HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION Nos. 14484 & 14485 OF 2011 . DATED 6th July, 2011. BETWEEN Anil Neerukonda Educational Society, rep. by its Member, Yanamadala Rajeshwar Rao,Visakhapatnam and ors ……Petitioners in WP.No. 14484 of 2011. Chandramma Educational Society, Rep. by its President Ch.Malla Reddy, Secunderabad and ors. …Petitioners in WP.No. 14485 of 2011. And The State of Andhra Pradesh, Rep. by its Principal Secretary, Medical, Health and Family Welfare Department, Secretriat, Hyderabad and ors. ….Respondents in both WPs. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION Nos. 14484 & 14485 OF 2011. COMMON ORDER: In as much as common questions of fact and law are involved in these two writ petitions, they are being disposed of by way of this common order. The relevant facts which are necessary to adjudicate the controversy in these writ petitions are as follows: The petitioners being educational societies had submitted their representations dated 13.09.2005 and 29.12.2004 respectively to the first respondent seeking grant of Essentiality Certificate for establishment of Medical Colleges at Sangivalasa, Bhimili Mandal, Visakhapatnam District, and at Suraram Village, Qutubullapur Mandal, Ranga Reddy District, respectively. The second respondent in these writ petitions is the High Power Committee which is presided over by a former Judge of the High Court and which is appointed for the purpose of considering the applications for grant of Essentiality Certificates. It may be noticed that the petitioners are equipped with a 350 bedded hospital which is located in Visakhapatnam District, and a 400 bedded hospital which is located in Suraram Village in Ranga Reddy District, respectively and they claim that they have got the necessary infrastructure for establishment of Medical Colleges at the places mentioned in their applications. As the applications of the petitioners dated 13.09.2005 and 29.12.2004 for grant of Essentiality Certificates were shelved, the petitioners in W.P.No.14484 of 2011 earlier filed a Writ Petition No.5745 of 2011 before this Court wherein an interim order was passed on 11.03.2011 directing the second respondent therein to cause inspection of the petitioners’ colleges for submitting feasibility report relating to grant of Essentiality Certificate. Similarly, the petitioners in W.P.No.14485 of 2011 had initially filed a Writ Petition No.20301 of 2006 before this Court complaining inaction on the part of the first respondent and the said writ petition was later withdrawn as they were assured that a final decision would be taken on their application. As there was no progress thereafter and complaining inaction, the petitioners had again filed another writ petition being W.P.No.23171 of 2010 wherein an interim order was passed on 18.02.2011 directing the fourth respondent therein to conduct an inspection of the petitioners’ college for submitting feasibility report relating to grant of Essentiality Certificate. It may be seen that pursuant to the interim direction of this Court, the second respondent Committee had, in fact, caused thorough inspections of the petitioners’ colleges/hospitals and submitted reports dated 22.03.2011 and 03.03.2011 respectively to the effect that the petitioners are fully possessed with the necessary infrastructure for establishment of Medical Colleges. Despite the said reports, the first respondent has not taken any action as regards grant of Essentiality Certificates and the petitioners were made to wait indefinitely. While matters stood thus, the respondents had issued a notification dated 18.05.2011 inviting from interested societies/ trusts/companies which propose to establish private Medical Colleges in the State of Andhra Pradesh. In the said notification it is mentioned that the last date for issuing of applications was 06.06.2011. The said notification has further stipulated that ‘those who had already applied prior to issue of this notification, should also apply again if they are interested’. Complaining this stipulation containing the said notification and contending that issuance of a notification is not a condition precedent for submitting applications for establishment of Medical Colleges, the present writ petitions are filed. The above said notification has also stipulated an additional condition that the interested candidates should possess a 300 bedded hospital for the preceding five years with full capacity. The petitioners assail this condition also on the ground that the Regulations framed by the Medical Council of India do not contemplate the existence of 300 bedded hospital for the preceding five years and that the State Government cannot change the eligibility criteria contained in the Regulations framed by the Medical Council of India. Ultimately, the petitioners seek a direction to the first respondent to consider/examine the reports of the second respondent and consequently grant Essentiality Certificates to the petitioners for establishment of Medical Colleges at the places mentioned in their applications and as verified by the second respondent Committee. The first respondent has filed a counter affidavit adverting to the averments contained in the affidavit filed in support of the writ petition and there is no dispute on the facts that the petitioners had applied for grant of Essentiality Certificates way back in the year 2004 (viz. on 13.09.2005 and 29.12.2004 respectively) and that the petitioners had earlier filed writ petitions before this Court complaining inaction and in the said writ petitions there was a direction to inspect the establishments of the petitioners and that the second respondent had accordingly inspected the establishments of the petitioners and submitted his reports to the first respondent in their favour. However, the first respondent has averred that as it has issued a notification dated 18.05.2011 calling for applications from interested societies/trusts/companies for establishment of private Medical Colleges in the State of Andhra Pradesh, it is obligated to wait till such applications are received from interested parties and the applications of the petitioners will be considered along with the other applications, if any, received pursuant to the aforestated notification. It is further contended that the new requirement of 300 bedded hospital which should be functional for the preceding five years is for providing better educational standards and hence it is unobjectionable. It is also contended that the State Government is competent to impose such a condition which is in the interest of public at large. Thus, the respondents have prayed this Court to decline any relief to the petitioners as the applications of the petitioners will be considered along with the other applications, if any, that may be received pursuant to the notification dated 18.05.2011. With the consent of the learned counsel on either side, both the writ petitions are heard finally and taken for final disposal although they are at the interlocutory stage as the pendency of these cases would not enure to the benefit of either of the parties. Initially, these writ petitions have come up before a vacation Bench of this Court, which had passed an order on 31.05.2011 inter alia observing that the petitioners need not apply afresh and that the establishments of the petitioners need not be subjected to inspection by the second respondent in as much as inspections had already taken place and reports favourable to them were also submitted by the second respondent High Power Committee to the first respondent. However, to adjudicate the question as to whether the petitioners’ applications for grant of Essentiality Certificates should be considered individually or together with the applications that may be received in response to the notification dated 18.05.2011, the matter was directed to be posted immediately after vacation, i.e., on 14.06.2011. That is how, the present writ petitions had come up for further hearing and for passing consequential final orders thereon. Heard Sri Vedula Venkataramana, learned Senior Counsel representing Sri S.Niranjan Reddy, the learned Counsel for the petitioners and the learned Government Pleader for Medical and Health. Perused the case file and material placed on record including the precedential law cited by the learned senior counsel for the petitioners. Sri Vedula Venkata Ramana, learned senior counsel appearing for the writ petitioners, has contended that the State Government has no authority or jurisdiction to meddle with the Regulations framed by the Medical Council of India. The learned senior counsel asserted that as per the ratio laid down by the Supreme Court in STATE OF MAHARASHTRA V/s. SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA [(2006) 9 SCC 1], the legislative field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List-I of Schedule-VII of the Constitution of India, it is not open to the State Legislature to encroach upon the said field and that Parliament alone could have exercised the power by making appropriate law. He therefore argued that in such circumstances, it was not open to the State Government or the University to refuse permission merely basing on a State Act or on a ‘policy consideration’. Placing reliance on the said Judgment, the learned senior counsel would submit that the State Government has no authority under law to introduce a new condition that a 300 bedded hospital should be in existence for five years preceding an application. Alternatively, the learned senior counsel would submit that the present requirement, i.e., 300 bedded hospital for the preceding five years can, at best, be applied only to the applicants who respond to the notification dated 18.05.2011 and as the petitioners had applied much prior to the aforestated notification, the present condition cannot be made applicable to them in as much as no executive act can have retrospective effect. The learned senior counsel has further placed reliance on THIRUMURUGA KIRUPANANDA VARIYAR THAVATHIRU SUNDARA SWAMIGAL MEDICAL EDUCATIONAL & CHARITABLE TRUST V/s. STATE OF TAMIL NADU [(1996) 3 SCC 15] to support his contention that the State Government cannot have any competence in the matter of prescribing Regulations over and above the Regulations that are framed by the Medical Council of India. The learned senior counsel also argued that even in the absence of a notification by the State Government it is open to any educational society to make an application to the State Government for grant of permission for establishment of Medical College and that issuance of notification by the competent authority is not a condition precedent for submission of application for grant of permission for establishment of a Medical College, which includes issuance of Essentiality Certificate by the State. In support of the said contention, he placed reliance on a Division Bench Judgment of this Court in INTEGRATED RURAL HEALTH WOMEN AND CHILD EDUCATION DEVELOPMENT SOCIETY V/s. GOVERNMENT OF ANDHRA PRADESH [2006 (2) ALT 432]. The learned senior counsel has therefore contended that the applications that were submitted by the petitioners are legally valid and hence the petitioners are not required to submit applications once again in response to the notification dated 18.05.2011. In essence, the contention of the learned senior counsel is that issuance of notification is not a pre-requisite for applying for grant of Essentiality Certificate by the State. According to the learned senior counsel, the State shall never hesitate in issuing Essentiality Certificate as establishment of a Medical College having teaching hospital would always enure to the benefit of the public at large. Lastly, the learned senior counsel contended that if Essentiality Certificates are issued to the petitioners without any further delay, basing thereon they would approach the Medical Council of India for grant of permission for establishment of Medical Colleges under Section 10-A of the Indian Medical Council Act, 1956. Per contra, the learned Government Pleader has contended that although notification is not necessary for submitting an application for grant of Essentiality Certificate, when once the State had undertaken a policy decision inviting applications by prescribing the condition of 300 bedded hospital with full capacity existing five years preceding the application, the petitioners cannot escape the said policy decision and therefore, the petitioners cannot march over the applicants who responded to the notification dated 18.05.2011. The learned Government Pleader would submit that the petitioners have no special priority and as and when applications are received pursuant to the aforestated notification, the petitioners’ applications would also be considered along with those applications at once so that the applicants having best standards would get opportunity to establish Medical Colleges which would ultimately have complete and requisite infrastructure. However, the learned Government Pleader has not made any attempt to distinguish the case law relied upon by the learned senior counsel. But, the learned Government Pleader has contended that in case any other applicant proposes to establish a Medical College at the same place whereat the petitioners have already proposed, the relative merit of such applications vis-à-vis the applications of the petitioners would be conveniently decided together after all applications are received pursuant to the said notification. Lastly, the learned Government Pleader has contended that the petitioners cannot claim any priority of consideration and it is for the State Government in its wisdom to consider at once all the applications – both the applications of the petitioners as well as the applications that may be received in response to the aforestated notification dated 18.05.2011. Admittedly, the petitioners had submitted their applications for establishing Medical Colleges at the places mentioned therein on 13.09.2005 and 29.12.2004 respectively. As can be seen from the record, it is abundantly clear that the applications of the petitioners had not received the due and required attention of the respondents for a long time. Therefore, the petitioners had to approach this Court earlier by way of filing writ petitions. The petitioners in W.P.No.14484 of 2011 had earlier filed Writ Petition No.5745 of 2011 before this Court wherein an interim order was passed on 11.03.2011 directing the second respondent therein to take steps for necessary inspection of the petitioners’ college and make its recommendations within a period of four weeks therefrom. Similarly, the petitioners in W.P.No.14485 of 2011 had initially filed Writ Petition No.20301 of 2006 before this Court wherein an interim order was granted by this Court directing the respondents therein to consider the petitioners’ application. However, the said writ petition was said to have been withdrawn on 19.01.2007 in view of the assurance given by the respondents that their application would be considered once the writ petition was withdrawn. Notwithstanding the same, the respondents did not move an inch in considering the application of the petitioners. Therefore, the petitioners in W.P.No.14485 of 2011 had again filed Writ Petition No.23171 of 2010 before this Court wherein an interim order was granted directing the fourth respondent therein to take steps for necessary inspection of the petitioners’ college and make its recommendations within a period of four weeks therefrom. Pursuant thereto, the second respondent herein caused necessary inspection of the petitioners’ colleges and reports dated 22.03.2011 and 03.03.2011 respectively were submitted to the first respondent. While so, it is the grievance of the petitioners that the first respondent having already received the reports from the second respondent is not issuing Essentiality Certificates to them and that the respondents issued a notification dated 18.05.2011 inviting applications from interested Societies/Trust/Companies for establishment of Medical Colleges in the State of Andhra Pradesh. In the said notification, among other things, a stipulation is contained to the effect that “those who had already applied prior to issue of this notification, should also apply again if they are interested” and another requirement is mentioned to the effect that “applicant owns and manages hospital with not less than 300 beds functioning for more than five years with necessary infrastructural facilities”. It is the contention of the petitioners that having submitted their applications as long back as on 13.09.2005 and 29.12.2004 and their colleges having been inspected by the second respondent and the reports therefor having been submitted to the first respondent much prior to the issuance of the notification dated 18.05.2011, the stipulations/conditions contained in the aforestated notification are not applicable to their cases as the conditions and requirements set out in the aforestated notification, being an executive act, cannot be given retrospective effect and that it was not open to the State Government to refuse permission merely basing on a State Act or on a ‘policy consideration’. In this regard, the learned senior counsel placed reliance on a Judgment of the Supreme Court in STATE OF MAHARASHTRA V/s. SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA [referred to supra]. Therein, a three Judge Bench of the Supreme Court inter alia held in paras 63 and 74 thus: “63. In the instant case, admittedly, Parliament has enacted the 1993 Act, which is in force. The preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher- education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher-education system and for matters connected therewith. With a view to achieving that object, the National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open to the State Government to refuse permission relying on a State Act or on “policy consideration”. 74. It is thus clear that the Central Government has considered the subject of secondary education and higher education at the national level. The Act of 1993 also requires Parliament to consider teacher-education system “throughout the country”. NCTE, therefore, in our opinion, is expected to deal with applications for establishing new BEd colleges or allowing increase in intake capacity, keeping in view the 1993 Act and planned and coordinated development of teacher-education system in the country. It is neither open to the State Government nor to a university to consider the local conditions or apply “State policy” to refuse such permission. In fact, as held by this Court in cases referred to hereinabove, the State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court. [Emphasis added] It is therefore obvious that the legislative field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List-I of Schedule-VII of the Constitution of India and that it is not open to the State Legislature to encroach upon the said field and that Parliament alone could have exercised the power by making appropriate law. In those circumstances, it is not open to the State Government to refuse permission relying on a State Act or on “policy consideration”. I n THIRUMURUGA KIRUPANANDA VARIYAR THAVATHIRU SUNDARA SWAMIGAL MEDICAL EDUCATIONAL & CHARITABLE TRUST V/s. STATE OF TAMIL NADU [referred to supra], a two Judge Bench of the Supreme Court held in paras 34 and 35 as follows: “34. It is no doubt true that in the scheme that has been prescribed under the Regulations relating to establishment of new medical colleges one of the conditions for the qualifying criteria laid down is that essentiality certificate regarding desirability and feasibility of having the proposed college at the proposed location should be obtained from the State Government. The said condition about obtaining an essentiality certificate from the State Government regarding desirability and feasibility of having the proposed college at the proposed location cannot be equated with obtaining prior permission of the State Government for establishing a new medical college as required under the proviso to Section 5(5) of the Medical University Act. For the purpose of granting the essentiality certificate as required under the qualifying criteria prescribed under the scheme, the State Government is only required to consider the desirability and feasibility of having the proposed medical college at the proposed location. The 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 rests with the Central Government alone. 35. As indicated earlier, the Trust did approach the State of Tamil Nadu for grant of essentiality certificate in terms of Letter of Intent dated 12-12-1995 issued by the Government of India, but the State Government has refused to issue the said certificate by its order dated 10- 1-1996. The only reason which has been given by the State Government for such refusal is that “the Government have not changed the policy of not permitting any private trust or management to start a medical/dental college”. This would show that instead of considering the matter of grant of essentiality certificate on the basis of desirability and feasibility of having the proposed medical college at the proposed location, the State Government has refused to grant the essentiality certificate on the basis of its earlier policy of not permitting any private trust or management to start a medical/dental college in the State. The State Government could not refuse essentiality certificate on such a policy consideration. The refusal on the part of the State Government to grant the essentiality certificate in respect of the medical college proposed to be established by the Trust cannot, therefore, be upheld.” [Emphasis added] A perusal of the said Judgment copiously inter alia reveals that for the purpose of granting the essentiality certificate as required under the qualifying criteria prescribed under the scheme, the State Government is only required to consider the desirability and feasibility of having the proposed Medical College at the proposed location and that an 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 rests with the Central Government alone. It further lays down that the State Government could not refuse essentiality certificate on such a policy consideration. Ultimately, the refusal on the part of the State Government to grant the essentiality certificate in respect of the medical college proposed to be established by the Trust in the case before the Supreme Court was, therefore, not upheld. Taking a cue from the above Judgment of the Supreme Court and if applied the same to the case of the petitioners herein, the State Government cannot have any competence to refuse to issue Essentiality Certificates to the petitioners indefinitely, more so, when they had submitted their applications on 13.09.2005 and 29.12.2004 respectively. No reason whatsoever is assigned by the respondents for keeping their applications pending consideration since the years 2005 and 2004 respectively. In INTEGRATED RURAL HEALTH WOMEN AND CHILD EDUCATION DEVELOPMENT SOCIETY V/s. GOVERNMENT OF ANDHRA PRADESH [referred to supra] a Division Bench of this Court, placing reliance on a Judgment of the Full Bench of this Court in SOCIETY OF ANN'S V/s. SECRETARY TO GOVERNMENT [1993 (2) ALT 610], held as under: “17. …… But there can be another mode of identifying the places and that is, when a particular Society comes forward and makes an application to the Government that the Society wants to establish a college at a particular place, the Government can consider such an application and if it finds it is essential to have a college, then it can grant the Essentiality Certificate. Even if A.P. Education Act, 1982 was applicable, even then, this mode is possible, as has been held by a Full Bench of this Court in the case of Society of St. Ann's v. Secretary to Govt. (Edn.)*. This Court held in this case that even if in the absence of notification by competent authority, it is open to any educational agency to make an application to the State Government for grant of permission for establishing an educational institution. …… 19. Essentiality Certificate granted by the State Government does not grant any right to respondent No.5 to establish a college. It is only a formality and a step towards making an application to the Medical Council of India for grant of permission to establish a medical college. [Emphasis added] In the said case, the Division Bench clearly held that even in the absence of a notification by the State Government it is open to any educational society to