THIRUMURUGA KIRUPANANDA VARIYAR THAVATHIRU SUNDARASWAMIGAL MEDICAL EDUCATIONAL AND CHARITABLE TRUST Vs. TAMIL NADU DR M G R MEDICAL UNIVERSITY

JUDGEMENT

(1.) THE above writ petition is preferred by the petitioner trust challenging the order of Medical University (in short as'the university') dated 16. 8. 1991 by which the application of the petitioner seeking affiliation to start the proposed Vinayaka Mission Kirupananda Variyar medical College at Salem for the acadamic year 1991-92 has been rejected.

(2.) ON an earlier occasion, Govindasamy, J. in w. M. P. No. 20146 of 1991 in this writ petition by order dated 22. 10. 1991 directed the first respondent University to grant provisional affiliation subject to the petitioner fulfilling all the requirements in a period of two years and pending further orders. Against the said order a writ appeal was filed in W. ANo. 1377 of 1991 and a Division Bench of this Court consisting of the Acting Chief Justice and Somasundaram, J. by order dated 26. 11. 1991 allowed the writ appeal setting aside the order of Govindasamy, J. in the above mentioned W. M. P. No. 20146 of 1991, dated 22. 10. 1991 and further directed that the main writ petition itself be listed for hearing. That is how they petition is before me.

(3.) A counter affidavit has been filed by the State of tamil Nadu which has been impleaded as a party respondent in this writ petition. It is pointed out in the counter that the Government issued g. O. Ms. No. 1196, Health, dated 24. 7. 1985 prescribing certain conditions for starting private medical colleges, that an amendment was brought to the Tamil nadu Dr. M. G. R. Medical University Act 1987 (Tamil Nadu Act 37 of 1987) by Act 32 of 1990 that the above Act was given retrospective effect with effect from 24. 9. 1987, that in view of the amendment as mentioned hereinabove, obtaining prior permission from the Government has been made a condition precedent for affiliation, that inasmuch as the petitioner has not obtained prior permission from the Government, the University cannot grant affiliation and that therefore the present writ petition seeking a writ of certiorarfted mandamus is not maintainable in law. It is further claimed in the counter affidavit that no mandamus can be issued against the provision of the Statute and as such this court should not accede to the request of the petitioner. It is pointed out in the counter affidavit that this Court has upheld that validity of the amended act made to Act 37 of 1987 in W. P. Nos. 10952 and 17075 of 1990. It is further claimed in the counter affidavit that when the petitioner challenged the order of the first respondent University insisting upon the prior approval of the university, by way of a writ petition. In W. P. No. 2776 of 1989 an order has been made by Venkataswami, J. on 13. 4. 1989, and that the earlier order passed in the above writ petition was based on the statement made by the'counsel for the University who was also the then Government Pleader and the order was not made following any earlier decision of the Government. It is further claimed in the counter affidavit that originally there was no provision in the tamil Nadu Dr. M. G. R. Medical University Madras Act, 1987 (Tamil Nadu Act 37 of 1987) requiring prior approval of Government and as such the petitioner cannot rely upon the judgment of Venkataswami, J. mentioned hereinabove. It is further claimed in the counter affidavit that by the Tamil Nadu Act 32 of 1990 an amendment has here introduced with retrospective effect, that as per the amanded provisions of the Act for obtaining affiliation, prior permission from the Government is, mandatory and therefore while disposing of the petition, the statutory authorities are bound in law to take into account the change of position in law. It is further claimed in the counter affidavit that the application of the petitioner seeking for affiliation is still pending and that the petitioner cannot contend that in view of the earlier orders of this Court in W. P. No. 2776 of 1989, no prior permission is necessary. It is further claimed in the counter affidavit that the order of Somasunda-ram, J. in W. P. No. 10453 of 1990 dated 1. 12. 1991 will not bind the State since the State was not a party in that writ petition, it is further claimed in the writ petition that the petitioner Trust applied for prior permission on 29. 10. 1986, 19. 1. 1987 and 13. 2. 1987, that the Government after considering the matter on 3. 8. 1988 rejected the application of the petitioner, that the petitioner Trust made an application on 6. 2. 1989 and that even after the disposal of Writ Petition no. 2776 of 1989 on 13. 4. 1989, a letter was addressed to the then Chief Minister by Mr. Kripananda Variyar on 23. 7. 1990 and that a reply has been given to the petitioner.