TMI Blog2003 (11) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary to take into consideration the factual matrix of the matter in great details. Suffice it to point out that by reason of two Government orders being G.O. Ms. No. 128 dated 30.4.1998 and G.O. Ms. No. 214 dated 23.6.2000, the Government of Andhra Pradesh approved 13 locations for establishment of medical colleges and 18 for dental colleges. The said orders were issued in terms of recommendations of a committee comprising of Justice S.V. Maruthi, a the then sitting judge of the Andhra Pradesh High Court, Vice-Chancellor of the NIR University of Health Sciences and the Director of Nizams Institute of Medical Sciences. The sitting judge of the Andhra Pradesh High Court as a Chairperson of the committee was nominated by the Government of Andhra Pradesh in consultation with the Chief Justice of the said High Court. A notification was issued in this behalf in terms whereof the said Committee became entitled to call for the applications and make recommendations to the State Government for granting essentiality certificates to the eligible applicants. Pursuant thereto or in furtherance thereof, applications were called for and upon taking into consideration the merits of respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court which were disposed of by a judgment and order dated 8.11.2000 holding: For the foregoing reasons, we are of the considered view and hold (i) that the State is at liberty, while considering the grant of essentiality certificate under paragraph 3 of the 'qualifying criteria' set out in the scheme for establishment of colleges, to consider the feasibility and desirability of establishing the proposed institutions in the proposed locations in terms of the factors set out in Form II of the Establishment of the New Medical Colleges Regulations, 1999. The other cognate factors are outside the domain of the State Government, having not been delegated to it. (ii) The grant or refusal of the essentiality certificate by the State government constitutes but a tentative or provisional determination of the issue. It is the Medical or Dental Council which is empowered and obligated to independently consider the feasibility of recommending the grant of permission to the Centre for the establishment of medical college or dental college, (iii) Denial of grant of essential certificate by the State by itself is not sufficient for the Council to refuse the recommendation for gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or even per se. The Full Bench of the High Court relying on or on the basis of the visions of this Court in Jaya Gokul Education Trust v. Commissioner and Secretary to Government, Higher Education Department, [2000] 7 SCC 231 and Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational Charitable Trust v. State of Tamil Nadu and Ors., [1996] 3 SCC 15, further observed that the State cannot withhold the essentiality certificate on any policy consideration as the policy in the matter of establishment of a new medical college now rests with the Central Government alone. It, however, held that the legislative field having been covered by the Central enactment, the State has no power under Article 371D or a prerogative to identify the locations within the State for establishment of new medical and dental colleges. SUBMISSIONS: The learned Solicitor General appearing on behalf of the Medical Council of India and Mr. G.L. Sanghi, learned Senior counsel appearing on behalf of the Government of Andhra Pradesh would urge that the High Court committed a manifest error in arriving at a conclusion that the State has absolutely no say in the matter inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the provisions of the Act and the Regulations framed thereunder. In any event, such a decision on the part of the State Government being quasi judicial in nature, it cannot act arbitrarily or whimsically nor in relation thereto, political considerations can be allowed to have any role to play. It was urged that in the matter of discharge of limited statutory functions under the Parliamentary Act and the Regulations framed thereunder, the State cannot take shelter under Article 371D of the Constitution of India. Its decisions, it was submitted, must be informed by sufficient and cogent reasons as the same are subject to judicial review by the High Court. ISSUES: The issue which arises for consideration is: (1) What is the proper, assigned and available role of the State Government in the matter of grant of essentiality certificate for establishment of Medical or Dental college, especially in the context of the operative constitutional, legislative and statutory provisions; Statutory provisions and the procedure laid down thereunder: Education , including 'Technical Education', 'Medical Education' and Universities' is the subject-matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) any other factors under clause (g) of sub-section (7) of Section 10-A; (fc) the criteria for identifying a student who has been granted a medical qualification referred to in the Explanation to sub-section (3) of Section 10-B. The Central Government pursuant to or in furtherance of the said power made a regulation known as Establishment of New Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulation, 1993. In terms of the scheme framed thereunder the eligibility criteria and the qualifying criteria were laid down. The Medical Council of India thereafter with the previous sanction of the Central Government in exercise of the power conferred by Section 10A read with Section 33 of The Act made new Regulations known as Establishment of Medical College Regulations, 1999. We may, however, hasten to add that although the Government orders were issued by the appellant-State in terms of 1993 Regulations, for the purpose of disposal of these appeals, it may be necessary for us also to take into consideration the relevant provisions of the 1999 Regulations. Regulation 3 prohibits any person from establishing a medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the Central Government for issuance of Letter of Intent to the applicant towards establishing a medical college. A further inspection is carried out for making recommendations for renewal of the permission, in the event the same is granted by the Central Government on an annual basis. However, in the matter of implementation of the statutory scheme for grant of permission and annual renewal, the Medical Council of India experienced difficulties and it came across cases where the colleges despite grant of initial permission could not provide the infrastructure, teaching and other facilities as a result whereof the students who had already been admitted suffered serious prejudice. Only with a view to overcome the said situation, the 1999 Regulations provided for grant of essentiality certificate which is in the following format: Form-2 Subject: Essentiality Certificate No. Government of _____ The Department of Health, Dated, the __ To (applicant), Sir, The desired certificate is as follows: (1) No. of institutions already existing in the State. (2) No. of seats available or No. of doctors being produced annually (3) No. of doctors registered with the State Medi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government, the State Government shall be obligated to take over the responsibility of the students already admitted in the college. Such an undertaking on the part of the State Government is unequivocal and unambiguous. The Central Government and the Medical Council of India in the aforementioned premise opined that the selection of locations for establishment of a medical college is a matter which is required to be dealt with by the respective State Governments and not by the Medical Council of India. The High Court in paragraph 13 of the impugned judgment noticed the aforementioned submission of the Medical Council of India as regard delegation of power to the State Government under Regulations 1993 read with the scheme framed thereunder, having regard to the limited manpower and resources available to the Medical Council and the Dental Council on the one hand vis-a-vis the plentitude of resources including the expertise in the matter of local conditions in the State on the other. The High Court did not advert to this aspect of the matter. In view of the aforementioned statutory provisions, there cannot be any doubt or dispute that an essentiality certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome power is sought to be delegated to the State so as to make the Parliamentary statute completely workable. Such 'play in the joint' is also desirable having regard to the federal structure of our Constitution. In State of Andhra Pradesh v. K. Purushotham Reddy and Ors., [2003] 3 SC 15, this Court had an occasion to consider the provisions of the University Grants Commission Act, 1956 vis-a-vis the Andhra Pradesh State Council of Higher Education Act, 1988. The validity of the State Act was upheld by this Court noticing that the powers and functions of the Council stood curtailed insofar as they are not only to function in accordance with the guidelines issued by the University Grants Commission but its duty is to assist the Commission in respect of determination and maintenance of standards and suggest remedial action of higher education in the State. Keeping in view the provisions of the Parliamentary Act and the said Act it was observed: Once it is held that the duties and functions of the Councils are compartmentalised and they have to act in accordance with the guidelines issued by the UGC from time to time, it is preposterous to suggest that the Council acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the State of Tamil Nadu as also the State of West Bengal in terms of the National Education Policy, 1986 as also the recommendations of the Committee framed by the University Grants Commission enacted similar Acts. However, in Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors., [1999] 7 SCC 120, it is held: 35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III . Entry 11 or List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows: 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. Entry 25 is subject, inter alia, to Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Territory Administration, as the case may be. The requirement of Essentiality Certificate provided under para 3 of the Regulation concerns with among other requirements the desirability of having the proposed medical college at the proposed location. The desirability of having the medical college at the proposed location under para 3 of the Regulation is required to be decided by the State Government. Excepting the desirability of location of the proposed medical college and certificate that adequate clinical material is available as per the Medical Council of India at the proposed medical college, which are to be decided by the State Government all other aspects regarding establishment of a new medical college and imparting of the education therein are covered by the Central Act and Regulation framed thereunder. In other words, in the matter of establishment of a medical college and medical education, the field that is open where a State Government has any role to play is only in regard to decide the desirability of the location of the proposed medical college and grant of certificate that adequate clinical material is available as per the Medical Council at the proposed medica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 and to the minority under Article 30 of the Constitution but the same are subject to reasonable restrictions. In T.M.A Pai (supra) a distinction was made between minority and non- minority professional medical colleges as regard percentage for admission of students can be reserved by the management but it was held that the rest have to be filled up on the basis of counselling by the State agencies. Interpretation of the aforementioned finding in T.M.A. Pai (supra) in para 68 of the judgment vis-a-vis other authorities came up for consideration before a Constitution Bench of this Court in Islamic Academy of Education and Anr. v. State of Karnataka and Ors., [2003] 6 SCC 697. Before the Constitution Bench, inter alia, the following questions were raised: (3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and (4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission. Dealing with the said question, the Chief Justice of India speaking for himself, Variava, Balakrishnan and Pasayat, JJ, observed: ...It is provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... colleges therein, contends Mr. Venugopal, would be relevant factors. This may be so but similarly there are many more factors that would contribute to local needs. The criteria laid down in MCI Regulations no doubt provide for some guidelines for the purpose of determination of local needs but the same cannot be said to be exhaustive. Local needs would vary from State to State. Even development of a backward area may be a local need. Absence of good educational institutions in particular area may also be a local need. The State may, in pursuit of its policy for the development of the people, consider it expedient to encourage entrepreneurs for establishing educational institutions in remote and backward areas for the benefit of the local people. Local needs, therefore, cannot be defined only with reference to the State as a unit. For good reasons the State may not like to establish professional colleges or institutions only in their capitals. ESSENTIALITY CERTIFICATE: Although local needs, thus, may have to be determined keeping in view the factors enumerated therein but it must also be noticed that no essentiality certificate is required to be given by the State in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the nine Districts of Telengana region (erstwhile Camania University area) and another minority institution in the same area will cause regional imbalance as there is no minority institution elsewhere in the State, the Government hereby reject your request for grant of Essentiality Certificate for M.B. Christian Medical College at Jedcherla . The contention raised on behalf of the State was that having regard to the provisions contained in Article 371D of the Constitution of India, it is not bound by the recommendations made by the Committee. Taking umbrage under Article 371D, it was contended that if the appellant is given essentiality certificate, the regional balance of that area would be disturbed and on that basis the said application was rejected. The learned counsel appearing on behalf of the appellant has pointed out that despite the aforementioned stand taken by the State before the High Court as also before us essentiality certificate has been granted to other minority institutions in Nellore which is within the Telengana region. The learned Single Judge although disposed of the said application, the contention raised by the appellant was not specifically consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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