1. This writ petition is filed by the petitioner seeking to quash Ext.P6 Government Order, rejecting the application of the petitioner for Essentiality Certificate to establish a Medical College in Kasaragod District, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows:
2. Petitioner is a Private Limited company having two Speciality Hospitals with more than 300 bed capacity. Petitioner runs a Nursing College affiliated to the Kerala University of Health Sciences, and has an extent of 30 acres of property at Pullur, Kanhangad on the side of National Highway-66. With the object of starting a Medical College, petitioner has arranged necessary infrastructure facilities as early as in 2011, and applied to the State Government for issuance of Essentiality Certificate, which is a mandatory document to be submitted to the Central Government along with the application for permission to establish the Medical College.
3. The application, though recommended by the Director of Medical Education as per Ext. P2 dated 13.12.2013, was rejected by Ext. P4 communication dated 26.02.2018. Ext. P4 was challenged before this Court by filing W.P. (C) No. 11600 of 2018, resulted in Ext. P5 judgment and the Government was directed to consider the application on merits. It was thereupon that the Government have issued Ext. P6 order, rejecting the application on the ground that the application do not merit consideration. Case of the petitioner is that, the rejection of the application is not based on sound legal principles and it is against public interest and without due application of mind, and therefore, interference is warranted to the same.
4. A statement and additional statement are filed for and on behalf of the 1st respondent, refuting the claims and demands raised by the petitioner. Among other contentions, it is stated that, large number of institutions which are established under Self-Financing sector are visited with actions by the Medical Council of India and such other Regulatory Authorities for violating the norms fixed/for insufficient infrastructural and academic facilities. In the academic year 2018-19, 4 Medical Colleges in the Self-Financing Sector in the State of Kerala had been closed down and the admissions were denied to such institutions, following proceedings initiated by the Regulatory Authorities, which was upheld by the apex court.
5. The undertaking to be given by the State Government in Form-2 of the Medical Council of India Establishment of Medical College Regulations, 1999, by way of Essentiality Certificate, is to the effect that in the event of the petitioner failing to create infrastructure for the Medical College as per the MCI norms and thereby fresh admissions are declined by the Central Government, the State Government have to take over the responsibility of those students already admitted in the college with the permission of the Central Government.
6. So much so, essentiality is a process which ensures that in the event of the institutions being closed down, the interest of the students will be protected by the State Government. Therefore, it can be seen that, in the event of such situations, the infrastructure available in the State does not permit the Government to shoulder the responsibility of the entire students of the proposed Self Financing Medical College, as the Government Medical Colleges in the State are not equipped with the infrastructure facilities to cater the additional requirements of the petitioner college.
7. Therefore, the Essentiality Certificate sought for is not an empty formality and such undertaking in the given circumstances cannot be given by the State Government.
8. In the additional statement, it is submitted that, the students who are admitted to the Kerala Medical College, Cherpulassery had filed W.P.(C) Nos. 24878 and 24826 of 2018, seeking direction to shift the students in the said college to other Medical Colleges in the State for want of facilities in the said Medical College. Based on the direction issued by this Court, as per order dated 01.02.2019, a joint meeting was convened by the Central Government, in which all stakeholders including the students were heard, and it was decided that the State of Kerala shall explore the possibility of re-allocating 2016-17 batch students in the Kerala Medical College to other private Medical Colleges in the State after withdrawing the Essentiality Certificate issued by the State to the said college.
9. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition.
10. I have heard Sri. S.Ramesh Babu, learned Senior Counsel appearing for the petitioner assisted by Adv. Vijayamohanan P.K., learned Special Government Pleader, Sri. M.A. Asif, learned Standing Counsel appearing for the Medical Council of India, Sri. Titus Mani Vettom and the learned CGC, Sri. Jaishankar V. Nair. Perused the pleadings and the documents on record.
11. The sole issue to be considered is, whether any manner of interference is warranted to Ext.P6 order passed by the State Government dated 20.07.2018, declining Essentiality Certificate to the petitioner, wherein, it is stated that the Government have examined the matter in detail, and in Form No.2, the format for issuing the essentiality certificate, it has to be certified that in case the applicant fails to create infrastructure for the Medical College as per the MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the college with the permission of the Central Government, and if such a situation arises, it would become incumbent upon the State Government to ensure the medical education of the affected students, and the Government is of the considered view that Government cannot shoulder the responsibility, since the Government Medical Colleges are not equipped with infrastructure facilities to cater to the requirements in case of such eventualities.
12. It is further stated that the establishment of a Medical College in Kasaragod District under Government sector is underway and construction works are going on, and by considering these facts, the application submitted by the petitioner seeking issuance of Essentiality Certificate cannot be allowed by the State Government.
13. Learned Senior Counsel appearing for the petitioner submitted that the undertaking given by the State Government as per the Regulations, 1999 is only one of the factors and none of the aspects which are bound to be considered by the State Government while evaluating the application were not undertaken by the State Government.
14. Learned Senior Counsel has invited my attention to Form No.2, wherein the State Government is bound to ascertain various aspects, like, (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 Medical Council; (4) No. of doctors in Government service; (5) No. of Government posts vacant and those in rural/difficult areas; (6) No. of doctors registered with the Employment Exchange; (7) Doctor population ratio in the State; (8) How the establishment of the college would resolve the problem of deficiencies of qualified medical personnel in the State and improve the availability of such medical manpower in the State; (9) the restrictions imposed by the State Government, if any, on students who are not domiciled in the State from obtaining admissions in the State, be specified; (10) Full justification for opening of the proposed college; and (11) Doctor-patient ratio proposed to be achieved, and thereafter a certification is to be provided, after assimilating the infrastructure inputs provided by the Medical College, which is as follows:
"It is further certified that in case the applicant fails to create infrastructure for the medical college as per MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College with the permission of the Central Government."
Therefore, according to the learned Senior Counsel, the conclusions arrived at by the State Government in Ext.P6 are without taking into account any of the vital and essential requirements that are to be enquired into by the State Government before issuing the Essentiality Certificate.
15. On the other hand, learned Special Government Pleader submitted that, by making the certification, as specified above, the State Government is shouldering a very huge responsibility and many of the Medical Colleges in the State are not providing sufficient infrastructure, and thereupon, the students are put to difficulties and the State Government is duty bound to make necessary arrangements for continuing the medical education of such students. Therefore, unless and until the Government is satisfied that the petitioner has got sufficient financial capacity and other mandatory requirements to start the Medical College, Government is not duty bound to issue any Essentiality Certificate.
16. I have evaluated the rival submissions made across the Bar. As I have pointed out earlier, the reasons assigned in Ext.P6 are only to the effect: (1) that the Government cannot shoulder the responsibility in case of any adverse circumstances, consequent to failure on the part of the petitioner to provide adequate infrastructure facilities; and (2) that the Government is proposing to start a Medical College in Kasaragod District. On a reading of the impugned order, it is quite clear and evident that none of the requirements as are provided under Form No.2 of the Regulations, 1999, is taken into account by the State Government before passing Ext.P6 order. The reasons assigned are also baseless, without reflecting the nature of study conducted by the State Government for appreciation of the application submitted by the petitioner.
17. Learned Senior Counsel has invited my attention to the judgment of the apex court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust vs. State of Tamil Nadu & Others, (1996) 3 SCC 15, wherein, the Scheme of the Medical Council Act was taken into account, and it is held as follows in paragraphs 14 to 17:
"14. 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".
15. From the aforesaid narration of facts, it would appear that after the insertion of Section 13-A in the Central Act, the question regarding grant of permission for establishing medical college by the Trust was considered by the State Government twice during the pendency of these appeals. The matter was first considered by the State Government on the basis of the application submitted by the Trust in pursuance of the order dated January 21, 1994 passed by this Court and by their letter dated March 9, 1994, the State Government refused to grant the permission. Thereafter, the matter was considered by the Medical Council and the Central Government and on December 12, 1995, the Central Government issued a Letter of Intent which requires the fulfilment of the conditions mentioned therein. One of the conditions mentioned in the said Letter of Intent is obtaining an essentiality certificate from the State Government regarding the desirability and feasibility of having the proposed medical college at the proposed location. The matter was considered by the State Government for the second time when a request was made by the Trust for issuing an essentiality certificate/no objection certificate as required by the Letter of Intent dated December 12, 1995 of the Central Government. The said request was rejected by the State Government by letter dated January 10, 1996. The University has also conducted an inspection of the facilities available at the college proposed to be established by the Trust and appears to be satisfied about the college being eligible for being affiliated to the University.
16. Now the only impediment in the establishment of the medical college by the Trust is the stand of this State Government that permission cannot be given to a private Trust to establish the medical college. This raises the question: what is the role of the State Government in the matter of establishment of a medical college ? The State Government asserts its right on the basis of the proviso to sub-section (5) of Section 5 of the Medical University Act, inserted by the State Act, which prescribes that "no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions for such permission have been complied with". The said claim is disputed by the Trust on the ground that subsequent to the enactment of the State Act, Parliament has enacted the Central Act whereby Section 10-A has been inserted in the Indian Medical Council Act, 1956 and the said provision deals with 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.
17. The legislative power in relation to 'education' was earlier distributed in all the three legislative lists in the Seventh Schedule to the Constitution. Parliament was conferred legislative power in respect of matters specified in Entries 63, 64, 65 and 66 of the List I (Union List) while the State Legislatures were conferred the power in respect of matters specified in Entry 11 of List II (State List) and Parliament and State Legislatures were conferred concurrent power in respect of matters specified in Entry 25 of list III (Concurrent List). By the Constitution (Forty Second Amendment) Act, 1976, Entry 11 of List II has been deleted and Entry 25 in List III has been enlarged to cover matters which were earlier specified in Entry 11 of List II. In view of the said amendment, the legislative power in respect of education is now conferred exclusively on Parliament in respect of matters specified in Entries 63 to 66 of List I and concurrently on Parliament and State Legislatures in respect of matters specified in Entry 25 of List III.
18. So also, my attention is invited to the judgment of the apex court in Chintpurni Medical College and Hospital and Another vs. State of Punjab and Others, AIR 2018 SC 3119 : 2018 KHC 6476, and specifically to paragraphs 14 to 16, which read thus:
"14. The Essentiality Certificate thus certifies that it is essential having regard to specified factors that the opening of the proposed college is essential in the State, in public interest. Further, that the applicant has the necessary land and building for running it. What is significant to note is that the law requires that an applicant must possess an Essentiality Certificate from the State Government mentioning therein that it is essential to have a Medical College as proposed by him. The purpose is inter alia to prevent the establishment of a college where none is required or to prevent unhealthy competition between too many Medical Colleges.
15. Thus, the Legislative scheme for permission to establish a Medical College prescribes, as a qualifying criterion, that the applicant must have an Essentiality Certificate issued by the State Government. The State Government certifies the justification for establishing a proposed Medical College as a part of the Legislative scheme under the Act. It does not do so under any other law including a State enactment. The only purpose of the Essentiality Certificate is to enable the Central Government acting under Section 10A to take an informed decision for permitting the opening or establishment of a new Medical College. Once the college is established, its functioning and performance and even the derecognition of its courses is controlled only by the provisions of the IMC Act and not any other law. The IMC Act, which is a Legislation under Entry 66 of List-I of Seventh Schedule of the Constitution of India is a complete code which governs the establishment, functioning, including maintenance of standards of education and even derecognition of Medical Colleges vide Section 19 of the Act. The States are denuded of the Legislative Power to legislate on medical education under Entry 25 of the Concurrent List since Parliament has exercised its power under Entry 66 and enacted the IMC Act vide Dr. Preeti Srivastava vs. State of Madhya Pradesh, (1999) 7 SCC 120.
16. It would be impermissible to allow any authority including a State Government which merely issues an Essentiality Certificate, to exercise any power which could have the effect of terminating the existence of a Medical College permitted to be established by the Central Government. This the State Government may not do either directly or indirectly. Moreover, the purpose of the Essentiality Certificate is limited to certifying to the Central Government that it is essential to establish a Medical College. It does not go beyond this. In other words, once the State Government has certified that the establishment of a Medical College is justified, it cannot at a later stage say that th
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ere was no justification for the establishment of the College. Surely, a person who establishes a Medical College upon an assurance of a State Government that such establishment is justified cannot be told at a later stage that there was no justification for allowing him to do so. Moreover, it appears that the power to issue an Essentiality Certificate is a power that must be treated as exhausted once it is exercised, except of course in cases of fraud. The rules of equity and fairness and promissory estoppel do not permit this Court to take a contrary view. 19. On an appreciation of the facts and circumstances, and taking into account the law laid down by the apex court in the afore-quoted judgments, I am of the considered opinion that, the State Government was duty bound to take into account the essential requirements that are to be undertaken to consider an application submitted for Essentiality Certificate, and having not done so, Ext. P6 suffers from the vice of arbitrariness and illegality, liable to be interfered with by this Court under Article 226 of the Constitution of India. 20. Moreover, the State Government cannot brush aside its responsibility under law, merely stating that, in future it may have to undertake a responsibility consequent to the certificate issued. In my considered view, if a proper enquiry is carried out, as is contemplated under law, such apprehensions can be eliminated either way. That apart, when a statute prescribes a modality delineating the power conferred, overlooking the same by the authority is an antithesis to rule of law prevailing in the country. 21. Accordingly, I quash Ext. P6 and there will be a direction to the State Government to consider the application submitted by the petitioner taking into account the vital requirements that are bound to be undertaken under Form No.2, at the earliest, and at any rate, within two months from the date of receipt of a copy of this judgment, bearing also in mind, the proposition of law laid down by the apex court in the afore-quoted judgments. 22. The writ petition is allowed accordingly.