Andhra Pradesh High Court - Amravati
Srinivasa Educational Academy vs The State Of Ap on 26 May, 2025
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
APHC010100092019 IN THE HIGH COURT OF ANDHRA PRADESH [3446]
AT AMARAVATI
WRIT PETITION No: 4484 of 2019 along with W.P.
Nos.2212, 5949, 6748, 7619 of 2019 & 22536 of 2024
W.P. No.4484 of 2019
Srinivasa Educational Academy and Others ...Petitioner(s)
Vs.
The State Of AP and Others ...Respondent(s)
**********
Advocate(s) for Petitioner(s): Mr. P. Sri Raghu Ram, Senior
Counsel, appearing vice Mr. Patanjali
Pamidighantam
Advocate(s) for Respondent(s): Mr. Vivek Chandra Sekhar S, for NMC;
Mrs. S. Pranathi, Special Government
Pleader
CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
SRI JUSTICE R RAGHUNANDAN RAO
DATE : 26.05.2025
Per DHIRAJ SINGH THAKUR, CJ:
W.P. No.4484 of 2019 has been filed challenging the action of the
Government in cancelling the Essentiality Certificate, which was issued on
30.09.2013, in favour of the petitioner for establishment of a medical college in
the name and style of „RVS Institute of Medical Sciences‟ in Chittoor District,
by its order, dated 27.03.2019.
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W.P. No. 2212 of 2019 has been filed challenging the letter, dated
05.02.2019, issued by the Special Chief Secretary, wherein the
petitioner was called upon to show cause as to why the Essentiality
Certificate should not be cancelled.
W.P. No. 7619 of 2019 has been filed challenging the proceedings,
dated 20.05.2019, issued by the Board of Governors (in supersession of
MCI) treating the petitioner institution as a closed medical college and
requesting further action, as arbitrary, illegal.
W.P. No. 6748 of 2019 has been filed challenging the letter, dated
08.05.2019, issued by the Medical Council of India (for short, "MCI"),
rejecting the petitioners' request for annual inspection of their Medical
College, as arbitrary and illegal.
W.P. No. 5949 of 2019 has been filed challenging the condition
imposed in proceedings, dated 03.12.2018, issued by MCI, making
withdrawal of the Essentiality Certificate a prerequisite for adjusting
students.
Aggrieved of the orders passed in appeal upholding the order of
disapproval, dated 04.07.2024, recorded by the National Medical Commission
(for short, "NMC"), writ petition bearing No. 22536 of 2024 has been filed.
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2. The regulation of medical education in the country was earlier governed
by the Indian Medical Council Act, 1956 (hereinafter referred to as "the Act").
However, with effect from 26.09.2018, the Board of Governors was appointed
in supersession of the MCI. Subsequently, after coming into effect of the NMC
Act, 2019, on 25.09.2020, the NMC replaced the Board of Governors as the
Apex regulatory body.
3. The Indian Medical Council Act, 1956, inter alia deals with the issue of
establishment of a new medical college. Regulations have been framed in
terms of Section 10A r/w Section 33 of the Indian Medical Council Act, 1956,
and are called "the Establishment of Medical College Regulations, 1999".
4. Section 10A of the Act inter alia envisages that no person shall
establish a medical college except with the previous permission of the Central
Government. Section 10A(2) of the Act envisages that for purposes of
obtaining permission under Section 10A(1), a scheme shall have to be
submitted to the Central Government and that the Central Government shall
refer the scheme to the council for its recommendations. The scheme to be
submitted to the Government has to be submitted in a prescribed form i.e.,
Form-I, as per regulations, which have been framed in accordance with the
powers conferred under Section 10A r/w 33 of the Act.
According to the regulations, in particular, regulation No.3, an
Essentiality Certificate in Form-2 is required reflecting no objection of the
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State Government/Union Territory for establishment of the proposed medical
college at the proposed site.
For purposes of clarity, regulation 3 of 1999 is reproduced hereunder:
"3. The establishment of a medical college - No person shall
establish a medical college except after obtaining prior permission from
the Central Government by submitting a Scheme annexed with these
regulations."
5. It appears from the record that the Essentiality Certificate was issued in
favour of the petitioner. The contents whereof read as under:
Sl. No. State Figures
Private Government
1 No. of institutions already/existing in the State 26 14
2 No. of seats available or No. of doctors being 3550 2050
produced
3 No. of doctors registered with the State 64718
4 No. of doctors in Government service 13,015
5 No. of Government posts vacant and those in 1987
rural / difficult areas
6 No, of doctors registered with Employment Not available
exchange
7 Doctor population ratio in the State 60: 1 lakh
8 How the establishment of the college would The No. of qualified doctors will
resolve the problem of deficiencies of qualified increase year-wise and a better
medical personnel in the State and improve the doctor/population ratio can be
availability of such medical manpower in the State achieved
9 The restrictions. imposed by the State As per the regulations of Dr. NTR
Government, if any, on students who are not University of Health Sciences,
domiciled In the State from obtaining admissions Vijayawada
in the State be specified
10 Full justification for opening of the proposed To increase doctor/population ratio
college
11 Doctor - patient ratio proposed to be achieved 1:1,000
12 RVS institute of Medical Sciences, being run by Srinivasa Educational Academy, R.V.S.
Nagar, Tirupathi Road, Chittoor District, AP. has applied for establishment of Medical
College under the name and style of R.V.S. Institute of Medical Sciences at R.V.S. Nagar
Muttarevulu Villagem Rutalapattu Mandal, Chitoor District with an intake capacity of 150
seats per annum in the MBBS Course.
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A careful consideration of the proposal the Government of Andhra Pradesh
have decided to issue Essentiality Certificate to the applicant for the establishment
of Medical College with an intake capacity of 150 seats per annum.
It is certified that:
The applicant owns Ac.20 acres of land and manages a 362 bedded hospital.
b) It is desirable to establish a Medical College at R.V.S. Nagar Tirupathi Road,
Chittoor District in public interest.
c) Establishment of Medical College at R.V.S. Nagar Tirupathi Road, Chittoor
District is feasible.
d) Adequate clinical material as per the Medical Council of India norms is
available. It is further certified that in case the applicant fails to create infrastructure
for the Medical College as per MCl norms and fresh admissions are stopped by the
Central Government, that State Government shall take over the responsibility of the
students already admitted in the College with the permission of the Central
Government."
6. Although the Essentiality Certificate was issued in the year 2013, yet
the application for permission to establish the medical college was made
much later when for the first time, the application, dated 31.08.2015, to that
effect was received by the NMC (hereinafter referred to as "National Medical
Commission") vide Central Government communication, dated 14.09.2015,
under Section 10A of the Act for the academic year 2016-17. An assessment
for grant of Letter of Permission was conducted on 06/07.01.2016, which
assessment was considered by the Executive Committee of the MCI in its
meeting held on 30.01.2016, wherein it was noted that there was a deficiency
of 96.9% as regards the faculty as also a deficiency of 97.8% in regard to
residents and also deficiency in teaching beds. Apart from this, the following
deficiencies were also found:
"4. OPD attendance was only 35 on day of assessment which is grossly inadequate.
5. Bed Occupancy is 02% on day of assessment.
6. Radiological & Investigative workload is grossly inadequate.
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7. Casualty: Separate Casualty for O.G is not available.
8. Central Clinical laboratory: Separate sections are not available.
9. ICUs: ICCU & ICUs are yet to be made functional.
10.Labour Room is under construction.
11. OPD: Minor O.T. is yet to be furnished Special clinics in Pediatrics & OG OPD are not
available
12. Audiometry & Speech thereby are not equipped.
13. Blood Bank is not available
14. ETO Stenlizer is not available
15. MRD: ICD X classification of diseases is not followed for indexing.
16. Nursing staff: only 89 Nurses are available against requirement of 175.
17. Paramedical & Non-teaching staff: 94 paramedical & Non-teaching staff are available
against requirement of 100.
18. College building is under construction.
19. College Council, Pharmaco vigilance Committee are not constituted.
20. Lecture Theaters: They are under construction.
21. Central Library is under construction.
22. Students‟, Residents‟ & Nurses‟ Hostels are under construction.
23. Residential Quarters are under construction.
24. Gender Harassment Committee as required by order of Hon‟ble Supreme Court is not
constituted.
25. Website: it is not available.
26. Preclinical departments of Anatomy, Physiology, Biochemistry are under construction.
27. Other deficiencies as pointed out in the assessment report."
The Executive Committee of MCI appears to have taken the following
decision:
"The Executive Committee of the Council further decided to
seek an explanation from the Secretary(ME) of Andhra Pradesh as to
how the Essentiality Certificate had been issued when the Hospital
does not have the requisite number of beds as per the Establishment
of Medical College Regulations,1999".
7. The decision of the Executive Committee was communicated to the
Central Government vide Medical Council‟s communication, dated
31.01.2016. The Central Government vide its communication, dated
26.05.2016, accordingly disapproved the application of the college for the
academic year 2016-17.
Meanwhile, it appears that based on the directives issued by the
Supreme Court Mandated Oversight Committee, dated 13.06.2016, the
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Government of India, Ministry of Health, Family & Welfare, approved the
establishment of medical college at Chittoor with an annual intake of 150
MBBS seats for the academic year 2016-17 subject to the conditions
prescribed in the communication, dated 20.08.2016, issued by the
Government of India, Ministry of Health & Family Welfare.
8. The permission granted in favour of the petitioner was accorded initially
for a period of one year and was required to be renewed on an yearly basis
subject to the verification of the achievement of annual targets as indicated in
the scheme submitted by the petitioner. The process of renewal of permission
would continue till such time as the establishment of medical college and
expansion of hospital facilities were completed and formal recognition of the
medical college was granted.
The petitioner claims that it established the medical college for the
academic year 2016-17 after fulfilling all the eligibility conditions and criteria in
terms of the MCI regulations. Students are said to have been admitted to the
said college who appeared for the first year examination and were promoted
to the second year.
9. According to the stand of the MCI, a communication was received from
the Oversight Committee vide its communication, dated 23.09.2016, whereby
a decision had been taken by the Oversight Committee to conduct the
assessment of the college where conditional approval was accorded by the
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said Committee to Undergraduate/Super Specialty courses for 2016-17. An
assessment then is stated to have been carried out on 06/07.01.2017 by the
MCI and an inspection report, dated 07.01.2017, prepared.
10. The Executive Committee in its meeting held on 13.01.2017 noted the
following deficiencies:
i. Deficiency of faculty is 56.92 % as detailed in the report.
ii. Medical Superintendent reached college at 5 p.m. on the first day of
assessment.
iii. Most faculty & Residents although working for 2-3 months could not
produce tangible evidence like Bank passbook, credit into account, etc.
iv. Shortage of Residents is 56.52 % as detailed in the report.
v. OPD attendance was only 35 on day of assessment against requirement
of 600. There was not even one patient in any OPD at 10 a.m. No staff
was present in OPD/Reception area/Registration area.
vi. Bed Occupancy is 16 % at 10 a.m. on day of assessment as under:
# Department Beds
Available Occupied
1 General Medicine 72 25
2 Pediatrics 24 00
3 Tb & Chest 08 00
4 Psychiatry 08 00
5 Skin & VD 08 00
6 General Surgery 90 04
7 Orthopedics 30 16
8 Ophthalmology 10 02
9 ENT 10 00
10 OG 40 01
Total 300 48
vii. There was NIL Major & NIL Minor Operation on day of assessment. O.T.
list is not available.
viii. Radiological workload was only 2 X-rays. There was no Sonography.
ix. Laboratory investigation workload is grossly inadequate.
x. Histopathology & Cytopathology workload is NIL.
xi. There is no record of any Birth or Death. MRD could not produce any
data of such record being submitted to Govt. authorities.
xii. O.T.: NIL Minor O.T. is available.
xiii. ICUs: There was NIL patient in ICCU or any ICU.
xiv. Labour Room: Septic Labour room and Eclampsia room are not
available.
xv. Only 1 USG machine is available against requirement of 2.
xvi. Blood Bank: it is not available.
xvii. Pharmacy data are inflated.
xviii. CSSD was locked at the time of taking round.
xix. There was NIL Normal Delivery & NIL Caesarean Section on day of
assessment.
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xx. OPD: Injection room is common for males/females. Minor Q.T. is not.
available. Dressing room is common for males/females. Minor Procedure
room is not available in Ophthalmology OPD.
xxi. Audiometry room is not equipped. Speech Therapy is not available:
xxii. Lecture Theaters: Audiovisual aids are not available. E class facility is not
available.
xxiii. Central Library: It is not air-conditioned. Students' Reading room
(Outside), Students' Reading room (Inside), Staff Reading room are not
available.
xxiv. Central Photography Section is not available.
xxv. Students‟, Residents' & Nurses' Hostel are not available.
xxvi. Residential Quarters are not available.
xxvii. Common Rooms for Boys & Girls are not available."
Based upon the report which was communicated to the Central
Government as also a copy whereof was also communicated to the Oversight
Committee, the Central Government vide communication, dated 09.06.2017,
communicated its decision to the petitioner that it was debarred from admitting
the students for two academic years i.e., 2017-18 and 2018-19 and also
authorized the MCI to encash the Bank guarantee of rupees two crores.
11. The petitioner challenged the decision of the Central Government and
the MCI before the Supreme Court, which directed the Central Government to
consider afresh the material on record pertaining to the issue of confirmation
or otherwise of the letter of permission granted to the petitioner. It was also
ordered that the petitioner would be afforded an opportunity of being heard. It
is stated that the Central Government, by virtue of its order, dated 10.08.2017,
reiterated its earlier decision to debar the college from admitting the students
for two academic years 2017-18 and 2018-19 and also reiterated its order to
encash the Bank guarantee of rupees two crores.
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12. It appears that the matter was again taken to the Supreme Court by way
of W.P.(Civil) No.533 of 2017 in which the Apex Court issued directions to the
MCI to conduct fresh inspection within the time scheduled for the academic
year 2018-19 and if any deficiencies were found, to communicate the same to
the petitioner as also afford an opportunity to remove the same as per
regulations. The directions so issued are reproduced hereunder:
"Having heard learned counsel for the parties, we are of the
considered opinion that the Medical Council of India shall conduct fresh
inspection within the time schedule for the academic year 2018-19 and if any
deficiencies are found the same shall be intimated to the petitioner who shall
also be afforded the opportunity to remove the same as per regulations. After
the deficiencies are removed, the Letter of Permission would be granted by
the competent authority. Before any final decision is taken the Central
Government shall consider the Oversight Committee that has been constituted
as per the Constitution Bench decision in W.P. (C) No. 408 of 2017 titled as
"Amma Chandravati Educational and Charitable Trust & Ors. vs. Union of
th
India & Anr." rendered on 18 July, 2017. Needless to say the Medical Council
of India shall do the needful in a time bound manner so that the petitioner-
institution does not feel aggrieved that his case is not considered for the
academic year 2018-2019. The bank guarantee which has been deposited
shall not be encashed and be kept alive."
13. An assessment was yet again conducted by the MCI pursuant to the
orders of the Apex Court to assess the physical and other teaching facilities
for renewal of permission, admission of third batch of 150 MBBS students for
the academic session 2018-19. The assessment report was considered by the
Executive Committee of the Council in its meeting held on 14.12.2017 wherein
it was observed that:
" The Executive Committee of the Council considered the assessment
th th
report (17 and 18 November, 2017) carried out in compliance of the Order
dated 22.09.2017 passed by the Hon'ble Supreme Court in Writ Petition (c)
No. 533/2017 filed by Srinivasa Educational Academy - Vs - Union of India
&Anr., and noted the following:-
1. Deficiency of faculty is 68% as detailed in the report.
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2. Shortage of Residents is 100 % as detailed in the report.
3. At 10 a.m., NIL Doctors, other staff & patients were seen in OPD.
4. OPD attendance upto 2 p.m. on day of assessment was only 63 against
requirement of 750.
5. Bed Occupancy at 10 a.m. on day of assessment was 02 %.
6. O.T. list for the day was not available.
7. There was only 1 Major & NIL Minor Operation on day of assessment.
8. There was NIL Normal Delivery & NIL Caesarean Section on day of
assessment.
9. Laboratory & Radiological investigations are grossly inadequate.
10. Blood Bank is not functional.
11. OPD: Injection room is common for males/females. Dressing room is common
for males/females. Plaster room & Plaster Cutting room are not separate.
Minor O.T. is not available. Dressing room is not available in Ophthalmology
OPD.
12. Audiometry & Speech Therapy are not equipped.
13. Wards: Ancillary facilities are not available in any ward.
14. Casualty: Separate Casualty for O.G. is not available. Disaster Trolley &
Crash Cart are not available.
15. O. T.s: 4 Major O.T.s are available against requirement of 5. NIL Minor O.T. is
available against requirement of 2.
16. ICUs: There was NIL patient in ICCU or any ICU. All the ICUs are not yet
functional.
17. Labour room: Eclampsia room is not available.
18. Radiodiagnosis department: 1 Mobile X-ray machine is available against
requirement of 2. 1 Static X-ray machine is available against requirement of 3.
1 USG machine is available against requirement of 2.
19. CSSD: It was locked at time of visit. Receiving & Distribution points are not
separate.
20. Central Research Laboratory is not available.
21. MRD: There is no record of Birth & Death in the hospital. Data submitted to
Government Authorities in this regard could not be produced either.
22. Examination Hall: None available against requirement of 2.
23. Lecture Theaters: 2 Lecture Theaters are available against requirement of 3.
Audiovisual aids are not available. Hospital Lecture Theater is not available. E
class facility is not available.
24. Central library: It is not air-conditioned. Students' reading room (Outside) &
Students' Reading room (Inside) are not separate. Staff reading room is not
available. Available books are 3,850 against requirement of 4,000. 20
Journals are available against requirement of NIL Internet Nodes are
available.
25. Central Photography section is not available.
26. Students' Hostels: They are not available. They are accommodated in
Engineering College campus 1 km. away.
27. Residents' Hostel is not available.
28. Nurses' Hostel is not available.
29. Residential Quarters: NIL Residential quarters are available in the campus.
30. Anatomy department: Only l cadaver is available.
31. Pathology department: Practical laboratories, Museum are not functional.
Demonstration room is not available.
32. Microbiology department: Practical laboratory, 7 Service Laboratories, Media
Preparation facility, Museum are not functional. Demonstration room is not
available.
33. Pharmacology department: Practical laboratories, Museum are not functional.
Demonstration room is not available.
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34. Forensic Medicine department: Practical laboratory, Museum, Autopsy room
are not functional. Demonstration room is not available. Cold Storage is not
available.
35. Community Medicine department: Practical laboratory, Museum are not
functional. Demonstration room is not available.
36. RHTC: It is not functional.
37. UHC: It is not functional.
38. Dean's office: Staff room & College Council hall are not available:
39. Other deficiencies as pointed out in the assessment report."
The Executive Committee noted that Regulation 8(3)(1)(a) of the
Establishment of Medical College Regulation (Amendment) 2010 (Part II),
th th
dated 16 April, 2010 and amended on 18 March, 2016 provides as under:
(a) Colleges in the stage of Letter of Permission upto Il renewal (i.e.
Admission of third batch)
If it is observed during any inspection/assessment of the institute that
the deficiency of teaching faculty and/or Residents is more than 30% and/or
bed occupancy is <50% (45% in North East, Hilly terrain etc), compliance of
rectification of deficiencies from such an institute will not be considered for
issue of Letter of Permission (LOP)/renewal of permission in that Academic
Year."
14. Based on their decision of the Executive Committee, the Central
Government vide its order, dated 31.05.2018, decided not to renew the
permission for the session 2018-19. Needless to say the order of the
Government of India was passed after affording an opportunity of being heard
to the college before a Personal Hearing Committee constituted for that
purpose on 19.01.2018. The Hearing Committee after considering the
submissions and the compliance furnished by the college, had observed as
under:
"High order deficiency of faculties, residents, bed occupancy and
infrastructure has been pointed out. The college has not denied them,
recommendation of MCI for disapproval may be accepted".
15. It also appears from the record that those students who had undertaken
admission in the petitioner college had approached the High Court of
Judicature at Hyderabad for the State of Telangana and Andhra Pradesh
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seeking their relocation to the Government medical colleges as they claimed
that the medical college of the petitioner lacked basic facilities and
infrastructure.
Directions were issued by the High Court, pursuant to which based
upon the communication, dated 13.11.2018, received from the Special Chief
Secretary to Government, it appears from the record that the Assistant
Secretary of the Board of Governors (in supersession of Medical Council of
India) replied as under:
"In this regard, your kind attention is invited to the revised Essentiality
Certificate dated 30.09.2013 issued by the Govt. of Andhra Pradesh. In the
said certificate, it is 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.
In view of the above, you are requested to convey your decision with
regard to withdrawal of the Essentiality Certificate for further consideration in
respect of reallocation of the students from RVS Institute of Medical
Sciences, Muthirevula Village, RVS Nagar, Tirupati Road, Chittoor District to
other medical colleges of the State."
16. It appears that the Board of Governors then did accept the proposal of
the Government of Andhra Pradesh to adjust 150 students in eleven
Government medical colleges by increasing their strength as a one-time
exception for purposes of such adjustment only.
Another communication, dated 08.02.2019, was issued by the Assistant
Secretary of the Board of Governors seeking information regarding the
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decision taken by the State Government with regard to the withdrawal of the
Essentiality Certificate.
17. The Special Chief Secretary to Government, Health, Medical & Family
Welfare Department, appears to have acted on the basis of the
communications issued by the Assistant Secretary regarding the decision of
the withdrawal of the Essentiality Certificate and by virtue of show-cause
notice, dated 05.02.2019, the petitioner was asked to show-cause as to why
the Essentiality Certificate be not cancelled/withdrawn on account of the
deficiencies which had been pointed out by the Medical Council of India. An
explanation was tendered in which the petitioner claimed that no inspection
was held by the MCI after November, 2017, even though they had submitted
their application form.
The Government then appears to have constituted a Committee for
physical verification by a surprise inspection to crosscheck the documentary
proofs submitted by the President of the petitioner academy. Based upon the
report pursuant to the surprise check, the Government, by virtue of its order,
dated 27.03.2019, cancelled the Essentiality Certificate by observing thus:
th
" 7) In the ref 10 cited, the Director of Medical Education (Academic)
has submitted the inspection report to Government. In its report, it was
stated that there is a visible effort from the Administration to improve the
construction and making the availability of infrastructure in Pre clinical,
Para clinical and Hospital. The Hostels are nearing completion and ready
to occupy. The Library, Lecture hall and Examination hall are sufficiently
suited to the needs. The staff rooms, Demo halls and Practical halls
adequate. In the Hospital, the daily turn out OPD is minimum. The
admitted patients are around 35 indicating low bed occupancy. The turn
out of Laboratories, Radiology department, Casualty is very low. So the
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students are not having any chance to learn in the hospital or in the OT or
in Casualty. As they are entering into full clinical years, this low turn out
will make them deficient in clinical training. So, they will become less
competent to deal with patient care. There is huge deficiency of teaching
faculty as well as Residents around 75 to 80 %.
8) Government after careful examination of the matter, hereby
st
cancel the Essentiality Certificate in the ref 1 cited for establishment of
RVS Institute of Medical Sciences, issued in favour of the President,
Srinivasa Educational Academy, RVS Nagar, Tirupati Road, Chittoor."
18. The order passed by the Government of Andhra Pradesh cancelling the
Essentiality Certificate, dated 27.03.2019, issued earlier in favour of the
petitioner was challenged in W.P. No.4484 of 2019. By virtue of interim order,
dated 17.04.2019, a Division Bench of this Court was pleased to stay the
operation of the order impugned passed by the State Government on the
basis of the decision rendered by the Apex Court in Chintpurni Medical
College and Hospital v. State of Punjab1.
19. In the case of Chintpurni Medical College (supra), the Apex Court
was considering the scope of powers exercisable by the State Government to
withdraw the Essentiality Certificate issued by it. Three inspections conducted
by the MCI had found that the college was deficient to the extent of 100% and
therefore, recommendations were made to the Central Government not to
issue the recognition to the petitioner college under Section 11 of the Indian
Medical Council Act, 1956.
The argument advanced for the College was that the State
Government, having issued the Essentiality Certificate, was not vested with
1
(2018) 15 SCC 1
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the power to withdraw the same. The Apex Court held that the purpose of the
Essentiality Certificate was to enable the Central Government acting under
Section 10A of the Act to take an informed decision for permitting the opening
or establishment of a new medical college and that once the college is
established, its functioning and performance and even the de-recognition of its
courses was controlled only by the provisions of the Indian Medical Council
Act, 1956, which was a legislation under Entry 66 of List-I of Seventh
Schedule of the Constitution. It was held thus:
"17. 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 there 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."
20. In para No.18 of the judgment, the Apex Court drew a distinction
between the justified existence of a college and the irregular/illegal functioning
of an existing college and held that they belong to different order of things and
could not be mixed up. Rejecting the argument made on behalf of the State
that the power to issue a certificate carries a power to withdraw the same in a
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like manner as contemplated by Section 21 of the General Clauses Act, 1897,
the Apex Court held thus:
"26. Section 21 has no application to a certificate since a
certificate is neither a notification, nor an order, or rule or bye- law as
contemplated by that Section. This Court has on several occasions held
that where a statutory authority is enjoined to perform a quasi judicial
function such as that of grant of registration to a political party or issue a
certificate under the Income Tax Act, Section 21 has no application and
confers no power to review such an Act because the party has violated a
provision of the constitution of law, vide Indian National Congress (I) vs.
Institute of Social Welfare (2002) 5 SCC 685 and Industrial Infrastructure
Development Corporation (Gwalior) M.P. Ltd. vs. Commissioner of
Income Tax, Gwalior (2018) 4 SCC 494."
21. It was also held that the State Government, in according an Essentiality
Certificate, must be construed to be discharging a quasi-judicial function and,
in that regard, is bound to enquire and determine the existence of several
factors like the number of existing institutions, the number of doctors
becoming qualified annually, the number of doctors registered with the State
Medical Council and employed in Government Service, and the number of
doctors registered with employment exchange etc. It further held that the State
must also determine the doctor population ratio in the State, doctor - patient
ratio to be achieved and the impact of the proposed college on the availability
of medical manpower in the State. In that context, held that such a
determination could not be construed as an order "contemplated by Section
21 of the General Clauses Act".
While holding that the power to issue an Essentiality Certificate is a
power, which must be treated as exhausted once it is exercised, it was further
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clarified that the State would be entitled to withdraw such a certificate where
the same was obtained by playing fraud. The Apex Court held thus:
"36. We may not be understood to be laying down that under
no circumstances can an Essentiality Certificate be withdrawn. The State
Government would be entitled to withdraw such certificate where it is
obtained by playing fraud on it or any circumstances where the very
substratum on which the Essentiality Certificate was granted disappears or
any other reason of like nature."
22. In Sukh Sagar Medical College and Hospital v. State of Madhya
Pradesh2, the issue that came up for consideration before the Apex Court
was whether the State Government had unjustly revoked the Essentiality
Certificate granted to Gyanjeet Sewa Mission Trust for establishing a medical
college at Jabalpur in the State of Madhya Pradesh, being contrary to the
decision of the judgment by the Apex Court in Chintpurni Medical College.
After issuance of the Essentiality Certificate, the Trust was granted
permission for establishing a medical college on the basis of the Supreme
Court Mandated Oversight Committee. The permission was valid for a period
of one year and to be renewed on yearly basis.
No renewal of permission was accorded to the said college based upon
the MCI reports which indicated that the college had not rectified the
deficiencies pointed out by the Inspection Committee of the MCI which were
gross and had even jeopardized the academic year of first batch of students
admitted to the college for the year 2016-17.
2
(2021) 13 SCC 587
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23. The three Judge Bench of the Apex Court in Sukh Sagar Medical
College agreed with the ratio of the judgment rendered in Chintpurni
Medical College case to the extent that the State, in issuing an Essentiality
Certificate, was exercising a quasi-judicial function and that Section 21 of the
General Clauses Act, 1897, could not be invoked and further that the State
Government was not deprived of its power to revoke or withdraw the
Essentiality Certificate in a case where (a) the same was secured by playing
fraud on the State Government (b) the substratum for issuing the certificate
was lost or disappeared and (c) such like ground, where no enquiry is called
for on the part of the State Government. Reliance in this regard is also placed
on the view expressed in para No.36 of Chintpurni Medical College case
and held thus:
"18. ...In other words, we hold that Chintpurni Medical College
(supra) does not lay down in absolute terms that the State cannot revoke
the Essentiality Certificate once granted for opening of a new medical
college within the State. The observations in paragraph 36 of the reported
decision also reiterate this position and make it amply clear that in
exceptional circumstances referred to therein, the State is free to do so."
24. The Apex Court further held that since the college had failed and
neglected to discharge its commitment given to the State at the time when the
Essentiality Certificate was issued and was incapable of fulfilling the minimum
norms specified by the MCI for starting and running a medical college, it had
thus misrepresented the State at the relevant time by giving hope of ensuring
installation of minimum infrastructure as also robust organizational structure
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for running a medical college, which was required to be done in a time bound
frame.
It thus held that there was constructive fraud played upon the State
Government by the Trust, who had failed even after lapse of five years from
the date of issuance of the Essentiality Certificate, to secure the requisite
permissions from the MCI and the Central Government to run a medical
college as per the scheme. The Hon‟ble Supreme Court further held:
"25. ... On a comprehensive view of the state of affairs, the
fulfillment of MCI norms and other allied conditions must be understood
as an implied imperative for the consideration/continuation of
Essentiality Certificate. For, there can be no deviation from the
standards. This being a clear case of a nonfunctioning college,
warranted immediate intervention of the State Government in larger
public interest and also because the substratum had disappeared. It
would certainly come within the excepted category, where the power of
withdrawal of Essentiality Certificate ought to be exercised by the State
and more particularly not being a case of an established college per
se."
and finally it was held that on account of the gross deficiencies, the
case fell within the excepted category where the State Government ought to
act upon and provide a window to some other institute capable of fulfilling the
minimum standard/norms specified by the MCI for establishment of a new
medical college.
25. The petitioner then appears to have applied again for renewal of Letter
of Permission (LoP) for the academic year 2019-20, which, according to the
petitioner, was not considered by the Board of Governors apparently due to
the issues concerning transfer of students. According to the petitioner, an
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effort yet again was made for seeking permission for the academic year 2020-
21 and 2021-22. However, insofar as the permission for 2020-21 is
concerned, it was rejected, as stated, on account of expiry of consent of
affiliation and insofar as the academic year 2021-22 is concerned, the same is
stated to have been rejected on the ground of invalidation of Essentiality
Certificate and consent of affiliation.
26. It appears that by virtue of notification, dated 17.01.2017, issued by the
MCI, form-2 pertaining to Essentiality Certificate was amended. In the
interregnum, since the Medical Council of India was insisting on the
Essentiality Certificate to be filed in the new format along with the application
form filed for seeking LoP, the issue was agitated in the pending petition.
Finally, the Government, by virtue of communication, dated 19.05.2023,
clarified that the Essentiality Certificate, which was issued earlier, would be
deemed to be in force subject to outcome of the writ petition bearing No.4489
of 2019.
27. The NMC, however, insisted that in the absence of Essentiality
Certificate as per the revised format, the application for academic year 2023-
24 had been disapproved and it was conveyed by its letter, dated 22.06.2023.
The basis for rejection was that the Essentiality Certificate was of the year
2013 and not as per the format, which was revised in the year 2017. This
forced the petitioner to approach this Court in W.P. No.4484 of 2019 by way of
I.A. No.2 of 2023, which was allowed and a direction was issued to the State
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Government to issue the Essentiality Certificate in favour of the petitioner
Institute in the revised format, which orders were carried out and the certificate
came to be issued. Immediately upon receipt of the revised Essentiality
Certificate on 10.08.2023, the petitioner claims to have applied for processing
the application for new admissions for the academic year 2023-24 to
respondent Nos.3 & 4 i.e., the National Medical Commission and Medical
Assessment and Rating Board (MARB) respectively.
28. Despite the fact that the case of the petitioner had been disapproved by
the MARB, the petitioner, based upon the revised Essentiality Certificate
approached the respondents for considering the Essentiality Certificate for
grant of permission stating therein that the counseling in the State of Andhra
Pradesh had yet to start and therefore, the application could be processed.
In response to the said communication, the Under Secretary, MARB,
advised the petitioner that since a decision had already been taken, it could
appeal to the NMC or the Central Government against the order of
disapproval. An appeal was then filed before the NMC under Section 28(5) of
the NMC Act, which was rejected by virtue of order, dated 07.08.2024.
29. A second appeal was preferred under Section 28(6) of the NMC Act to
the Government of India, which too came to be rejected holding that since the
MBBS and PG Courses counseling timelines were complete, the second
appeal could not be considered as it had become infructuous for the academic
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year 2023-24 and that the NMC would follow due process for the next
academic year 2024-25.
It is not out of place here to mention that NMC did conduct an
inspection and submitted a report, dated 22.02.2023, which recorded
deficiency of teaching faculty to the extent of only 1.85% and deficiency of
resident Doctors as NIL. Insofar as the infrastructure is concerned, the same
was recorded as adequate and a similar remark was made in regard to clinical
materials also. The affiliating University also appears to have conducted an
inspection for purposes of affiliation on 03.06.2023 in which the deficiency of
teaching faculty was recorded as 3.70, the deficiency of infrastructure of
college and hospital as NIL, apart from showing NIL deficiency as regards the
position of senior residents/tutors and clinical materials. The petitioner then
applied for LoP for making admissions for the academic year 2024-25 on
24.11.2023.
30. In the meantime, the NMC had framed new regulations called as
"Guidelines for Under Graduate Courses under Establishment of New Medical
Institutions, Starting of New Medical Courses, Increase of Seats for Existing
Courses & Assessment and Rating Regulations, 2023".
The key difference between the regulations of the years 2020 & 2023 as
regards faculty requirement, clinical material standards, in-patient attendance
and in-patient bed occupancy are reproduced hereinbelow:
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2023 Regulations
Category 2020 Regulations ("Guidelines for Under Graduate Courses
(Minimum Requirements for Annual under Establishment of New Medical
M.B.B.S. Admissions Institutions, Starting of New Medical Courses,
Regulations, 2020) Increase of Seats for Existing Courses &
Assessment and Rating Regulations, 2023")
Faculty: 54-116 Faculty: 114
Faculty Strength Tutor/Demo/SR: 43-76 Tut/Demo: 32
(Increasing across renewals) SR: 58
OPD Attendance 600-1200 (Increasing across
1200 per day
(per day) renewals)
330-600 (Gradual increase
Bed Strength 605 beds
with renewals)
60-75% (increasing across
Bed Occupancy Minimum 80% per annum
renewals)
31. The NMC then is stated to have conducted an inspection on 27.06.2024
wherein the following deficiencies were found:
Deficiency of teaching faculty -73.7%
Deficiency of Tutor/residents/demonstrators - 66%.
Apart from this, the following are the observations recorded by the
Inspection Committee:
"Remarks:
* The deficiency of faculty is 73.7% and tutors is 66%.
* Staff quarters are under renovation. Though a few of them are occupied
by the students of different streams.
* At 10:40am as per AEBAS there were eight professors, seven
Associate Professors, nine Assistant Professor, eight Senior Residents and 41
Tutors/JR. Though later during head counts the faculty reported later were also
verified.
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* On visit to Radiology department, the verification physical and digital
records of X Rays was done and showed a mismatch. Many of requisition forms
were incomplete with regards to name of Investigation required, signature and
name/stamp of prescribing doctors. On an attempt to verify earlier days data
digitally images of the X Rays and Data was not available. The technician said
that this could be due to software errors; Similarly, CT scan data was not
available for confirmation. CT scan technician and Radiologist were not available
to show the data
* Pediatric ward, We interacted with Rimi Thomas on duty sister Informed
us that all pediatric patients have arrived today morning i.e. on the assessment
day. No pediatrician was available to interact. On interaction with the
patients/children in Pediatric ward the most of the children were healthy and
playful.
* The duty doctor in ICU was not available and no patients has been
admitted in fast 5 days and only one patients was available today.
* Overall the quality of patients admitted in the wards were easily
treatable on OPD basis. Further, the diversity in variety of clinical material was
missing.
* In female wards the patients themselves revealed that they were
brought to the hospital today for preventive health checkup camps though they
had no illness.
* Majority of declaration forms were INCOMPLETE specially with regards
to paint 18 showing emoluments received from the college. While doing head
counts some faculty consented to have discrepancies in this regards. In this
regards we requested authorities to provide form 16 A /salary slips / evidence of
salary payments made but this was not provided. Thought written statements
from Account officer of the Institution was given to a few faculty members. This
aspect needs to be plaid for its correctness at your end
* During visit to laboratory at 2 PM the work load was assessed and
found meager as claimed, Also no laboratory requisition forms/payment receipts
and lab reports were available for today's Investigations. and last 3 days
workload: Now at 5.30 PM laboratory forms and lab reports of 54 patients has
been provided which are enclosed for your perusal."
32. A dissent note is then stated to have been recorded by the Dean of the
petitioner college wherein the following remarks were recorded on the report
of the Inspection Committee:
" Dean‟s Dissent note:
1. Our faculty were available as per ABAS data & same were produced
for head count. However they were not accepted due to not producing Form-16.
As per Income Tax Department, our Institute‟s Form-16 are not due. As a result
we could not produce it. Therefore we request you to kindly accept our ABAS
data which is foolproof & transparent.
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2. According to annexure FAQ in NMC website question 12, it is
acknowledged that tutors & senior residents together are expected to meet the
total no. of personnel. The same was not followed.
3. Our declaration forms sent to NMC office in original may be thoroughly
verified to check the qualification of our faculty members & TV footage may be
verified for clinical material. "
33. By virtue of communication, dated 04.07.2024, the NMC communicated
to the petitioner its disapproval for LoP for the session 2024-25. An appeal
was preferred against the decision of the NMC on 04.07.2024 under Section
28(5) of the NMC Act before the National Medical Commission against the
decision taken by the Medical Assessment and Rating Board disapproving the
proposal of the petitioner.
The first appeal of the petitioner was rejected by virtue of order, dated
07.08.2024. The second appeal preferred under Section 28(6) of the NMC Act
was preferred before the Government, which too came to be dismissed by
virtue of order, dated 30.09.2024.
34. At this stage, it may be necessary to state that whereas the cancellation
of the Essentiality Certificate has been challenged in W.P.No.4484 of
2019, the decision of the appellate authorities confirming the Order of
MARB in issuing the Letter of Disapproval for the academic year 2024-
25 has been challenged in W.P. No.22536 of 2024.
35. It is in the context of the aforementioned facts that Mr. P. Sri
Raghu Ram, learned Senior counsel appearing for the petitioner, urged
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that the principles of law as laid down in the case of Chintpurni Medical
College would be applicable in the present case and not those laid down in
the case of Sukh Sagar Medical College inasmuch as the instant case was
not a case where there was any fraud, which could be attributable either
actual or constructive, to the petitioner.
It is stated that even the substratum for the purpose for which
Essentiality Certificate had been granted, could not be said to have been lost
inasmuch as the petitioner was ready with infrastructure as early as in the
year 2019 and it was only on account of the attitude of the NMC that the
petitioner was not considered for grant of LoP on flimsy excuses either that
the Essentiality Certificate was not in the revised format or otherwise rejecting
the case of the petitioner on grounds that it lacked adequate infrastructure and
manpower.
It was further urged that it was not open to the NMC to suggest that the
substratum had been lost inasmuch as it was in the year 2023 when they
conducted the inspection and found that not only the infrastructure was in
place as required but the deficiency as regards the manpower is stated to be
limited to only 1.85% in the report of the NMC. It was further urged that if it
was a case for cancelling the Essentiality Certificate on the grant of loss of
substratum then the State Government, in the normal circumstances, ought to
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have issued a show-cause notice to the petitioner on that specific ground
which would have been answered by the petitioner.
36. In other words, it was sought to be suggested by the learned Senior
Counsel that in the absence there being any request by any other entity
expressing its desire to setup a college in that area, it could not be said that
the substratum was lost inasmuch as the need to have a hospital or a medical
college still subsisted in the said area. It was, therefore, sought to be urged
that in the absence of any such specific ground having been made by the
Government, the Essentiality Certificate could not have been cancelled
without giving an opportunity to the petitioner to submit its explanation to the
same and since there was no such ground made out in the show-cause
notice, any decision taken by the Government would be unsustainable in law.
Although no such specific case has been set up in that regard by the
petitioner in the pleadings, however, learned Senior Counsel sought to setup a
case of discrimination and unfair treatment violative of Article 14 of the
Constitution of India, during the course of arguments on the ground that
medical colleges with much poorer infrastructure had been permitted by the
NMC to admit the students.
37. In our opinion, we cannot, at this stage, go into the issue of
discrimination qua other medical colleges in other states in the absence of
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specific pleadings in this regard in the petition and without inviting proper
response in regard to such averments.
38. The next argument of learned Senior Counsel was that it was fallacious
to say Sukh Sagar Medical College laid down any ratio which was contrary
to the principles of law laid down in Chintpurni Medical College. It was
sought to be emphasized with reference to the judgment of Career Institute
Educational Society v. Om Shree Thakurji Educational Society3.
We are, however, not convinced with the argument of learned Senior
Counsel for the simple reason that the ratio of the judgment in Chintpurni
Medical College case clearly was that the State Government has the power
to withdraw the Essentiality Certificate where it was obtained by playing fraud
or where the very substratum on which the Essentiality Certificate was
granted, disappeared.
39. We may not be required to delve much by applying tests laid down by
the Apex Court in the judgments cited by the learned Senior Counsel to
determine as to what is the ratio laid down by the Apex Court in Chintpurni
Medical College case inasmuch as we have no doubt that the ratio of the
judgment is that the State Government has the power to withdraw the
Essentiality Certificate in view of what was stated by the Apex Court in the
said judgment, in particular, para No.36, which has been already reproduced
3
(2023) 16 SCC 458
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in the preceding paragraphs. In fact, the three Judge Bench of the Hon‟ble
Supreme Court had only expanded the concept of fraud on which the
Essentiality Certificate could be withdrawn.
Moreover, the ratio of the judgment has subsequently been followed in
V N Public Health and Educational Trust v. State of Kerala4 where a three
Judge Bench of the Apex Court held thus:
"31. Let us make it clear that there can be no analogy drawn
between the facts of Chintpurni case (Supra) and the present
case. The Sukh Sagar Case (Supra) actually expanded the
circumstances in which the State Government may withdraw the
EC. The dictum of Sukh Sagar (Supra) actually supports the case of
respondents.
32. The law thus stand settled that the State Government
has power to withdraw the EC where it is obtained by playing fraud
on it or where the very substratum on which the EC was granted
vanishes or any other reason of like nature."
40. We, therefore, have no doubt that the Essentiality Certificate could have
been cancelled on the ground of either fraud or the substratum having been
lost.
41. Another argument advanced by learned Senior Counsel was that the
cancellation would be bad because the same was done by the State
Government at the behest of NMC (at that time, the Board of Governors) and
was not an independent initiative of the Government, who never intended to
cancel the said certificate. Reference in this regard was also made yet again
to Chintpurni Medical College case and in particular, para No.8 where the
4
(2021) 17 SCC 189
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Apex Court had, in similar circumstances, held the certificate cancellation
order could have been vitiated on the ground that it was done pursuant to the
diktat of the MCI in that case. It was in the above context that, in para No.8,
the Apex Court held that the Government appears to have withdrawn the
Essentiality Certificate acting under the diktats of the MCI, which would vitiate
the withdrawal of the Essentiality Certificate by the State. For facility of
reference, para No.8 is reproduced as under:
"8. Before going into the merits of the submission, it is
important to note that the State Government appears to have withdrawn
the essentiality certificate acting under dictation of MCI. This is obvious
from the letter dated 13-7-2017 referred to above. This by itself would
vitiate the withdrawal of the essentiality certificate by the State, vide
Anirudhsinhji Karansinhji Jadeja v. State of Gujarat and Dipak Babaria v.
State of Gujarat."
42. Reference in Chintpurni Medical College case was also made to the
principle of administrative law by quoting a passage from Wade and Forsyth
in Administrative Law5 as under:
"Closely akin to delegation, and scarcely distinguishable from it in
some cases, is any arrangement by which a power conferred upon one
authority is in substance exercised by another. The proper authority may
share its power with someone else, or may allow someone else to dictate
to it by declining to act without their consent or by submitting to their
wishes or instructions. The effect then is that the discretion conferred by
Parliament is exercised, at least in part, by the wrong authority, and the
resulting decision is ultra vires and void. So strict are the courts in
applying this principle that they condemn some administrative
arrangements which must seem quite natural and proper to those who
make them."
43. In Chintpurni Medical College case, the MCI had addressed a letter,
dated 13.07.2017, to the Government of Punjab that they would consider the
5 th
10 Edition at p. 269
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request for permission to facilitate shifting of the students to medical colleges
in other states on account of the inspection conducted by the MCI, which
found the college‟s deficiency and was banned for a period of two years, only
on the condition that the Essentiality Certificate issued in favour of the said
colleges be withdrawn.
Even in this case, it is stated that the Essentiality Certificate would not
have been cancelled by the State Government but for the communication, by
virtue of which the Board of Governors (MCI) have nudged the Government to
withdraw the Essentiality Certificate. In this regard, it would be pertinent to
refer to the said communication, dated 03.12.2018, in which the Assistant
Secretary addressed a letter to the Special Chief Secretary in the following
terms:
"In continuation to this office letter No.MCI-34(41)(R-53)/2018-
Med./145912, dated 13.11.2018. the subject noted above. I am directed to inform
you that in compliance of the Hon'ble High Court of AP, orders dt. 24.08.2018 in
WP No. 27949, 27968 and 30074 of 2018, the matter with regard to reallocate the
students of RVS Institute of Medical Sciences, RVS Nagar, Chittoor, A.P. to other
Govt. Medical Colleges, Government of A.P. by increasing the seats was
considered by the Board of Governors on 22.11.2018 and decided to approve the
proposal of Govt. of Andhra Pradesh submitted vide letter dated 09.10.2018 and
permit Govt. of Andhra Pradesh to accommodate 150 MBBS students admitted in
academic year 2016-2017 under A, B & C category seats in RVS Institute of
Medical Sciences in 11 Govt. Medical College of Andhra Pradesh by increasing the
seats (one time) only for the purpose of adjustment of students, subject to
withdrawal of Essentiality Certificate by Govt. of Andhra Pradesh in respect of
RVS Institute of Medical Sciences, Chittoor, A.P."
44. It appears that acting on the diktat of the Assistant Secretary of the
Board of Governors, a show-cause notice was issued by the Special Chief
Secretary to the Government, dated 05.02.2019, to the petitioner to show-
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cause as to why the Essentiality Certificate be not cancelled/withdrawn. The
Assistant Secretary of the Board of Governors did not leave the matter at that
and proceeded to follow up about the issue of cancellation of Essentiality
Certificate by yet another communication, dated 08.02.2019, which reads as
under:
"In this regard, I am directed to request you to intimate the
present status with regard to reallocate the students of RVS Institute
of Medical Sciences, RVS Nagar, Chittoor, A.P. to other Govt.
Medical Colleges, Government of A.P. as well as decision of State
Govt. with regard to withdrawal of Essentiality Certificate."
Needless to say that finally the Essentiality Certificate came to be
cancelled on 27.03.2019, which is the order impugned in writ petition W.P.
No.4484 of 2019.
45. Learned counsel for the respondents did not controvert the aforestated
position of law as was stated by the Apex Court in Chintpurni Medical
College. However, an effort was made to suggest that since the petitioner
lacked the requisite manpower, infrastructure and the faculty, the cancellation
of the Essentiality Certificate was justified in the facts and circumstances of
the case.
46. In our opinion, even in the present case, just as in the case of
Chintpurni Medical College, the cancellation of Essentiality Certificate was
done only on account of the pressure exerted at the behest of the Board of
Governors at the relevant time in 2019 when the adjustment of candidates in
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other medical colleges was made subject to the condition of withdrawal of the
Essentiality Certificate by the Government of Andhra Pradesh and the
Government appears to have succumbed to that pressure and issued a show-
cause notice following which the final orders came to be passed on
27.03.2019.
47. This principle of law was also dealt with by the Apex Court in
Anirudhsinhji Karansinhji Jadeja v. State of Gujarat6 wherein it was held:
"11. ...This is a case of power conferred upon one authority being
really exercised by another. If a statutory authority has been vested with
jurisdiction, he has to exercise it according to its own discretion. If the
discretion is exercised under the direction or in compliance with some
higher authority's instruction, then it will be a case of failure to exercise
discretion altogether. In other words, the discretion vested in the DSP in
this case by Section 20-A(1) was not exercised by the DSP at all.
12. Reference may be made in this connection to Commr. of
Police v. Gordhandas Bhanji, in which the action of Commissioner of
Police in cancelling the permission granted to the respondent for
construction of cinema in Greater Bombay at the behest of the State
Government was not upheld, as the rules concerned had conferred this
power on the Commissioner, because of which it was stated that the
Commissioner was bound to bear his own independent and unfettered
judgment and decide the matter for himself, instead of forwarding an
order which another authority had purported to pass.
13. It has been stated by Wade and Forsyth in Administrative Law,
7th Edn. at pp. 358-59 under the heading "Surrender, Abdication,
Dictation" and sub-heading "Power in the wrong hands" as below:
"Closely akin to delegation, and scarcely distinguishable
from it in some cases, is any arrangement by which a
power conferred upon one authority is in substance
exercised by another. The proper authority may share its
power with someone else, or may allow someone else to
dictate to it by declining to act without their consent or by
submitting to their wishes or instructions. The effect then
is that the discretion conferred by Parliament is
exercised, at least in part, by the wrong authority, and the
resulting decision is ultra vires and void. So strict are the
courts in applying this principle that they condemn some
administrative arrangements which must seem quite
natural and proper to those who make them....
6
(1995) 5 SCC 302
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Ministers and their departments have several times fallen
foul of the same rule, no doubt equally to their
surprise...."
14. The present was thus a clear case of exercise of power on the basis
of external dictation. ..."
48. Be that as it may, the cancellation of the Essentiality Certificate on this
ground would stand vitiated.
49. While we have held that the order of cancellation is unsustainable on
the ground that it had been issued primarily at the behest of the Board of
Governors, yet we do not wish to lay down as a matter of proposition that the
order of cancellation, having been set aside on that ground once, the
Government is precluded from considering the issue yet again, independent of
undue pressure as was exerted then by the Board of Governors, who had
made the request for adjustment of students in the other medical colleges
subject to the withdrawal of the Essentiality Certificate. Certainly, the
Government can consider the issue yet again. However, we wish to state that
for taking a call on whether the substratum has been lost or not, a few
additional factors may be gone into by the Government.
a) Whether the Government has a policy which determines as
to how many medical colleges are envisaged to be opened in the
entire State, region, district or local area.
b) Whether the Government had received any other
application for opening a medical college by an applicant, who has a
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hospital, which otherwise satisfies the requirement of the NMC Act
and fulfills the needs of the State qua that region, district or local
area.
c) Whether during the interregnum between 2013 and 2025,
any other medical college has been permitted to be set up according
to the policy of the Government in that particular region, district or
local area and whether according to the policy, there is no further
need for another medical college.
d) If the policy envisages only one medical college in a district
and if there is no hospital in that district, which satisfies the
conditions of eligibility as per the NMC Act, then whether the
Essentiality Certificate is at all to be cancelled and the applicant has
to be given a chance to improve its infrastructure, faculty etc., to
ensure that a full-fledged medical college becomes operational.
50. Notwithstanding the above, it can be seen that whereas the order of
cancellation was passed by the Government in the year 2019, the same came
to be stayed a month later on 17.04.2019 by a Division Bench of this Court,
whereafter the petitioner had continuously been seeking the permission from
the Central Government to run the college and make admissions. Inspections
were also carried out from time to time, details whereof had already been
given in the preceding paragraphs. It appears that in 2023, the Inspection
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carried by the NMC, on which learned counsel for the petitioner placed heavy
reliance, reflected the petitioner college to be mostly compliant with the
minimum standard requirements as the deficiency in faculty was reported to
be minimal at 1.85% and deficiency of resident doctors was stated to be NIL.
51. However, the Central Government did not grant permission for
admission for the session 2023-24 on the ground that the Essentiality
Certificate had not been furnished in the revised format. As was discussed
earlier in the preceding paragraphs, the petitioner on the directions of the High
Court was furnished the Essentiality Certificate on 10.08.2023, which was
valid for a period of three years, according to the new norms prescribed under
the NMC Regulations of 2023.
Insofar as the life of the Essentiality Certificate, which has been issued
in favour of the petitioner is concerned, is to remain valid only till 2025-26, as it
was issued for a period of three years in accordance with the revised 2023
regulations.
52. The petitioner has seriously contested the Inspection Report of MARB
in connection with the admissions for the academic year 2024-25. The report
inter alia suggested that there was a deficiency of 73.7% in faculty and 66% in
regard to tutors/residents. Among others, some other deficiencies have also
been pointed out in the report. At this stage, it would suffice to say that the
contention of the learned counsel for the petitioner is that insofar as the
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deficiency as regards the teaching faculty and tutor residents is concerned,
the same was incorrectly recorded inasmuch as even when the faculty was in
place and present at the time of headcount, as many as 54 faculty members
and SRs, tutors were not considered on account of the failure on the part of
the petitioner to provide form-16 of those faculty members.
It was urged that these Form-16s were made available before the
appellate authority, which, however, did not consider nor make any reference
to the same in the order passed either in the first appeal or in the second
appeal. According to the petitioner, there is no significant deficiency insofar as
the infrastructure is concerned and that it was fully complaint.
53. Learned Senior Counsel for the petitioner reiterated that approximately
200 crores had since been spent on creating the infrastructure and that too
denying an opportunity to the petitioner to apply for consideration for
admission for the session 2025-26 would be unfair and unreasonable on the
part of the respondents based upon the order of cancellation of the
Essentiality Certificate, which had since been stayed.
Learned counsel for the petitioner has also filed as many as 272 form-
16 forms issued under the Income Tax Act, on record, to bring home the point
that payments had been made to the staff and the faculty members, who were
present at the time of inspection but were not taken into consideration
because of the failure on the part of the petitioner to provide Form-16, which
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even otherwise could not have been issued in favour of the petitioner at that
relevant time. Be that as it may, we have seen from the record that the order
passed by the appellate authorities does not at all deal with the Form-16s,
which are stated to have been produced before them. In any case, we feel
that this issue insofar as the process of admission for the academic session
2024-25 is concerned, is indeed rendered infructuous.
54. The entire effort of learned counsel for the petitioner to question the
MARB inspection report is only with a view to somehow wriggle out of the
accusation that there was loss of substratum with a view to save the
Essentiality Certificate issued in its favour. In our opinion, this issue is
rendered academic in view of the fact that we have already held the order of
cancellation to be bad.
Moreover, the Essentiality Certificate issued in the revised format is only
valid for a period of three academic years, with the academic year 2025-26
being the final year of its validity. In case the Essentiality Certificate issued in
the revised form is not cancelled by the Government in the meantime, the
NMC would test, by conducting an inspection, the adequacy of the medical
college as regards the infrastructure, manpower, faculty etc. In case the
petitioner satisfies the minimum standards required, certainly it would get the
approval of the NMC and a permission from the Government would follow
accordingly.
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55. Before the NMC and the Government of India proceed to process the
request of the petitioner for grant of permission for the academic session
2025-26 along with other colleges, who are similarly situate, we would like
them to register some of our observations made in the light of the manner in
which the inspections have been conducted till now.
56. It can be seen that in the inspection report prepared by the MARB for
the academic year 2023-24, whereas the deficiency in faculty had been
reflected as 1.85% and deficiency in resident doctors was reflected as NIL, the
deficiency in teaching faculty for the academic session 2024-25 as 73.7% and
that of residents/tutors deficiency is 66%. As to how this variation has crept in
within one year needs to be analyzed. If the case of the petitioner is that it was
fully compliant with the minimum standard requirement (MSR) for 2023-24,
how did it drastically reduce in 2024-25.
57. Although learned counsel for the petitioner had suggested that it was
fully compliant even for the academic session 2024-25, notwithstanding the
fact that the faculty requirement had more than doubled as per the new
regulations of 2023, yet when we look at the Form-16s produced by the
petitioner placed on record by the petitioner, it can be seen that payments
between Rs.45,000/-, Rs.70,000/-, Rs.1,10,000/- etc. have been made to
various Associate Professors, Professors and other faculty members, which is
strange, inasmuch as if there was regular faculty engaged by the petitioner,
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the payments made would be much more than what was reflected in Form-
16s.
58. Although the NMC has provided certain guidelines to its assessors
giving instructions as to the scope of the assessment, one cannot disregard
the ingenuity of those who are at the helm of affairs running the colleges, who
find novel ways to defeat such processes. The instances are not uncommon
where doctors are paid honorarium with instructions to them to be present
only during the course of inspection by the team constituted by the NMC. This
fact is generally known.
While Justice may be said to be blind, Judges are not, and they are
certainly not oblivious to what goes on in the ecosystem in and around
medical colleges, who seek affiliations with Universities or permissions from
the Central Government for establishment and running of medical colleges.
59. Insofar as the in-patient occupancy of the hospital is concerned, it is
generally known that sometimes patients are hired only for purposes of
inspection, who are otherwise healthy and suffer no ailment and whose
services are dispensed with immediately after the inspection.
60. The last report of Inspection Committee, dated 27.06.2024, in regard to
academic session 2024-25 the Inspection team of the MARB had recorded
that patients in the female wards were brought to the hospital on the same day
for preventive health checks that they had no illness. Even in the pediatric
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ward, the Committee had recorded that apart from the fact that no pediatrician
was available to interact, the children and patients in the pediatric ward were
mostly healthy and playful. The statement made by the concerned duty sister
in the pediatric ward by the name Rimi Thomas had informed the team that
the pediatric patients had arrived the same morning on the day of the
assessment.
There was thus a deliberate attempt, indicated by the Inspection Team
in its report, made by the college to trump up the bed occupancy in the
hospital. Although the Government in the second appeal of the petitioner did
not deal with the objections on merits raised by the petitioner to the
observations made by the inspection team, we propose not to go into that
question at this stage except that the observations made by the team of
assessors during the inspection ordinarily cannot be brushed aside lightly in
the absence of there being any mala fides alleged against any of the
members.
61. Be that as it may, the inspections which are generally conducted by the
MARB ought to go into minute details to verifying as to whether the faculty
was hired on for purposes of inspection for that limited duration. In case it is
found that any of the doctors had lent their names for extraneous
consideration, were not part of the faculty of the college and were hired for the
limited purposes of ensuring that the college cleared the minimum standard
test prescribed under the regulations of NMC, then it is high time that those
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doctors are identified and action taken or recommended be taken by an
appropriate authority either by the Ethics and Medical Registration Board or
like authorities under the NMC Act and regulations framed thereunder and
other enabling statutory enactments.
62. Insofar as the applicants, who had applied for establishing or running a
medical college if are found guilty of misrepresentation of facts, manipulation
and fabrication of record and resort to inflating the number of patients who
attend OPD, the number of patients admitted, number of faculty members
actually on their rolls etc., then such a case would fall within the ambit of fraud
on the part of such an applicant, who then ought to be permanently barred
from future consideration for the grant of an Essentiality Certificate or the LoP.
63. A non-functional hospital with very low OPD attendance of patients as
also an insignificant number of patients who are admitted in the hospital and
deficiency of other clinical material would not only defeat the very purpose of
establishing a medical college aimed at adding to the human resource of
doctors to improve the doctor-patient ratio, but such doctors, if produced from
such medical colleges by playing deceit or fraud, would produce only half
baked and ill-trained doctors, who would not be of any use or service to the
general population.
64. Be that as it may, W.P. No.4484 of 2019 is allowed. The order passed
by the Government, dated 27.03.2019, cancelling the Essentiality Certificate,
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is quashed. In view of the fact that W.P. No.4484 of 2019 stands allowed, writ
petitions bearing Nos.2212, 5949, 6748, 7619 of 2019 are rendered academic.
W.P. No. 22536 of 2024 is rendered infructuous inasmuch as the timelines for
making admission for the academic session 2024-25 is since over. The writ
petitions are, accordingly, disposed of. No costs.
Pending miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ.
R. RAGHUNANDAN RAO, J.
AKN 45 HCJ & RRR, J WP_4484_2019 & batch ____ HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO W.P.No.4484 of 2019 & Batch Dt:26.05.2025 akn