TMI Blog1996 (2) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... versity Act (hereinafter referred to as 'the Medical University Act') whereby Tamil Madu Medical University, re-named as Dr. M.G.R. Medical University, (hereinafter referred to as 'the University') was established. Sub-section (5) of Section 5 of the Medical University Act empowers the University to affiliate colleges to the University as affiliated colleges, within the University area under conditions prescribed and withdraw such affiliation. On December 2, 1987, the Trust submitted an application to the University seeking affiliation to the University a medical college which the Trust wanted to start. The University, however, refused to entertain the said application of the Trust on the ground that a no objection certificate should be obtained from the Government of Tamil Nadu (hereinafter referred to as 'the State Government') for starting a medical college and without such a no objection certificate the application could not be considered. The Trust filed a Writ Petition (W.P. No. 2776 of 1989) in the Madras High Court against the said order of the University refusing to entertain the application of the Trust for affiliation of the proposed medical colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, of such permission have been complied with . After the decision of the High Court dated February 1, 1991, the University conducted a joint inspection and by order dated August 16, 1991 rejected the application for affiliation submitted by the Trust on the ground that there were certain deficiencies in the infrastructure that was made available for the medical college by the Trust. The Trust filed a third Writ Petition (W.P. No. 13392 of 1991) challenging the said order of the University dated August 6, 1991. The said Writ Petition was allowed by a learned single Judge (Bakthavatsalam J.] by judgment dated February 7, 1992 and the order dated August 16, 1991 was quashed and the matter was remitted back to the University for reconsideration. The learned Judge was of the view that while rejecting the application for affiliation the University had taken irrelevant and extraneous considerations into account. Feeling aggrieved by the said judgment of the learned single Judge, the State of Tamil Nadu filed an appeal (W.A. No. 301 of 1992) before a Division Bench of the High Court, The Trust also filed an appeal (W.A. No. 387 of 1992) against the said judgment of the learned single J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts notice on behalf of the respondents. In the mean time, it will be open to the petitioner to approach the Central Government and Indian Medical Council for necessary permission which shall be considered in accordance with law. Liberty to mention for an early hearing. Thereupon, the Trust submitted an application before the Medical Council of India (for short Medical Council ). But the Medical Council by its letter dated December 15, 1993 informed the Trust that in order to enable the Medical Council to comply with the orders of this Court to consider the application of the Trust in accordance with law, the Trust should produce a letter of affiliation from the University. On January 21, 1994, this Court passed the following order :- In this case, having regard to the circumstance that the petitioners has had to go to various authorities where sanctions and permission are said to be necessary to obtain affiliation, it is necessary for the petitioner to know from which authority, sequentially, to commence with. We direct the petitioner to apply to the State Government for the requisite permission. If the application in this behalf is filed within three weeks from today, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit it to start the medical college because of the policy of the Government not to permit private organisations/Trusts to start self-financing Medical College in this State. (d) In Tamil Nadu, there are 9 Government Medical Colleges and Four Medical Colleges under private management besides under Annamalai University, Chidambaram. The annual intake of students in the said colleges are 1477. The number of qualifying doctors seeking employment on the live registers of Employment Exchange in the State as on 28.2.1994 are 2412. For recruitment of Doctors for the post of Assistant Surgeon in Tamil Nadu Medical Service for the 1992, for 378 vacancies, 4,631 candidates applied for appointment, taking into account of these and other factors set out above, the Government consider that the existing Medical College in Tamil Nadu are more than sufficient and that there is no need for starting any more Medical Colleges in the State. On January 27, 1995, this Court passed the following order : Pending decision on merit in the SLPs, after hearing Mr. K. Parasaran, learned senior counsel for the petitioner, Mr. R.K. Jain, learned senior counsel for the State of Tamil Nadu and Mr. Navin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel for the Trust submitted that since the Trust has not obtained the necessary permission under Section 10A of the Central Act, the Trust would move for the said permission to the Central Government within two weeks and this Court directed that in case such an application was submitted, the Central Government shall consider the same in accordance with law without insisting upon the requirement of affiliation of the medical college with the University and shall pass order on the said application within two months after the filing of the application. In accordance with the said order, the Trust submitted an application dated September 13, 1995, before the Central Government and after considering the said application, the Government of India, Ministry of Health and Family Welfare, have sent a Letter of Intent dated December 12, 1995 to the Trust wherein it is stated : 2. The scheme submitted by the Secretary, Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational Charitable Trust, Salem was referred to the Medical Council of India on the 17th October, 1995 for its recommendations. The Council had already appointed inspectors on the direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council of India and after the bank guarantees are received in this Ministry. After receiving the letter dated December 12, 1995, the Trust submitted a representation dated January 6, 1996, before the State Government for grant of essentiality certificate/no objection certificate for the establishment of medical college at Salem. The said request of the Trust has been rejected by letter dated January 10, 1996 sent by the Secretary, Health and Family Welfare Department, State of Tamil Nadu, wherein it is stated : In your representation dated 6.1.96, you have required the Government to grant Essentiality Certificate/No Objection Certificate to your Medical College at Salem. The Government have examined the request. The Government have not changed the policy of not permitting any private Trust or Management to start a Medical/Dental College. I am therefore directed to state that the request to grant Essentiality Certificate/No Objection Certificate to start a Medical College at Salem is rejected. From the aforesaid narration of facts, it would appear that after the insertion of Section 13A in the Central Act, the question regarding grant of permission for establishing m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h establishment of a new medical college or opening of a new or higher course of study or training and prescribes that notwithstanding anything contained in the Indian Medical Council Act, 1956 or any other law for the time being in force no person shall establish a medical college except with the previous permission of the Central Government obtained in accordance with the provisions of the said Section. According to the Trust Section 10-A introduced by the Central Act would prevail over the proviso to Section 5(5) of the Medical University Act introduced by the State Act. It is, therefore, necessary to consider whether and, if so, to what extent the proviso to sub-section (5) of Section 5 of the Medical University Act is applicable in the matter of establishment of medical college in the State of Tamil Nadu. The answer to this question would depend on the scope and ambit of the legislative power of Parliament and the State Legislature in this field relating to establishment of a medical college, viz., education. The legislative power in relation to 'education' was earlier distributed in all the three legislative lists in the Seventh Schedule to the Constitution. Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. Clause (1) of Article 254 gives overriding effect to the provisions of a law made by Parliament which Parliament is competent to enact or to any provision of any existing law in respect of one of the matters enumerated in List III and if a law made by the Legislature of the State is repugnant to the provisions of the law made by Parliament, the law made by the Legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and Section 10A introduced in the Indian Medical Council Act, 1956 by the Central Act. Explaining the meaning of repugnancy in the context of Section 107 of the Government of India Act, 1935, B.N. Rau J. has stated : It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one said do and other don't , There is no true repugnancy, according this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test: there may well be cases of repugnancy where both laws say don't but in different ways. For example, one law may say, No person shall sell liquor by retail, that is, in quantities of less than five gallons at a time and another law may say, No person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time . Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishment of new medical colleges in the country. Before we proceed to consider the ambit of the Central Act introducing Sections 10A, 10B and 10C in the Indian Medical Council Act, 1956, we may examine the field covered by the State Act which inserts the proviso in Section 5(5) of the Medical University Act. Shri Sanghi has submitted that the Medical University Act deals with the establishment of the university and recognition of medical colleges and the proviso which has been inserted in sub section (5) of Section 5 by the State Act is a provision relating to affiliation and recognition of medical colleges and this field is open for legislation by the State legislature. Shri Sanghi has placed reliance on the observations of this Court in J.P Unni Krishnan Ors. v. State of Andhra Pradesh Ors., 1993 (1) SCC 645, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation, as the case may be, and that it is open to the State or the University according affiliation and recognition to impose such conditions as they think appropriate in the interest of fairness, merit, maintenance of standards of educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation 2. - For the purpose of this section, admission capacity in relation to any course of study or training (including a post graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training. 2) (a) (i) Every person or Medical college shall, for the purpose of obtaining permission under sub-Section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer this scheme to the Council for its recommendations. (b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed. 3) On receipt of a scheme by the Council under sub-Section (2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may : (a) If the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tudy or training would be in a position to offer the minimum standard of medical education as prescribed by the Council under Section 19A or as the case may be under Section 20 in the case of post-graduate medication education; (b) Whether the person seeking to establish medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources; (c) Whether necessary facilities in respect of staff equipment accommodation and other facilities to ensure proper functioning to the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time limit specified in the scheme; (d) Whether adequate hospital facilities having regard to the number of students likely to attend such medical college or course of study or training or as a result of the increased admission capacity have been provided or would be provided with the time limit specified in the scheme; (e) Whether any arrangement has been made or programme drawn to impart proper training to students likely to atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. Under sub-section (3), the scheme is required to be considered by the Medical Council having regard to the factors referred to in sub-section (7) and Medical Council submits the scheme together with its recommendations thereon to the Central Government. Sub section (4) empowers the Central Government, after considering the scheme and the recommendations of the Medical Council and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in sub-section (7), to either approve, with such condition, if any, as it may consider necessary, or disapprove the scheme and any such approval shall be a permission under sub-section (1). Under subsection (5) the scheme shall be deemed have been approved by the Central Government in the form in which it had been submitted and the permission of the Central government required under sub- section (1) shall be deemed to have been granted where no order passed by the Central Government has been communicated to the person or college within one year from the date of submission of the scheme to the Central Government under sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce, is to render inapplicable, and thereby repeal impliedly, the proviso inserted in sub-section (5) of Section 5 of the Medical University Act in the matter of establishment of a new medical college in the State of Tamil Nadu and its affiliation by the Medical University. In other words, as a result of insertion of Section 10A in the Indian Medical Council Act, 1956 by the Central Act, with effect from August 27, 1992, the proviso the Section 5(5) of the Medical University Act has ceased to apply in the matter of establishment of a medical college in the State of Tamil Nadu and its affiliation to the Medical University and for the purpose of establishing a medical college permission of the Central Government has to be obtained in accordance with the provisions of Section 10A. If such a permission is granted by the Central Government a further permission of the State Government under the proviso to Section 5(5) of the Medical University Act would not be required for the purpose of obtaining affiliation of such a college to the Medical University. After the enactment of Section 10a by the Central Government the Medical Council, by notification dated September 20, 1993, has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Act, for the purpose of granting the essentiality certificate as required under the qualifying criteria prescribed under the scheme, the State Government is only required to consider the desirability and feasibility of having the proposed medical college at the proposed location. The essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now rests with the Central Government alone. As indicated earlier, the Trust did approach the State of Tamil Nadu for grant of essentiality certificate in terms of Letter of Intent dated December 12, 1995 issued by the Government of India, but the State Government has refused to issue the said certificate by its order dated January 10, 1996. The only reason which has been given by the State Government for such refusal is that the Government have not changed the policy of not permitting any private Trust or Management to start a Medical/Dental College . This would show that instead of considering the matter of grant of essentiality certificate on the basis of desirability and feasibility of having the proposed medical college at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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