JUDGMENT G.C. Bharuka, J. 1. These writ applications have been filed by and/or behalf of Kent Homoeopathic Medical College and Hospital (Vaishali) and J.D.M.H. Medical College and Hospital, (Dhanbad) (hereinafter, in short, “the first and second institution” only). The prayer is for commanding upon the respondent – University to allow the students of institutions to appear at the examination of D.H.M.S. and B.H.M.S., which are the educational qualifications of Diploma and Bachelor degree of Homoeopathic Medicine and Surgery. 2. The Bihar State Board of Homoeopathic Medicines (in short ‘the State Board’ only) recognised the first institution permitting its student to appear at the examination held by the State Board in 1974. It has been staled in the writ application that the Stale Board had granted similar permission to 23 institutions, claiming to impart teaching and training in Homoeopathic System of Medicines. Since 1974 due to change in the law, instead of State Board, the respondent Bihar University, now renamed as “Baha Saheb Bhimrao Ambedkar Bihar University” is the only competent authority in Bihar to hold examination for grant of recognised qualifications in Homoeopathy. But it has refused to permit the students of the petitioner-institutions to appear at the examination in spite or specific directions in this regard issued by the State Government under its letter dated 28.3.93 (Annexure 10). It has been submitted that in view of the facts that the State Board had in 1974, allowed the students of the first institution to appear at the examination held by it, it should be deemed that the said institution is duly affiliated with the respondent University as well. So far as the second institution is concerned it was not recognised even temporarily by the State Board. Admittedly neither of the two institutions have been granted affilliation by the respondent University. 3. The appreciation of the questions posed before us needs a close examination of the Central and the State legislations pertaining to education, training examination and qualifications in relation to Homoeopathic system of Medicines. Constitutional Provisions 4. The legislative competence of the Parliament and the State Legislature in relation to education for the present purposes arc contained in Entry 66 of the Union List (List I) under the 7th Schedule to the Constitution and in Entry 25 of the Concurrent List (List III) of the said Schedule to the Constitution. Constitutional Provisions 4. The legislative competence of the Parliament and the State Legislature in relation to education for the present purposes arc contained in Entry 66 of the Union List (List I) under the 7th Schedule to the Constitution and in Entry 25 of the Concurrent List (List III) of the said Schedule to the Constitution. The two Entries, referred to above, read as under : List I Entry 66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. List III Entry 25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour. 5. Keeping in view the provisions containing in Article 246 (1) of the Constitution read with the above referred legislative entries, the law made by the parliament in relation to Education has to prevail over any State legislation made in this regard. [(See Indu Bhushan Vs. Rama Sundary, 1970 S.C., 228 (235)] 6. In the case of Unni Krishnan vs. State of A.P. reported in (1993) 1 S.C.C., 645 (Pr. 226), the Supreme Court has declared that the citizens of this country have a fundamental right to education, which Bows from Article 21 of the Constitution the contents and parameters whereof have to be determined in the light of Articles 45 and 41. In relation to the right of the citizens to establish educational-institutions, by interpreting Article 19 (1) (g) of the Constitution, their Lordships of the Supreme Court took the view that establishment of educational institution cannot be claimed either as a right to business or a right to practice of profession. But it has unambiguously been declared that even if a person or a body of persons be assumed to have a right to establish an educational institution in this country as an occupation, it cannot be an absolute right. Such right will be subject to such laws as may be made by the State in the interest of general public. (See paras 197-203 of the judgment). 7. The right to carryon medical profession and the State's competence to regulate the same can he traced out in Article 19(1) (g) read with clause (6) thereof and Entry 26 of the Concurrent List (List III) to the 7th Schedule of the Constitution, which are reproduced hereunder 19. (See paras 197-203 of the judgment). 7. The right to carryon medical profession and the State's competence to regulate the same can he traced out in Article 19(1) (g) read with clause (6) thereof and Entry 26 of the Concurrent List (List III) to the 7th Schedule of the Constitution, which are reproduced hereunder 19. (1) All citizens shall have the right- (a) .. (b) .. (c) .. (d) .. (e) .. (f) .. (g) to practice any profession, or to carryon any occupation, trade or business. (2) ..... (6) Nothing in sub-clause (g) of the said clause affect the operation of any existing law in so far as it imposes, or prevent, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far it relates to, or prevent the State from making any law relating to – (i) The professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, or any trade, business, industry, or service whether to the exclusion, complete or partial, of citizens or otherwise. List III Entry 26. Legal, medical and other professions. 8. From a reading of the aforesaid provisions, it is quite clear that no doubt a citizen has a fundamental right to practice any medical profession but the State, by making laws, can regulate the professional qualifications necessary for practicing such profession. The subject being in the Concurrent List, such laws can be made either by the parliament or the State Legislature subject to the provisions of Article 254 of the Constitution. Central Act 9. The parliament has enacted the Homoeopathy Central Council Act, 1973 (in short, the 'Central Act' only), as is apparent from its objects and Reasons, after realising the necessity of establishment of a Central Council of Homoeopathy, which would evolve an uniform standard of education in Homoeopathy and registration of practitioners in this system of medicine. It was also realised that there should be a Central Legislation ensuring minimum standard of training and conductor examination in this regard on all India basis. It was also realised that there should be a Central Legislation ensuring minimum standard of training and conductor examination in this regard on all India basis. The definitions set out in Section 2 (e), (g) and (j) of the Central Act which are relevant for the present purpose, arc being quoted hereunder : 2. (e) "medical institution" means any institution within or without India which grants degrees, diplomas or licences in Homoeopathy; (g) "recognised medical qualification" means any of the medical qualifications in Homoeopathy, included in the Second and Third Schedule; (j) "University" means any University in India established by law and having a Faculty of Homoeopathy and includes a University in India established by law in which instruction, teaching, training or research in Homoeopathy is provided. 10. Chapter III of the Central Act provides for recognition of medical qualifications. As per section 13 of this Act the medical qualifications included in the Second Schedule of the Act granted by the Universities referred to therein arc to be the only recognised medical qualifications for the purposes of this Act. In the State of Bihar Diploma in Homoeopathy medicines and surgery, approved as DHMS, granted by the respondent University is the only recognised qualification 'under this Act for the periods 1973, 1974 and from 1976 onwards. This University cannot grant or confer any other recognised qualification except the aforesaid Diploma. Section 16 of the Central Act empowers the Central Council to call for informations as to the courses of studies and examinations from the University/authority granting recognised medical qualifications. Section 17 authorises the Central Council to appoint Inspectors at the examinations to inspect any medical college, hospital or other 'institutions where education in diploma is given or to attend any examination held by any University. Section 18 provides for appointment of visitors at the examination. Section 19 deals with the withdrawal of recognition of the medical qualification granted either by the University or institution affiliated to any. University, if it is found that either the teaching, training or other requirements pertaining to holding of examination do not conform to the standards laid down under the Central Act. Section 20 deals with laying down of minimum standards of education in Homoeopathy for granting recognised medical qualification by the University/authority in India. Under Section 33 the Council has been empowered to make Education Regulations in this regard. 11. Section 20 deals with laying down of minimum standards of education in Homoeopathy for granting recognised medical qualification by the University/authority in India. Under Section 33 the Council has been empowered to make Education Regulations in this regard. 11. Chapter IV of the Central Act contemplates maintenance of Registers of practitioners of Homoeopathy, registration wherein confers a privilege on the persons so enrolled to practice in Homoeopathy. 12. Section 15 of the Central Act provides for right of persons possessing homoeopathy qualifications recognised under this Act. The relevant provisions are quoted hereunder : Sec. 15. Rights of persons possessing qualifications included in Second or the Third Schedule to be enrolled. - (1) Subject to the other provisions contained in this Act, any medical qualification included in the Second or the Third Schedule shall be sufficient qualification for enrolment on any State Register of Homoeopathy. (2) No person, other than a practitioner of Homoeopathy who possesses a recognized medical qualification and is enrolled on a State Register or the Central Register of Homoeopathy – (a) shall hold office as Homoeopathic physician or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority. (b) shall practice Homoeopathy in any State; (c) shall be entitled to sign or authenticate a medical or fitness certificate required by any law to be signed by or authenticated by a duly qualified medical practitioner, (d) shall be entitled to give any evidence at any inquest or any Court of law as an expert under inquest or any Court of law as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to Homoeopathy (3) … (4) Any person who acts inn contravention of an provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. 13. From a reading of the above referred provisions it is quite clear that subject to certain exceptions enumerated under the provisions of the Central Act, no person can practice in Homoeopathy or do any act having any evidentiary value in law or hold any office as Homoeopathic Physician or its instrumentalities like institutions maintained by any local or other authorities. Contravention of this mandate has been made an offence under sub-section (4) quoted above. Contravention of this mandate has been made an offence under sub-section (4) quoted above. State Laws 14. The State Legislature keeping in view the object of Development of Homoeopathic system of medicine and to regulate its teaching and practice in Bihar has enacted. The Bihar Development of Homoeopathic System of Medicine Act, 1953, (Bihar Act XXIV of 1953) hereinafter, in short, the State Board Act only). The State Board has been constituted under Section 3 of this Act. Section 22 of this Act entitles every person possessing the qualification under Sections 31 and 32 to have his name entered in the State Register and under Section 28, the names so registered are required to be published in the official gazelle. Section 30 authorises the persons so registered to act as a duly qualified medical practitioner and seek appointment or do other legal acts in the said capacity. Sections 32 to 35 of the State Board Act authorised the State Board to regulate the education in Homoeopathy by laying down courses of studies, qualification, grant of affiliation" to the institution, holding of examination and conferring of diplomas and degrees. 15. Under the aforesaid powers, the State Board used to recognise institutions intending to impart teaching and training in Homoeopathy and hold examination in that regard. But because of some intervening circumstances, which need not be gone into here, the State Government under its notification dated 10th of April, 1973, (Annexure 'A') pursuant to the powers conferred on it under Section 3 (4) of the Bihar State Universities (Bihar, Bhagalpur and Ranchi) Act, 1960, under section 3 (3) of the Mithila University Ordinance, 1973. ad milled 19 Homoeopathic institutions, four Ayurvedic institutions and one Tibhi institution as mentioned in the schedule thereto to the privileges of the respondent-University. Paragraph 2 of the said notification provided that it will be for the respondent – University to satisfy itself as to whether the institutions mentioned in the schedule satisfy the general conditions prescribed in the statute framed under the Act in that regard. 16. Since the 19 Homoeopathic institutions mentioned in the notification (Annexure 'A') were not affiliated with the respondent-University, therefore, keeping in view the provisions of the University Act, the Statute and the Regulation framed thereunder the University was not competent to conduct the examinations of the students of those institutions. 16. Since the 19 Homoeopathic institutions mentioned in the notification (Annexure 'A') were not affiliated with the respondent-University, therefore, keeping in view the provisions of the University Act, the Statute and the Regulation framed thereunder the University was not competent to conduct the examinations of the students of those institutions. Accordingly the University sought the clarification of the State Government in this regard by its letter dated 9.8.73 (Annexure 'B'). The Government by its letter dated 17.12.73 accorded its approval or temporary affiliation of those institutions with a direction that University should immediately frame statutes in relation to affiliation or Homoeopathic institutions. Accordingly examinations of Homoeopathy qualifications were held by the University. But subsequently the Government had to promulgate the Bihar Development of Homoeopathic System of Medicine (Validating) Ordinance, 1974 replaced by Act 4 of 1978 to cure the legal infirmities and for giving legal sanction to such examinations and conferring of qualifications. 17. Thereafter the Governor promulgated the Bihar Development of Homoeopathic System of Medicine (Amendment) Ordinance, 1975 (Ordinance no. 139 of 1975), which came into force with effect from 18th August, 1975, which subsequently made an Act being Bihar Act 5 of 1976. By these legislations three new Sections, namely, 32A, 36A and 36B were inserted in the State Board Act. Section 32A empowered the State Government to direct the State Board to cease to perform certain functions. By Section 36A, the University established by law in the State of Bihar, were authorised to recognise educational institutions intending to impart education and training in Homoeopathy system of medicine to prescribe qualification for admission to such courses, hold examinations, confer degree and diploma and issue certificates in this branch of learning. Section 36B empowered the State Government to issue notification authorising the University to recognise such institutions even if those lie beyond its territorial jurisdiction. 18. Pursuant to the powers under Section 32A, the State Government by notification no. S.O. 1033 dated 21st August, 1975, in sub-stance directed the State Board, not to exercise any function in relation to education and training leading to grant of Homoeopathic qualifications including affiliation of institution or conferment of degrees. By another notification No. S.O. 1034 dated 21st August, 1975, issued under Section 36B of the said Act, the State Government directed that all Homoeopathic institutions in the State will be entitled to seek recognition/affiliation from the Bihar University. 19. By another notification No. S.O. 1034 dated 21st August, 1975, issued under Section 36B of the said Act, the State Government directed that all Homoeopathic institutions in the State will be entitled to seek recognition/affiliation from the Bihar University. 19. The respondent University though originally established under section 3 of the Bihar Act 14 of 1961 now owes its existence under the provisions of the Bihar State Universities Act, 1976, (hereinafter, in short, “the State Universities Act”, only). Section 4 of this Act defines the purposes and powers of the University established thereunder. It inter alia, provides that the conduct of examination and grant and conferment of degrees, diplomas, certificates and other distinctions to and upon the persons, who have pursued approved courses of studies in the university and passed examination of the university under the conditions laid down in the statutes, the ordinances or the regulations, shall be amongst the purpose and powers of the University. [See Section 4(2) (a) of the said Act] Section 4 (19) of this Act authorises the University to affiliate or disaffiliate College according to the statutes, subject to prior approval of the State Government. Under Section 21 (2) (d) the powers relating to affiliation and disaffiliation of the Colleges have been conferred upon the Senate. But the proviso to this Section provides that such affiliation or disaffiliation cannot take effect unless it is approved by the State Government. The procedures and other necessary provisions with regard to grant of affiliation or disaffiliation of a College are required to be detailed in the statute to be framed under Section 34 of the State Universities Act. Section 39 of this Act deals with Regulations and Clauses (a) and (b) thereof being material for the present purpose arc quoted hereunder: 39. Regulations, how made. – Subject to the provisions of this Act, the Statutes and the Ordinance, Regulations may be made to provide for all or any of the following matters, namely, (a) the courses of study to be laid down for all degrees and diplomas of the University: (b) the condition under which students shall be admitted to the degree or diploma courses and to the examinations of the University and shall be eligible for such degrees and diplomas. 20. 20. Chapter XII A of statutes framed by the University under Section 34 of the State Universities Act provides for admission and exclusion of the private Colleges in the faculty of Homoeopathy. Under the Regulation of the University, the students of only affiliated/recognised Colleges i.e. Colleges admitted in the faculty of Homoeopathy can be allowed to appear at the examination conducted by the University for conferment of degree or diploma. 21. Subject to fulfilment of the conditions laid down under the statutes, an institution seeking affiliation/recognition in the faculty of Homoeopathy of the respondent-University is required to file an application with requisite fee, which is required to be considered by the syndicate at the first instance. On receipt of the application, if the syndicate is satisfied that all the requisite conditions required by the laws of the University have nearly been fulfilled and the institution can run efficiently, shall cause an enquiry to he made as regards the matters specified in Article 2 of this Chapter by such persons as may be authorised in this behalf, or it may, if not satisfied, reject the application indicating the reasons for the same. On the completion of such enquiry, the Syndicate shall forward a copy of its resolution to the Academic Council for suggestions concerning the academic aspects. On receipt of suggestions, if any, of the Academic Council, the Syndicate may recommend to the Senate as to whether the application should be granted/allowed with or without modification on a permanent basis or provisionally for a limited period or should be rejected. The Senate on receipt of recommendations of the syndicate may allow the application, with or without modification, either on a permanent basis or provisionally for a limited period or reject it and in case of rejection of the application or any part thereof, the grounds for the same shall be stated. It further provides that in no case affiliation or disaffiliation of a College shall take effect unless it is approved by the State Government. 22. The State Legislature with a view to control and regulate the Educational institutions of Homoeopathic System of Medicine has enacted Bihar Homoeopathy Educational Institution (Regulation and Control) Act, 1987 (Bihar Act 3 of 1987) (hereinafter, in short, 'The State Regulation Act' only), which came into force on 31st March, 1987, with its publication in the official gazette. 22. The State Legislature with a view to control and regulate the Educational institutions of Homoeopathic System of Medicine has enacted Bihar Homoeopathy Educational Institution (Regulation and Control) Act, 1987 (Bihar Act 3 of 1987) (hereinafter, in short, 'The State Regulation Act' only), which came into force on 31st March, 1987, with its publication in the official gazette. Section 2 of the said Act reads as under: 2 & gkseh;ksiSFkh fpfdRlk f’k{k.k laLFkkvksa ij fofu;eu vkSj fu;a=.k& bl vf/kfu;e esa vU;Fkk micaf/kr dks NksM+dj dksbZ Hkh O;fDr ;k fudk; ¼d½ gksfe;ksiSFkh fpfdRlk f’k{kk ds :i esa Kkr fo)rk dh ‘kk[kkvksa ;k gksfe;ksiSFkh fpfdRlk i)fr ds f’k{k.k dh lEc) ‘kk[kkvksa esa f’k{kk dks vius gkFk esa ysus] mls lapkfyr djus] bldk mica/k djus ;k mls nsus okyh laLFkk dk laxBu] vuqj{k.k] izca/k ;k fodkl ugha djsaxs ¼[k½ dsUnz ;k jkT; ljdkj dh fdlh fof/k }kjk fu;fer fdlh fo’ofo|ky; ds ikB~;dze ds ftlesa gksfe;ksiSFkh fpfdRlk f’k{kk esa ijh{kk gksrh gS vkSj fMxzh] fMIyksek ,oa izek.k&i= fn;k ;k iznku fd;k tkrk gks] izos’k dk izLrko ugha djsxk] ¼x½ gksfe;ksiSFkh fpfdRlk f’k{kk esa f’k{kk] O;k[;ku] vuqf’k{k.k iz;ksx’kkykvksa esa iz;ksfxr dk;Z izSfDVdy odZ dk mica/k ugha djsxk pkgs mlesa ijh{kk gksrh gks ;k ugha vkSj pkgs gksfe;ksiSFkh fpfdRlk i)fr ;k ml dh fMxzh] fMIyksek ;k izek.k&i= fn;k tkrk gks ;k ugha] ijarq lkslkbVh jftLVªhdj.k vf/kfu;e] 1860 ds v/khu jftLVªhd`r dksbZ O;fDr ;k fudk; vFkok laLFkk ;k dksbZ vjftLVªhd`r ,tsalh dks gksfe;ksiSFkh fpfdRlk ikB~;dze esa fdlh Nk= ds izos’k ;k ukekadu ds iwoZ jkT; ljdkj dh vuqefr izkIr dj ysuh gksxhA 23. The above referred provisions, inter alia, provide that no educational institution relating to Homoeopathic System of Medicines shall be organised, maintained, managed, promoted or any admission be taken to a course of study of a University relating to conferment of any degree, diploma or certificate in the said branch of learning without prior permission of the State Government. Section 3 of the said Act provides for making of an application for seeking the said permission. Section 5 provides for holding of inspection by State Government in the manner prescribed. Section 6 mandates the seeking of permission of the Central Government and the Central Council for grant of the said permission and is in the following terms. Section 3 of the said Act provides for making of an application for seeking the said permission. Section 5 provides for holding of inspection by State Government in the manner prescribed. Section 6 mandates the seeking of permission of the Central Government and the Central Council for grant of the said permission and is in the following terms. 5- Hkkjr ljdkj ls vuqKk & /kkjk 5 ds vuqlkj fujh{k.k iwjk dj fy;s tkus ds ckn jkT; ljdkj ;k LokLF; foHkkx vkosnd }kjk gksfe;ksiSFkh fpfdRlk i)fr dk ikB~;dze ‘kq: fd;s tkus ds laca/k esa Hkkjr ljdkj vkSj Hkkjr dh gksfe;ksiSFkh fpfdRlk dh dsUnzh; ifj”kn ¼lsUVªy dkSafly vkWQ gksfe;ksiSFkh esfMflu vkWQ bafM;k½ ls vuqKk izkfIr dj ldsxkA ljdkj }kjk nh tkus okyh vuqKk esa ;g fn;k jgsxk fd izfro”kZ fdruk ukekadu fd;k tk;sxk rkfd la[;k ls vf/kd ukekadu ugha fd;k tk;sA Therefore, from the above provisions, it appears that after the completion of the inspection, the Health Department of the State Government can seak permission of the Central Government and the Central Council in relation to starting of courses of studies in Homoeopathy by the applicant. The sub-para provides that in the permission so granted the Government has to specifically state the number of the students which can be admitted in such institutions so that no admission is taken in excess thereof. The sub-para provides that in the permission so granted the Government has to specifically state the number of the students which can be admitted in such institutions so that no admission is taken in excess thereof. Section 7 of this Act is also material for the present purpose and is, accordingly, quoted hereunder : 7- f’k{k.k laLFkk,a] ftu ij ;g vf/kfu;e ykxw gksxk & ;g vf/kfu;e gksfe;ksiSFkh fpfdRlk i)fr esa i<+kbZ djus okys ,sls lHkh izkbosV egkfo|ky;ksa ij vkSj gksfe;ksiSFkh fpfdRlk dsUnzh; ifj”kn vf/kfu;e] 1973 dh vuqlwph II esa ‘kkfey fMxzh] fMIyksek vkfn ds fy, gksfe;ksiSFkh fpfdRlk i)fr esa v/;;u ds fy;s Nk=ksa] dks rS;kj djus okyh vkSj rS;kj djus dh bPNqd ,sls fpfdRlk laLFkkvksa ij ykxw gksxk tks fcgkj jkT; esa fdlh fo’ofo|ky; ls LFkk;h :i esa laca/k ugha gSA bl vf/kfu;e ds mica/k gksfe;ksiSFkh fpfdRlk i)fr ds mu egkfo|ky;ksa vkSj laLFkkvksa ij ykxw gksaxs ftUgsa orZeku laca/ku dh vof/k dh lekfIr ds ckn fdlh fo’ofo|ky; }kjk vLFkk;h laca/ku ugha fn;k x;k gks rFkk laca/ku dh vof/k c<+kus dh flQkfj’k izkIr gksus ds iwoZ mUgsa laca/ku dh vof/k dh lekfIr ds ,d eghus ds Hkhrj bl vf/kfu;e ds iz[;kiu dh rkjh[k dh] tks Hkh ckn esa iM+s bl vf/kfu;e dh /kkjk 9 ds vuqlkj vkosnu djuk gksxkA blds ckn jkT; ljdkj /kkjk 5 ds vuqlkj fujh{k.k djokus ds ckn laca/ku dh vof/k c<+kus ds laca/k esa ;k vuqKk nsus ds laca/k esa fu.kZ; djsxhA 24. According to the above quoted provisions of the State Regulation Act, this Act will apply to (i) all private Homoeopathy institutions, which undertakes or contemplates to undertake conducting of teaching and training leading to examination of any degree, diploma etc. mentioned in Schedule II of the Central Act; and (ii) which are not permanently affiliated to any University. Institutions of the above categories were required to file applications as per the provisions of Section 9 of this Act seeking permission of the State Government within a month from the date of the enforcement of this Act i.e. by 30th April, 1987. Section 9 of this Act provides that all the institutions, which have not been approved by the Government or have not obtained prior permission should apply for the said purpose within the aforesaid time frame and till such permission is accorded those will not he entitled to admit any student. Section 9 of this Act provides that all the institutions, which have not been approved by the Government or have not obtained prior permission should apply for the said purpose within the aforesaid time frame and till such permission is accorded those will not he entitled to admit any student. Section 10 says that non-compliance of the aforesaid provision is an offence and prescribes punishment therefor. Section 17 is a repealing and saving clause, which also has a very material bearing on the facts of the present case and, therefore, the same is being quoted hereunder : 17- fujlu vkSj O;ko`fr & ¼1½ fcgkj MsoyiesaV vkWQ gksfe;ksiSFkh flLVe vkWQ esfMflu vf/kfu;e] 1953 ¼vf/kfu;e la- 24 vkWQ 1953½ dh /kkjk,a 32] 33] 34] 35] 38 ,oa 49 blds }kjk fujflr dh tkrh gSA ¼2½ ,sls fujlu ds gksrs gq, Hkh mDr vf/kfu;e dh mDr /kkjkvksa ds }kjk ;k v/khu iznRr fdlh ‘kfDr ds iz;ksx esa fd;k x;k dksbZ dk;Z ;k dh x;h dksbZ dkjZokbZ bl vf/kfu;e ds }kjk ;k v/khu iznRr ‘kfDr;ksa ds iz;ksx esa fd;k x;k ;k dh x;h le>h tk,xh ekuks ;g vf/kfu;e ml fnu izo`r Fkk ftl fnu ,slk dk;Z fd;k x;k ;k ,slh dkjZokbZ dh xbZ FkhA Under the aforesaid provisions, Sections 32, 34, 35, 38 and 49 of the State Board Act have been repealed, but the acts done thereunder by the competent persons have been saved. 25. It has been noticed above that by notification dated 10th April, 1973 (Ann. ‘A’) issued under the various provisions of the State University Act, which were in force at the material time, the State Government ordered for admitting Homoeopathy, Ayurvedic and Tibbi institutions to the privileges of the respondent University. Para 2 of the said notification specifically provided that it will be for the University to satisfy itself whether the said institutions fulfill the general conditions prescribed under its statute for affiliation. This requirement was made more explicit by incorporation of Section 36A in the State Board Act with effect from 18th August, 1975. Though it is not very clear from the record that Homoeopathy institution including the petitioners had filed any application before the University seeking its affiliation/recognition either under the provisions of State University Act or State Board Act but it seems that pursuant to a direction issued by the Health Department of the State Government under its memo no. Though it is not very clear from the record that Homoeopathy institution including the petitioners had filed any application before the University seeking its affiliation/recognition either under the provisions of State University Act or State Board Act but it seems that pursuant to a direction issued by the Health Department of the State Government under its memo no. 640 dated 2.8.1982, the University constituted a High power Committee known as Kumar Tara Nand Sinha Committee, which comprised of highly qualified persons on the subject, to enquire into the desirability of granting affiliation/recognition to the aforesaid institutions claiming the same. The said Committee after making on the spot enquiry in relation to each of such institutions, found only some of them eligible for conducting the courses in Diploma and Degree and some others only for Diploma courses from the session 1983-84. On receipt of the said report, the matter was placed before the Syndicate of the University in its meeting held on 29-1-1984. On consideration of the entire matter, the Syndicate resolved to send a report to the State Government for its approval of affiliation of seven institutions for degree courses and four for diploma courses. Accordingly the matter was referred to the State government by the Registrar of the University under his letter No. B/863/74/2/72 dated 1.2.1984 addressed to the Secretary-cum-Commissioner, Department of Health, Govt. of Bihar. The State Government instead of granting or refusing the approval, under its letter dated 7.12.1984, communicated to the University that the Government finds it difficult to accept the report of the above said high power committee and, accordingly it has decided to constitute another Committee to report regarding grant of permanent affiliation of the institutions admitted to the privilege of the University. It was directed that in the meantime the sixteen Homoeopathy institutions referred to in the said letter should be allowed the benefit of teaching and examination. It appears that some controversy had arisen between the State Government and the University on the question as to who is competent to take final decision with regard to affiliation/recognition of the institution with/by the University. 26. It appears that some controversy had arisen between the State Government and the University on the question as to who is competent to take final decision with regard to affiliation/recognition of the institution with/by the University. 26. Under these circumstances, seven Homoeopathy institutions, who were not found eligible fur affiliation by the syndicate moved this Court vide C.W.J.C. No. 1485 of 1985 and the matter was heard on several dates and ultimately on 5.8.1987 L.M. Sharma, J. (as he then was) referred the matter i a Division Bench considering the importance of the question involved. By the time, the matter was taken up by the Division Bench the State Regulation Act was brought into force and, accordingly, the Division Bench thought it proper to direct the parties to first make an application before the State Government under the provisions of the State Regulation Act and the State Government was directed to dispose of the application in accordance with law preferably within six months from the date of the judgment i.e. 24.11.1987. 27. Admittedly, the State Government did not take any final decision in the mailer of granting permission to private Homeopathy institutions within the time set out by this Court, but it seems that some expert Committee was constituted by the Health Department of the Government under the Chairmanship of one of its Under Secretaries, which appears to have suggested for grant of affiliation in eight institutions by the University for degree and graded degree courses. But curiously enough, the Direct or, Health Department instead of taking any final decision in this regard under its memo no. 279, dated 24-3-1993 communicated to the Vice-Chancellor of the University that keeping in view the provisions of section 17(2) of the State Regulation Act, the recommendations of the high power Committee constituted by the University should be deemed to be ineffective and the institutions which were allowed to send their candidates for the examination pertaining to Homoeopathic qualification should be allowed to enjoy the said facility till further orders except in relation to such institutions, whose cases are pending adjudication before the Court. According to the letter dated 16.3.1993 written by the Registrar of the State Board to the Deputy Director of Homeopathy, Health Department, 23 institutions named in the letter have been granted permanent or temporary recognition by the Board prior to 1973. According to the letter dated 16.3.1993 written by the Registrar of the State Board to the Deputy Director of Homeopathy, Health Department, 23 institutions named in the letter have been granted permanent or temporary recognition by the Board prior to 1973. It appears that inspite of the said communication, by the State Government, the University authorities have refused to permit the Candidates of the institutions to appear at the university examination on the ground that it is not a recognised/affiliated institution. This action of the University has given rise to the filing of the present writ applications. Discussion : Re. Affiliation. 28. As discussed above, Sections 32 and 34 of the State Board authorised the State Board to prescribe qualifying examination for practicing Homoeopathic system of medicines in the State of Bihar and for granting recognition to any institution imparting instructions to students for preparing them for the said qualifying examination, if it was satisfied that the instruction imparted in such institution comes upto the standard required for such recognition. As discussed above and is also apparent from the letter dated 16.3.1993 (Annexure ‘10’) written by the Director of the State Board to the Health Department, the State Board had granted temporary or permanent recognition to as many as 23 such institutions including the first institution. Name of the second institution was not in that list. It is not clear from the said letter or from the statement made in the writ petition as to whether the first institution had been granted permanent or temporary recognition. Nonetheless the fact remains that the State Government for some good reasons divested the Board of its powers of granting recognition to institution and holding of examination in relation to Homoeopathic system of medicines and, as discussed above, by letter dated 10.4.1973 it admitted all such institutions to the privilege of the respondent-Bihar University with a specific condition that it will be for the University to satisfy itself as to whether the said institution fulfill the conditions prescribed under its statute for grant of affiliation by the University or not. Therefore, it is quite clear that any recognition granted by the Board was not to bind the University in the matter of granting affiliation by the University. Therefore, it is quite clear that any recognition granted by the Board was not to bind the University in the matter of granting affiliation by the University. Irrespective of any recognition, permanent or temporary, granted by the State Board, the University was to take its own decision keeping in view the provisions contained in its statutes for affiliation of the Homoeopathic institution. Accordingly, the University constituted a high-power committee which made on the spot enquiries and submitted its report to the Syndicate recommending therein for grant of affiliation to only some of the institutions since according to the said committee the other institutions did not fulfill the requisite conditions for attaining/maintaining the minimum standard of teaching and training, as prescribed by the University Statues and the Education Regulations framed by the Central Council under Section 20 of the Central Act. The syndicate in its turn, resolved to refer the matter to the State Government for its approval as is evident from the letter dated 1.2.1984, referred to above. But the State Government instead of either approving or disapproving the said proposal, took upon itself to constitute another committee for its own satisfaction, which was communicated to the University under the Health Department's letter dated 7.12.1984. But, strangely enough, without taking any final decision in the matter of affiliation of the institutions, the State Government, under its Health Department, under some purported power directed the University to continue to provide the privileges of examinations to the sixteen institutions named in the said letter. Therefore, the direction, in fact was to allow the students of unaffiliated/unrecognised institutions to appear at the public examination held by the university in relation to Homoeopathic system of medicines. Thus the issue of granting affiliation to the institution of the nature in question is still pending final decision at the Government level. The result is that since 1973 no institution can claim to have either been affiliated or granted recognition by the University in the faculty of homoeopathy either under the University Act or the State Board Act. 29. So far as the State Regulation Act is concerned, it merely puts a restriction on conducting of any courses of study in homoeopathic system of medicine and taking of admission of the students to such courses. 29. So far as the State Regulation Act is concerned, it merely puts a restriction on conducting of any courses of study in homoeopathic system of medicine and taking of admission of the students to such courses. According to the provisions under this Act, no private institution can start the courses of studies nor take admission to such courses intended for appearance of students at public examination unless prior permission is accorded by the State Government in this regard, subject to the procedure laid down therefor. Under Section 6 of this Act, the State Government can grant such permission only after obtaining the permission of the Central Government and the Central Council in this regard. But the more material aspect is that in the permission so granted it has to be specifically stated as to how many students can be admitted to such institutions every year so that admission may not be taken in excess thereof. It is not in dispute that the State Government has not granted any permission to any institution so far permitting those to undertake imparting of any course of study in homoeopathy or to admit students to any such course. None-the less one Mr. Bhairab Mahto, Director-cum-Deputy Secretary in the Department of Health of the State Government, has directed the University to permit the students of 23 institutions to appear at the examination of Diploma and degree courses held by it. At least I could not find any authority in his favour to justify his said act. It can be said to be only a malafide act intended to help some unauthorised institutions in complete defiance of the statutory provisions. In the said letter (Annexure ‘10’) the said Director has tried to base his wisdom on a self evolved interpretation of section 17(2) of the State Regulation Act so as to render unwarranted benefit to unrecognised/unaffiliated institutions. Section 17(2) merely provides for saving of the action of the State Board taken under Sections 32, 33, 34, 35, 38 and 49 of the State Board Act, which have been repealed by sub-section (1) of Section 17 of the said Act. By no stretch of imagination it can be said that on the date of enforcement of the State Regulation Act, any institution was having any order of affiliation or recognition with the respondent-Bihar University in its favour in exercise of any of the statutory provisions. By no stretch of imagination it can be said that on the date of enforcement of the State Regulation Act, any institution was having any order of affiliation or recognition with the respondent-Bihar University in its favour in exercise of any of the statutory provisions. As a matter of fact, as discussed above, the State Board was divested of its power to deal with the matter of recognition of the institutions by the Government under notification dated 18.8.1975 and the power was vested with the respondent-Bihar University to decide the question of granting affiliation as per its own statutes and statutory provisions. This was also made explicit by incorporation of Section 36A in the State Board Act by Ordinance No. 124 of 1975, provisions whereof were subsequently incorporated in Bihar Act 5 of 1976. These provisions specifically authorise the respondent-University to recognise the educational institution to give training and lay down any course of training in homoeopathic system of medicine. Therefore, it is fallacious to say that pursuant to section 17(2) of the State Regulation Act the recognition, cither temporary or permanent, granted by the State Board can be deemed to be affiliation/recognition/permission granted either by the University under the provisions of Section 36A of the State Board Act or under the statute framed under the University Act or by the State Government tinder the provisions of the State Regulation Act. In the affidavit filed on 14.9.1993 on behalf of the respondent - University it is evident that despite the aforesaid fact the University either of its own or under the order of the State Government or in certain cases under the orders of this Court had permitted 3292 and 6663 examinees of 27 and 20 unrecognised institutions to appear during the examinations held in 1991 and 1993, respectively. Therefore, it is quite clear that the University either on its own or under the orders of the State Government or may be in some exceptional cases under the orders of this Court has been permitting the students of unaffiliated/unrecognised institutions at its Diploma and degree examinations of Homoeopathic system of medicine. Re : Diploma and Degree. 30. It needs no elaboration or any detailed discussion as to the purposes for which a student undertakes a course of study in Homoeopathic system of medicines and intend to acquire qualification either diploma or degree in relation to this branch of learning. Re : Diploma and Degree. 30. It needs no elaboration or any detailed discussion as to the purposes for which a student undertakes a course of study in Homoeopathic system of medicines and intend to acquire qualification either diploma or degree in relation to this branch of learning. The purpose commonly and primarily is that a person holding such a qualification may be entitled to either practice as a professional homoeopath or hold any office as a homoeopathic physician including in Government and its instrumentalities or to do other legal acts as an expert in this branch. But in view of section 15 of the Central Act, no person can do any of these acts unless he holds a qualification recognised under section 13 of the said Act. 31. So far as the State of Bihar is concerned, only the diploma in Homoeopathic medicine and surgery (DHMS) awarded by the respondent University has been recognised under the Central Act. Therefore, even the Bihar University can conduct the examination, leading to conferment of DHMS only. Holding of examination of any degree is not recognised under the Central Ad and consequently the holder of any such degree conferred by the respondent University cannot confer any right on him either to practise in homoeopathy or to hold any offices as a homoeopathic physician or to do any other legal acts in this regard. Therefore, the exercise of the University in this regard is not only futile and without any public purpose rather conferment of such degree is bound to mislead the public and will result in frustrating the object of the central legislations, Which aims at safeguarding the interest of public from permitting ill-trained persons practising in this system of medicine. Section 15 of the Central Act debars the State Board from enrolling any person on its register of homoeopathy, who does not hold recognised qualification. It may be mentioned that the University is primarily run on the funds drawn from the Consolidated fund on India and the State as is evident from the provisions of University Grants Commission Act, 1956 and Section 45 of the State University Act. In view of Article 282 of the Constitution, such amounts can be spent only for a public purpose. In view of Article 282 of the Constitution, such amounts can be spent only for a public purpose. Though the Central Act does not expressly prohibit conferment in this regard, but keeping in view the entirety of the legislative scheme and the public purpose involved, I feel persuaded to hold that the University cannot confer any unrecognised qualification in homoeopathy and/or hold any examination in this regard because such acts would be opposed to the public purpose. Re : Right of unaffiliated/unrecognised institution 32. Recently the Supreme Court in the case of Unni Krishan vs. State of A.P., reported in (1993) 1, S.C.C., 645 has said that, no private educational institution shall be allowed to send its students to appear for an examination held by any Government or body constituted by it or under any law or to any examination held by any University unless the concerned institution and the relevant courses of study is recognised by the appropriate university, as the case may be. The Supreme Court has also formulated a scheme in paragraphs 206 to 213 of its above said judgment relating to private institution running professional Colleges and institutions including those conducting courses like medical including homoeopathic system of Medicine providing therein that, (i) The permission to establish and/or administer a professional College shall be granted only to a Society registered under the Societies Registration Act, 1860, or by a public trust, religious or charitable, registered under the Trusts Act, Wakfs Act; (ii) No individual, firm, company or other• body of individuals, by whatever application called except a registered society or public trust as mentioned above, shall be per. milled to establish and/or administer a professional College. All the existing professional colleges not conforming to the said norms, were directed to take steps to comply with the same within a period of six months from the date of the judgment i.e. by 4th August, 1993 and, in default, thereto, recognition/affiliation if accorded will ipso facto stand withdrawn; (iii) No professional college shall call for applications for admission separately or individually. All the applications for admission to all the scats available in such colleges shall be called for by the competent authority alone, may be, Government, University or its authorities so designated in accordance with law. All the applications for admission to all the scats available in such colleges shall be called for by the competent authority alone, may be, Government, University or its authorities so designated in accordance with law. The seals in the Professional Colleges have In be filled up by taking admission on the basis of a common notification by the competent authority calling for simultaneous application for all professional Colleges of a like nature, may be, medical, dental, medicinal, engineering or nursing. Admissions in the professional Colleges arc required to be offered by such competent authorities only as per the scheme laid down by the apex Court in the above referred paragraphs of the judgment. In paragraph 210 of the said judgment, the Supreme Court has further commanded that for grant of permission, laid down in the scheme, some of which have been referred to above, have to be necessarily imposed in addition to' such other conditions as the appropriate authority may think proper. 33. While dealing with the matter regarding mushroom growth of ill-equipped and ill-housed institutions in various States including this State the Supreme Court, after considering its earlier judgment on the aspect, in the case of State of Maharashtra vs. Vikas Sahebrao Roudala reported in (1992) 4 S.C.C., 435, has taken the view that even the High Court under Article 226 of the Constitution can not direct for appearance of the student of unrecognised/unaffiliated institutions at the public examination. In that case State of Maharashtra had filed an appeal against the order of the High Court. Their Lordship have held therein as follows: “The directions to the appellants to disobey the law is subversive of the rule of law, a breeding ground for corruption and feeding source for indiscipline. The High Court, therefore, committed manifest error in law, in exercising its prerogative power conferred under Article 226 of the Constitution, directing the appellants to permit the students to appear for the examination etc." Similar views have been taken by this Court in various cases including those in the case of Rahmania Primary Teachers Training College vrs. The State of Bihar and Others reported in 1991 (1) PLJR, 595 (F.B.) to which one of us, G.C. Bharuka, J., was a member and in the case of Maulana Mazharul Haque Primary Teachers Training College vrs. State of Bihar & Others reported in 1992(1) BLJ, 712. 34. The State of Bihar and Others reported in 1991 (1) PLJR, 595 (F.B.) to which one of us, G.C. Bharuka, J., was a member and in the case of Maulana Mazharul Haque Primary Teachers Training College vrs. State of Bihar & Others reported in 1992(1) BLJ, 712. 34. In the present case, admittedly as discussed above, the petitioner institution having not been affiliated/recognised by the respondent Bihar University, neither this Court nor the State Government or any other authority for that purpose can give any direction for appearance of its students at the examination held by the respondent-University. This view should be taken to have been final and settled by the Supreme Court in the case of St. John Teachers Training Institute vrs. State of T.N. reported in 1993(3) S.C. Cases 595, Paragraphs 16 - 21. In this case the Supreme Court has upheld the judgment of the High Court that even if any student of unrecognised institution is allowed to appear pursuant to an interim order passed by the Court, their result cannot be directed to be declared and if successful certificate cannot be awarded to them. Their Lordship have specifically noticed that in the matter of granting of specialised qualification mere passing of examination is not enough. What is more important is that successful student is properly trained in an organised and equipped institution for the purpose of maintenance of student of excellence at all level. In my opinion, this requirement needed to be adhered more scrupulously, where the holder of qualification will get a licence to deal with the health and life of the public as in the present case. Some earlier orders of this Court had been brought to our notice to emphsise that even if no recognition/affiliation has been granted by the University, still the students of such institution should be allowed to appear at the examination. In my opinion, all such judgment, orders and directions should be deemed to have been impliedly overruled in view of the cases referred to above as also catena of cases taken note of by the Supreme Court in paragraph-6 of the judgment in St. John Teachers Training Institute (supra). 35. In my opinion, all such judgment, orders and directions should be deemed to have been impliedly overruled in view of the cases referred to above as also catena of cases taken note of by the Supreme Court in paragraph-6 of the judgment in St. John Teachers Training Institute (supra). 35. Accordingly, it is directed that (i) the institutions intending to impart teaching and training in homoeopathic system of medicines cannot start courses of studies and take admission of students to such courses unless they obtain permission of the State Government under the provisions of the State Regulation Act, which can be granted by the State Government only after due inspection as per the provisions of the said Act and after seeking permission from the Central Government and the Central Council. In the permission, if so granted, it has to be specifically stated the number• of students which can be admitted keeping in view of the provisions of Homoeopathy (Minimum Standard of Education) Regulation, 1983, framed by the Central Council under the provisions of the Central Act. (ii) The said permission can be granted subject to the fulfillment of the conditions as laid down in the scheme framed by the Supreme Court in Unni Krishnan's case (supra). (iii) The University can publish the results of, grant diplomas or award qualifications on, and permit the students of only such institutions to sit at the examination which are affiliated/recognised by the University under the statute. 36. Dealing with somewhat similar facts and legal requirement the Supreme Court in the case of Al Karim Educational Trust vrs. State of Bihar reported in 1993(2) PLJR (SC) 115 which relates to grant of affiliation to Katihar Medical College has given the following directions : "Without going into the rival contentions in this behalf, we think that the matter can be sorted out by requiring the appellant institution to forward to the B.N. Mandal University all the materials it has in its power, possession under section 21 of the Bihar State University Act read with the University statute, vide letter No. BSU/16/86 -1098/GS (1) dated 19th April, 1986. In doing so, the institution may also have regard to the spirit of section 3 of the Bihar Medical Education Institutions (Regulation and Control) Act, 1981 to the extent it has relevance in regard to the grant of affiliation. In doing so, the institution may also have regard to the spirit of section 3 of the Bihar Medical Education Institutions (Regulation and Control) Act, 1981 to the extent it has relevance in regard to the grant of affiliation. The appellant may do so within a period of 15 days from today. The State Government in consultation with the University will appoint an Inspection Team within two weeks after the appellant has forwarded the basic information to the University. The Inspection Team will submit its report in duplicate within three weeks one to be forwarded to the Vice-Chancellor of the University and the another to the State Govt. The State Government will be at liberty to obtain the clearance of Medical Council of India before finalising the grant of affiliation. The Medical Council of India is requested to expedite the matter and express its opinion within three weeks from the date of receipt of the requisition from the State Government. After these formalities are completed, the appellants will be informed in writing about the outcome of its requisition for grant of affiliation." 37. In my opinion, the petitioners, the State Government, the University and the Central Council should adopt the same procedure as set out by the Supreme Court in the above referred case of Al Karim Educational Trust and finally decide the matter relating to grant of affiliation to Homoeopathy institutions, which claim to be pre-existing within the same time frame as fixed by their Lordships of the Supreme Court. 38. Keeping in view the discussions as above, since the petitioner - institutions are neither having any permission of the State Government nor are affiliated with the University, no relief can be granted to them for the present. 39. The writ applications are, accordingly, dismissed. No costs. Gurusharan Sharma, J. - I agree.