Advocates appeared V.C. DAGA, J.:- Rule. Heard forthwith by consent of parties. Heard rival parties. Perused petition and submissions filed by respondents. 2. In this petition, the petitioners are challenging the action of the 2nd respondent, Maharashtra University of Health Sciences (for short, the "MUHS") refusing to grant extension of affiliation for the intake capacity increased from 50 to 70 seats in respect of Shri. Ayurved Mahavidyalaya, 2nd petitioner herein on the sole ground that the increased capacity is not as per the perspective plan prepared by the MUHS although the 1st respondent, the State Government and Central Council of Indian Medicine (CCIM) have granted permission to increase intake capacity from 50 to 70 seats. Thus, the action of the respondent no.2 MUHS is being challenged with the petition filed under Article 226 of the Constitution of India contending that the refusal to extend affiliation is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. FACTS 3. The 1st petitioner Bhartiya Vaidyak Samanvaya Samiti, a registered Society under the Societies Registration Act, 1860 and a Public Trust registered under the Bombay Public Trusts Act, 1950, is running Shri. Ayurved Mahavidyalaya (2nd petitioner). The petitioner no.2 College is affiliated with the respondent no.2 MUHS under the provisions of the Maharashtra University of Health Sciences Act, 1998. 4. On being applied by the petitioners, considering the available facilities of teaching and practical training the CCIM granted permission to the petitioner to increase intake capacity from 50 to 70 seats in respect of undergraduate course; subject to grant of affiliation by the respondent no.2 MUHS and permission by the respondent no.1 State Government. 5. The respondent no.1 Government of Maharashtra also granted permission for increase in intake capacity from 50 to 70 seats in exercise of powers under Section 64(5) of the MUHS Act. 6. The proposal of increase in intake capacity from 50 to 70 seats permitted by the CCIM and the Government of Maharashtra was not accepted by the respondent no.2 MUHS and refusal to grant affiliation to the petitioner no.2 College was informed to the petitioners vide communication dated 4.12.2004. This action of refusal to extend affiliation is being challenged in the present petition, as stated hereinabove. SUBMISSIONS 7. Mr. This action of refusal to extend affiliation is being challenged in the present petition, as stated hereinabove. SUBMISSIONS 7. Mr. Thakur, learned counsel appearing for the petitioners submits that despite the perspective plan prepared by the respondent no.2 MUHS, it has granted extension of affiliation for increase in intake in respect of Ayurvedic Colleges viz. Smt. K. G. Mittal Punarvasu Ayurved Mahavidyalaya, SSDSS Ayurved Mahavidyalaya, Ashtha; s.8S Ayurved Mahavidyalaya, Nasik; and M. S. Ayurved Mahavidyalaya, Katangi situated in rest of Maharashtra and Vidarbha region although as per Table 25 of the perspective plan, rest of Maharashtra and Vidarbha region have surplus intake capacity. 8. Mr. Thakur submits that in the first three cases falling in rest of Maharashtra, extension of affiliation for increase in intake is granted contrary to the perspective plan; whereas in case of M. S. Ayurved Mahavidyalaya, Katangi, the affiliation is granted on the basis of order of this Court dated 17.2.2003 in Writ Petition No.675 of 2003. He submits that initially, provisional affiliation was granted to M. S. Ayurved Mahavidyalaya, Kantangi and later on it was made regular owing to which writ petition was disposed of by this Court for want of subsisting cause of action. 9. Mr. Thakur relied upon the additional affidavit dated 17.11.2006 filed by the respondents no.2 and 3; wherein it is admitted by them that the MUHS has granted increase in intake capacity from 80 seats to 100 seats during the academic year 2001-2006 to Chhatrapati Shahu Maharaj Ayurved College, Aurangabad whose previous intake capacity was 80 seats. According to him, the MUHS has selectively modified and/or abandoned the perspective plan for grant of extension of affiliation for increase in intake capacity in respect of some colleges run by the politicians. Mr. Thakur, thus submits that the action of the respondent MUHS refusing to extend affiliation to the increased capacity is discriminatory and arbitrary. In his submission, action of the respondent no.2 MUHS refusing to extend affiliation is untenable and cannot be justified on any count whatsoever. 10. Mr. Thakur placed reliance on the Division Bench judgment of this Court in Shree Chhatrapati Shivaji Education Society Vs. State of Maharashtra and Ors. (Writ Petition No.5930/02, decided on 3.10.2003 [since reported in 2004(2) ALL MR 77]) wherein identical question as involved in the present petition was a subject-matter of legal debate. 10. Mr. Thakur placed reliance on the Division Bench judgment of this Court in Shree Chhatrapati Shivaji Education Society Vs. State of Maharashtra and Ors. (Writ Petition No.5930/02, decided on 3.10.2003 [since reported in 2004(2) ALL MR 77]) wherein identical question as involved in the present petition was a subject-matter of legal debate. It was pointed out to the Cout, in the said petition, that during the pendency of petition, four colleges, viz. (1) Lok Nete Rajarambapu Patil Shikshak Sanstha, lslampur; (2) Tama Charitable Trust, Nerul; (3) ACPMs Dental College, Dhule and (4) Jupiter Ayurved Medical College, Shankarpur; were granted affiliation contrary to the perspective plan. He pressed into service observations of the Division Bench reading as under: "According to the petitioner, the perspective plan prepared by the respondent no.2 University for years 2001 to 2006 does not provide medical colleges, ayurvedic, dental or otherwise at Islampur, Nerul, Dhule or Shankarpur where the four institutions were allowed to open medical colleges and granted affiliation by the respondent no.2. The learned counsel for the respondent no.2 university fairly conceded that in pursuance of the permission granted by the State Government to the aforesaid four institutions to open medical colleges, affiliation was granted to them though the establishment of such medical colleges was not provided in the perspective plan prepared by the university. The respondent no.2 university has not filed any further affidavit in reply explaining as to why affiliation to the medical colleges was granted to the said four institutions contrary to the perspective plan. The petitioner alleges discrimination and arbitrariness in refusing it the affiliation resulting in infringement of Article 14 of the Constitution of India. According to the petitioner, there is no difference between it and the four institutions who were granted permission to open medical colleges and granted affiliation. Refusal of the affiliation by the respondent no.2 to the petitioner is thus discriminatory, arbitrary and violative to Article 14 of the Constitution of India. The petitioner has changed its position and incurred huge expenditure in establishing ayurvedic hospital with all infrastructure following the directions issued by the respondent no.2 from time to time. The respondent no.2 appears to have ignored the perspective plan almost in every case where the State Government has granted the Essentiality Certificate and the permission to open the medical colleges. The petitioner has changed its position and incurred huge expenditure in establishing ayurvedic hospital with all infrastructure following the directions issued by the respondent no.2 from time to time. The respondent no.2 appears to have ignored the perspective plan almost in every case where the State Government has granted the Essentiality Certificate and the permission to open the medical colleges. The respondent no.2 appears to have abandoned the perspective plan at least qua the four colleges to whom the affiliation was given contrary to the perspective plan and also qua the ayurvedic medical college of the petitioner by asking the petitioners to establish hospitals and provide the necessary infrastructure for the ayurvedic medical college as a condition for grant of affiliation." 11. Mr. Thakur submits that the case in hand is identical to the said case; wherein three colleges were granted extension of affiliation by the respondent MUHS contrary to the perspective plan. Mr. Thakur contends that similar treatment is liable to be extended to the petitioner no.2 college by quashing the impugned action of the respondent MUHS. 12. Mrs. Khade, learned special counsel appearing for respondents no.2 and 3 filed counter affidavit dated 18.11.2006 and relied upon following relevant contents of the said affidavit: "In order to strengthen the existing colleges and to ensure the viability of colleges the proposal of such colleges will be recommended for the increase in intake capacity, provided such colleges fulfill the norms for existing course as per respective Central Council. It is submitted that the answering respondent has appointed Local Enquiry Committee to grant continuation of affiliation for the academic year 2006-2007. The committee has visited college on 26/4/2006 and submitted its report to the University. The committee has pointed out following deficiencies: (i) The collage does not fulfill the council norms as far as teaching staff is concerned. (ii) Deficiency of seniority staff i.e. professor and reader 46% and junior staff (lecturer) 31%. Under such circumstances the answering respondent submits that unless the said deficiency is cured by the petitioner answering respondent is unable to extend the affiliation for academic year 2006-2007. The answering respondent has already informed the petitioner regarding the same vide their letter dated 17/6/2006...." 13. Mrs. Khade urged that unless above deficiencies are removed, request of the petitioners for extension of affiliation cannot be considered. She, thus, tried to support the decision of the respondent no.2 MUHS. 14. The answering respondent has already informed the petitioner regarding the same vide their letter dated 17/6/2006...." 13. Mrs. Khade urged that unless above deficiencies are removed, request of the petitioners for extension of affiliation cannot be considered. She, thus, tried to support the decision of the respondent no.2 MUHS. 14. Mr. Thakur, in rejoinder, submitted that by letter dated 17.6.2006, the respondent MUHS has informed the petitioner no.2 college that the academic council has unanimously resolved to grant continuation/ extension of affiliation to the BAMS course (UG) of the college for the academic session 2006-07 subject to the fulfilment of deficiencies as pointed out therein. Mr. Thakur on the above canvas states that as regards the teaching staff, the 2nd respondent MUHS in the aforesaid letter dated 17.6.2006 has informed that 8 Professors, 5 Readers and 2 Lecturers (total. 15) are short than the requirement. The petitioners, according to Mr. Thakur, have already submitted to the respondent MUHS vide their covering letter dated 26.9.2006; a draft advertisement for appointment of the requisite teaching staff. He submits that out of 8 posts of Professors in the Departments of Rachana Sharir, Kriya Sharir, Rog Nidan, Swasthavritta, Prasuti and Stri Rog, Kaya Chikitsa, Shalakyatantra, Shalyatantra required to be filled in, the petitioners have submitted advertisement in respect of six posts in the Departments of Rachana Sharir, Kriya Sharir, Rog Nidan, Swasthavritta, Prasuti and Stri Rog and Shalakyatantra. As regards one post of Professor in Department of kaya Chikitsa, he submits that it was advertised but the same is under challenge in Writ Petition No.936/94 and this Court has stayed process of selection. 15. As regards the post of Professor in Department of Shalyatantra, the same is already filled by appointing one Dr. S. K. Diwedi after 17.6.2006. As regards five posts of Readers in the Department of Rachana Sharir, Dravyaguna, Rog Nidan, Swasthavritta, Kaya Chikitsa, 2 posts are to be advertised and three posts in the Departments of Rog Nidan, Dravyaguna and Kaya Chikitsa are filled. Mr. Thakur further submits that as regards 2 posts of lecturers in the Departments of Rachana Sharir and Kaumarbhritya both are included in the draft agreement. 16. Mr. Mr. Thakur further submits that as regards 2 posts of lecturers in the Departments of Rachana Sharir and Kaumarbhritya both are included in the draft agreement. 16. Mr. Thakur, learned counsel for petitioners has also pointed out one paragraph from the letter of CCIM dated 22.7.2002 wherein the following observations have been made by it : "There are more Lecturer in almost in each department in view of the strength prescribed by CCIM. They may be promoted as Reader/Professor if they have requisite qualification and experience as prescribed by Central Council." 17. Mr. Thakur, relying on the above observations of the CCIM, urged that the deficiencies pointed out by the University are not such which should deprive their right to admit 20 students. According to him, surplus Lecturers can temporarily meet the requirement of the additional staff at petitioner no.2 College and as soon as the draft advertisement is approved by the respondent MUHS, rest of the posts would be filled in. He submits that respondent no.2 MUHS has taken sufficient time and as yet, it has not approved advertisement. In his submission, no fault can be found with the petitioners, because their hands are tied so long as draft advertisement submitted by them does not receive approval from the respondent MUHS. 18. Mr. Thakur, in support of his submission, has also relied on the order dated 3.3.2005 passed by the Division Bench of this Court in Ayurved Utkarsh Mandai Vidarbha Pradesh, Nagpur & Anr. Vs. Maharashtra University of Health Sciences & Ors. (Writ Petition No.3603 of 02) wherein this Court has observed : "Therefore, only ground which we find for rejection of the provisional affiliation to the petitioner institution is that the place at which the petitioner intends to start Ayurvedic College does not find place in the Perspective Plan. We, therefore, find that the action of the respondent no.1 University on one hand in granting provisional affiliation to respondent nos.4 to 7 though they are not included in Perspective Plan, and on the other ground refusing the same to the petitioner, smacks of discrimination and arbitrariness. Apart from that ground of non-inclusion in the Perspective Plan has been negated by the Apex Court in the case of Shivaji Univerisy (cited supra) and the decision of this Court in Writ Petition No.5930/2002 in the case of Shri. Chatrapati Shivaji Education Society dated 31.10.2003. Apart from that ground of non-inclusion in the Perspective Plan has been negated by the Apex Court in the case of Shivaji Univerisy (cited supra) and the decision of this Court in Writ Petition No.5930/2002 in the case of Shri. Chatrapati Shivaji Education Society dated 31.10.2003. We, therefore, find that the petitioner has made out an exceptional case so far as to grant interim relief as sought in the Civil Application. Respondent no.1 University is, therefore, directed to grant provisional first time affiliation to the petitioner's Ayurvedic College at Gadchiroli within a period of one month from today." 19. Mr. Thakur has also relied upon order (unreported) passed by this Court on 5.4.2005 in Writ Petition No.4262 of 02 (Anandi Shikshan Prasarak Mandai Vs. Maharashtra University of Health Sciences and Ors.) and pressed into service the observations relied upon by the Division Bench made by the Apex Court in Shivaji University Vs. Bharti Vidyapeeth reported in (1999)3 SCC 224 reading as under: "Refusal bases on the ground that place does not find place in the Perspective Plan is arbitrary and unreasonable:- Mr. Thakur, thus, submits that the present petitioners are entitled to have extension of affiliation. According to him, considering enormous increase in the establishment expenditure, it would be in the interest of student community to allow this petition considering the larger perspective and public interest involved. He submits that refusal to increase intake capacity will not serve the ends of justice, specially when the two autonomous bodies viz. CCIM and the State Government have granted approval to increase intake capacity from 50 to 70 on careful examination of the material and upon their complete satisfaction. CONSIDERATION 20. Having heard rival parties, having examined the Apex Court judgment in Shivaji University Vs. Bharti Vidyapeeth (supra) and the three Division Bench judgments of this Court delivered from time to time, this is not such a college wherein there is no infrastructure. This is one of the oldest colleges of the city of Nagpur having its own reputation and goodwill in the field of Ayurvedic education. 21. Bharti Vidyapeeth (supra) and the three Division Bench judgments of this Court delivered from time to time, this is not such a college wherein there is no infrastructure. This is one of the oldest colleges of the city of Nagpur having its own reputation and goodwill in the field of Ayurvedic education. 21. The subsequent affidavit filed by the respondent MUHS, the relevant portion of which is extensively quoted in paragraph 11 supra, unequivocally suggests that irrespective of the fact that though the proposal is not as per the perspective plan prepared by the MUHS, The Academic Council of the MUHS is ready to grant extension of affiliation for the academic year 2006-07 subject to fulfilment of deficiencies and the CCIM and State Government both have recommended the case of petitioner for extension of affiliation for 70 seats in respect of petitioner no.2 college. The petitioners have brought on record that they have started acting upon the directions given by the University and have forwarded their draft advertisement for approval which is still pending with the MUHS. Petitioners have also given an undertaking reading as under: "The petitioners undertake to appoint the requisite numbers of Professors, Readers and Lecturers to remove the deficiency after the draft advertisement is approved by the University as well as Director of Ayurved, Government of Maharashtra and following the procedure laid down for selection and appointment by the second respondent University and Government of Maharashtra within the stipulated period or the period that may be extended by the University with a view to enabling the petitioners to follow the procedure laid down by it in the matter of selection and appointment of the teaching staff. The post of Professor in department of Kaya Chikitsa would be filled after vacation of stay by this Hon 'ble Court in Writ Petition No.936/94. As regards deficiencies under Clause (d), (e), (f) & (g) mentioned by the second respondent University, petitioners undertake to remove the said deficiencies on or before 17th December, 2006 and submit compliance report to the second respondent University." 22. As regards deficiencies under Clause (d), (e), (f) & (g) mentioned by the second respondent University, petitioners undertake to remove the said deficiencies on or before 17th December, 2006 and submit compliance report to the second respondent University." 22. In view of the decision of the Academic Council and the unanimous resolution adopted by it as reflected in MUSH's letter dated 17.6.2006, it is not difficult to conclude that absence of provision in perspective plan has not only been given a back seat but waived, and irrespective of the absence of provision in the perspective plan, respondent no.2 MUHS is ready to grant extension of affiliation subject to fulfilment of requirement mentioned in their letter dated 17.6.2006 pursuant to which the petitioners have already taken necessary action and have also given an undertaking dated 20.11.2006 to this Court to comply with the requirements of the MUHS. 23. At this juncture, it will not be out of place to mention, at one point of time we thought of getting compliance from the petitioner before permitting them to have additional intake capacity, but for pendency of Writ Petition No.936 of 94 wherein this Court has stayed appointment of the post of Professor in Kaya Chikitsa and in that the draft advertisement is pending for approval by the respondent MUHS; which might take its own time. By the time compliance of requirements is sought, the period for admission would be over and again petitioners would lose another academic year, as it is, they have lost more than three years which, in our opinion, would be injurious to the health of the 2nd petitioners and will neither be in the public interest nor in the interest of (sic) and Ayurvedic education in particular. The medical education in substance would be a casualty. 24. In Bharti Vidyapeeth's case, the Supreme Court held that though the permission/ affiliation is wrongly rejected by the University, the Court should not set aside the refusal but, return the matter to the University for reconsideration in the light of its judgment. The Court is not competent to grant affiliation. Accordingly, we direct the respondent no.2 MUHS to reconsider its decision in the light of our judgment. 25. The Court is not competent to grant affiliation. Accordingly, we direct the respondent no.2 MUHS to reconsider its decision in the light of our judgment. 25. In this view of the matter, we allow the petition and direct the respondent no.2 MUHS to grant extension of affiliation to the petitioner no.2 collage for the intake capacity of 70 (increased from 50 to 70) on or before 10th December, 2006. In the meanwhile, it would be open for the petitioner no.2 College to issue necessary advertisement to invite applications for admission since the last date for admission is 30th November, 2006. However, the petitioner no.2 while issuing advertisement shall, specifically, mention that the admission of students shall be subject to grant of extension of affiliation to the petitioner no.2 college so far as increased capacity of 20 seats is concerned and should make it clear in the advertisement that no legal right shall be created in favour of those 20 students who would be admitted against 20 increased seats because those admissions would be subject to grant of affiliation by the respondent MUHS. Rule is made absolute in the above terms with no order as to costs. Parties to act on authenticated copy. Petition allowed.