Vignan Educational Development Society, Lawyerpet, Ongole, Prakasam Dist. Vs Govt. of Andhra Pradesh and Others

S.B. Sinha, C.J.@mdashA short but an interesting question of law as regards the power and jurisdiction of the State Government/the Committee vis-a-vis the power and jurisdiction of the Central Government in regard to laying down conditions for establishment of medical/ dental colleges in Private Sector in the State of Andhra Pradesh fails for our consideration in this appeal.

2. The basic fact of the matter is not in dispute. The Central Government enacted Indian Medical Council Act, 1956 (Act 102 of 1956) (hereinafter referred to as ''the Act'').

3. The Medical Council of India made Regulations on 20th September, 1993 known as the Establishment of new Medical Colleges, opening of higher courses of study and increase of admission capacity in medical colleges Regulations 1993 (hereinafter referred to as ''the 1993 Regulations''). The qualifying criteria mentioned in the 1993 Regulations is in the following terms:

QUALIFYING CRITERIA

The eligible organizations shall abide by Indian Medical Council Act, 1956 as modified from time to time and the regulations framed thereunder and shall qualify to apply for permission to establish new medical colleges only if the following conditions are fulfilled :--

1. that Medical Education is one of the main objectives of the applicant;

2. that suitable plot of land as prescribed by the Medical Council of India is owned and possessed by the applicant to set-up the proposed medical college;

3. that Essentiality Certificate regarding the desirability and feasibility of having the proposed medical college at the proposed location has been obtained and that the adequate clinical material is available as per Medical Council of India requirements has been obtained by the applicant from the respective State Government or the Union Territory administration;

4. that Consent of Affiliation for the proposed medical college has been obtained by the applicant from a recognized university;

5. that the applicant owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities and capable of being developed into a teaching institution as prescribed by the Medical Council of India, in the vicinity of proposed medical college;

6. that the applicant has a feasible and time bound programme to set up the proposed medical college along with required infrastructural facilities including adequate hostel facilities for boys and girls, and as prescribed by the Medical Council of India, commensurate with the proposed intake of students, so as to complete the medical college within a period of four years from the date of grant of permission;

7. that the medical college will admit students only after the Indian Medical Council has satisfied itself about the infrastructural and other facilities for starting MDBS and after receiving a written permission from Central Government;

8. that the applicant has a feasible and time bound expansion programme to provide additional beds and infrastructural facilities, as prescribed by the Medical Council of India, by way of upgradation of the existing hospital or establishment of new hospital or both so as to collectively provide the following bed complement within a period of four years from the date of grant of permission to set up the proposed medical college:

4. Having regard to the observation made in the decision of the Apex Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., . Section 10-A has been inserted in the Act. Clauses (a) and (b) of Sub-section (2) of Section 10A read thus:

"(a) Every person or medical college shall, for the purpose of obtaining permission under Sub-section (1), submit to the Central Government a scheme in accordance with the provisions of Clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.

(b) The scheme referred to in Clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed."

Sub-section (2)(g) defines the expression "prescribed" as meaning ''prescribed by regulations''.

5. Regulation making power is provided for in the Council by virtue of Section 10-A of the Act read with Section 33 of the Act.

6. In exercise of the powers conferred by Section 10A read with Section 33 of the Act, the Medical Council of India, with the previous sanction of the Central Government, made new regulations known as the Establishment of Medical College Regulations, 1999 (hereinafter referred to as ''the 1999 Regulations'').

7. Regulation 3 prohibits any person from establishing a medical college except with the prior permission from the Central Government by submitting a Scheme provided therein. The scheme is elaborate in nature. Paragraph 1 of the scheme provides for Eligibility Criteria. Paragraph 2 provides for Qualifying Criteria. Paragraph 3 provides for Form and Procedure. Paragraph 4 provides for Application Fee. Paragraph 5 provides for Registration. Paragraph 6 provides for Evaluation by Medical Council of India. Paragraph 7 provides for Report of the Medical Council of India. Paragraph 8 provides for Grant of Permission.

8. The 1999 Regulations also prescribed a form of application being Form 1 to be filled giving particulars of the applicant seeking permission of the Central Government to establish a new Medical College. Form-2 has been prescribed for grant of Essentiality Certificate by the State.

9. The Government of Andhra Pradesh issued G.O.Ms.No. 128, Health Medical and Family Welfare (E1) Department, dated 30-04-1998 specifying 5 locations where medical colleges can be established as also 5 locations where Dental Colleges can be established in the private sector, which are:

 Medical Colleges      Dental Colleges
 (1) Nizamabad         (1) Vizianagaram
 (2) Mahbubnagar       (2) Nalgonda
 (3) Adilabad        (3) Tirupati
 (4) Nellore, and      (4) Warangal, and
 (5) Eluru (Wes        (5) Ongole (Prakasam
Godavari District)      District).

In terms of Clause 2 thereof, a Committee for recommending Application to Government for issue of Essentiality Certificate for establishment of Medical and Dental Colleges in the State (hereinafter referred to as ''the Committee'') was constituted. The Committee was requested to follow the procedure as indicated therein. The relevant sub-clauses whereof are (b) and (c) which lay down:

"(b) The Committee will make it clear in their advertisements that those parties, who have already applied to the Government for sanction of Essentiality Certificate will have to apply again to the said Committee, if they are so interested. Their earlier applications to the Government will not be considered by the Committee.

(c) The Committee will scrutinize the applications for sanction of Essentiality Certificate with reference to the Regulations of the Medical Council of India in respect of establishment of the Medical Colleges and the Regulations of the Dental Council of India in respect of establishment of the Dental Colleges."

The said G.O.Ms. No. 128 was amended by G.O.Ms. No. 214, Health Medical and Family Welfare (E1) Department, dated 23.6.2000 wherein proposals to set up Medical Colleges and Dental Colleges at the following places have been specified:

Dental Colleges Medical Colleges
1. Mahbubnagar 1. Karimnagar
2. Nizamabad 2. Vizianagaram
3. Adilabad 3. Ongole
4. Khammam 4. Kuppam
               (to be affiliated to Dravidian University)

Clause 5 of the said G.O. 214 reads thus :-

"The Committee constituted in the G.O.1st read above should notify, call for, scrutinise and recommend to Government as per the procedure prescribed therein for grant of necessary Essentiality Certificates for establishment of Dental Colleges/Medical Colleges in the above said locations."

Pursuant to or in furtherance of the said power, the Chairman of the Committee issued a Notification bearing No. 10096/P1/ 99 dated 14.8.2000 inviting applications from the Registered Educational Societies Educational Trusts in the prescribed proforma for the establishment of Medical and Dental Colleges at the aforementioned places of Andhra Pradesh, the relevant portion of which reads thus:

"The Societies/Trusts seeking for issuance of Essentiality Certificate for the establishment of Medical College should possess 25 acres of land and Rs. 5.00 crores of F.D. Rs for 3 years in their favour and also other requirements namely staff, hostels for boys and girls, staff quarters, buildings, infrastructure, Hospital with 300 beds and college as per the regulations of Medical Council of India ........... The application forms may be obtained from the Director Medical Education, Sultan Bazar, Hyderabad-500095 ..... The duly filled in applications in duplicate should be submitted along with a non-refundable registration fee amount of Rs. 25,000/- in case of Medical colleges .... by way of demand draft in the name of the Director of Medical Education, A.P., Hyderabad -500 095 payable at Hyderabad on or before 4.00 PM on 16th September, 2000."

10. Pursuant to or in furtherance of the said notification, the appellant and the third respondent filed applications before the State of Andhra Pradesh for grant of Essentiality Certificate. The Committee, however, purported to be for non-fulfilment of the condition on the part of the appellant as regard making of a Fixed Deposit Receipt of Rs. 5 crores for 3 years in their favour, refused to inspect the hospital of the appellant.

11. The third respondent, however, fulfilled the said conditions. It enclosed with its application a copy of an agreement for the purpose of showing that an agreement for sate has been entered into by it for purchase of an extent of Ac.33-00 of land in the town of Ongole.

12. In its inspection report dated 1.5.2001, the Committee constituted under G.O. Ms. No. 128, dated 30.4.1998 and G.O. Ms. No. 214 dated 23.6.2000, recommended for grant of Essentiality Certificate in favour of the third respondent herein. In terms of the aforementioned recommendation, an Essentiality Certificate dated 2nd June, 2001 has been granted in favour of the third respondent by the Competent Authority and Special Chief Secretary to Government, Health, Medical and Family Welfare Department, Andhra Pradesh, Hyderabad.

13. The writ petition was filed by the appellant herein questioning inter alia not only the validity or otherwise of the aforementioned conditions of making a fixed deposit of Rs. 5 crores, but also grant of the Essentiality Certificate in favour of the third respondent despite noncompliance of the Qualifying Criteria i.e., non-fulfilment of the condition as regard owning and possessing 5 acres of land and a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution in the campus of the proposed medical college.

14. The learned single judge, however, dismissed the writ petition having regard to the decisions reported in Dr. B. Srinivas Vs. Dr. P. Krishna Malakonda Reddy and others, , as also A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh and Another, .

15. Mr. Mowa Chandrasekhara Rao, learned senior counsel appearing on behalf of the appellant inter alia submitted that the condition imposed by the Committee directing deposit of a sum of Rs. 5 crores is ultra vires. According to the learned counsel, keeping in view the fact that the entire field as regards medical education having been occupied by a Central Legislation, the Central Government is the only competent authority as regards imposing of any conditions for grant of permission and that the State Government/Committee is denuded of all its powers as regard prescribing any such condition for grant of recommendation. The learned counsel would contend that despite the fact that the writ petitioner-appellant herein had fulfilled all other conditions, the Committee had refused even to make an inspection of the premises, which is otherwise suitable for establishing a medical college. He also contends that not only an inspection had been made by the Committee as regards the third respondent-society but also an Essentiality Certificate had been granted in its favour although it did not comply with the conditions laid down therefor. The learned counsel would urge that the provisions contained in Section 10A of the Act and the 1999 Regulations framed hereunder are absolutely exhaustive and as such the purported conditions imposed by the Committee must be held to be ultra vires. Strong reliance in this connection has been placed upon the decisions of the Apex Court reported in Thirumuruga Kirupananda Variyarthavathiru Sundara Swamigalme Vs. State of Tamil Nadu and Others, as also Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and Another, .

16. The learned Additional Advocate-General appearing on behalf of the first respondent has taken us through the counter-affidavit filed by the State and submitted that the cost of establishment of A Medical College is estimated to be beyond Rs. 40 Crores roughly and the infrastructure required to be provided has been phased over a period of four years. The requirement of furnishing a fixed deposit receipt of Rs. 5 crores for a period of 3 years in their favour is a small portion of the total investment required to be made by the Society for establishment of the medical college. Having regard to the burden which is likely to be caused upon the State if the applicant fails to create the infrastructure for the medical college as per the Medical Council of India norms and in such an event if admissions are stopped by the Central Government, the State Government is required to take over the responsibility of students already admitted in the college with the permission of the Central Government and that is the reason why, the Committee has prescribed the condition of deposit of F.D.R. in a sum of Rs. 5 crores in their favour. He, thus, submits that the Committee possesses the requisite jurisdiction to satisfy itself as regards the financial capacity of the applicant for grant of such Essentiality Certificate by imposing a condition. The learned Additional Advocate General would urge that despite occupation of the field by the Central Government in terms of the provisions of the said Act and the Regulations thereunder, the State is empowered to lay down some conditions. He would further submit that the 1993 Regulations have been repealed by necessary implication in terms of the 1999 Regulations, in terms whereof conditions for grant of permission contained in the Essentiality Certificate to be granted in Form-2, having been imposed the power of the State to impose such conditions is not in conflict with the power of the Central Government. Strong reliance in this connection has been placed on the decision of the Apex Court in A.P. CHRISTIANS MEDICAL EDUCATIONAL SOCIETY case (supra). The learned counsel also relied upon a recent decision of the Supreme Court reported in Dr Preeti Srivastava and Another Vs. State of M.P. and Others, , as also another decision of the Apex Court reported in Ram Chandra Mawa Lal, Varanasi and Others Vs. State of Uttar Pradesh and Others, .

17. Mr. Niranjan Reddy, learned counsel appearing on behalf of the Medical Council of India would urge that the Act having been enacted in terms of Entry-66, List 1 of the Seventh Schedule of the Constitution of India, the entire field is occupied by the Central Government. Essentiality Certificate, the learned counsel would contend, is required only to obtain a feed back from the State inter alia about the site and suitability in relation to the proposed medical college at the proposed site.

18. Mr. Nooti Ram Mohan Rao, learned counsel appearing on behalf of the third respondent would contend that several criteria are required to be fulfilled for obtaining permission from the Central Government. Fulfilment of all the criteria as contained in the Regulations are not simultaneous nor all such conditions are required to be fulfilled at the time of obtaining of Essentiality Certificate. The learned counsel would contend that before a permanent recognition is granted, five inspections are held and the permission and/or recognition would not be granted by the Central Government only on the basis of the Essentiality Certificate. The learned counsel would contend that a bare perusal of the Regulations would clearly show that possession of a land or a building or running of hospital is not a precondition for grant of the Essentiality Certificate. Our attention in this connection has been drawn to the note appended to paragraph 3 of the 1999 Regulations which reads:

NOTE :--For columns 4 to 8, a comparative statement showing the relevant Medical Council of India norms vis-a-vis infrastructure/faculty available and/or proposed to be made available shall be annexed.

19. Drawing our attention to Regulations 7 and 8, the learned counsel would contend that as the formal permission would include the time-bound programme for the establishment of the Medical College, it must be inferred that there does not exist any condition that a hospital should be in existence. Mr. Ram Mohan Rao would suggest that there exists a clear distinction between a teaching hospital and a General Hospital. Even if an applicant had been running a 300 bedded hospital, the same may be a super speciality hospital and as such it would not answer the description of a teaching hospital.

20. On the rival contentions advanced on behalf of the parties, the questions which fall for our consideration in this appeal are:

(1) Whether the State Government or the Committee have any jurisdiction to impose a condition for deposit of Rs. 5 Crores in F.D.R. for a period of three years as a pre-condition for grant of Essentiality Certificate for establishment of a medical college? And

(2) Whether the Essentiality Certificate granted in favour of the third respondent herein is valid?

POINT NO. 1:

21. The Apex Court in P. Unnikrishnan''s case (supra) observed that for the purpose of maintaining some standard in medical education, the Central Government should make a comprehensive statutory provision. Pursuant to or in furtherance of such a direction, the Parliament inserted Sections 10A, 10B and 10C in the Act.

22. The 1999 Regulations, as noticed hereinbefore, have been made by the Council in exercise of its power conferred upon it u/s 10A read with Section 33 of the Act. Sub-section (1) of Section 10-A puts an embargo upon any person from establishing a medical college or from opening a new or higher course of study or training or increase its admission capacity in any course of study or training except with the previous permission of the Central Government obtained in accordance with the said provisions. Sub-section (2) of Section 10A provides that for the purpose of obtaining such permission a scheme is required to be submitted before the Central Government in accordance with the provisions of Clause (b), whereafter, the scheme shall be referred to the Council for its recommendations. Clause (b) of Sub-section (2) of Section 10A provides that such scheme shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed. Section 2(g), as noticed herein before, defines the expression "prescribed" to mean ''prescribed by regulations.''

23. Paragraph 3 of 1999 Regulations in turn places an embargo to the effect that no person shall establish a medical college except after obtaining prior permission from the Central Government by submitting scheme annexed thereto. The fact that both the appellant and the third respondent herein are Societies registered under the Societies Registration Act, 1860 and that they had fulfilled the eligibility criteria is not in dispute. Paragraph 2 of the 1999 Regulations provides for the Qualifying Criteria, which reads thus:

"The eligible persons shall qualify to apply for permission establish a medical college if the following conditions are fulfilled:-

1. That medical education is one of the objectives of the applicant in case the applicant is an autonomous body, registered society or charitable trust.

2. That a suitable single plot of land measuring not less than 25 acres is owned and possessed by the person or is possessed by the applicant by way of 99 years lease for the construction of the college.

3. 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.

4. That Consent of Affiliation in Form 3 for the proposed medical college has been obtained by the applicant from a University.

5. That the person owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution in the campus of the proposed medical college.

6. That the person has not admitted students to the proposed medical college.

7. That the person provides two-performance bank guarantees from a Scheduled Commercial Bank valid for a period of five years, in favour of the Medical Council of India, New Delhi, one for a sum of rupees one hundred lakhs (for 50 admissions). Rupees one hundred and fifty lakhs (for 100 admissions) and rupees two hundred lakhs (for 150 annual admissions) for the establishment of the medical college and its infrastructural facilities and the second bank guarantee for a sum of rupees 350 lakhs (for 400 beds), rupees 550 lakhs (for 500 beds) and rupees 750 lakhs (for 750 beds) respectively for the establishment of the teaching hospital and its infrastructural facilities:

Provided that the above conditions shall not apply to the persons who are State Governments/Union Territories if they give an undertaking to provide funds in their plan budget regularly till the requisite facilities are fully provided as per the time bound programme.

8. Opening of a medical college in hired or rented building shall not be permitted. The Medical college shall be set up only on the plot of land earmarked for that purpose as indicated."

24. As noticed hereinbefore, Essentiality Certificate in Form-2 regarding No Objection of the State Government/Union Territory Administration, as the case may be, has to be obtained by the person in terms of sub-para (3) of paragraph 2 of the 1999 Regulations for the establishment of the proposed medical college at the proposed site and adequate clinical material have to be obtained by the person as per the Council Regulations. Form-2 appended to the said Regulations, inter alia, lays down the following conditions:

"(1) to (7) XX XX X

(8) How the establishment of the college would resolve the problem of deficiencies of qualified medical personnel in the State and improve the availability of such medical manpower in the State.

(9) xx xx x

(10) Full justification for opening of the proposed college.

5. xx xx x

(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 Socidety/ Trust 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 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."

Form-2 or any other provision in the Qualifying Criteria do not permit the State Government to lay down any condition in relation to a field which is already occupied by the Central Legislation.

25. There does not exist any dispute that the Act has been enacted by the Central Government in terms of Entry-66 in List-1 of the Seventh Schedule appended to the Constitution of India by the Parliament for the purpose of ensuring coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. A little play in the joint which has been conferred upon the State by the Central Government is with regard to making provision of a higher standard than prescribed by the Medical Council of India and not otherwise.

26. It is not necessary for us to refer to the provisions of the said Regulations in their entirety with a view to showing that all aspects of the matter had been taken care of in terms of the said Regulations. No field has been shown to be unoccupied in terms thereof enabling the State to fill up the gaps. The jurisdiction of the State Government to grant essentiality certificate for the establishment of the proposed medical college at the proposed site is confined only to the matters contained in Form-2 as regards the availability of adequate clinical material as per the Council Regulations.

27. The said Act occupies the entire field relating to grant of permission to establish and recognise a medical hospital. The Regulations contain adequate provisions for the satisfaction of the, Central Government as regard the financial capacity of the applicant as would be evident from sub-para (7) of Paragraph 2 of the Scheme. The State being completely denuded of its power to legislate in this behalf cannot indirectly impose a condition which cannot be done directly. The question is no longer res integra in view of the authoritative pronouncements of the Supreme Court of India. In Thirumuruga''s case (supra) the Apex Court at para 31 held as follows:

"It would thus appear that in Section 10-A Parliament has made a complete and exhaustive provision covering the entire field for establishing of new medical colleges in the country. No further scope is left for the operation of the State legislation in the said field which is fully covered by the law made by Parliament. Applying the test laid down by this Court, it must be held that the proviso to Sub-section (5) of Section 5 of the Medical University Act which was inserted by the State Act requiring prior permission of the State Government for establishing a college are repugnant to Section 10-A inserted in the Indian Medical Council Act, 1956 by the Central Act which prescribes the conditions for establishing a new medical college in the country. The said repugnancy is, however, confined to the field covered by Section 10-A, viz., establishment of a new medical college and would not extend to establishment of other colleges."

28. In Jaya Gokul''s case (supra), the Supreme Court, while affirming the views expressed in the Thirumuruga''s case (supra), approvingly referred to the following observations of the Supreme Court:

"essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone"

and held at para 22 as follows:

"As held in the Tamil Nadu case (1995 AIR SCW 2179), the Central Act of 1987 and in particular, Section 10(k) occupied the field relating the ''grant of approvals'' for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular statutes, 9(7), they merely required the University to obtain the ''views'' of the State Government. That could not be characterised as requiring the "approval" of the State Government. If, indeed, the University statute could be so interpreted, such a provision requiring approval of the State Government would be repugnant to the provisions of Section 10(k) of the AICTE Act, 1987 and would again be void. As pointed out in the Tamil Nadu case there were enough provisions in the Central Act for consultation by the Council of the AICTE with various agencies, including the State Governments and the Universities concerned. The State Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, the AICTE would have to go by the views of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State Governments and the Universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in the Tamil Nadu case, it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by the AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions of the Central Act. The University could not, therefore, in any event have sought for ''approval of the State Government."

29. In A.P. Christians Medical Educational Society case (supra), the Supreme Court, inter alia, held at paragraph 7 in the following terms:

"......... The society in the instant case has played havoc with the careers of several score students are jeopardised their future irretrievably. Obviously the so-called establishment of a medical college was in the nature of a financial adventure for the so-called society and its office bearers, but an educational misadventure for the students. Many, many conditions had to be fulfilled before affiliation could be granted by the University. Yet the society launched into the venture, without fulfilling a single condition beyond appointing someone as principal. No one could have imagined that a medical college could function without a teaching hospital, without the necessary scientific equipment, without the necessary staff, without the necessary building and without the necessary funds. Yet that is what the society did or pretended to do. There was no doubt that the society and the so-called institutions were started as business ventures with a view to make money from gullible individuals anxious to obtain admission to professional colleges. It was nothing but a daring imposture and skull-duggery. By no stretch of imagination status and dignity of a minority institution can be conferred on it"

Preeti Srivastava''s case (supra) has been followed by the Division Bench of this Court in Mr. B. Srinivas'' case (supra). In Preeti Srivastava''s case (supra) the Supreme Court at para 36 held:

"It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standard of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-1. For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List-1. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:

1) The caliber of the teaching staff;

2) A proper syllabus designed to achieve a high level of education in the given span of time;

3) The student-teacher ratio;

4) The ratio between the students and the hospital beds available to each student;

5) The caliber of the students admitted to the institution;

6) Equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;

7) Adequate accommodation for the college and the attached hospital; and

8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.

30. In M/s. Ram Chandra Mawa Lal''s case (supra), the Supreme Court, inter alia, held at para 48:

"The Central notification, as discussed earlier, is altogether silent on the ramification regarding sales from out of existing stocks acquired by the dealers at lower rates. The impugned State notification, on the other hand, deals exclusively with this aspect. The State notification speaks on a refinement of the subject about which the Central notification is blissfully unaware and on which it is altogether silent. The two do not overlap. There is, therefore, no real inconsistency. The principle may be stated thus. The Centre and the State both cannot speak on the same channel and create disharmony. If both speak, the voice of the Centre will drown the voice of the State. The State has to remain ''silent'' or it will be ''silenced''. But the State has the right to ''speak'' and can ''speak'' (with unquestionable authority) where the centre is ''silent'' without introducing disharmony. If the Centre sits only on a portion of the Chair, the State can sit on the rest of the portion with arms thrown on the shoulders of each other. While the State cannot sit on the lap or on the shoulders of the Centre, both can certainly walk hand-in-hand, lending support to each other, in a friendly manner, towards the same destination. If the Centre has built a wall, and has left a gap from which intruders can infiltrate, the State can fill the gap in the wall, and thus make its own contribution to the Common Cause. What is more, each in theory and principle must be presumed to be conscious of the need for accord and need for accommodating each other in the interest of ''NATIONAL HARMONY''."

31. There cannot, therefore, be any doubt whatsoever that the State has sought to entrench upon a field which is occupied by a Central Legislation. In any event, even such a condition has not been laid down in G.O.Ms. No. 214 dated 23.6.2000. The Committee is a creation of the said statutory instrument. It, therefore, could not in the notification impose a condition, which was not contemplated thereunder. Such action on the part of the Committee is, therefore, clearly ultra vires. The Committee, as a logical corollary, must be held to have acted wholly illegally and without jurisdiction in not inspecting the premises of the appellant herein. Point No. 1 is answered accordingly.

POINT NO. 2:

32. One of the essential conditions for obtaining permission of the Central Government to establish a medical college as per sub-para (5) of paragraph 2 of the Scheme is that the person applying for making such application should own and manage a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution the campus of the proposed medical college.

33. Paragraph 3 of the Scheme which provides for Form and procedure envisages that subject to fulfilment of the eligibility and qualifying criteria, the application for establishment of medical college in Form-1 shall be submitted by the person in three parts. Part-1 shall contain the particulars about the person, namely, (1) status of the applicant in terms of the eligibility criteria, (2) basic infrastructural facilities, managerial and financial capabilities of the applicant, (Balance sheets for the last three years in case the person is not a State Government or a Union Territory), and (3) Necessary certificates/documents as prescribed in qualifying criteria under paragraph 2 of the Scheme. Sub-para (10) of Part-II of the application provides for phasing and scheduling. Sub-para (11) provides for project cost inter alia in ''relation to cost of land, building, plant and machinery, scientific and allied equipment, furniture and fixtures and preliminary and pre-operative expenses. Sub-para (12) refers to means of financing the project which includes (a) contribution of the applicant, (b) grant, (c) donations, (d) equity, (e) term loans, and (f) other sources, if any. Sub-para (15) speaks of operative results, which would contain (a) income statement, (b) cash, and (c) flow statement and (d) projected balance sheets. The note appended to Part-11 of the Form-1 is in relation to column Nos.4 to 8 only, in terms whereof, a comparative statement showing the relevant Medical Council of India norms vis-a-vis infrastructure/faculty available and/or proposed to be made available shall be annexed. The said columns 4 to 8 refer to Educational programme, Education programme, Equipment programme, Manpower programme and Building programme. It does not state that even a proposed hospital shall meet with the qualifying criteria.

34. The necessity of having an existing hospital is buttressed by reason of sub-paragraph (2) in Part-III of the Form-1 Application provided for under paragraph 3 of the Scheme, which is in the following terms:

"(2) Details of the existing hospital including (a) bed strength, (b) bed distribution and whether the norm of five in-patients per student would be fulfilled, (c) built-up area, (d) clinical and para-clinical disciplines, (e) out patients departments and out patients department attendance department wise, (f) architectural and lay-out plans, (g) list of medical/allied equipments, (h) capacity and configuration of engineering services, (i) hospital services, administrative services and (j) other ancillary and support services, (k) category-wise staff strength."

35. As noticed hereinbefore, the said sub-paragraph speaks of existing hospitals. The submission of Mr. Nooti Ram Mohan Rao to the effect that in terms of sub-paras (2) of paragraphs 7 and 8 of the Scheme, the proposed hospital at a proposed cite would also meet the requirement of Paragraph 2 of the Scheme cannot be accepted whereas in relation to establishment of the medical college, the formal permission is to include a time bound programme. So far as hospital facilities are concerned, paragraph 8(2) specifically provides only for expansion of the hospital facilities and not for proposed hospital. The Scheme contemplates establishment of a teaching hospital in an existing hospital of not less than three hundred beds which must bear the requisite clinical facilities as per the Regulations framed by the Medical Council of India. The said sub-paras (2) of Paragraphs 7 and 8 read thus:

"7 REPORT OF THE MEDICAL COUNCIL OF INDIA-(a) After examining the application and after conducting necessary physical inspections, the Medical Council shall send to the Central - Government a factual report stating--

(1) XX XX X

(2) That the person has a feasible and time bound programme to set up the proposed medical college along with required infrastructural including adequate hostel facilities separate for boys and girls, and as prescribed by the Council, commensurate with the proposed intake of students, so as to complete the medical college within a period of four years from the date of grant of permission.

8. GRANT OF PERMISSION

(1) XX XX X

(2)The formal permission may include a time bound programme for the establishment of the medical college and expansion of the hospital facilities. The permission may also define annual targets as may be fixed by the Council to be achieved by the person to commensurate with the stake of the students during the following years."

36. There cannot be any doubt whatsoever that a teaching hospital cannot be built in a short time. Sufficient time must be provided therefor. A distinction must be borne in mind as regards existence of a hospital and a medical college and hospital. The views of ours are also buttressed by sub-para (iii) of paragraph 3 of Form-4 which reads:

"(iii) that the applicant has a feasible and time bound expansion programme to provide additional beds and infrastructural facilities as prescribed by the Medical Council of India by way of upgradation of the existing hospital or by way of establishment of new hospital or both so as to collectively provide the prescribed bed complement within a period of four years from the date of grant of permission to set up the proposed medical college."

In terms of the aforementioned recommendations, therefore, what is required is availability of infrastructural facilities, which is a clear pointer to the fact that existence of 300-bedded hospital is mandatory in nature.

37. In the Essentiality Certificate to be issued in Form-2 at Clause (a) of Paragraph 5 it has to be certified that the applicant owns and manages a 300 bedded hospital, which was established in such and such year. It is to be noticed in this connection that even in the Essentiality Certificate dated 2nd June, 2001, it is stated by the competent authority that the third respondent owns a 300 bedded hospital which was under construction which fact is not only contrary to the admitted fact but also falsify by the Inspection Report dated 23.6.2000 submitted by the Committee.

38. Furthermore, it is also to be certified in the Essentiality Certificate, as per Clause (d) that adequate clinical material as per the Medical Council of India norms is available. Availability of such clinical material, in our considered view, is possible only when the hospital has been established and is being run and not otherwise. Admittedly, the respondent No. 3 does not possess any hospital as can be seen from the Report dated 23.6.2000 submitted by the Committee. Even it does not fulfil the conditions of having a site as noticed hereinbefore, that in its application, the respondent No. 3 merely stated that it had entered into an agreement for sale. A copy of the agreement for sale has also been annexed to the application, which is in relation to some land situated in the town of Ongole whereas from the inspection Report, dated 23.6.2000, it appears that the land in question is situated at Yedugundlapadu Village, Maddipadu Matidal, Prakasam District. At the cost of repetition, we may state that in terms of the Government orders, the medical college has to be located at Ongole town. Having regard to the facts and circumstances of this case, we are of the considered opinion that the State Government and/or the Committee could not have granted Essentiality Certificate in favour of the third respondent in contravention of the 1999 Regulations. Point No. 2 is answered accordingly.

39. For the aforementioned reasons, we direct the State Government to constitute another Committee, which shall consider the matter afresh in accordance with law and pass appropriate orders within a reasonable time in the matter of granting Essentiality Certificate in favour of the appellant. The writ appeal is accordingly allowed. There shall be no order as to costs.