ORDER
D. Murugesan, J.
1. The petitioner-Trust was established in the year 1987 with a view to establish, maintain, run, improve and develop educational institutions. The Trust runs three educational institutions, out of which two are engineering colleges and the rest is a school. Under the name and style of St. Xavier Dental College, the petitioner submitted a scheme to the Government of India, Ministry of Health and Family Welfare in the year 1998 for permission to establish a dental college. As the petitioner did not enclose the Essentiality Certificate from the State Government as per condition No. 3 of the Dental Council of India Regulations issued under Section 10A of the Dentists Act, the application was returned. Thereafter, the petitioner applied to the State Government for issue of No Objection Certificate. The said application came to be initially rejected by the State Government on 25.10.99. The said order of rejection was set aside by this Court with a further direction to the State to reconsider the grant of No Objection Certificate.
2. In the meantime, the petitioner college was granted a deemed university status by the Ministry of Human Resources Development Department, Government of India in the notification dated 16.7.2001. Hence, the petitioner by enclosing a copy of the said notification and the judgment of this Court dated 29.8.2001 submitted a fresh application for issue of an Essentiality Certificate to start the dental college from the academic year 2002-2003 in its application dated 29.2.2002. The inspection was conducted on 2.3.2002 and the inspection team recommended to the State for issue of an Essentiality Certificate on the ground that the petitioner has fulfilled the norms and requirements prescribed by the Dental Council of India for establishment of a dental college. Nevertheless, the State Government rejected the application for issue of an Essentiality Certificate by its order dated 15.5.2002. Questioning the said order, the petitioner has filed W.P. No. 3552 of 2003.
3. The petitioner has also filed W.P. No. 3553 of 2003 to declare the order of the State Government made in G.O. Ms. No. 211 Health & Family Welfare Department dated 13.8.2001 containing certain guidelines for issuance of the Essentiality Certificate as invalid.
4. So far as the challenge to the order of the State dated 15.5.2002 in rejecting the request of the petitioner for an Essentiality Certificate is concerned, the Government have given the following reasons:-
(1) Location:- The Trust has proposed to establish the Dental College, at Jeppiaar Nagar, Old Mamallapuram Road, Chennai 600 119. The Director of Medical Education has stated that the inspection team has not furnished the detailed report on the location of college i.e., whether it is in rural/backward area. Further the Director of Medical Education has stated that the guidelines are not fulfilled. As per the guidelines the proposed location will be backward/rural area of the State. The Trust has not established that the proposed location for establishment of their Dental College is in the rural/backward area.
(2) Hospital and Tie-up facilities:- As per the Dental Council of India norms, the college shall be located in the proximity of a Medical College. Where there is no Medical College the Trust should have tie up with a General Hospital with atleast 100 beds within 10 k.m. radius of the proposed college. The Trust has made tie up with Malar Hospital, Chennai. It is 200 bedded hospital. The distance between the proposed college and tie up hospital has been mentioned by the inspection team is 10 k.m. But the Malar Hospital in their letter has stated that the distance between the hospital and the institution is 16 k.ms. The Director of Medical Education has stated that norms are not fulfilled.
(3) Bank Guarantee: As per Dental Council of India norms the Trust has not produced Bank Guarantee for Rs. 150.00 lakhs for 100 admission.
(4) Infrastructure facilities: As per the Dental Council of India Norms, the applicant should produce evidence for having owned teaching pre clinical para clinical and Medical Sciences infrastructure facilities. The Trust has furnished the list of equipments in certain departments and also furnished the Dental materials and prosthodontics. The list of Teaching and non-teaching staff have also been furnished. The teaching experiences of the teaching staff as per the Dental Council of India norms have not been furnished.
5. How far the State Government would be justified in rejecting the request of the petitioner for an Essentiality Certificate is a matter to be considered in W.P. No. 3552 of 2003. The issue as to the role of the State Government in the matter of issuance of an Essentiality Certificate is not res integra, as the same had been decided not only by the Division Bench of this Court but also by the Supreme Court.
6. Section 10A of the Dentists Act, 1948 deals with the permission for establishment of new dental colleges, new courses of study, etc. Once a scheme to establish a dental college is submitted, the Dental Council is required to consider the scheme with regard to the factors set out in Section 10-A(7)(a) to (g) of the Act. It is not necessary to elaborate on the same, as the issue had been considered in detail by the Division Bench of this Court in “H.E.T.C. Educational Society Rep. by its Director-Projects, DR. Prem C. Marthandan, Chennai and Ors. v. State Of Tamil Nadu Rep. By Its Secretary, Health & Family Welfare Department, Chennai and Ors., (2003 (3) CTC 1)”. In the matter of grant of permission for establishing new dental colleges in the disciplines which are governed by the provisions of the All India Council for Technical Education Act, Indian Medical Council Act and Dentists Act, the Central statutes occupy the field and the Central laws are relatable to Entry 66 of List I and Entry 25 of List II. The above law is settled by the Supreme Court in the “State Of Tamil Nadu v. Adhiyaman Educational and Research Institute, “, “Jaya Gokul Educational Trust v. Secretary To Government Higher Education Department, (2000 (5) SCC 221)”. After the above judgments, the permission of the State Government to establish a dental college independent of the Central enactment is therefore no longer necessary. In terms of Section 10A read with Section 20 of the Dentists Act, 1948, the Dental Council of India, with the prior approval of the Central Government, made the Establishment of New Dental College Regulations, 1993. In terms of the said Regulations, an application for permission of the Central Government to establish a new dental college can be made as per the format in Annexure-I of the Regulations. Sl. No. 7 of List of enclosures of Annexure-I contemplates the production of certified copy of the essentiality certificate by the respective State Government/Union Territory Administration. After the said Regulations, the State Government has only a subsidiary role confined to the issuance of Essentiality Certificate.
7. The role of the State Government while considering/processing an application for the grant of Essentiality Certificate was considered by the Supreme Court in “State Of Maharashtra v. Indian Medical Association, “. In paragraphs 134 & 135 of the said judgment, the Supreme Court has held as follows:-
“It is difficult to define precisely what would constitute ‘local needs’. Mr.Venugopal refers to the Medical Council of India Regulations, 1999 for the purpose of showing the requirements necessary to be considered by the State Government for the grant of the essentiality certificate. The State Government alone would be in a position to determine local needs which may be based, for instance, in the case of doctors, on the ratio of doctors to the population of the State. Other factors such as the percentage of the relevant minority in the State, the number of minority professional colleges belonging to that particular linguistic/religious minority in the State, percentage of power and backward sections in the State, total number of professional colleges therein, contends Mr.Venugopal, would be relevant factors. This may be so, but similarly there are many more factors that would contribute to local needs. The criteria laid down in MCI Regulations no doubt provide for some guidelines for the purpose of determination of local needs but the same cannot be said to be exhaustive. Local needs would vary from State to State. Even development of a backward area may be a local need. Absence of good educational institutions in a particular area may also be a local need. The State may, in pursuit of its policy for the development of the people, consider it expedient to encourage entrepreneurs for establishing educational institutions in remote and backward areas for the benefit of the local people. Local needs, therefore, cannot be defined only with reference to the State as a unit. For good reasons the State may not like to establish professional colleges or institutions only in their capitals.
Although local needs, thus, may have to be determined keeping in view the factors enumerated therein but it must also be noticed that no essentiality certificate is required to be given by the State in relation to engineering and other professional colleges. While laying down the law based on interpretation of a Constitution as well as a judgment, we cannot take a myopic view and hold that ‘local needs’ must be referable to the medical education. Furthermore, it may be difficult to give a restrictive meaning to the expression ‘local needs’ i.e. keeping the same confined to the area where the educational institution is sought to be established inasmuch as the right of minority extends to the entire State and, thus, the local needs may also have direct nexus having regard to the need of the State.”
Following the said judgment, the Supreme Court in “Govt. of A.P. and Anr. v. Medwin Educational Society and Ors., in paragraph 46 held as follows:-
“The upshot of the aforementioned discussions is that, in our opinion, the High Court has committed a manifest error in holding that the State has no role to play in the matter of identification of location of the sites where the medical colleges are proposed to be established. While granting an essentiality certificate, particularly having regard to the local needs, the State, in our considered view, has a positive role to play but the same would not mean that the State Government’s say is final as ultimately final recommendations have to be made by the Medical Council of India and the Dental Council of India, as the case may be, whereafter the final decision has to be taken by the Central Government.”
The Supreme Court also held that though the State has a say in the matter as regards location for establishing of a medical college or a dental college, it has to exercise such power in a reasonable manner. The factors which are relevant for determination of such issues would be local needs and public interest. It is also held that the question as to whether the medical college is being set up by a minority institution or a non-minority institution must be considered in the light of the observations made in “T.M.A. Pai Foundation v. State Of Karnataka (2002 (8) SCC 481) and in “Islamic Academy of Education v. State Of Karnataka cases.
8. The Division Bench of this Court in the H.E.T.C. Educational Society case (supra) while considering the role of the State Government has held that the Essentiality Certificate should be issued only in regard to the location chosen by the petitioner. It is also well settled that though the Essentiality Certificate is one of the pre-conditions for consideration of the scheme, either the grant or refusal of the Essentiality Certificate is not final for consideration by the Central Government either to grant or to refuse permission to start a dental college. However, the reason recorded by the State Government shall also be taken into account by the Central Government while they apply their mind to the scheme for grant of permission. Hence, the State Government is empowered only to consider the location where the Trust proposes to establish the college.
9. In the light of the above settled law, the impugned order should be tested. So far as the reason nos.1, 3 & 4 contained in the impugned order for rejecting the request for an Essentiality Certificate, those reasons are well within the realm of the Central Government and Dental Council of India to consider. Grant of permission for establishment of an institution is governed by the provisions of Section 10A of the Dentists Act. The Division Bench in H.E.T.C. Educational Society case (supra), while considering the location, has held as follows:-
“Whether in a Rural or Urban area, or in Developed or Backward or Hilly area or in an area which has no dental colleges or prescribed minimum or maximum number of such colleges, is not one of the prescribed factors with reference to which the Dental Council is required to consider the application.
Though the term ‘desirable’ would appear to open itself to subjective considerations, a decision thereon cannot be left to the caprice and whim of the State Government. The desirability or otherwise should be based on objective criteria. It would be open to the State Government to prepare a perspective plan for it’s own guidance for selecting locations for the proposed new colleges. Such a plan however cannot shut out consideration of the location proposed by an applicant, as the final decision to grant or not grant permission to establish the college is that of the Central Government.
The immediate surroundings of the proposed location such as the location being in an unhygienic slum, or being close to a dumping yard, or to a large quarry, or an open prison, or to factories or Distilleries, would be relevant for adjudging desirability. Information regarding the surrounding is more likely to be, and more easily available with the State Government. For ascertaining these factors the State Government should normally have the proposed location and it’s surroundings inspected.
The feasibility would involve enquiry into such factors as the permissibility of the user of the land for putting up the dental college at that location. If the location chosen is Government land, the Government cannot be expected to permit a third party to trespass on to it’s land and put up a dental college thereon. So also if the permissible user under the Zonal Regulations does not allow the use of the land at the proposed location for the purpose of putting up a dental college, it would be open to the State Government to decline to grant the certificate. If the applicant holds the land in excess of what is permissible in law and that excess is liable to be taken over by the State, and the proposed location is in such excess land, that is also a relevant factor while considering the feasibility. If the construction proposed, under the relevant building regulations, is not permissible by reason of non conformity with the Regulations relating to Floor Space Index, set backs, provision for fire escape, etc., it would be open to the State to decline to grant the certificate.
While considering the desirability and feasibility, it is certainly open to the State Government to consider the legality with reference to other applicable laws.”
10. In regard to the first reason for rejecting the grant of Essentiality Certificate namely that, “the Director of Medical Education has stated that the inspection team has not furnished the detailed report on the location of college i.e., whether it is in rural/backward area and also that the Director of Medical Education has stated that the guidelines are not fulfilled”, it is the stand of the first respondent that as per the guidelines the proposed location should be in a backward/rural area of the State. The Division Bench in H.E.T.C. Educational Society case (supra), with reference to the location of the college, has referred to as to whether the proposed college is to be established in a rural or urban area, or in developed or backward or hilly area or in an area which has no dental colleges or prescribed minimum or maximum number of such colleges, is not one of the prescribed factors with reference to which the Dental Council is required to consider the application. Moreover, as per the judgment of the Supreme Court in State of Maharashtra v. Indian Medical Association case (supra), the requirement for consideration is the ‘local needs’ of a college and the local needs must be referable to only the dental education and it may be difficult to give a restrictive meaning to the expression ‘local needs’ i.e., keeping the same confined to the area where the educational institution is sought to be established inasmuch as the right of minority extends to the entire State and, thus, the local needs may also have direct nexus having regard to the need of the State. The petitioner Trust is a minority and the guidelines contrary to the above dictum of the Division Bench with regard to the requirement for consideration of an application would be outside the purview of the State while it considers the application for grant of an Essentiality Certificate. Hence the guidelines prescribed by the State Government restricting the meaning of the location only to rural/backward area cannot be sustained. Equally the third reason as to the non-production of bank guarantee for a sum of Rs. 150 lakhs for 100 admission would arise only after the permission is accorded by the Central Government to start the dental college with specified intake. As the petitioner is liable to deposit only a sum of Rs. 75 lakhs in case of admission with an intake of 50 students, Rs. 120 lakhs for admission with an intake of 60 students and Rs. 150 lakhs for admission with an intake of 100 students, the insistence for deposit of Rs. 150 lakhs on the presumption that the petitioner could be granted permission for admission with an intake of 100 students would be premature, as such deposit would be subject to the sanction of number of intake of students and the deposit would arise only after such sanction. Equally the fourth reason as to the infrastructure facilities, it is well within the power of the Dental Council of India only and the State has no role in this regard, as could be seen from Regulation 9 of Part II of the Regulations, which reads as follows:-
“The details of arrangements for teaching of non-clinical, medical subjects, indication whether the arrangements are independent in the proposed Dental College or facilities of a medical college will be utilized.”
In regard to the second reason, the State is empowered to find out as to whether the petitioner has a hospital with at least 100 beds and in the absence of the same, whether it has any tie up with a hospital with at least 100 beds within 10 k.m. radius of the proposed college. According to the State Government, the distance between the proposed college and the tie up college is 16 k.m. whereas, according to the petitioner, it is 10 k.m. As has been held by the Division Bench in H.E.T.C. Educational Society case, when there is such a dispute, the petitioner ought to have been given an opportunity to satisfy the Government as to the distance. The verification of the distance by the route suggested by the petitioner can then be carried out.
11. For the foregoing reasons, the impugned order in W.P. No. 3552 of 2003 is set aside and the matter is remanded back to the State Government for reconsideration as to the distance between the proposed college and the Malar Hospital and pass fresh orders after giving sufficient opportunity to the petitioner to establish that the distance is within 10 k.m. radius on the route suggested by the petitioner. Such exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order.
12. So far as the challenge in W.P. No. 3553 of 2003, the Annexure to the impugned Government Order reads thus:-
Medical Dental
College College
MCI Norms DCI Norms
i) Land 25 acres 6 acres with
constructed area as
follows:-
Admission I year
40 - 16000 sq.ft.
60 - 24000 sq.ft.
100- 40000 sq.ft.
ii) Hospital 300 beds with The College shall
necessary infra- be located in the
structure proximity of a
facilities medical college.
Where there is no
medical college
the Trust should
have tie up with a
General Hospital
with at least 100
beds within 10 km.
Radius of the
proposed college.
iii) Bank Rs.100 lakhs Rs.75 lakhs
Guarantee (50 admission) (40 admission)
Rs.150 lakhs Rs.120 lakhs
(100 admission) (60 admission)
Rs.200 lakhs Rs.150 lakhs
(150 admission) (100 admission)
iv) Infra- Education The applicant
structure equipment, should produce
facilities manpower, evidence for having
building owned teaching
programme practical para
prescribed by clinical and
Medical Council medical sciences,
of India staff facilities.
13. In regard to the requirement of land of 6 acres is concerned, admittedly, Regulation 1 of Part I of the Establishment of New Dental College Regulations requires only 5 acres of land. The Regulations are binding on the State Government and the role of the State Government is only to act in terms of Regulations. The State Government cannot fix a requirement of 6 acres contrary to the requirement fixed under the Regulations. Accordingly, the guideline prescribing 6 acres of land is held to be unsustainable and invalid. So far as the guideline in regard to the hospital is concerned, the same is in conformity with Regulation 9 of Part I of the Regulations, which requires a dental hospital owned by the college or a tie up with a general hospital, which is having provision for at least 100 beds and is located within 10 k.m. radius of the proposed dental college. Hence, the said guideline cannot be considered as invalid and contrary to the Regulations. So far as the guideline as to the bank guarantee is concerned, as per Regulation 12 of Part I of the Regulations, it requires a deposit of Rs. 75 lakhs for admission with an intake of 50 students, whereas the impugned guideline requires a deposit of Rs. 75 lakhs for admission with an intake of 40 students. Such insistence is contrary to the above Regulations and hence the same is also held unsustainable and invalid. So far as the last guideline as to the infrastructure facilities, as already held, the same vests with the power of the Dental Council of India and the State Government has no role or say, as could be seen from Regulation 9 of Part II of the Regulations.
14. For the above discussions, the guidelines stipulated in the Annexure to the impugned Government Order in W.P. No. 3553 of 2003 in so far as the insistence of 6 acres of land and deposit of Rs. 75 lakhs for admission with an intake of 40 students are declared invalid. The other guidelines, which are not contrary or repugnant to the Establishment of New Dental Colleges Regulations cannot be said to be invalid.
15. With these observations, both the writ petitions are disposed of. No costs.