Madras High Court
Sri Chandrasekharendra Saraswathi ... vs State Of Tamil Nadu on 3 March, 1999
Equivalent citations: AIR1999MAD267, (1999)IIMLJ459, AIR 1999 MADRAS 267, (1999) 2 MAD LJ 459, (1999) 3 MAD LW 37, (1999) 3 ESC 1839, (2000) 1 SCT 17
ORDER S.S. Subramani, J.
1. Petitioner-University applied to the respondent for issue of No-Objection Certificate for making an application to the Medical Council of India for starting a Medical College in collaboration with Tamil Nadu Hospital Academic Trust. There was no reply from respondent. But the respondent issued a Notification in G. O. No. 347 dated 18-6-1998. In that Notification, it is said that the Government has made it clear that the No Objection Certificate will not be issued by the Government for setting up medical colleges by self-financing institutions. This decision is purported to have been arrived by the Government on the basis of a Report by a High Power Committee appointed to look into the working of educational institutions conducted by self-financing institutions. It is said that the report of the Committee has not been made public, nor was it furnished to the petitioner-University before the above decision was taken. According to the petitioner, the above said notification is ultra vires and the same is liable to be quashed.
2. It is said that the respondent-State cannot restrain the petitioner from setting up an institution for the purpose of imparting medical education, and, therefore, the impugned notification is ultra vires. The Medical Council of India is vested with the power to determine the adequacy of the facilities provided for medical education by an institution, whether University or otherwise. The responsibility for determining the adequacy of the facilities and the competency of the institution to set up a medical college is vested in the Medical Council of India. The role of the State in granting a No-Objection or Essentiality Certificate is very limited. The No-Objection or Essentiality Certificate of the State is essential only for the purpose of securing affiliation to a University. The Report of the High Power Committee should not have been relied on for rejecting the application of petitioner. The Report has not been made public, and petitioner has not been given notice of the same. According to petitioner, the decision of the respondent-Government is arbitrary and, therefore, the same is liable to be quashed. Petitioner seeks the issuance of a writ of declaration that the Notification No. 347 dated 18-6-1998, issued by the respondent is null and void in so far as the petitioner is concerned, and pass such further or other orders as this Court may deem fit and proper.
3. Learned Additional Advocate General submitted on instructions that the State Government is not denuded of powers to take a policy decision. His argument was that the Central Act was only to determine and co-ordinate the need of technical and medical education throughout the country, to ensure harmonisation of standards in medical and technical education, and not to lay down the policy as to where and in which academic year, a college for technical education is to be set up. In support of his submission, learned Additional Advocate General relied on the decision (The Commissioner and Secretary to Government. Higher Education Department v. Jaya Gokul Educational Trust).
4. The only point that arises for consideration is, whether the Government can take a policy decision to reject applications seeking issuance of Essentiality Certificate.
5. Learned Senior Counsel for petitioner relied on the decision (Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu in support of his contention that the State Government cannot take a policy decision to reject the application of petitioner. In that case, their Lordships of the Honourable Supreme Court considered the scope of Article 254 of the Constitution of India and repugnancy between State and Central Acts. Under Dr. M.G.R. Medical University Act, there was a provision in Section 5(5) which read thus :--
"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, if any, of such permission have been complied with."
The question before the Honourable Supreme Court was, whether this provision which requires permission of the Government is valid, when the field is occupied by the Indian Medical Council Act. Section 10A of the Indian Medical Council Act, 1956, which was newly incorporated in the year 1993, provided that 'no medical college shall be established without the previous permission of the Central Government in accordance with the provisions of that Act'. A procedure is also provided under that Act as to how permission should be obtained, and also as to what are the matters that are to be considered for establishing a College. Paragraphs 31 to 33 read thus :--
"It would thus appear that in Section 10A Parliament has made a complete and exhaustive provision covering the entire field for establishing new medical colleges in the country. No further scope is left for the operation of the State Legislation in the said field which is fully covered by the law made by Parliament. Applying the tests laid down by this Court, it must be held that the proviso to Sub-sections (5) of Section 5 of the Medical University Act which was inserted by the State Act requiring prior permission of the State Government for establishing a college is repugnant to Section 10A inserted in the Indian Medical Council Act, 1956 by the Central Act which prescribes the conditions for establishing a new medical college in the country. The said repugnancy is, however, confined to the field covered by Section 10A, viz., establishment of a new medical college and would not extend to establishment of other colleges. The fact that the Stale Act has received the assent of the President would be of no avail because the repugnancy is with the Central Act which was enacted by Parliament after the enactment of the State Act. In view of the proviso to Sub-article (2) of Article 254 Parliament could add to, amend, vary or repeal the State Act. In exercise of this power, Parliament could repeal the State Act either expressly or by implication (See : Zaverbhai Amaidas v. State of Bombay, ; Deep Chand v. State of U.P., ). Although the Central Act does not expressly amend or repeal the State Act but the effect of the non obstante clause in Sub-section (1) of Section 10A which gives overriding effect to the provisions of Section 10A over anything contained in the Indian Medical Council Act, 1956 or any other law for the time being in force, 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 27-8-1992, the proviso to Section 5 (5) of the Medical University Act has ceased to apply in the matter of establishment of a medical college in the Stale 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. In 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 20-9-1993, has made the "Establishment of New Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulations, 1993" (hereinafter referred to as "the Regulations") whereby a scheme for application for permission of the Central Government to establish a new medical college has been made. In the said scheme, qualifying criteria for applying for permission to establish a new medical college have been laid down. One of the conditions that is required to be fulfilled by the eligible organisations is that "essentiality certificate regarding the desirability and feasibility of having the proposed medical college at the proposed location has been obtained and that the adequate clinical material is available as per Medical Council of India requirements has been obtained by the applicant from the respective State Government or the Union Territory Administration. Shri Sanghi has urged that even if the proviso to Section 5 (5) of the Medical University Act is held to be inapplicable in the matter of establishing a new medical college and the requirement of obtaining the prior permission of the State Government for establishment of a medical college cannot be insisted upon under the said proviso, a similar requirement has now been imposed by virtue of the qualifying criteria laid down in the scheme as framed by the Regulations and that this was also insisted upon by the Central Government in its Letter of Intent dated 12-12-1995. The submission of Shri Sanghi is that the Stale of Tamil Nadu has considered the matter in the light of this requirement and has refused the necessary permissional."
Finally their Lordships concluded that the Tamil Nadu Act is inconsistent with the provisions of the Central Act. After holding so, their Lordships considered whether the State Government has got any role to play when a new medical college or dental college is establishd.
6. In the regulations framed under the Indian Medical Council Act. It has been provided that one of the conditions required to be fulfilled by eligible colleges is, the desirability and feasibility of having the proposed college at the proposed location. While considering the same, in paragraph 34 of the judgment, their Lordships further went on and said thus :--
"It is no doubt true that in the scheme that has been prescribed under the regulations relating to establishment of new medical colleges one of the conditions for the qualifying criteria laid down is that essentiality certificate regarding desirability and feasibility of having the proposed college at the proposed location should be obtained from the State Government. The said condition about obtaining an essentiality certificate from the State Government regarding desirability and feasibility of having the proposed college at the proposed location cannot be equated with obtaining prior permission of the State Government for establishing a new medical college as required under the proviso to Section 5 (5) of the Medical University 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."
7. In a recent decision of the Supreme Court (Medical Council of India v. State of Karnataka), the question that came for consideration was, whether a State Government has got the power to fix more number of seats in a medical college than directed by the Medical Council of India. In para 24 of the judgment, it was held thus :--
"The Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entry 25 or 26 of List III (Concurrent List). Regulations framed under Section 33 of the Medical Council Act with the previous sanction of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council Act, it will have mandatory force. Regulations have been framed with reference to clauses (fa), (fb) and (fc) (which have been introduced by the Amendmeent Act of 1993 w.e.f. 27-8-1992) and Clauses (j), (k) and (l) of Section 33."
In that case, their lordships further went on and said that the Regulations prescribed by the Medical Council of India are mandatory in character, and finally, in para 31, it is said thus :--
"What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act."
8. In Unnikrishnan, J. P. v. State of Andhra Pradesh, , their Lordships held that education is not a trade or business, nor is it an occupation. It is more or less a mission and a vocation, and, imparting education cannot be allowed to become a commerce. In paragraph 168, their lordships have said thus :--
"For the purpose of these cases, we shall proceed on the assumption that a person or body of persons has a right to establish an educational institution in this country. But this right, we must make it clear, is not an absolute one. It is subject to such law as may be made by the State in the interest of general public."
In paragraph 169, their Lordships have said thus :--
".....Therefore, we make it clear that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. ....."
In the same paragraph, their lordships have further said thus :--
".......No educational institution except a University can award degrees (Sections 22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory -- in the interest of general public -- upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the 'State', it is under an obligation to impose such conditions as part of its duty en-joined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/ affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part-III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved -- with the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments, referred to hereinbefore -- the following scheme which every authority granting recognition/affiliation shall impose upon the institution seeking such recognition/affiliation."
9. From a reading of the aforesaid decisions, it is clear that the role of the State while granting Essentiality Certificate is not that covered under the Indian Medical Council Act or Dentists Act. It need consider only whether a medical college or dental college in that particular area or locations could be established.
10-19. This question came for consideration in a recent decision of the Andhra Pradesh High Court reported in AIR 1998 Andh Pra 400 (Government of Andhra Pradesh v. J. B. Educational Society, Hyderabad). That was a case where permission was sought to establish an engineering college coming under the All India Council for Technical Education Act. Under Section 20 of the Andhra Pradesh Education Act, permission of State Government is required for establishing a college. The question was, how far it is repugnant to the provision of AICTE Act. Section 20 of the Andhra Pradesh Education Act reads thus:--
"(1) The competent authority shall, from time to time, conduct a survey as to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner through the local news papers calling for applications from the educational agencies desirous of establishing educational institutions.
(2) (a) In pursuance of the notification under Sub-section (1) any educational agency including local authority or registered body or persons intending to --
(a) establish an institution imparting education;
(b) to (d) .....
(3) Any educational agency applying for permission under Sub-section (2) shall--
(a) before the permission is granted, satisfy the authority concerned,--
(i) that there is need for providing educational facilities to the people in the locality.
(Emphasis in reports)
(ii) and (iii) (b) and (c) .....
(4) On and from the commencement of the Andhra Pradesh Education (Amendment) Act 1987 no educational institution shall be established except in accordance with the provisions of the Act."
Their Lordships considered as to what is the scope of Section 20. In paragraph 37 of the judgment, after following the decision in State of Tamil Nadu v. Adhiyaman Educational and Research Institute, . Their Lordships considered what is meant by 'locality', and finally, in para 47, Their Lordships declared that Section 20(2) (a)(i) of the State Act was void. In para 48, it was held thus :--
".............We hold that the State Government has no legislative competence to refuse/withheld permission for establishing private Engineering Colleges in covered Revenue Divisions as power the State Government's policy after the council grants approval."
In paragraph 42, their Lordships assumed that the word 'locality' can be taken as a District also and thereafter it was held that it cannot refuse permission on the ground of any policy decision by the Government.
20. In Unnikrishnan's case (supra), their Lordships declared that it is the interest of the general public that has to be considered. Imparting education is the duty of State, and what the State Government is not in a position to do in the field of education, private institutions are doing, and it is really a supplemental activity of the State, while granting recognition or affiliation, it only supplements that activity. If that is the role of a private institution, it follows that the State cannot take a policy decision not to permit the establishing of a private professional college. At the time of arguments, learned senior counsel submitted that in some of the Districts there is no medical or dental college at all, and all persons have to come to Madras from far away places, to admit their Wards. In some places, even a hospital is not available. He also contended that every year applications are filed by more than 50,000 candidates, seeking admission to medical colleges, dental colleges or para-medical Courses, and note even one-tenth of those candidates are getting admission with the existing facilities. So, the argument that there is no necessity for establishing private medical college is not correct. I find force in the said contention.
21. Taking into consideration these facts, I feel that the policy decision taken by the Government cannot stand, and the same is invalid.
22. Learned Additional Advocate General relied on the decision (supra) wherein a Division Bench of that High Court has reversed the decision of a learned single Judge, and held that the State Government can take a policy decision, and their Lordships interpreted that the object of the Central Act is only to determine and co-ordinate the need of technical education throughout the country to ensure harmonisation of the standards of technical education and not to lay down the policy as to where and in which academic year, a college for technical education is to be set up. The decision in Thirumuruga Kirupanandha Variar's case (supra) was not brought to the notice of the learned Judges. I do not think that I should follow the said decision in (supra) in view of the decision in Thirumuruga Kirupanantha Variar's case and also the decision in (supra).
23. In the result, there wilt be a declaration declaring that notification No. 347 dated 18-6-1998 issued by respondent is null and void. There will be a direction to respondent to consider and pass orders on the request of the petitioner dated 25-1-1998 for issuance of essentiality certificate to start aMedical Institution. I direct the respondent to pass orders taking into consideration the observations made above, within a period of two weeks from the date of production of a copy of this Order.The writ petition is allowed as indicated above. No costs. Connected W. Mp. is closed.