Bhartiya Homoepathy College, Bharatpur Vs. Students Council of Homeopathy Medical College, Jaipur & Ors [1998] INSC 50 (3 February 1998)
Sujata
V. Manohar, D.P. Wadhwa Mrs, Sujata V. Manohar. J.
ACT:
HEAD NOTE:
[With
Civil Appeal No. 16041/96, CA No.555/98 {Arising out of SLP {C} No. 2991/98 {cc
9141/97}] and W.P.NO.81/97]
Delay
condoned.
Leave
granted,
Appeals
16040 and 16040 and 16041 of 1996 arise from a common judgment of the Division
Bench of the High Court of Rajasthan at Jaipur dated 11th of October, 1996 in
D.B.
Civil
Special Appeal (Writ) No.15/1996 against the order dated 13.12.1995 of the
Learned Single Judge in Civil writ Petition 4882 of 1995. Civil Appeal No.
16040 of 1996 has been filed by Bhartiya Homeopathy College, Bharatpur while Civil Appeal No. 16041 of 1996 is filed by
Yuvraj Pratap Senior Memorial Homeopathy Medical College, Alwar. For the sake of convenience
we are setting out the facts in Civil Appeal No. 16041 of 1996. Both the
appeals along with appeal arising from S.L.P. (C) No. 2991/98 (cc 9141/97) and
Writ Petition No. 81 of 1997 have been heard together because they raise common
question and arise from the same judgment of the Division Bench of the
Rajasthan High Court.
In
1969 the Legislature of the State of Rajasthan enacted the Rajasthan Homeopathic Medicine Act, 1969 (Act 1 or 1970).
Section 3 of the Act provides for the establishment of the Rajasthan Board of
Homeopathic Medicine. Section 40(1) of the said Act prescribes that the said
Board shall have the power to recognise Homeopathic educational or
instructional institutions for the purpose of affiliation. Section 40(iii) exposers
the said Board to hold examinations and to grant degrees/diplomas to persons
who shall have pursued a course of study in an educational institution
affiliated to the Board. Accordingly the Rajasthan Board of Homeopathic
Medicine was set up under the said Act. It conducted examinations for the grant
of B.H.M.S. Degree as well as examinations for A a Diploma in Homeopathy. The
two appellant colleges at Alwar and Bharatpur were, at the material time,
affiliated to the Rajasthan Board of Homeopathic Medicine. Their students
appeared for the B.H.M.S. examination conducted by the Rajasthan Board of
Homeopathic Medicine until about 1994.
In
1973 the Central Government enacted the Homeopathy Central Council Act, 1973
(Act 59 of 1973). Section 13 of the Homeopathy Central Council Act, 1973
provides for recognition of medical qualifications in Homeopathy granted by any
University, Board or Medical Institution in India.
The recognised
institutions and qualifications are listed in the Second Schedule of the Act.
In the Second Schedule, under the head "State of Rajasthan", the Rajasthan Board of
Homeopathic Medicine is recognized from 1979 onwards for a Diploma in
Homeopathic Medicine & Surgery (D.H.M.S.). The University of Rajasthan is recognised for the degree of B.H.M.S. from 1990. The
Rajasthan Board of Homeopathic Medicine is not recognised for the degree of
B.H.M.S. under the Second Schedule to the Homeopathy Central Council Act, 1973.
The Rajasthan Board of Homeopathic Medicine, however, continued to hold
examination for the degree of B.H.M.S.
The Rajasthan University also conducted a degree course in Homeopathy for the degree
of B.H.M.S. The Homeopathy Medical College at Jaipur was affiliated to the Rajasthan University for the B.H.M.S. degree cause.
On
31st of March, 1987 the State Government, Medical and Health Department, wrote
to the Registrar of the University of Rajasthan stating that after consultation
with the Rajasthan Board of Homeopathic Medicine and the Board of Indian
medicine Rajasthan, the State Government considered it desirable that
examination, inter alia, in respect of all the classes of B.H.M.S. should be
conducted thorough the University of Rajasthan in respect of students studying
in the colleges which should get themselves affiliated to the University. The
letter mentioned three colleges which were conducting courses leading the
B.H.M.S. These were the two appellant colleges - one at Bharatpur and the other
at Alwar, and the Homeopathic Medical College at Jaipur. The State conveyed to
the University that it would be better if the University agrees to conduct all
the examination of B.H.M.S./B.U.M.S. degree courses in respect of all the years
right away so that the respective Boards may wind up their examination word and
the State would be in a position to reshape or dissolve these Boards of the
registration work of chiktsaks etc. This proposal was considered at a meeting
of the Academic Council of the University of Rajasthan at its meeting of 13.6.1987. In the
minutes of the meeting it is recorded that is respect of Homeopathy, the said
three colleges had sought affiliation from 1987-88 session. It was decided to
recommend acceptance of the State Government's proposal subject to certain
conditions which are recorded there. There does not seems to have been any
further progress regarding affiliation of the appellant colleges to the university of Rajasthan for the B.H.M.S. course. For the academic session 1988-89,
the State of Rajasthan, Medical and Public Health Department, by its letter
dated 21.7.1988 advised the two appellant colleges that until a final decision
on the application of these colleges for affiliation is taken by the University,
status quo may be maintained and the affiliation of the two appellant colleges
may be continued with the Rajasthan Homeopathic Medicine Board. The State
Government also advised the Board that it will not be proper to stop admissions
till the matter regarding affiliation is finally decided by the University.
In the
meanwhile, for the purpose of affiliation to the Rajasthan University inspections were carried out by the
University of Rajasthan and we are informed that the inspection reports were
satisfactory.
In the
year 1993 the judgment of this Court in Unci Krishna, J.P. and Ors. V. State of
Andhra Pradesh and Ors.(1993 1 SCC 645) was
pronounced. As a result, the Central Council of Homeopathy, by its letter dated
18.8.1993 addressed to the Secretary, Government of Rajasthan, Department of
Health and Family welfare, Jaipur, as well as to the Registrar, Rajasthan Board
of judgment in the above case, had held that by virtue of the provisions of the
University Grants Commission Act, no educational institution in this country
except a University is entitled to award degrees. The Central Council,
therefore, requested the State of Rajasthan that the State Board of Homeopathic Medicine should be asked not to
award a degree qualification in Homeopathy henceforth.
In the
meanwhile, the Central Council recognised the appellant college at Alwar for
the year 1993-94 and this recognition has been extended subsequently for the
years 1994-95, 1995-96 and 1996-97.
Pursuant
to the application for affiliation made by the appellant college at Alwar to
the University of Rajasthan for B.H.M.S. degree course, the University , by its
letter dated 23.1.1994, granted a provisional affiliation for B.H.M.S. degree
course to the appellant college at Alwar for the session 1993-94 in preparation
for its first B.H.M.S. examination 1994, second B.H.M.S. examination 1995,
third B.H.M.S. examination 1996 and fourth B.H.M.S. examination 1997 to the
fulfillment of conditions laid down in that letter. The students of this
college who were admitted to the 1st year B.H.M.S. course in 1993-94 thus
became entitled to appear in the examinations of the Rajasthan University leading to the degree of B.H.M.S. Subsequently, on 6.4.1995
the University of Rajasthan granad provisional affiliation to the appellant
college at Alwar for the academic session 1994-95 in similar terms and by a
letter of 2nd of April, 1996 it again granted provisional affiliation to the
said college for the academic session 1995-96 also. This affiliation, however,
did not cover students of the appellant college who had taken admission prior
to 1993-94 in the said college and who were required to appear in different
years of B.H.M.S. examinations in 1993-94 and thereafter. However, in view of
the provisional affiliation granted to the appellant college by the University of Rajasthan in January, 1994 the State of Rajasthan issued an order dated 20th of June,
1994 directing the Rajasthan Board of Homeopathic Medicine not to conduct
B.H.M.S. examinations.
This
order was challenged in a writ Petition filed before the High Court of
Rajasthan. We are, however not concerned with those proceedings here.
Thereafter the State Government addressed a letter dated 16th of August, 1994
to the Registrar, University of Rajasthan with regard to the B.H.M.S. examination which were, upto
then, conducted by the Rajasthan Homeopathic Medicine Board. The letter
referred to the Central Council for Homeopathy's letter of 18th of August. 1993
and the decision of this Court in Unci Krishna v. state of Andhra Pradesh
(supra). It also referred to the opinion of the Law Department that the
Rajasthan Homeopathic Medicine Board cannot issue degrees in Homeopathic
Medicine.
The
letter recorded that keeping in view the above position, the State Government
suspended the examination for B.H.M.S. degree course being conducted by the
Rajasthan Homeopathic Medical Board and had also directed that no admissions
will be made by the appellant colleges for the B.H.M.S. degree course of the
Rajasthan Homeopathic Medicine Board. The letter went on to say, "As the
examination for degree course cannot be conducted through Rajasthan Homeopathic
Medical Board, therefore, now this questions is under active consideration
before the State Government that the students who had taken admission for
degree course in Alwar college and Bharatpur college and who are in the second,
third and final year of the degree course how their future may be saved and
through whom their examination shall be conducted." "It was discussed
on the above reference with the committee and Vice Chancellor of the University of Rajasthan on 24.6.1994. During the period of discussion, this
proposal was also discussed that the examination of students of the Bharatpur
and Alwar Homeopathetic Colleges in II, III and final years of B.H.M.S. Course
shall migrate to the Rajasthan Homeopathic College Jaipur which is affiliated
to the University of Rajasthan and their examination shall be got conducted by
the University of Rajasthan. It seems that pursuant to this decision, some of
the students of the appellant colleges were allowed to migrate to the said
college at Jaipur. However, a large number of students in this category
continued with the two appellant colleges.
Looking
to the unforeseen situation in which these students were placed on account of
the Rajasthan Homeopathic Medicine Board not being in a position to conduct the
B.H.M.S. Degree examination, the Vice-Chancellor of the University of Rajasthan passed on order dated 13th of May, 1995 which is the
subject-matter of challenge in these proceeding. The order of 13th of May, 1995
has been passed pursuant to the recommendation made by the Board of Inspection
of the University of Rajasthan as per Resolution No.16 passed at its meeting held on 12th
and 18th of December, 1994. The Vice-Chancellor by the order of 18th of May,
1995. has ordered that "the examinations of II, III and final year
B.H.M.S. students admitted in the Homeopathic College, Bharatpur and
Homeopathic College, Alwar be conducted by the University, without granting affiliation
for these examination, as per the existing syllabus of the University
prescribed for these examinations in order to avoid hardship to the students
and also keeping in view the fact that the Rajasthan Homeopathy Board which was
conducting examinations of these two colleges has now been rendered ineligible
for conducting examinations and awarding Degrees." The commendations of
the Board of Inspection and Vice- Chancellor's order of 13.5.1995 were ratified
by the Syndicate at its meeting held on 20/21.5.1995.
The
Students' Council of the Homeopathic College at Jaipur filed a public interest litigation challenging
the order of the Vice-Chancellor permitting the students in II, III and final
year B.H.M.S. classes of the appellant colleges to appear at the examinations
being conducted by the University of Rajasthan. The petition was dismissed by a learned Single Judge of
the Rajasthan High Court holding that the Students' Council of the Jaipur
College had no locus stand to file a public interest litigation In appeal,
however, that Division Bench of the High Court has set aside the order of the
Vice-Chancellor and has upheld the locus of the Students' Council of the Jaipur
College to file such a petition. The present appeals before us are from this
judgment and order of the Division Bench of the Rajasthan High Court at Jaipur.
From
the above narration of facts, it is clear that the order of the Vice-Chancellor
was issued after extensive consultations with the State Government and after
the Board of Inspection of the Rajasthan University approved of the students belonging
to the two appellant colleges appearing for the concerned B.H.M.S.
examinations. The students who had taken admission' in the two appellant
colleges for the B.H.M.S. course had done so under a bona fide belief that the
B.H.M.S. examination conducted by the Rajasthan Board of Homeopathic Medicine
was an examination which was conducted by the Board in accordance with laws and
that the two appellant colleges who were affiliated to the Rajasthan Board of
Homeopathic Medicine were entitled to send their students for the B.H.M.S.
examinations conducted by the Rajasthan Board of Homeopathic Medicine. It was
on account of the judgment of this Court in the case of Unci Krishna, J.P. V.
State of Andhra Pradesh (supra) and the correct legal position being pointed by
the Central Council of Homeopathy in its light, that the State Government had
to take a decision to close down the B.H.M.S. degree examination conducted by
the Rajasthan Board of Homeopathic Medicine. The State itself recognised that
the sudden closing down of the degree examination of the Rajasthan Board would
lead to a complete disruption of the studies of the students who had already
taken admission for the B.H.M.S. degree course in the two appellant colleges,
through no fault of theirs. In order to see that the future of these students
was no jeopardised, the State Government had requested the University of Rajasthan to accommodate these students and permit them to appear for
the B.H.M.S. examinations for different years being conducted by the University of Rajasthan. The University had satisfied itself through the Board of
Inspection that the two appellant colleges were imparting education in
Homeopathy in a satisfactory manner. The University also took into account the
fact that students of the IInd, IIIrd and final year B.H.M.S. courses in the
two appellant colleges were left without any remedy because of the sudden
scrapping of the degree examination of the Rajasthan Board of Homeopathic Medicine.
Therefore, in view of the emergency which had arisen, the Vice-Chancellor
permitted the students of IInd, IIIrd and renal year degree courses in the two
appellant colleges to appear for the University examinations for the Iind, IIIrd
and final years of the B.H.M.S. course without granting affiliation to these
two colleges for the concerned previous relevant years.
It is
necessary to note that the University had granted affiliation to both these
colleges provisionally from the academic year 1993-94 onwards. As a special
case, the Vice- Chancellor permitted the students of these colleges who had
taken admission prior to 1993-94 in the B.H.M.S. degree course also to appear
for the examinations as set out in the order of the vice-Chancellor. This order
has been retired by the Syndicate also. The only narrow question which we have
to consider is whether the Vice-Chancellor has the power to do so under the
Rajasthan University Act of 1946.
The
relevant provisions of Section 4 of the University of Rajasthan, Act, 1946 which deals with the
powers of the University are as follows:
"4:
The University shall have the following powers, namely:-
(1)...............
(1A)..............
(1B)..............
(2) to
hold examinations and to confer degrees and other academic distinction upon-
(a) persons
who have pursued a course of study in the University or its affiliated colleges
or approved institutions and appeal at and as the examinations of the
University, nuder conditions laid down in the Ordinances and Regulations:
(b) persons
who have not pursued a course of study in the University or its affiliated
colleges or approved institutions but appear at and pas the examinations of the
University as non-collegiate students under such conditions may under such
condition as may be prescribed by the University from time to time:
Provided
that such students have been residing within the State of Rajasthan for such
period as may be prescribed by the University in the Ordinances and
Regulations." Under sub-section (4), the University can confer degrees,
diplomas and other academic distinction on and provide teaching, instruction
and training for external students, in the manner prescribed by the Statutes,
Ordinances and Regulations. Under sub-section (4A), the powers of the University
include the power to admit colleges and institutions to the privileges of the
University and to withdraw such privileges. under sub-section (7), the
University can inspect affiliated colleges and approved institutions and take
measures to ensure that proper standards of teaching, instruction and training
are maintained in them.
Under
Section 4, sub-section (2), therefore, the power to hold examinations and to
confer degrees, is given not merely in respect of persons who have pursued a
course of study in the University or its affiliated colleges or approved
institutions, but also in respect of persons who have not pursued a course of
study in the University or its affiliated colleges or approved institutions but
who pass the examinations of the University. under Section 4, sub- section
(15), the University has the power to do all such other acts, whether
incidental to the powers aforesaid or not, as may be requisite in order to
further the object of the University as an educational body, and to cultivate
and promote the arts, science and other branches of learning.
The
powers of the Vice-Chancellor are laid down in Section 13. Under Section 13(1),
the Vice-Chancellor shall be the principal executive and academic officer of
the University. Under sub-section (2). It shall be the duty of the
Vice-Chancellor to see that this Act, the Statutes and the Ordinances are
faithfully observed and he shall have all powers necessary for this purpose.
Under sub-section (4) it is provided as follows:
"13(4)(a)
: He may take action in any emergency, which, in his opinion, calls for
immediate action. He shall, in such a case, and as soon as may be thereafter,
report his action, to the officer, authority or other body who or which would
ordinarily have dealt with the matter.
The
powers and functions of the Syndicate are laid down in Section 22. Under
Section 22(i), the Syndicate, subject to the Statutes, has to inspect and
affiliate, recognise or approve colleges and hostel or institutions, and to
withdraw affiliation, recognition or approval from them. Under sub- section
(j), it has to arrange for the holding examinations and publishing results
thereof. Under sub-section (k), it has to maintain proper standards of teaching
and examination in consultation with the Academic Council. The power,
therefore, to hold examinations and publish results as also the power to
inspect, affiliate or approve colleges and institutions is with the Syndicate.
The Vice-Chancellor, however, has in an emergency the power to take action
immediately in respect of any of these matters but the action so taken has to
be placed before the concerned authority, that is to say the Syndicate.
Statute
37 of the University of Rajasthan deals with inspection and recognition of a college. Under
Status 37(1), a college applying for affiliation, whether for the first time or
for extension in the period to temporary/provisional affiliation, or in
additional subjects, or for additional courses of study, or for permanent
affiliation, shall make a written application to the Registrar for the purpose
in the manner provided in the Statute and the Syndicate shall have the power to
recognise or withdraw recognition. Under Statute 37A, a Board of Inspection is
required to be constituted for the inspection of colleges as set out in that
Statute.
In the
present case, the students of the two appellant colleges who had joined the
course of studies offered by the two colleges leading to a B.H.M.S. degree of
the Rajasthan Board prior to the appellant colleges being affiliated with the
University of Rajasthan for the B.H.M.S. course, were permitted by the
Vice-Chancellor by the impugned order to take the examinations for the B.H.M.S.
course of the University of Rajasthan. Looking to the situation where the
examinations of B.H.M.S. conducted by the Rajasthan Board were suddenly
required to be stopped, the students who were left stranded were thus, as a
special case, allowed by the Vice-Chancellor to appear for the B.H.M.S.
examination of the concerned year of the University. This was in clear exercise
of the emergency power of the Vice-Chancellor. But he had taken this action on
the recombinations of the Board of Inspectors. The decision of the
Vice-Chancellor was placed before the Syndicate as required under Section 13(4)
and the Syndicate had also approved of the action of the Vice-Chancellor as
also the recommendation of the Board of Inspectors.
It is,
however, contended that only the students of an affiliated collage can appear
for the University examination. In this connection, the respondents have emphasised
Section 4(2) of the University of Rajasthan Act which empowers the University to hold examination and to
confer degrees on persons who have studied in the University or its affiliated
colleges or approved institutions. It is submitted that unless the students
have studied in an affiliated college, the University or the Vice-Chancellor or
the Syndicates has no power to permit such students to appear for its
examinations. This submission ignores clause (b) of sub-section (2) of Section
4 which permits the University to allow even persons who had not pursued a
course of studies in the University or its affiliated colleges or approved
institutions to appear and pass the examinations as non-collegiate students.
The power of the University, therefore, is not confined to only permitting
students from affiliated colleges to appear for an examination. In a given
case, the University may permit even persons not belonging to affiliated
collages to appear for the examination. The power to grant approval for
institutions also is wide. The approval can be for a limited purpose such as
permitting appearance in an examination over a limited period just as
affiliation can be provisional or permanent or restricted. The University has
also very wide powers under sub-section (15) of Section 4 to do all such other
acts whether incidental to the specified powers or otherwise as may be required
to further the objects of the University as an educational body. These powers
are exercised, inter alia, through the Vice-Chancellor, the Syndicate and the
Board of Inspectors. The Vice-Chancellor was, therefore, within his rights in
passing the impugned order of 13th of May, 1995 and the Syndicate has, in
exercise of its powers, ratified the action of the Vice- Chancellor and the
recommendations made by the Board of Inspectors. The High Court, in our view,
was not right in coming to the conclusions that the vice-Chancellor had no
power to pass such an order.
This
is also not a case where the two college were found to be sub-standard. In fact
the Central Council recognised the appellant college for the academic year
1994- 95 in May, 1994 and thereafter it has recognised the college for the
academic years 1994-95, 1955-96, and 1996-97 also.
Both
the colleges are nor affiliated to the University of Rajasthan. The Board of Inspection also
approved the two colleges. The order of the Vice-Chancellor merely care of
those students who joined these two colleges for the degree of the Board prior
to their affiliation to the University.
The
Learned Single Judge who originally dismissed the Wit Petition had reason to
doubt the Locus stand of the Students Council of the Jaipur College to file this so called public interest litigation. These
students are studying for the same B.H.M.S. course of the University of Rajasthan. There can be some doubt about their bona fides in
challenging the order permitting other students of other colleges to appear for
the same examination. What is more relevant, there is no basis for alleging any
harm to public interest in allowing the students of the two appellant colleges
to appear for the B.H.M.S. examinations of the University of Rajasthan. The
university which had inspected these two appellant colleges and considered the
course of studies which they offered, was in a far better position to decide
whether the students who had studied for the earlier course were fit enough to
be allowed to appear for the examinations of the University of Rajasthan. The
decision which was taken by the University was a bona fide decision after
taking into account the standard of teaching offered by the two appellant
colleges. The action was also supported by the State Government. The Central
council of Homeopathy has also recognised these two colleges. The public
interest was not in any manner adversely affected by the impugned decision.
The
Students Council has now filed an affidavit disclosing its status and its
constitution. It does not disclose whether the Council was authorised to file
the present litigation, and if so, by whom; whether it has the funds to indulge
in this litigation and whether it had the backing of a majority of its members
for this litigation.
Since
on merits also we find that the action must fail, we are not examining these
questions any further except for the purpose of indicating that such organisations,
without disclosing any material regarding their nature and functions and
funding, should not be allowed lightly to undertake litigation in the name of
public interest which can cause a lot of damage to others.
In the
present case, because of the litigation the students have not been able to
complete their B.H.M.S. course for a number of years. Pursuant to the interim
order these students have been permitted to appear for examinations conducted
in December, 1996 and the results have also been declared. We direct that in
accordance with the results so declared the students may be allowed to
continue/complete the B.H.M.S. course with the University of Rajasthan in
accordance with law and those who have qualified for the B.H.M.S. degree as per
these results be granted the degree by the University of Rajasthan.
The
Civil Appeal Nos.16040 and 16041 of 1996 are, therefore, allowed. The impugned
judgment and order of the High Court is set aside and the Original Writ
petition filed before the High Court is dismissed with costs.
The
appeal arising from S.L.P.(C) No.2991/98 (cc 9141/97) and Writ Petition No.81
of 1997 are also disposed of accordingly.
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