High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04-01-2007CORAMTHE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIANWRIT PETITION No.45520 of 2006AndM.P.Nos.2 and 3 of 2006AndContempt Petition No.764 of 2006W.P.No.45520/2006:Deen Dayal Medical and EducationalTrust Rep., by its Chairman andManager Trustee, Dr.T.D.Naidu,Anna Nagar,Chennai-40. .. Petitioner Vs.1.The State Government of Tamil Nadu, rep., by its Secretary, Health and Family Welfare Department, Fort St. George, Chennai-9.2.Director of Medical Education, Kilpauk, Chennai-9... Respondents Writ petition filed under Article 226 of Constitution of Indiapraying for issue of a Writ of Certiorarified Mandamus, calling for therecords of the second respondent in particular the records of the secondrespondent in Ref.No.73144/ME1/3/2006 dated 20.11.2006 and quash thesame and direct the first respondent to issue Essentiality Certificateto establish "Deen Dayal Hospital and Medical Research Institute atThiruvallur Taluk, Chennai, Tamil Nadu with 150 intake based on theinspection report dated 1.9.2006 within a short reasonable time. Contempt Petition No.764/2006:Deen Dayal Medical and EducationalTrust Rep., by its Chairman andManager Trustee, Dr.T.D.Naidu,Anna Nagar,Chennai-40. .. Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/

1.V.K.Subburaj, I.A.S., Secretary, Govt. of Tamil Nadu, Health and Family Welfare Department, Fort St. George, Chennai-9.2.P.Vijayalakshmi, M.D., Directorate of Medical Education, Kilpauk, Chennai-10... RespondentsPetition filed under Sections 10 and 12 of the Contempt Courts Act,to punish the respondents for committing gross and willful contempt ofthis Court's Order in W.P.No.22207 of 2006 dated 26.7.2006. For Petitioner in WP andContempt Petition: Ms.B.Saraswathi For Respondents in WP andContempt Petition: Mr.R.Viduthalai, Advocate General for Mr.M.Sekar, Special Govt. Pleader (Education) COMMON ORDERThe petitioner submitted an application on 9.5.2005 to therespondents for the grant of an "Essentiality Certificate" to establisha Medical College by name "Deendayal Medical College" at Tiruvallore.The petitioner also applied to the Union of India on 1.8.2005, seekingpermission under Section 10-A of The Indian Medical CouncilAct,hereinafter called as the 'Act', for establishing the MedicalCollege.2. By a letter dated 23.8.2005, the Union of India directedthe petitioner to obtain Essentiality Certificate within a fortnight,failing which the Union of India threatened to return the proposal.Therefore, the petitioner filed a writ petition in W.P.No.30285 of 2005,challenging the action of the Union of India and an interim order wasgranted in WPMP No.3319 of 2005 restraining the Union of India fromreturning the proposal.3. Simultaneously, the petitioner also filed W.P.No.28558 of2005 against the first respondent seeking a direction to consider theirapplication for the issue of Essentiality Certificate. By an order dated6.9.2005, the said writ petition was ordered directing the firstrespondent to consider the applications of the petitioner dated 9.5.2005and 1.8.2005 and to pass orders within a period of twelve days. https://hcservices.ecourts.gov.in/hcservices/

4. In pursuance of the said order, an Inspection Team wasconstituted on 23.1.2006 and the Team inspected the institution on6.2.2006 and submitted a report. Based upon the said report, the firstrespondent issued G.O.(D) No.356, Health and Family Welfare (MCA-2)Department, dated 28.4.2006, refusing to grant Essentiality Certificate,on the ground that there were certain deficiencies.5. Challenging the said Government Order dated 28.4.2006, thepetitioner filed W.P.No.22207 of 2006. In the meantime, the petitioneralso sent a compliance report on 19.5.2006, claiming to have rectifiedthe deficiencies.6. In view of the claim of the petitioner regardingcompliance, the writ petition in W.P.No.22207 of 2006 was disposed of byan order dated 26.7.2006, directing the respondents to re-inspect theinstitution, within three weeks and pass appropriate orders inaccordance with law.7. Within three days of the disposal of the said writpetition, the second respondent issued proceedings dated 29.7.2006,constituting an Inspection Team, the Inspection Team conducted aninspection on 2.8.2006 and submitted a report on 10.8.2006 pointing outcertain deficiencies and recommended that the issue of EssentialityCertificate can be considered after rectification of the defects.8. In pursuance of the said report dated 10.8.2006, the firstrespondent issued a letter dated 28.8.2006 directing the petitioner torectify the defects pointed out in the Inspection Report, to enable theGovernment to process the application further.9. The petitioner submitted a compliance report on the verynext day viz., 29.8.2006, on the basis of which, the second respondentnominated an Officer, by his proceedings dated 29.8.2006, to conduct aninspection and to submit a report. The said Officer nominated by thesecond respondent conducted an inspection on 1.9.2006 and submitted areport on the same day viz., 1.9.2006 recommending the issue ofEssentiality Certificate for the academic year 2006-2007.10. Since the Government did not pass orders on the basis ofthe said Inspection Report, the petitioner filed a contempt petition inContempt Petition No.764 of 2006, complaining willful disobedience ofthe order dated 26.7.2006 passed in W.P.No.22207 of 2006. Notice wasordered in the said contempt petition and the respondents appeared inperson on 7.11.2006 and took time to file a counter. Therefore, thecontempt petition was adjourned to 5.12.2006 for counter.11. In the meantime, the Government issued a letter on7.11.2006, the same day on which the respondents appeared in person,directing the second respondent to furnish clarifications on theInspection Report dated 1.9.2006 and directing the second respondent todepute a team of two Officers for fresh inspection and submission ofreports.12. In pursuance of the communication dated 7.11.2006 issued https://hcservices.ecourts.gov.in/hcservices/ by the Government, the second respondent constituted another InspectionTeam by his proceedings dated 20.11.2006. Challenging the saidcommunication, the petitioner has filed the present writ petition inW.P.No.45220 of 2006.13. I have heard Ms.B.Saraswathi, learned counsel appearingfor the petitioner in the writ petition as well as in the contemptpetition and Mr.R.Viduthalai, learned Advocate General appearing for therespondents in the writ petition and the contemnors in the contemptpetition.14. Ms.B.Saraswathi, learned counsel appearing for thepetitioner in the writ petition as well as in the contempt petitionstrenuously contended -(a) that after the Inspecting Officer appointedby the second respondent by his proceedings dated29.8.2006, conducted an inspection on 1.9.2006 andsubmitted a report on the same day viz., 1.9.2006,recommending the issue of Essentiality Certificate,it was no longer open to the first respondent toconstitute another Inspection Team by the impugnedproceedings dated 20.11.2006;(b) that the action of the respondents inconstituting another Inspection Team by the impugnedproceedings dated 20.11.2006, is vitiated by malafides inasmuch as it was done after the appearanceof the respondents in the contempt petition on7.11.2006 and there was not even a mention of theinspection dated 1.9.2006 in the impugnedproceedings dated 20.11.2006; and(c) that the scope of inspection and enquiry tobe conducted by the respondents for the grant ofEssentiality Certificate is very limited, in view ofSection 10-A of the Act and the various decisions ofthis Court and the Supreme Court and hence thedeficiencies repeatedly sought to be projected bythe State Government, exhibit the exercise of ajurisdiction not vested with the State Government bylaw.15. Per contra, Mr.R.Viduthalai, learned Advocate Generalappearing for the respondents contended -(a) that the circumstances surrounding the issueof the Inspection Report dated 1.9.2006 in favour ofthe petitioner were suspicious, forcing theGovernment to constitute an Inspection Team;(b) that the track record of the petitioner-Trust in running an Engineering College, forced theGovernment to adopt a cautious approach;(c) that the non-joinder of Medical Council ofIndia as a party to the writ petition was fatal tothe maintainability of the writ petition; https://hcservices.ecourts.gov.in/hcservices/ (d) that the impugned order dated 20.11.2006issued by the second respondent is a sequel to theGovernment letter dated 7.11.2006, which had not beenchallenged by the petitioner, dis-entitling thepetitioner to seek any relief against theconsequential order and(e) that after the amended regulations of theMedical Council of India, the scope of Inspection andenquiry to be conducted by the Government, even forthe grant of Essentiality Certificate, had beenenlarged.16. At the outset, I am unable to accept the submission of thelearned Advocate General that the failure to implead the Medical Councilof India is fatal to the case. The Medical Council of India comes intopicture only after the issue of Essentiality Certificate by the StateGovernment and the present lis is only between the petitioner and theState Government. Therefore, Medical Council of India is neither anecessary party nor a property party to the proceedings. Similarly, thecontention that the original order of the Government dated 7.11.2006 hasnot been challenged and hence the consequential order of the secondrespondent dated 20.11.2006, cannot be challenged, does not also meritacceptance. The original order of the Government dated 7.11.2006 is notaddressed to the petitioner and the petitioner has received only theconsequential order dated 20.11.2006. The original order dated 7.11.2006is only an internal communication between the first respondent and thesecond respondent. Therefore, the petitioner could not have challengedthe same. Hence the challenge to the order dated 20.11.2006 of thesecond respondent, is perfectly maintainable.17. Coming to the core issue, it is seen from the factsnarrated in paragraphs-1 to 12 above, that after the disposal of thewrit petition in W.P.No.22207 of 2006 by an order dated 26.7.2006, anInspection Team was constituted by the second respondent by hisproceedings dated 29.7.2006 and the said Team conducted an inspection on2.8.2006 and submitted a report on 10.8.2006. Based upon the saidreport, the first respondent passed an order dated 28.8.2006 pointingout seven deficiencies in the infrastructural facilities and directingthe petitioner to rectify the same to enable the Government to processthe application further.18. In response to the said letter of the Government dated28.8.2006, pointing out seven deficiencies, the petitioner sent acompliance report on 29.8.2006 and the second respondent appointed anOfficer to conduct an inspection by his proceedings dated 29.8.2006. TheOfficer conducted the inspection on 1.9.2006 and submitted a report onthe same day viz., 1.9.2006 recommending the issue of the EssentialityCertificate. Thus, things happened in quick succession, within a span ofabout five days from 28.8.2006 to 1.9.2006. It has to be mentioned atthe risk of repetition that the letter pointing out deficiencies isdated 28.8.2006 and the compliance report claiming rectification ofdeficiencies is dated 29.8.2006. It is not known as to when the letterdated 28.8.2006 pointing out deficiencies, left the Office of the firstrespondent, enabling the petitioner to send a compliance report on the https://hcservices.ecourts.gov.in/hcservices/ very next day viz., 29.8.2006. Interestingly, the compliance reportdated 29.8.2006 submitted by the petitioner to the first respondentattracted immediate attention as well as action of the second respondentand the second respondent appointed an Inspection Officer on the verysame day viz., 29.8.2006. The Inspection Officer conducted theinspection on 1.9.2006 and submitted a favourable report on the verysame day viz., 1.9.2006.19. The speed with which and the manner in which the aforesaidevents took place, appears to have created a suspicion for theGovernment. The suspicion, in my considered view, is justified for thefollowing reasons:-(a) The letter pointing out deficiencies, theletter reporting removal of deficiencies and anorder appointing an Inspection Officer, have allhappened in just two days viz., 28.8.2006 and29.8.2006, without any breather for any of theparties and hence the claim of the petitioner thatthe deficiencies have been rectified, does notinspire any confidence.(b) While the constitution of an InspectionTeam under the order of the second respondent dated29.7.2006, is in pursuance of a Government letterdated 27.7.2006, the constitution of an InspectionOfficer under the letter dated 29.8.2006 of thesecond respondent, was not in pursuance of any orderor direction issued by the Government. In otherwords, the second respondent issued the order dated29.8.2006 appointing an Inspection Officer, evenwithout reference to the Government and hence thesuspicion of the Government about the conduct of thesecond respondent appears to be bona fide.(c) while on all earlier occasions viz., underorder dated 23.1.2006 and under order dated29.7.2006, the appointment was of an "InspectionTeam" consisting of two or more Officers, theappointment under the letter dated 29.8.2006 of thesecond respondent was of a single Officer.Therefore, the Government was justified in not beingable to accept the report of the single InspectionOfficer.(d) Interestingly, all the Officers appointedto the Inspection Team on all earlier occasions(viz., in January 2006 and July 2006), were Officersworking in various Medical Colleges in Chennai. Butthe sole Inspection Officer appointed by the secondrespondent by his proceedings dated 29.8.2006, isthe Dean of Theni Medical College, though theinspection is scheduled to take place atTiruvallore.20. Therefore, in my considered view, the Government wasjustified in ignoring the inspection conducted on 1.9.2006 and the https://hcservices.ecourts.gov.in/hcservices/ report submitted by the sole Inspecting Officer on 1.9.2006, both on theground that the appointment of the sole Inspecting Officer was not withthe knowledge or consent of the Government and also on the ground thatit lacked credibility. Under such circumstances, I am unable to findfault with the Government in issuing the letter dated 7.11.2006instructing the second respondent to constitute an Inspection Team andthe consequential action of the second respondent in issuing theimpugned communication dated 20.11.2006 appointing an Inspection Team oftwo Officers.21. Though the learned Advocate General also made submissionsabout the track record of the Engineering College run by the samepetitioner-Trust and pleaded with me to take judicial notice ofnewspaper reports pointing out student unrest and the transfer ofseveral students of the Engineering College run by the petitioner-Trustto the various other Engineering Colleges, forcing the Government toadopt a cautious approach, I do not wish to dwell on the said aspect, inthe absence of any pleading to that effect. Neither the communication ofthe Government dated 7.11.2006 nor the impugned order of the secondrespondent dated 20.11.2006, makes any reference to any of those thingsand even the counter-affidavits does not contain a reference to thesame. Therefore, I am unable to take any judicial notice of thosethings, for testing the validity of the impugned order dated 20.11.2006.22. Coming to the scope of the inspection to be conducted bythe Government for the purpose of grant of Essentiality Certificate, thelearned Advocate General contended that after the issue of MedicalCouncil of India Regulations 1999, the State Government is imposed withan obligation to satisfy itself about the availability ofinfrastructural facilities as per Medical Council of India Norms.Section 10-A(2)(a) of The Indian Medical Council Act, 1956, requiresevery person or Medical College seeking permission to establish aMedical College or open a new or higher course of study or increase itsadmission capacity, to submit a scheme to the Central Government. Thescheme should be in such form and contain such particulars as may beprescribed. Section 33 empowers the Medical Council to make Regulationsand under Clause (fa) of Section 33. The Regulations framed by theCouncil shall include the form of the Scheme referred to in Section 10-A(2)(a) and (b) of the Act.23. In exercise of the power conferred by Section 10-A r/wSection 33 of The Indian Medical Council Act, 1956, the Medical Councilof India issued certain regulations in the year 1993, known as "TheEstablishment of new Medical Colleges, opening of Higher Courses ofstudy and increase of admissions capacity in Medical CollegesRegulations, 1993."24. The scheme referred to in Section 10-A(2)(b) of the Act,was given a shape under Regulation (2) of the said Regulations and thesame contained the eligibility criteria as well as qualifying criteria.Para-3 of the qualifying criteria referred to the EssentialityCertificate to be obtained by an applicant from the State Government,regarding the desirability and feasibility of having the proposedMedical College at the proposed location. But the said Regulation of the https://hcservices.ecourts.gov.in/hcservices/ year 1993 did not prescribe any particular form in which theEssentiality Certificate is to be issued by the State Government.25. However, by a notification dated 20.7.1999, the MedicalCouncil of India issued a new set o regulations known as "Establishmentof Medical College Regulations 1999". In the scheme issued underRegulation 3 of the said Regulations of the year 1999, a person seekingpermission to set up a Medical College is required to submit anEssentiality Certificate in Form-2. The contents of Form-2 are asfollows:-"FORM 2Subject: Essentiality CertificateNo....Government of ...The Department of Healthdated,the ...To(applicant),Sir,The desired certificate is as follows:(1) No. of institutions already existing in theState.(2) No. of seats available or number of doctorsbeing produced annually.(3) No. of doctors registered with the StateMedical Council.(4) No. of doctors in Government Service.(5) No. of Government Posts vacant and those inrural/difficult areas.(6) No. of doctors registered with employmentexchange.(7) Doctor-population ratio in the State.(8) How the establishment of the college wouldresolve the problem of deficiencies of qualifiedmedical personnel in the State and improve theavailability of such medical manpower in the State.(9) The restrictions imposed by the StateGovernment, if any, on students who are not domiciledin the State from obtaining admissions in the State bespecified.(10) Full justification for opening of theproposed College.(11) Doctor-patient ratio proposed to beachieved.The (name of the person) ... has applied forestablishment of a medical college at ... On carefulconsideration of the proposal, the Government of ...has decided to issue an essentiality certificate tothe applicant for the establishment of a medicalcollege with ... (no.) seats.It is certified that:(a) The applicant owns and manages a 300-bedded https://hcservices.ecourts.gov.in/hcservices/ hospital which was established in ...(b) It is desirable to establish a medicalcollege in the public interest.(c) Establishment of a medical college at ...by ... (name of the society/trust) is feasible.(d) Adequate clinical material as per the MedicalCouncil of India norms is available. It is furthercertified that in case the applicant fails to createinfrastructure for the medical college as per the MCInorms and fresh admissions are stopped by the CentralGovernment, the State Government shall take over theresponsibility of the students already admitted in thecollege with the permission of the Central Government.Yours faithfully,(signature of the competent authority)"26. As seen from the format of Form-2 extracted above, theCertificate contains two parts. The first part provides only thestatistics regarding the desirability and feasibility of establishing aMedical College at a particular location. However, the second partcontains a commitment from the State Government with regard to fourspecific aspects. It is the last aspect contained in Clause(d) of thesaid Certificate, which has given a leverage for the State Government tolook into the availability of adequate clinical material as per theMedical Council of India Norms. If Clause (d) was not incorporated inForm-2, then the scope of inspection and enquiry to be conducted by theState Government should be restricted only to the desirability andfeasibility. The insertion of Clause(d) in the Essentiality Certificate,has changed the complexion of the game.27. As a matter of fact, the scope of the inspection to beconducted by the State Government, after the issue of 1999 Regulations,came up for consideration before the Supreme Court in Government of A.P.vs. Medwin Educational Society and Others ((2004) 1 SCC 86)). Afterextracting Form-2, the Supreme Court held in paras-27 and 28 of thejudgment as follows:-"27. Grant of the said certificate in theprescribed form, therefore, emanates from thescheme framed under the parliamentary legislation.The said form is a part of the Regulations whichare required to be considered in the light of theparliamentary Acts.28. By reason of clause 11(d), aresponsibility has been cast upon the StateGovernment to give an undertaking that in case theapplicant who seeks to establish a medical college,fails to create infrastructure for the medicalcollege as per the norms laid down by the Counciland in the event fresh admissions are stopped bythe Central Government, the State Government shallbe obligated to take over the responsibility of the https://hcservices.ecourts.gov.in/hcservices/ students already admitted in the college. Such, anundertaking on the part of the State Government isunequivocal and unambiguous."28. The argument that the conferment of such a power on theState Government amounted to abdication of the powers of the CentralGovernment in terms of Entry 66 in List I of Seventh Schedule, wasrepelled by the Supreme Court in para-31 of the judgment. The confermentof the power on the state Government to make an enquiry for the purposeof issue of a Certificate in Form-2 was held to be only a delegation ofpart of the functions of the Central Government in para-35 of thejudgment as follows:-"35. It is interesting to note that keeping inview the practical difficulties faced by the CentralGovernment or the statutory bodies like the MedicalCouncil of India or the University GrantsCommission, some power is sought to be delegated tothe State so as to make the parliamentary statutecompletely workable. Such "play in the joint" isalso desirable having regard to the federalstructure of our Constitution."Therefore, it cannot be contended that the State Government is notentitled to look into the satisfactory compliance with Medical Councilof India Norms, especially after the issue of 1999 Regulations.29. Ms.B.Saraswathi, learned counsel for the petitioner reliedupon various decisions of this Court as well as the Supreme Court forthe proposition that the State Government cannot encroach into theterritory of enquiry to be conducted by the Medical Council of India. Inother words, it is the contention of the learned counsel for thepetitioner that instead of confining itself to an enquiry regarding thedesirability and feasibility of establishing a College, the StateGovernment had unnecessarily gone into the availability clinicalmaterial and other material as per the Medical Council of India Norms.30. However, I do not propose to go into the said question,for the simple reason that the order of the State Government dated28.8.2006 pointing out seven deficiencies, was not challenged by thepetitioner. On the other hand, the petitioner submitted a compliancereport dated 29.8.2006 and submitted itself to an inspection, as orderedby the second respondent by his proceedings dated 29.8.2006. In otherwords, the petitioner has waived its rights to challenge the rejectionorder dated 28.8.2006, but chose to challenge only the order dated20.11.2006 by which a re-inspection has been ordered. Therefore, theonly question that has fallen for consideration in this writ petition isas to whether a re-inspection was justified or not. In view of thesuspicious circumstances surrounding the issue of the order dated29.8.2006 and the Inspection Report dated 1.9.2006, the re-inspectionordered by the impugned proceedings appears to be perfectly justifiedand consequently, the writ petition is liable to be rejected.31. Coming to the contempt petition, it is seen that the https://hcservices.ecourts.gov.in/hcservices/ contempt petition arose out of the order dated 26.7.2006 passed inW.P.No.22207 of 2006, the operative portion of which reads as follows:-"4. The writ petition is disposed of asfollows:-In view of the compliance report furnished onthe petitioner, the respondents are directed to re-inspect the petitioner-Trust within the period ofthree weeks from the date of receipt of a copy ofthis order and pass orders with regard to theirapplication for Essentiality Certificate inaccordance with law. No costs. Consequently,connected miscellaneous petition is closed."32. As seen from the operative portion of the order extractedabove, the respondents were obliged to re-inspect the institution,within three weeks. The said order dated 26.7.2006 was actually issuedon 8.8.2006 as seen from the endorsements made by the Current Section.Therefore, the respondents had time upto 29.8.2006 to inspect theinstitution. But even before getting a certified copy of the order, thefirst respondent issued a letter dated 27.7.2006, in pursuance of whichthe second respondent appointed a Team of Inspecting Officers by aletter dated 29.7.2006. The inspection was carried out on 2.8.2006 andthe report submitted on 10.8.2006, based upon which, an order was passedon 28.8.2006, pointing out seven deficiencies. Thus, the order dated26.7.2006 passed in W.P.No.22207 of 2006, had been duly complied with,before the expiry of the period of three weeks from the date of issue ofthe copy of the order. Therefore, I do not find any disobedience muchless willful disobedience on the part of the respondents in complyingwith the order dated 26.7.2006 in W.P.No.22207 of 2006. Consequently,the contempt petition is liable to be dismissed.33. For the foregoing reasons, the writ petition as well asthe contempt petition are dismissed. No costs. Consequently, connectedmiscellaneous petitions are also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Svn.To1.The Secretary, State Government of Tamil Nadu, Health and Family Welfare Department, Fort St. George, Chennai-9.2.Director of Medical Education, Kilpauk, Chennai-9.+1cc to Mr.B.Saraswathi,Advocate Sr 583TS (CO)km/4.1. WP No.45520 of 2006And Contempt PetitionNo.764 of 2006