable distribution of facilities of Health Sciences Education having due regard, in particular, to the needs of unserved and under developed areas within the jurisdiction of the University. Such plan shall be prepared by the Academic Council and shall be placed before the Senate through the Management Council and shall be updated every five years. (2) No application for opening a new college or institution of higher learning which is not in conformity with such plan, shall be considered by the University. (3) The management seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of University before the last day of October of the year preceding the year from which the permission is sought. (4) All such applications received within the aforesaid prescribed time limit shall be scrutinised by the Planning Board and he forwarded to the Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council. (5) Out of the applications recommended by the University, the Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the Govenrment's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of Health Sciences learning. Provided however that, in exceptional cases and for the reasons to be recorded in writing, any application not recommended by the University may be approved by the State Government for starting a new college or institution of Health Sciences learning. (6) No application shall be entertained directly by the Govenrment for the grant of permission for opening a new college or institution of Health Sciences learning.
(3.) A perusal of Section 64 shows that it provides for procedure for obtaining permission by the State Government for setting up a new medical college and confers exclusive power on the State Government for grant of permission to a management to establish a new medical college. The power of the State Government to grant permission to set up a new medical college under Section 64 of the Act is substantially the power of the State Government to grant Essentiality Certificate to a management or an institution who intends to establish a new medical college at a proposed location. If Section 64 of the Act is read along with para 3 of the Regulations it would show that the requirement of Essentiality Certificate or approval by the State Government is required when a private management of any other person other than the State Government intends to set up a medical college. The State Government being the authority to accord approval for setting up a medical college within the State cannot apply to itself for grant of approval when it proposes to establish a new medical college within the State. It's decision to set up a government run medical college tantamounts to an approval or permission as contemplated under Section 64 of the Act and grant of Essentiality Certificate to the extent of location of the proposed medical college which is required to be furnished under para 3 of the Regulation. The language of Section 64 is plain and simple. The expression 'management' occurring in Section 64 shows that it refers to a private management other than the State Government when it seeks permission of the State Government to open a new medical college within the State. Shri S. Ganesh, learned senior advocate appearing for the respondents brought to our notice the definition of the expression 'management' as contained in sub-section (21) of Section 2 of the Act, which runs as under : "Section 2. In this Act, unless the context otherwise requires,- (21) 'Management means the trustees, or the managing or governing body, by whatever name called, of any trust registered under the Bombay Public Trusts Act, 1950 Bom. XXIX of 1950 or any society registered under the Societies Registration Act, 1860 (21 of 1800) under the management of which one or more colleges or recognised institutions or other institutions are conducted and admitted to the privileges of the University. Provided that in relation to any college or institution established or maintained by the Central Government or the State Government or a local authority such as a Zila Parishad, municipal council or municipal corporation, it means, respectively, the Central Government or the State Government or the concerned local authority that is the Zila Parishad, municipal council or municipal corporation, as the case may be." On the strength of the said definition of the expression 'management' it was urged that the word 'management' occurring in Section 64 of the Act shall also include the State Government and as and when the State Government proposes to set up or establish a Government run medical college, it has also to apply to the University for grant of permission by the State Government. The question then arises whether the expression 'management' occurring in Section 64 of the Act would also include the State Government and the State Government is required to submit an application to the University for obtaining approval from itself as and when the State Government decides to establish a Government run medical college within the State. ;