TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 2153
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.... 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 Constitution Bench in the case of Modern Dental College a....
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....ge 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notice dated 03.05.2017 calling upon the petitioner to show cause as to why the Essentiality Certificate should not be withdrawn, to do just the opposite.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hollow claims for removing deficiencies and had failed to show cause why the Essentiality Certificate should not be withdrawn.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 deficiencies in the functioning of the petitioner college. Th....
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....ations 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 time being in force:- (a) no person shall establish a medical college or (b) no medical college shall:- ....
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....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 disapprove the scheme. Approval constitutes permission vide sub- section (4) of Section 10A of the IMC Act. 11. The power to permit the establishment of a Medical College is thus conferred on the Central Governm....
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....as 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 objection for the establishment of the proposed Medical College at the proposed site and availability of adequate clinical material5. 12. Form 2 in which the Essentiality Certificate must be obtained indicates the facts which are considered relevant for determining whether the establishment of a pro....
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....e 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 College prescribes, as a qualifying criterion, that the applicant must have an Essentiality Certificate issued by the State Government. The State Government certifies the justification for establishing a proposed Medical College as a part of the Legislative scheme under the Act. It does not do so under any other law including a State enactment. The only purpose of the Essentiality Certificate is ....
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.... 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 extraneous reasons. We find that none of the reasons for withdrawing the Essentiality Certificate pertain to factors which are certified as true in the prescribed Form 2, reproduced above. Challenge to Conditions Introduced in Form 2 by the State 18. It is argued mainly on behalf of the State Government that the specified conditions which are imposed in the Essentiality Certificate empower the State Gov....
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....o 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, but shall report to the committee on the adequacy of the standards of medical education including staff, equipment, accommodation, training facilities prescribed for giving medical education or on the sufficiency of every examination which they attend. (3) ...... 18. VISITORS AT EXAMINATIONS (1) The Council may appoint such number of visitors as it may deem requisite to inspect any medical institution, college, hospital or other....
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....ary 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, X-rays and laboratories investigations. Thus, what the State is required to certify is the data available in the region to justify the establishment of the proposed Medical College. Obviously, for the purpose of justifying the existence of a Medical College, the State's claim that it must have the right to inspect a college after it is established to see whether there are adequate numbers of doctors, patients etc. to justify it's continued existence is completely hollow and un....
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....utions, 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 no application whatsoever. 28. Moreover, no provision of the IMC Act confers any power on the State Government or Union Territory Administration to issue an Essentiality Certificate. What the Regulations do, as discussed above, is lay down that an Essentiality Certificate is the qualifying criterion for making an application for opening a medical college. In that sense, the provision recognizes an Essentiality Certificate issued by the State Government. It is nobody's case that the State Govern....