TaxTMI 
TaxTMI 
2018 (7) TMI 2153
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.... of this court passed in W.P (Civil) No.469 of 2014. Thereafter, no renewal of permission was granted to the petitioner for the academic year 2015-16. Petitioner college applied for the grant of recognition under section 11 of the IMC Act in the year 2015. MCI in order to determine whether the petitioner college fulfills the minimum eligibility requirements for grant of recognition under section 11 of the IMC Act, conducted three inspections. The First inspection was carried out on 16.12.2015 followed by second inspection on 25/26.02.2016 and the third one on 16.03.2016. 2. In all the three inspections carried out by the MCI, petitioner college was found to be deficient. The MCI concluded the college was deficient to the extent of 100%. The MCI, therefore, recommended to the Central Government, not to issue recognition to the petitioner college under Section 11 of the IMC Act. The MCI also made similar recommendations in respect of other colleges. Those Medical Colleges approached this Court by way of filing a batch of Writ Petitions. This Court directed the matters to be examined by the Oversight Committee constituted under the judgment of this Court delivered by the Constit....
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....sible to absorb the students from the petitioner college and this will adversely affect the interest of students. They requested for permission to facilitate shifting of the students to medical colleges in the other states without insisting on the withdrawal of Essentiality Certificate. The State thus declined to withdraw the Essentiality Certificate. 5. However, for reasons which are not clear, the State relied on proceedings of an earlier show cause notice dated 03.05.2017 calling upon the petitioner to show cause as to why the Essentiality Certificate should not be withdrawn, to do just the opposite. They passed an order dated 01.11.2017 and held that the college had made hollow claims for removing deficiencies and had failed to show cause why the Essentiality Certificate should not be withdrawn. Though several opportunities of personal hearing were afforded, the college had failed to rebut the findings of the inspection reports. Having found persistent deficiencies, the State Government directed the withdrawal of the Essentiality Certificate. 6. At this juncture, we might make it clear that no fault can be found with the orders of the State Government in observing the def....
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....nce granted, and whether the power to do so is ultra-vires the Act and the Regulations framed thereunder. This issue needs to be decided since power assumed by the State to withdraw an Essentiality Certificate has drastic consequences on Medical Education in a State, which can only be controlled by and under the IMC Act. Essentiality Certificate 10. It would, therefore, be necessary to see the origin of the requirement that a College must have an Essentiality Certificate before it receives permission for its establishment. The Legislative scheme that imposes the requirement of an Essentiality Certificate is as follows:- Section 10A4 of the IMC Act requires the previous permission of the Central Government for establishing a Medical College or opening a new course of study or training. Every person or Medical College must submit to the Central Government a scheme as prescribed. The Central Government then refers the scheme to the MCI for its recommendations. The Medical Council is required to 10.A PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF STUDY - (1) Notwithstanding anything contained in this Act or any other law for the t....
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....ations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in sub-section (7), either approve 4 (with such conditions, if any, as it may consider necessary ) or disapprove the scheme, and any such approval shall be a permission under sub-section (1): Provided that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard; Provided further that nothing in this sub section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under subsection (1). consider the scheme and satisfy itself by obtaining any particulars as are necessary and after having the defects if any removed, make its recommendations to the Central Government. The Central Government, may on receipt of the scheme, approve it conditionally or d....
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....he number or students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme; (e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications; (f) the requirement of manpower in the field of practice of medicine; and (g) any other factors as may be prescribed. (8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or college concerned. prescribe the qualifying criteria. These criteria lay down the eligibility to apply for permission to establish a Medical College. One of the criteria is that the person who is desirous of establishing a medical college should obtain an Essentiality Certificate as prescribed in Form 2 of the Regulations, certifying that the State Government/Union Territory Administration have no objec....
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....ats that already admitted in the College with the permission of the Central Government. An amendment to the notification also requires a declaration that the applicant owns and possesses adequate land on which non-agricultural use of the land is permitted and on which a Medical College can be established. It further requires a declaration to the effect that the Hospital and Medical College have been granted completion certificate / building use certificate. 14. The Essentiality Certificate thus certifies that it is essential having regard to specified factors that the opening of the proposed college is essential in the State, in public interest. Further, that the applicant has the necessary land and building for running it. What is significant to note is that the law requires that an applicant must possess an Essentiality Certificate from the State Government mentioning therein that it is essential to have a Medical College as proposed by him. The purpose is interalia to prevent the establishment of a college where none is required or to prevent unhealthy competition between too many Medical Colleges. 15. Thus, the Legislative scheme for permission to establish a Medical Coll....
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....e 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. 17. In this case, the reasons given by the State for rescinding the Essentiality Certificate are not relevant or germane to the establishment of a Medical College. They refer to the deficiencies in the functioning of a Medical College for a particular period. Deficiencies by their nature are curable and can be removed. To allow the State Government to withdraw an Essentiality Certificate and say that it is no more essential that there should be a college at all, would lead to gross arbitrariness since logically the existence of the Medical College would again be justified if the deficiencies are removed. The question of justified existence of a college and the irregular/illegal functioning of an existing college belong to a different order of things and cannot be mixed up. A certificate constitutes a solemn statement by an authority certifying certain conditions of things. Persons acting on such certificates are entitled to assume that the certificate will ensure and not be pulled out from under their feet for extraneou....
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....ns 178 and 189 of IMC Act. 21. The learned counsel for the State has not pointed out any power of inspection which is conferred on a State Government/Union Territory Administration either by the Act or by the Regulations. The State Government is designated by the Regulations only for the purpose of issuing an Essentiality Certificate to justify the establishment of a medical college within its territories and that too when approached by a person seeking to establish a medical college. There is no direct conferral of any power of general inspection on the State and neither can such a power be read into the Regulations nor be 17. INSPECTION OF EXAMINATIONS (1) The Committee shall appoint such number of medical inspectors as it may deem requisite to inspect any medical institution, college, hospital or other institution where medical education is given, or to attend any examination held by any University or medical institution for the propose of recommending to the Central Government recognition of medical qualifications granted by the University or medical institution. (2) The medical inspectors shall not interfere with the conduct of any training or examination,....
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....argument must be rejected as fallacious since the consequence of withdrawing the Essentiality Certificate can only be that the college closes down, and the State must bear the burden of accommodating the students in another institution. 23. The learned counsel for the State of Punjab submitted that since the Essentiality Certificate certifies the availability of adequate clinical material for the proposed Medical College, as per the Regulations, the State has the necessary power of inspection of the college even after its establishment to ensure that there is adequate clinical material. This submission must also be rejected since the State is enjoined to certify adequate clinical material only at the time of proposal of the Medical College and not after it is established. But we find from the submissions that the State has misinterpreted the term 'adequate clinical material' completely. According to the State, "adequate clinical material" means "people" i.e. doctors, patients, staff etc. Whereas, the term is understood in the field of Medical Education to mean data about number of admissions, number of discharges, number of deaths, number of surgeries, number of procedures....
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.... judicial function and not an administrative function. 27. On the above test, the function of the State Government in granting an Essentiality Certificate must be construed as a quasi judicial function. The Government is required to, while issuing the certificate in Form 2, to determine the justification and feasibility of opening the proposed college in the State. Towards this purpose, it is bound to enquire and determine the existence of several factors such as 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, registered with employment exchange etc. It must also determine the doctor population in the State, the doctor - patient ratio to be achieved and the impact of the proposed college on the availability of medical manpower in the State. The issuance of certificate must therefore be construed to be a quasi judicial act. The upshot is that such an act is not liable to be construed as an "order" contemplated by Section 21 of the General Clauses Act. Not being an order, and certainly not being a notification, rule or bye-law, Section 21 has ....