Judgment:
L. Narasimha Reddy, J.
1. The petitioner is an educational society, said to have been promoted mostly by nonresident Indians. It is stand that the object of the petitioner society is to promote medical, dental, nursing and para-medical education; and to undertake research in medical and health services.
2. With an object of establishing the medical college at Sangivalasa village of Bheemunipatnam Mandal, Visakhapatnam District, the petitioner submitted an application to the 2nd respondent, Union of India, in accordance with the procedure prescribed under the Medical Council of India Act (for short 'the Act'); on 29-8-2005. Few days before it, i.e. 25-8-2005, the petitioner claims to have submitted an application to the 1st respondent, Government of Andhra Pradesh, with a request to issue Essentiality Certificate. On an examination of the application submitted by the petitioner, the2nd respondent addressed a letter dated 30-8-2005, pointing out that the application was not accompanied by Essentiality and Feasibility certificate to be issued by the State Government. As many as 19 other deficiencies were also pointed out. The petitioner states that it had taken steps to comply with the other deficiencies, pointed out by the 2nd respondent in their letter dated 30-8-2005, but, in the matter of issuance of Essentiality Certificate, the 1st respondent is under obligation to take necessary steps.
3. Pleading that there exists a dire necessity of establishing a private medical college in the tribal areas of Visakhapatnam, particularly in view of the spread of epidemics in the area, the petitioner submits that the 1st respondent ought to have acted in the matter, swiftly. It complains that despite issuance of reminders, no concrete steps have been taken. Reliance is also placed upon some judgments, rendered by the Supreme Court and other High Courts.
4. The 1st respondent filed a counter affidavit. It is stated that the procedure for establishment of Medical and Dental Colleges, private un-aided colleges in the State, is prescribed in G.O.Ms.No. 250, Health, Medical & Family Welfare (E-1), dated 22-5-1992, and that the same is in vogue, except for minor variations, as to the manner of verification. It is stated that the G.O. contemplates issuance of notification by the State Government, inviting applications for this purpose, and it is only when applications are made in response to such notifications, that necessary steps would be taken. It is also pointed out that a Committee has been constituted for this purpose, to consider the applications, on the touchstone of the requirements, prescribed under Section 10-A of the Act. The 1st respondent contends that solitary and individual applications cannot be considered in the absence of a notification, as provided for, under G.O.Ms.No. 250, and other subsequent orders.
5. The petitioner as well as the 1st respondent have made reference to the report submitted by the Committee, headed by Justice B.P. Jeevan Reddy, which was constituted by this Court, to examine various issues, including the one, relating to issuance of Essentiality Certificates.
6. Sri K.G.K. Prasad, learned Counsel for the petitioner submits that, with the introduction of Section 10-A of the Act, the entire matter, relating to grant of permission, for establishment of Medical Colleges is now brought under the purview of the Medical Council of India and the Central Government, and that there is hardly any role for the State Government. He contends that the issuance of Essentiality Certificate by the State Government and the consideration thereof, is also circumscribed by the factors indicated under the Act, as well as the form issued thereunder. According to him, the stand taken by the 1st respondent, that one has to wait till a notification is issued by the State Government for this purpose, would defeat the very purpose and object under Section 10-A of the Act, and the judgments rendered by the Supreme Court.
7. Learned Government Pleader for Medical and Health submits that even under the Scheme framed under Section 10-A of the Act, the State Government plays an important role, in the matter of issuance of Essentiality Certificate, and the petitioner cannot compel the 1st respondent to issue the Essentiality Certificate, without proper verification. He contends that the Government had formulated a policy, in the matter of grant of permissions, before introduction of Section 10-A of the Act. He submits that consequent on the introduction of the said provision necessary modifications were made to invite applications from the intending educational societies for this purpose, so that transparency is ensured in the matter. According to him, considering and examination of individual applications without any time schedule and without prior verification of need and necessity, is prone to result in several illegalities.
8. In the matter of establishment of Medical Colleges, the role of he Medical Council of India and Government of India, used to be somewhat limited, and much of the area was covered by the individual legislations of the concerned States. With a view to bring uniformity in the matter, Parliament amended the Medical Council of India Act by introducing Section 10-A, centralizing the powers in this regard and conferring them upon the Central Government. The assessment and evaluation of the applications, is to be done, mainly by the Medical Council of India. A Scheme contemplated under Section 10-A was formulated by the 2nd respondent and it was published in the Government of India Gazette, dt. 28-8-1999. A detailed and comprehensive procedure is prescribed indicating the eligibility criteria, qualifying criteria, form and procedure, mode of submission of applications, consideration thereof, grant of permission etc. One of the requirements under the qualifying criteria in the Scheme reads as under:.that Essentiality Certificate in Form 2 regarding No Objection of the State Government/Union Territory Administration for the establishment of the proposed medical college at the proposed site and availability of adequate clinical material as per the council regulations, have been obtained by the person from the concerned State Government/Union Territory Administration.
Form II contains the details, that must be contained in the Essentiality Certificate.
9. The petitioner submitted an application to the 2nd respondent under the Scheme on 29-8-2005. However, it did not enclose Essentiality Certificate, as required under the Scheme. It is stated that an application for that purpose was made to the 1st respondent three days earlier thereto. Obviously, on account of this deficiency, the 2nd respondent addressed letter dated 30-8-2005, pointing out this and other defects. The petitioner contends that it ought to have been granted the Essentiality Certificate by the 1st respondent, without any delay. It pleads justification for issuance of such a certificate, stating that the Districts of Visakhapatnam, Srikakulam and Vizianagaram do not have the requisite medical facilities, particularly in the tribal areas, and pleads that the Essentiality Certificate ought to have been issued.
10. The scope and ambit, of the power of the State Governments and Universities, in the matter of establishment Professional colleges, has been the subject-matter of several cases before the High Courts and the Supreme Court. It is not necessary to refer to them, in detail. The gist of the decisions rendered so far is that, where the establishment of such institute is governed by the provisions of an Act of Parliament, the entire matter is under the control of the agencies, created thereunder, such as Medical Council of India, Dental Council of India, All India Council of Technical Education. The role of the State Governments and the Universities, as the case may be, was restricted to the one of, ensuring compliance with the norms stipulated under the relevant Central Enactments. Reference in this context was made to the judgments of the Supreme Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu : [1996]2SCR422 , Government of A.P. v. Medwin Educational Society : (2004)1SCC86 and Medical Council of India v. State of Karnataka : [1998]3SCR740 .
11. In the instant case, the requirement for the petitioner to obtain an Essentiality Certificate is the one under the Act. Further the 1st respondent would not be exercising any independent powers, in the matter of issuance of such certificates. The 1st respondent derives power under Section 10-A of the Act, and the Scheme framed under it. Therefore, it cannot be stated to be exercising any independent power of its own, de hors the scheme framed under Section 10-A of the Act.
12. The issuance of Essentiality Certificate in Form II, as required under the Scheme, is not a matter of course. The same is evident from the nature of certification that is required to be made by the 1st respondent, the State Government. In fact, the contents of an Essentiality Certificate would constitute an important basis for the decision making by the 2nd respondent, though the discretion of the latter, is not, in any way, circumscribed by the grant of essentiality certificate. The certificate is required to be in the following form:.On careful consideration of the essentiality certificate to the applicant for the establishment of a Medical College with ...(no.) seats. It is certified that:-
a. The applicant owns and manages a 300 bedded hospital which was established in...
b. It is desirable to establish a medical college in the public interest;
c. Establishment of a medical college, at ...by (the name of Society/Trust) is feasble.
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 forthe 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.
13. From a perusal of the same, it is evident that mere establishment of a 300-bedded hospital by the applicant is not sufficient. Establishment of a medical college is required to be in public interest, and must be feasible, and there must exist adequate clinical material. By their very nature, the factors, such as public interest and feasibility are subjective, may be, guided by objective criteria. To plead that Essentiality Certificate must be issued as a matter of course, would be as good as saying that the permission to construct a building for a Medical College must be granted by the concerned Municipality, without even verification and ensuring compliance with Building Regulations.
14. The State Government framed Rules and prescribed procedure, way back in the year 1992 by issuing G.O.Ms.No. 250, dated 22-5-1992, in the matter of granting permissions to private Medical and Dental Colleges. The first and foremost requirement under the G.O. was that, applications by intending agencies must be submitted in response to a notification. This in fact, is the procedure under Section 20 of the A.P. Education Act also; may be with reference to other categories of institutions. Issuance of such a notification would enable all the intending agencies to submit their applications, and in a way, the Government would have the benefit of undertaking relative assessment, than being guided by the facts stated in the individual applications. After the introduction of Section 10-A of the Act, the procedure, as to issuance of notification continued, but the parameters of considerations of applications was changed by constituting committees, for the exclusive purpose of processing applications for issuance of essentiality certificates, on the touch stone of the criteria prescribed under the Scheme, framed under Section 10-A of the Act.
15. The petitioner is not able to demonstrate as to how such a procedure is untenable or illegal. Recently, in view of the unrest in the medical colleges in the State, arid strikes called by the students' community, a Division Bench of this Court, through its judgment in W.P.No. 387 of 2004, dated 27-1-2004 constituted a Committee headed by Justice B.P. Jeevan Reddy, Former Judge of the Supreme Court. One of the points of reference was, the desirability or otherwise of establishment of new Medical Colleges in the private sector. The scheme framed by the Medical Council of India, as well as the procedure adopted by the State Government, in the matter of issuance of essentiality certificates was dealt with, extensively. It submitted a well-considered and detailed report, dated 7-6-2004. In relation to the scope and ambit of the power of the State Government, in the matter of grant of essentiality certificate, the Committee observed as under:
From a reading of the contents of the essentiality certificate, it is clear that it is a very important document, which influences the decision of the Central Government in the matter of grant/ refusal of permission under Section 10-A of the Medical Council of India Act. Not only the Government has to make a thorough investigation of all the relevant facts before the grant of essentiality certificate, but it is also obliged to certify that the applicant owns and manages 300 bedded hospital (which is already established), that it is desirable to establish a medical college in public interest and that the establishment of medical college at the particular place or within the particular district is feasible. It is indeed empowered to monitor the functioning of the college even after it is established, which is evident from the fact that the State Government has to take over the students admitted in the college, in case the college fails for one or other reason and allot them to other colleges. Grant of essentiality certificate is, therefore, not a mechanical function but one calling for due, proper and full verification of all the relevant facts required to be stated and certified in Form II.
It further added,
As a matter of practice or policy, it may be open to the government to fix the total number of medical or dental colleges, as the case may be, which ought to be sanctioned in the State having regard to the relevant factors mentioned in Form 2 but it is not supposed to choose a district or town in the first instance and then call for applications from the public; the procedure adopted by the government is indeed inconsistent with the position contemplated by the Regulations including Form 2. Not following the Regulations has necessarily resulted in adhocism. The proper thing was to follow the procedure contemplated by the Regulations and not to lay down a procedure at variance with the Regulations.
16. The practice of issuing a notification by the State Government, inviting applications for issuance of essentiality certificates for Medical and Dental Colleges, was tacitly approved. In many of the judgments relied upon by the petitioner, even where the reasons stated for denial of essentiality certificate were found not proper, the concerned State Governments were required to undertake the exercise afresh. It has been clearly stated in the counter affidavit filed by the 1st respondent that in the year 2002, a notification was issued by the State Government for establishment of medical colleges in the Districts of Visakhapatnam, Srikakulam and Vizianagaram, and that there was no response. It is further stated that some of the aspects pointed out in the report submitted by the Committee and other related issues are being examined.
17. The fact ultimately remains that the State Government has not issued a notification in this regard, as yet. Notwithstanding the ability or willingness of the petitioner to establish a medical college, it has to await the issuance of a notification by the Government. The petitioner can complain, if only it had submitted an application, in response to a notification, and it has not been considered in accordance with the relevant provisions of law. The solitary application submitted by the petitioner cannot be processed in the teeth of the procedure prescribed by the Government, which insists that applications can be made only in response to a notification issued for that purpose.
18. For the foregoing reasons, this Court does not find any basis to grant any relief to the petitioner, at this stage. The writ petition is accordingly dismissed. It shall, however, be open to the petitioner to submit its application for issuance of essentiality certificate, as and when the 1st respondent issues a notification for this purpose. There shall be no order as to costs.