CHINTPURNI MEDICAL COLLEGE AND HOSPITAL & ANR.V. STATE OF PUNJAB & ORS. versus STATE OF PUNJAB & ORS.
[2018] 5 S.C.R. 147, Supreme Court of India, 2018
Outcome: Case Allowed (Granted)
Segment: Facts
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CHINTPURNI MEDICAL COLLEGE AND HOSPITAL & ANR.
v.
STATE OF PUNJAB & ORS.
(Writ Petition (Civil) No. 89 OF 2018)
JULY 03, 2018
[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
Medical Council Act, 1956 – ss. 10A, 19 – Essentiality
Certificate – Grant of, by State Government to the medical college
– Power of State Government to withdraw the Certificate once
granted – Permissibility of – Held: It is not permissible to allow any
authority including a State Government which merely issues an
Essentiality Certificate, to exercise any power of withdrawing the
Certificate which could have the effect of terminating the existence
of a Medical College permitted to be established by the Central
Government – State Government may not do either directly or
indirectly – Further, it cannot be said that under no circumstances
can the Essentiality Certificate be withdrawn – State Government
would be entitled to withdraw such certificate where it is obtained
by playing fraud on it or any circumstances where the very
substratum on which the Essentiality Certificate was granted
disappears or any other reason of like nature – On facts, the
condition of doctor-panel ratio proposed to be achieved, is ultra-
vires the provisions of the Act and Regulations – Thus, the order
issued by the State, withdrawing the Essentiality Certificate is
quashed and set aside.
Allowing the writ petition, the Court
HELD: 1.1 The Essentiality Certificate certifies that it is
essential having regard to
specified factors that the opening of
the proposed college is essential in the State, in public interest.
What is significant to note is that the law requires that an applicant
must possess an Essentiality Certificate from the State
Government mentioning therein that it is essential to have a
Medical College as proposed by him. The purpose is interalia to
prevent the establishment of a college where none is required or
to prevent unhealthy competition between too many Medical
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Colleges. Thus, the Legislative scheme for permission to
establish a Medical College prescribes, as a qualifying criterion,
that the applicant must have an Essentiality Certificate issued by
the State Government. The State Government certifies the
justification for establishing a proposed Medical College as a part
of the Legislative scheme under the Act. It does not do so under
any other law including a State enactment. The only purpose of
the Essentiality Certificate is to enable the Central Government
acting under Section 10A of the Medical Council Act, 1956 to
take an informed decision for permitting the opening or
establishment of a new Medical College. Once the college is
established, its functioning and performance and even the de-
recognition of its courses is controlled only by the provisions of
the IMC Act. [Para 14, 15][160-H; 161-A-D]
1.2 It would be impermissible to allow any authority
including a State Government which merely issues an Essentiality
Certificate, to exercise any power which could have the effect of
terminating the existence of a Medical College permitted to be
established by the Central Government. The State Government
may not do either directly or indirectly. Moreover, the purpose
of the Essentiality Certificate is limited to certifying to the Central
Government that it is essential to establish a Medical College. It
does not go beyond this. In other words, once the State
Government has
certified that the establishment of a Medical
College is justified, it cannot at a later stage say that there was
no justification for the establishment of the College. Surely, a
person who establishes a Medical College upon an assurance of
a State Government that such establishment is justified cannot
be told at a later stage that there was no justification for allowing
him to do so. Moreover, it appears that the power to issue an
Essentiality Certificate is a power that must be treated as
exhausted once it is exercised, except of course in cases of fraud.
The rules of equity and fairness and promissory estoppel do not
permit this Court to take a contrary view. [Para 16][161-F-H;
162-A-B]
1.3 The reasons given by the State for rescinding the
Essentiality Certificate are not relevant or germane to the
establishment of a Medical College. They refer to the deficiencies
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in the functioning of a Medical College for a particular period.
Deficiencies by their nature are curable and can be removed. To
allow the State Government to withdraw an Essentiality Certificate
and say that it is no more essential that there should be a college
at all, would lead to gross arbitrariness since logically the
existence of the Medical College would again be justified if the
deficiencies are removed. The question of justified existence of
a college and the irregular/illegal functioning of an existing college
belong to a different order of things and cannot be mixed up. A
certificate constitutes a solemn statement by an authority
certifying certain conditions of things. Persons acting on such
certificates are entitled to assume that the certificate will ensure
and not be pulled out from under their feet for extraneous reasons.
None of the reasons for withdrawing the Essentiality Certificate
pertain to factors which are certified as true in the prescribed
Form 2. [Para 17][162-C-E]
1.4 Relying on the Condition No.(VII)-doctor population
ratio in the State, it was submitted that the State Government has
the power to carry out inspections, since it is responsible for the
students of the college which is shut down by the MCI or
otherwise. If such inspections reveal any deficiencies, the State
is entitled to withdraw the Essentiality Certificate. This
submission cannot be accepted, the IMC Act and the Regulations
under which the State Government
has purported to issue
Essentiality Certificate confers the power of inspection on any
medical institution, college or hospital where any medical
education is given, on Visitors/Inspectors appointed by MCI
under Sections 17 and 18 of IMC Act. [Para 20][163-D-E]
1.5 The State Government is designated by the Regulations
only for the purpose of issuing an Essentiality Certificate to justify
the establishment of a medical college within its territories and
that too when approached by a person seeking to establish a
medical college. There is no direct conferral of any power of
general inspection on the State and neither can such a power be
read into the Regulations nor be implied as necessary to carry
out an expressly conferred power which doesn’t exist. In fact, it
might be difficult to even construe that the IMC Act has delegated
any powers to the State Government including that of issuing of
CHINTPURNI MEDICAL COLLEGE AND HOSPITAL v.
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an Essentiality Certificate. The IMC Act merely requires an
applicant to obtain an Essentiality Certificate from the State
Government to justify the establishment of a medical college.
However, the Act prescribes the form in which such a certificate
must be obtained from the State.  Significantly, the form does not
confer any power of inspection. The mere requirement of an
Essentiality Certificate by the State as a qualifying criterion cannot
imply the delegation of a power which must be express and clear.
It is, therefore, clear that such power has been arrogated by the
State without any justification and is likely to lead to a conflict
with the power meant to be exercised by the Central Government
and potentially, result in conflicting inspection reports. The
condition imposed by the State Government is therefore,
ultra-vires the IMC Act and the Regulations. [Para 21][164-A-E]
1.6 The submission that since the Essentiality Certificate
requires the State Government to assume responsibility of the
students in case the college closes down, the State must be held
to have an inherent right to withdraw the Essentiality Certificate,
is ejected as fallacious since the consequence of withdrawing the
Essentiality Certificate can only be that the college closes down,
and the State must bear the burden of accommodating the students
in another institution. [Para 22][164-F-G]
1.7 The submission that since the Essentiality
Certificate
certifies the availability of adequate clinical material for the
proposed Medical College, as per the Regulations, the State has
the necessary power of inspection of the college even after its
establishment to ensure that there is adequate clinical material,
cannot be accepted since the State is enjoined to certify adequate
clinical material only at the time of proposal of the Medical College
and not after it is established. But it is found that the State has
misinterpreted the term ‘adequate clinical material’ completely.
According to the State, “adequate clinical material” means
“people” i.e. doctors, patients, staff etc. Whereas, the term is
understood in the field of Medical Education to mean data about
number of admissions, number of discharges, number of deaths,
number of surgeries, number of procedures, X-rays and
laboratories investigations. Thus, what the State is required to
certify is the data available in the region to justify the
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establishment of the proposed Medical College. Obviously, for
the purpose of justifying the existence of a Medical College, the
State’s claim that it must have the right to inspect a college after
it is established to see whether there are adequate numbers of
doctors, patients etc. to justify it’s continued existence is
completely unfounded. [Para 23][165-B-D]
1.8 The function of the State Government in granting an
Essentiality Certificate must be construed as a quasi judicial
function. The Government is required to, while issuing the
certificate in Form 2, to determine the justification and feasibility
of opening the proposed college in the State. Towards this purpose,
it is bound to enquire and determine the existence of several
factors such as the number of existing institutions, the number
of doctors becoming qualified annually, the number of doctors
registered with the State Medical Council and employed in
Government Service, registered with employment exchange etc.
It must also determine the doctor population in the State, the
doctor - patient ratio to be achieved and the impact of the
proposed college on the availability of medical manpower in the
State. The issuance of certificate must therefore be construed to
be a quasi judicial act. The upshot is that such an act is not liable
to be construed as an “order” contemplated by Section 21 of the
General Clauses Act. Not being an order, and certainly not being
a notification, rule or bye-law, s. 21
has no application whatsoever.
[Para 27][166-D-F]
1.9 No provision of the IMC Act confers any power on the
State Government or Union Territory Administration to issue an
Essentiality Certificate. What the Regulations do is lay down that
an Essentiality Certificate is the qualifying criterion for making
an application for opening a medical college. In that sense, the
provision recognizes an Essentiality Certificate issued by the State
Government. It is nobody’s case that the State Government is
conferred with the power or duty to issue such a certificate under
any State law. In any case, in view of the fact that the field is
occupied by a parliamentary law i.e. MC Act, 1956, a State law
even if already existing would have no efficacy in the field. As a
consequence, the executive power of the State under Article 162
cannot be invoked. [Para 28][166-G-H; 167-A-B]
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1.10 The Essentiality Certificate must be taken to have
been issued under the IMC Act read with Regulations and not in
exercise of any independent power of the State. Significantly,
where no power to issue certificate is shown to have been
conferred by the IMC Act or the Regulations, it would be futile
to enquire if a corresponding power to withdraw the same has
been conferred on the State. Even assuming that a power to issue
such a certificate has been impliedly conferred by the Regulations
under the Act, certainly, no power to withdraw the same has been
so conferred. Such a power cannot be arrogated relying on Section
21 of the General Clauses Act. [Para 29][167-B-D]
1.11 In the instant case, the petitioner college has acted on
the Essentiality Certificate and has established a college which
has functioned; may be deficiently. The conditions having changed
since the grant of the Essentiality Certificate, Section 21 is not
available in the absence of any power to withdraw conferred by
the IMC Act. Condition No. (XI) is ultra-vires the provisions of
the IMC Act and Regulations. The order issued by respondent
No. 1-State of Punjab, withdrawing the Essentiality Certificate is
quashed and set aside and Condition Nos.(VII) and (XI) are
declared illegal. [Paras 32, 33][168-B-D]
1.13 This Court may not be understood to be laying down
that under no circumstances can an Essentiality Certificate be
withdrawn. The State
Government would be entitled to withdraw
such certificate where it is obtained by playing fraud on it or any
circumstances where the very substratum on which the
Essentiality Certificate was granted disappears or any other
reason of like nature. [Para 35][168-E-F]
Modern Dental College and Research Centre v. State
of Madhya Pradesh (2016) 7 SCC 353; Anirudhsinhji
Karansinhji Jadeja v. State of Gujarat (1995) 5 SCC
302 : [1995] 2 Suppl. SCR 637; Dipak Babaria v. State
of Gujarat (2014) 3 SCC 502 : [2014] 2 SCR 71; Dr.
Preeti Srivastava v. State of Madhya Pradesh (1999) 7
SCC 120 : [1999] 1 Suppl. SCR 249; Indian National
Congress (I) v. Institute of Social Welfare (2002) 5 SCC
685 : [2002] 3 SCR 1040; Industrial Infrastructure
Development Corporation (Gwalior) M.P. Ltd. v.
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Commissioner of Income Tax, Gwalior (2018) SCC
Online SC 126; Ghaurul Hasan vs. State of Rajasthan
AIR 1967 SC 107 : 1962 SCR 772; Hari Shanker Jain
vs. Sonia Gandhi (2001) 8 SCC 233 : [2001] 3 Suppl.
SCR 38; Government of Andhra Pradesh vs. Y.S.
Vivekanand Reddy AIR 1995 AP 1 – referred to.
Wade and Forsyth in Administrative Law, 10th Edn p.
269 – referred to.
Case Law Reference
(2016) 7 SCC 353
referred to
Para 2
[1995] 2 Suppl. SCR 637
referred to
Para 8
[2014] 2 SCR 71
referred to
Para 8
[1999] 1 Suppl. SCR 249
referred to
Para 15
[2002] 3 SCR 1040
referred to
Para 25
(2018) SCC Online SC 126
referred to
Para 25
[1962] SCR 772
referred to
Para 30
[2001] 3 Suppl. SCR 38
referred to
Para 30
AIR 1995 AP 1
referred to
Para 31
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
89 of 2018.
Under Article 32 of the Constitution of India.
Ms. Bina Madhavan, S. Udaya Kumar Sagar, Mrityunjai Singh,
M/s. Lawyer S Knit & Co., Advs. for the Petitioners.
Mr. Aman Lekhi, ASG,  Prateek Bhatia,  Dhawal Mohan,  Mishra
Saurabh,  Ms. Uttara Babbar, Ms. Akanksha Choudhary, Ms. Bhavana
Duhoon,  Mr. Govind Goel,  Ankit Goel, Alok Kr. Dwivedi, Advs. for the
Respondents
The Judgment of the Court was delivered by
S. A. BOBDE, J. 1. Chintpurni Medical College started in the
year 2011 in the State of Punjab.  This college is affiliated to Baba Farid
University.  It made an application to the Medical Council of India
CHINTPURNI MEDICAL COLLEGE AND HOSPITAL v.
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(hereinafter referred to as ‘MCI’) under Section 10(A) of the Indian
Medical Council Act, 1956 (hereinafter referred to as ‘the IMC Act’)
for establishing a new Medical College.  The permission for the first
batch was granted in the year 2011-12 on 30.06.2011. For the subsequent
academic years i.e. 2012-13 and 2013-14, no renewal of permission
was granted to the petitioner college, since the petitioner college was
found to be deficient in the inspections carried out by the MCI. For the
academic year 2014-15, petitioner was granted Letter of Permission
(LOP) under the orders of this court passed in W.P (Civil) No. 469 of
2014. Thereafter, no renewal of permission was granted to the petitioner
for the academic year 2015-16. Petitioner college applied for the grant
of recognition under section 11 of the IMC Act in the year 2015.  MCI in
order to determine whether the petitioner college fulfills the minimum
eligibility requirements for grant of recognition under section 11 of the
IMC Act, conducted three inspections. The First inspection was carried
out on 16.12.2015 followed by second inspection on 25/26.02.2016 and
the third one on 16.03.2016.
2. In all the three inspections carried out by the MCI, petitioner
college was found to be deficient. The MCI concluded the college was
deficient to the extent of 100%.  The MCI, therefore, recommended to
the Central Government, not to issue recognition to the petitioner college
under Section 11 of the IMC Act. The MCI also made similar
recommendations in respect of other colleges.  Those Medical Colleges
approached this Court by way of filing a batch of Writ Petitions.  This
Court directed the matters to be examined by the Oversight Committee
constituted under the judgment of this Court delivered by the Constitution
Bench in the case of Modern Dental College and Research Centre v.
State of Madhya Pradesh1.  Finally, the Oversight Committee directed
the MCI to conduct inspections and further directed that if the Medical
Colleges were found deficient, they would be banned for a period of two
years.  Such a direction was also given in respect of the petitioner college.
MCI conducted fresh inspection of the petitioner college on 07.03.2017
& again found the petitioner college deficient & accordingly
recommended to the Central Government to debar the petitioner college
from admitting students against the allowed intake for two academic
years i.e. 2017-18 and 2018-19. The Central Government by its order
dated 31.05.2017 debarred the petitioner college for a period of two
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academic years i.e. 2017-18 and 2018-19.  This order was questioned
by the petitioner in Writ Petition (Civil) No. 423 of 2017. By order dated
10.5.2018, this Court dismissed the Writ Petition (Civil) No.423 of 2017.
3. The present writ petition questions the withdrawal of the
Essentiality Certificate dated 07.12.2010 and 15.02.2011 issued to the
petitioner college by Respondent No. 1 under Section 10A of the IMC
Act read with the Establishment of Medical College Regulations, 1999
(Hereinafter referred to as “Regulations”) framed under the Act.
Regulations lay down the qualifying criteria for making an application to
open a Medical College.  One of the essential qualifications is that a
person should obtain an Essentiality Certificate from the State Government
where the college is proposed to be located in Form 2.
4. On 13.07.2017, MCI making an unusual request wrote a letter
to the Secretary, Government of Punjab stating that it will take action
only if the concerned college is closed down and the Essentiality
Certificate is withdrawn by the State Government.  The Government of
Punjab by letter dated 24.7.2017 submitted that they are not in a position
to withdraw the Essentiality Certificate for several reasons.  The State
Government stated that the doctor – patient ratio in the State of Punjab
is 1:1440 approximately whereas the required ratio as per MCI norms is
1:1000.  They said that they are committed to opening five new medical
colleges in the
State, it was not possible in these circumstances to conclude
that there is lack of essentiality.  They further said that it would not be
possible to absorb the students from the petitioner college and this will
adversely affect the interest of students.  They requested for permission
to facilitate shifting of the students to medical colleges in the other states
without insisting on the withdrawal of Essentiality Certificate.  The State
thus declined to withdraw the Essentiality Certificate.
5. However, for reasons which are not clear, the State relied on
proceedings of an earlier show cause notice dated 03.05.2017 calling
upon the petitioner to show cause as to why the Essentiality Certificate
should not be withdrawn, to do just the opposite.  They passed an order
dated 01.11.2017 and held that the college had made hollow claims for
removing deficiencies and had failed to show cause why the Essentiality
Certificate should not be withdrawn.  Though several opportunities of
personal hearing were afforded, the college had failed to rebut the findings
of the inspection reports.  Having found persistent deficiencies, the State
Government directed the withdrawal of the Essentiality Certificate.
CHINTPURNI MEDICAL COLLEGE AND HOSPITAL v.
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6. At this juncture, we might make it clear that no fault can be
found with the orders of the State Government in observing the
deficiencies in the functioning of the petitioner college.  These deficiencies
have resulted in the Central Government order dated 31.05.2017 debarring
the petitioner college from taking any fresh intake for two years. As
stated above, this Court has declined to interfere with such an order and
accordingly, Writ Petition (Civil) No.423 of 2017 has been dismissed.
7. Shri Mukul Rohtagi, learned senior counsel for the petitioner,
however contended that the State does not have the power to withdraw
the Essentiality Certificate once granted.  According to the learned senior
counsel, the Essentiality Certificate is issued for the specific purpose of
certifying the need for opening a new medical college in a State.  Once
such a need is certified and the college is established, there is no power
conferred by the IMC Act or the Regulations to withdraw such a
certificate except on the ground of fraud.
8. Before going into the merits of the submission, it is important to
note that the State Government appears to have withdrawn the Essentiality
Certificate acting under dictation of the MCI.  This is obvious from the
letter dated 13.07.2017 referred to above.  This by itself would vitiate
the withdrawal of the Essentiality Certificate by the State, vide
Anirudhsinhji Karansinhji Jadeja v. State of
Gujarat2  and Dipak
Babaria v. State of Gujarat.3  The following passage from Wade and
Forsyth in Administrative Law, 10th Edition at p. 269 succinctly states
the vice in such an action:
“Closely akin to delegation, and scarcely distinguishable from
it in some cases, is any arrangement by which a power
conferred upon one authority is in substance exercised by
another.  The proper authority may share its power with
someone else, or may allow someone else to dictate to it by
declining to act without their consent or by submitting to their
wishes or instructions.  The effect then is that the discretion
conferred by Parliament is exercised, at least in part, by the
wrong authority, and the resulting decision is ultra vires and
void.  So strict are the courts in applying this principle that
they condemn some administrative arrangements which must
seem quite natural and proper to those who make them.”
 2 (1995) 5 SCC 302
 3 (2014) 3 SCC 502
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9. The issue which arises in the present W.P is:
whether the State Government has the power to withdraw an
Essentiality Certificate once granted, and whether the power to do so is
ultra-vires the Act and the Regulations framed thereunder.
This issue needs to be decided since power assumed by the State
to withdraw an Essentiality Certificate has drastic consequences on
Medical Education in a State, which can only be controlled by and under
the IMC Act.
Essentiality Certificate
10. It would, therefore, be necessary to see the origin of the
requirement that a College must have an Essentiality Certificate before
it receives permission for its establishment.  The Legislative scheme
that imposes the requirement of an Essentiality Certificate is as follows:-
Section 10A4 of the IMC Act requires the previous permission of
the Central Government for establishing a Medical College or opening a
 4 10.A PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE,
NEW COURSE OF STUDY -
 (1) Notwithstanding anything contained in this Act or any other law for the time being
in force:-
 (a) no person shall establish a medical college or
 (b) no medical college shall:-
(i) open a new or higher course of study or training (including a
postgraduate course of study or training) which would enable a
student of such course or training to qualify himself for the
 award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or training
(including a postgraduate course of study or training),
except with the previous permission of the Central Government obtained in
accordance with theprovisions of this section.
Explanation 1-. For the purposes of this section, “person” includes any
University or a trust but does not include the Central Government.
Explanation 2.- For the purposes of this section “admission capacity” in
relation to any course of study or training (including postgraduate course of study or
training) in a medical college, means the maximum number of students that may be fixed
by the Council from time to time for being admitted to such course or training.
(2) (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.
CHINTPURNI MEDICAL COLLEGE AND HOSPITAL v.
STATE OF PUNJAB [S. A. BOBDE, J.]
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new course of study or training. Every person or Medical College must
submit to the Central Government a scheme as prescribed.  The Central
Government then refers the scheme to the MCI for its recommendations.
The Medical Council is required to consider the scheme and satisfy
(3) On receipt of a scheme by the Council under sub-section (2) the Council
may obtain such other particulars as may be considered necessary by it from the
person or the medical college concerned, and thereafter, it may –
(a) if the scheme is defective and does not contain any necessary particulars,
give a reasonable opportunity to the person or college concerned for making a
written representation and it shall be
open to such person or medical college
to rectify the defects, if any, specified by the Council.
(b) consider the scheme, having regard to the factors referred to in sub-
section (7) and submit the scheme together with its recommendations thereon
to the Central Government.
(4) The Central Govt. may after considering the scheme and the
recommendations of the Council under sub-section (3) and after obtaining, where
necessary, such other particulars as may be considered necessary by it from the person
or college concerned, and having regard to the factors referred to in sub-section (7),
either approve 4 (with such conditions, if any, as it may consider necessary ) or
disapprove the scheme, and any such approval shall be a permission under
sub-section
(1):
Provided that no scheme shall be disapproved by the Central Government
except after giving the person or college concerned a reasonable opportunity of being
heard;
Provided further that nothing in this sub section shall prevent any person or
medical college whose scheme has not been approved by the Central Government to
submit a fresh scheme and the provisions of this section shall apply to such scheme, as
if such scheme has been submitted for the first time under subsection (1).
(5) Where, within a period of one year from the date of submission of the
scheme to the Central Government under sub-section (1), no order passed by the
Central Government has been communicated to the person or college submitting the
scheme, such scheme shall be deemed to have been approved by the Central Government
in the form in which it had been submitted, and accordingly, the permission of the
Central Government required under sub-section (1) shall also be deemed to have been
granted.
(6) In computing the time-limit specified in sub-section (5), the time taken by
the person or college concerned submitting the scheme, in furnishing any particulars
called for by the Council, or by the Central Government, shall be excluded.
(7) The Council, while making its recommendations under clause (b) of sub-
section (3) and the Central Government, while passing an order, either approving or
disapproving the scheme under sub-section (4), shall have due regard to the following
factors, namely:-
(a) whether the proposed medical college or the existing medical college
seeking to open a new or higher course of study or training, would be in a
position to offer the minimum standards of medical education as prescribed
by the Council under section 19A or, as the case may be under section 20 in
the case of postgraduate medical education.
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itself by obtaining any particulars as are necessary and after having the
defects if any removed, make its recommendations to the Central
Government.  The Central Government, may on receipt of the scheme,
approve it conditionally or disapprove the scheme.  Approval constitutes
permission vide sub-section (4) of  Section 10A of the IMC Act.
11. The power to permit the establishment of a Medical College is
thus conferred on the Central Government by the IMC Act. The
regulations referred to above, framed in the exercise of powers conferred
under Section 10A read with Section 33 of the IMC Act prescribe the
qualifying criteria.  These criteria lay down the eligibility to apply for
permission to establish a Medical College. One of the criteria is that the
person who is desirous of establishing a medical college should obtain an
Essentiality Certificate as prescribed in Form 2 of the Regulations,
certifying that the State Government/Union Territory Administration have
no objection for the establishment of the proposed Medical College at
the proposed site and availability of adequate clinical material5.
12. Form 2 in which the Essentiality Certificate must be obtained
indicates the facts which are considered relevant for determining whether
(b) whether the person seeking to establish a medical college or the existing
medical college seeking to open a new or higher course of study or training or
to increase it admission capacity has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment, accommodation,
training and other facilities to ensure proper functioning of the medical college
or conducting the new course or study or training or accommodating the
increased admission capacity, have been provided or would be provided within
the time-limit specified in the scheme.
(d) whether adequate hospital facilities, having regard to the number or students
likely to attend such medical college or course of study or training or as a
result of the increased admission capacity, have been provided or would be
provided within the time-limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart
proper training to students likely to attend such medical college or course of
study or training by persons having the recognised medical qualifications;
(f) the requirement of manpower in the field of practice of medicine; and
(g) any other factors as may be prescribed.
(8) Where the Central Government passes an order either approving or
disapproving a scheme under this section, a copy of the order shall be communicated to
the person or college concerned.
 5 (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.
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the establishment of a proposed college is justified.  These factors are:-
(1) Number of institutions already existing in the State.
(2) Number of seats available or No. of doctors being produced
annually.
(3) Number of doctors registered with the State Medical Council.
(4) Number of doctors in Government Service.
(5) Number of Government posts vacant and those in rural/difficult
areas.
(6) Number of doctors registered with Employment Exchange.
(7) Doctor population ratio in the State.
(8) How the establishment of the college would resolve the problem
of deficiencies of qualified medical personnel inthe State and
improve the availability of such medical manpower in the State.
(9) The restrictions imposed by the State Government, if any, on
students who are not domiciled in the State from
obtaining admissions in the State, be specified.
(10) Full justification for opening of the proposed college.
(11) Doctor-patient ratio proposed to be achieved.
13. The concerned State Government is required to certify that it
has decided to issue an Essentiality Certificate for the establishment of
a Medical College with a specified number of seats in public interest,
and further that such establishment is feasible.  Importantly, the State
Government is required to certify that if the applicant fails to create an
infrastructure for the Medical College as per the MCI norms and fresh
admissions are stopped by the Central Government,
the State Government
shall take over the responsibility of those seats that already admitted in
the College with the permission of the Central Government.  An
amendment to the notification also requires a declaration that the applicant
owns and possesses adequate land on which non-agricultural use of the
land is permitted and on which a Medical College can be established. It
further requires a declaration to the effect that the Hospital and Medical
College have been granted completion certificate / building use certificate.
14. The Essentiality Certificate thus certifies that it is essential
having regard to specified factors that the opening of the proposed college
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is essential in the State, in public interest.  Further, that the applicant has
the necessary land and building for running it.  What is significant to note
is that the law requires that an applicant must possess an Essentiality
Certificate from the State Government mentioning therein that it is
essential to have a Medical College as proposed by him.  The purpose is
interalia to prevent the establishment of a college where none is required
or to prevent unhealthy competition between too many Medical Colleges.
15. Thus, the Legislative scheme for permission to establish a
Medical College prescribes, as a qualifying criterion, that the applicant
must have an Essentiality Certificate issued by the State Government.
The State Government certifies the justification for establishing a proposed
Medical College as a part of the Legislative scheme under the Act.  It
does not do so under any other law including a State enactment.  The
only purpose of the Essentiality Certificate is to enable the Central
Government acting under Section 10A to take an informed decision for
permitting the opening or establishment of a new Medical College.  Once
the college is established, its functioning and performance and even the
de-recognition of its courses is controlled only by the provisions of the
IMC Act and not any other law.  The IMC Act, which is a Legislation
under Entry 66 of List-I of Seventh Schedule of the Constitution of India
is a complete code which governs the
establishment, functioning, including
maintenance of standards of education and even de-recognition of
Medical Colleges vide Section 19 of the Act.  The States are denuded of
the Legislative Power to legislate on medical education under Entry 25
of the Concurrent List since Parliament has exercised its power under
Entry 66 and enacted the IMC Act vide Dr. Preeti Srivastava v. State
of Madhya Pradesh6.
16. It would be impermissible to allow any authority including a
State Government which merely issues an Essentiality Certificate, to
exercise any power which could have the effect of terminating the
existence of a Medical College permitted to be established by the Central
Government.   This the State Government may not do either directly or
indirectly.  Moreover, the purpose of the Essentiality Certificate is limited
to certifying to the Central Government that it is essential to establish a
Medical College.  It does not go beyond this.   In other words, once the
State Government has certified that the establishment of a Medical College
is justified, it cannot at a later stage say that there was no justification
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for the establishment of the College.  Surely, a person who establishes a
Medical College upon an assurance of a State Government that such
establishment is justified cannot be told at a later stage that there was no
justification for allowing him to do so. Moreover, it appears that the
power to issue an Essentiality Certificate is a power that must be treated
as exhausted once it is exercised, except of course in cases of fraud.
The rules of equity and fairness and promissory estoppel do not permit
this Court to take a contrary view.
17. In this case, the reasons given by the State for rescinding the
Essentiality Certificate are not relevant or germane to the establishment
of a Medical College.  They refer to the deficiencies in the functioning
of a Medical College for a particular period.  Deficiencies by their nature
are curable and can be removed. To allow the State Government to
withdraw an Essentiality Certificate and say that it is no more essential
that there should be a college at all, would lead to gross arbitrariness
since logically the existence of the Medical College would again be
justified if the deficiencies are removed.  The question of justified
existence of a college and the irregular/illegal functioning of an existing
college belong to a different order of things and cannot be mixed up.  A
certificate constitutes a solemn statement by an authority certifying certain
conditions of things.  Persons
acting on such certificates are entitled to
assume that the certificate will ensure and not be pulled out from under
their feet for extraneous reasons.  We find that none of the reasons for
withdrawing the Essentiality Certificate pertain to factors which are
certified as true in the prescribed Form 2, reproduced above.
Challenge to Conditions Introduced in Form 2 by the State
18. It is argued mainly on behalf of the State Government that the
specified conditions which are imposed in the Essentiality Certificate
empower the State Government to withdraw an Essentiality Certificate
and the certificate has been withdrawn in exercise of the powers reserved
under following conditions incorporated in Essentiality Certificate dated
07.12.2010:-
“vii. The inspection of the institute shall be carried out on
yearly basis upto the completion of the study of first batch of
the students.  Thereafter, the inspection shall be periodical
after three years.
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xi. The Punjab Government will have the right to withdraw
the Essentiality Certificate/No objection Certificate if the trust/
society/applicant failed to meet any of the conditions
contained therein…..7"
19. Shri Rohtagi, learned senior counsel submitted that Condition
Nos. (VII) and (XI) reproduced (supra) have been introduced by the
State Government on their own; they are not in Form 2 prescribed under
the Regulations.  In other words, the MCI Act and the Regulations do
not confer any power on the State Government to carry out the inspection
of the medical college or to withdraw the Essentiality Certificate, and
the State has attempted to arrogate these powers to itself.  According to
the learned senior counsel, these conditions are ultra-vires the provisions
of the Act and the Regulations.
20. Relying on the Condition No.(VII), the learned counsel for
the State of Punjab, Ms. Uttara Babbar submitted that the State
Government has the power to carry out inspections, since it is responsible
for the students of the college which is shut down by the MCI or
otherwise. If such inspections reveal any deficiencies, the State is entitled
to withdraw the Essentiality Certificate.  This submission cannot be
accepted, the IMC Act and the Regulations under which the State
Government has purported to issue Essentiality Certificate confers the
power of inspection on any medical institution, college or hospital where
any medical education is given, on
Visitors/Inspectors appointed by MCI
under Sections 178 and 189 of IMC Act.
 7 Essentiality Certificate dated 07.12.2010.
 8 17. INSPECTION OF EXAMINATIONS (1) The Committee shall appoint such
number of medical inspectors as it may deem requisite to inspect any medical institution,
college, hospital or other institution where medical education is given, or to attend any
examination held by any University or medical institution for the propose of
recommending to the Central Government recognition of medical qualifications granted
by the University or medical institution.
(2) The medical inspectors shall not interfere with the conduct of any training or
examination, but shall report to the committee on the adequacy of the standards of
medical education including staff, equipment, accommodation, training facilities
prescribed for giving medical education or on the sufficiency of every examination
which they attend.
(3) ……
 9 18. VISITORS AT EXAMINATIONS  (1) The Council may appoint such number of
visitors as it may deem requisite to inspect any medical institution, college, hospital or
other institution where medical education is given, or to attend any examination held by
any University or medical institution for the purpose of granting recognised medical
qualifications.
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21. The learned counsel for the State has not pointed out any
power of inspection which is conferred on a State Government/Union
Territory Administration either by the Act or by the Regulations.  The
State Government is designated by the Regulations only for the purpose
of issuing an Essentiality Certificate to justify the establishment of a
medical college within its territories and that too when approached by a
person seeking to establish a medical college. There is no direct conferral
of any power of general inspection on the State and neither can such a
power be read into the Regulations nor be implied as necessary to carry
out an expressly conferred power which doesn’t exist.  In fact, it might
be difficult to even construe that the IMC Act has delegated any powers
to the State Government including that of issuing of an Essentiality
Certificate.  The IMC Act merely requires an applicant to obtain an
Essentiality Certificate from the State Government to justify the
establishment of a medical college.  However, the Act prescribes the
form in which such a certificate must be obtained from  the State.
Significantly, the form does not confer any power of inspection. The
mere requirement of an Essentiality Certificate by the State as a qualifying
criterion cannot imply the delegation of a power which must be express
and clear.  It is, therefore, clear that such power has been arrogated by
the State without any
justification and is likely to lead to a conflict with
the power meant to be exercised by the Central Government and
potentially, result in conflicting inspection reports.  The condition imposed
by the State Government is therefore ultra-vires the IMC Act and the
Regulations.
22. It was submitted by the learned counsel appearing for the
State of Punjab that since the Essentiality Certificate requires the State
Government to assume responsibility of the students in case the college
closes down, the State must be held to have an inherent right to withdraw
the Essentiality Certificate.  This argument must be rejected as fallacious
since the consequence of withdrawing the Essentiality Certificate can
only be that the college closes down, and the State must bear the burden
of accommodating the students in another institution.
(2) Any person, whether he is a member of the Council or not may be appointed as a
visitor under this section but a person who is appointed as an inspector under section
17 for any inspection or examination shall not be appointed as a visitor for the same
inspection or examination.
(3) …..
(4) ..…
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23. The learned counsel for the State of Punjab submitted that
since the Essentiality Certificate certifies the availability of adequate
clinical material for the proposed Medical College, as per the Regulations,
the State has the necessary power of inspection of the college even
after its establishment to ensure that there is adequate clinical material.
This submission must also be rejected since the State is enjoined to certify
adequate clinical material only at the time of proposal of the Medical
College and not after it is established.  But we find from the submissions
that the State has misinterpreted the term ‘adequate clinical material’
completely.  According to the State, “adequate clinical material” means
“people” i.e. doctors, patients, staff etc.  Whereas, the term is understood
in the field of Medical Education to mean data about number of
admissions, number of discharges, number of deaths, number of surgeries,
number of procedures, X-rays and laboratories investigations.  Thus,
what the State is required to certify is the data available in the region to
justify the establishment of the proposed Medical College. Obviously,
for the purpose of justifying the existence of a Medical College, the
State’s claim that it must have the right to inspect a college after it is
established to see whether there are adequate numbers of doctors, patients
etc. to justify it’s continued existence is completely hollow and unfounded.
Condition No. XI
24. It was
further contended by the learned counsel for the State
that the power to issue a certificate carries a power to withdraw the
same in a like manner as contemplated by Section 21 of The General
Clauses Act, 1987.  Section 21 of the said Act reads as follows:-
“21. Power to issue, to include power to add to, amend, vary
or rescind notifications, orders, rules or bye-laws. – Where,
by any [Central Act] or Regulations a power to [issue
notifications] orders, rules or bye-laws is conferred, then that
power includes a power, exercisable in the like manner and
subject to the like sanction and conditions (if any), to add to,
amend, vary or rescind any [notifications] orders, rules or
bye-laws so [issued].”
25. Section 21 has no application to a certificate since a certificate
is neither a notification, nor an order, or rule or bye- law as contemplated
by that Section.  This Court has on several occasions held that where a
statutory authority is enjoined to perform a quasi judicial function such
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as that of grant of registration to a political party or issue a certificate
under the Income Tax Act,  Section 21 has no application and confers no
power to review such an Act because the party has violated a provision
of the constitution of law, vide Indian National Congress (I) vs. Institute
of Social Welfare10 and Industrial Infrastructure Development
Corporation (Gwalior) M.P. Ltd. vs. Commissioner of Income Tax,
Gwalior11.
26. In the Indian National Congress (I) case (supra), this Court
held that where the law requires that an authority before arriving at a
decision must make an enquiry, such a requirement of law makes the
authority a quasi judicial authority.  Also when the authority is required
to act according to rules and not dictated by policy or expediency, the
authority performs the quasi judicial function and not an administrative
function.
27. On the above test, the function of the State Government in
granting an Essentiality Certificate must be construed as a quasi judicial
function.  The Government is required to, while issuing the certificate in
Form 2, to determine the justification and feasibility of opening the
proposed college in the State.  Towards this purpose, it is bound to enquire
and determine the existence of several factors such as the number of
existing institutions, the number of doctors becoming qualified annually,
the number of doctors registered with the State Medical Council and
employed in Government Service, registered with employment exchange
etc.  It must also determine the doctor population in the State, the doctor
- patient ratio to be achieved and the impact of the proposed college on
the availability of medical manpower in the State.  The issuance of
certificate must therefore be construed to be a quasi judicial act.  The
upshot is that such an act is not liable to be construed as an “order”
contemplated by Section 21 of the General Clauses Act.  Not being an
order, and certainly not being a notification, rule or bye-law, Section 21
has no application whatsoever.
28. Moreover, no provision of the IMC Act confers any power on
the State Government or Union Territory Administration to issue an
Essentiality Certificate.  What the Regulations do, as discussed above,
is lay down that an Essentiality Certificate is the qualifying criterion for
making an application for opening a medical college.  In that sense, the
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provision recognizes an Essentiality Certificate issued by the State
Government.  It is nobody’s case that the State Government is conferred
with the power or duty to issue such a certificate under any State law.
In any case, in view of the fact that the field is occupied by a
parliamentary law i.e. IMC Act, 1956, a State law even if already existing
would have no efficacy in the field.  As a consequence, the executive
power of the State under Article 162 cannot be invoked.
29.  The Essentiality Certificate, therefore, must be taken to have
been issued under the IMC Act read with Regulations and not in exercise
of any independent power of the State.  Significantly, where no power to
issue certificate is shown to have been conferred by the IMC Act or the
Regulations, it would be futile to enquire if a corresponding power to
withdraw the same has been conferred on the State.  Even assuming
that a power to issue such a certificate has been impliedly conferred by
the Regulations under the Act, certainly, no power to withdraw the same
has been so conferred.  Such a power cannot be arrogated relying on
Section 21 of the General Clauses Act.
30. A similar question arose in Industrial Infrastructure
Development case (supra) where the Commissioner of Income Tax
cancelled a registration certificate because it contained an error apparent
from the record. This Court held that the certificate was issued as a
result of the quasi judicial order and could have been
withdrawn only
when an express power is vested in the authority to do so.  In that case,
this Court noted two earlier decisions in Ghaurul Hasan vs. State of
Rajasthan12 and Hari Shanker Jain vs. Sonia Gandhi13, where it
was held that a certificate of registration of citizenship issued under
Section 5(1)(c) of the Citizenship Act, 1955 cannot be cancelled by the
authority granting registration by taking recourse to Section 21 of the
General Clauses Act.
31. In Government of Andhra Pradesh vs. Y.S. Vivekanand
Reddy14, the High Court was called upon to consider whether the consent
given by the State Government to the lessee to enter into sub-leases
could be withdrawn by invoking Section 21 of General Clauses Act.  A
full bench of the Andhra Pradesh High Court, per S.S.M. Quadri, J (as
His Lordship then was) held that the power to withdraw the consent
 12 AIR 1967 SC 107
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could have been exercised only as long as it was capable of being
rescinded since this exercise had to be subject to like conditions, as
contemplated by Section 21.  Therefore, the Court held since the lessee,
acting on consent had executed a sub-lease and the sub-lessee had
already commenced mining operations, the consent had worked itself
out and cannot be withdrawn at that stage as the conditions existing at
the time of giving consent have changed.
32. We are of the view that the case before us presents a similar
situation where the petitioner college has acted on the Essentiality
Certificate and has established a college which has functioned; may be
deficiently.   The conditions having changed since the grant of the
Essentiality Certificate, Section 21 is not available in the absence of any
power to withdraw conferred by the IMC Act.
33. In view of the above, we find that Condition No.(XI) is ultra-
vires the provisions of the IMC Act and Regulations.  In the result, the
order dated 01.11.2017, issued by Respondent No. 1- State of Punjab,
withdrawing the Essentiality Certificate is quashed and set aside and
Condition Nos.(VII) and (XI) are declared illegal.
34. Accordingly, the Writ Petition is allowed.
35. We may not be understood to be laying down that under no
circumstances can an Essentiality Certificate be withdrawn.  The State
Government would be entitled to withdraw such certificate where it is
obtained by
playing fraud on it or any circumstances where the very
substratum on which the Essentiality Certificate was granted disappears
or any other reason of like nature.
Nidhi Jain
        Writ Petition allowed.