Dr. P. S. Madhu v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 29092 of 2011(S) ------------------------------------ PETITIONER: DR.P.S.MADHU, S/O P. SIVAN, HARITHA, PRASANTHI NAGAR, KANATTUKARA, THRISSUR-680 011. BY ADV. SRI.V.V.ASOKAN SMT.M.RAMANYA GAYATHRI RESPONDENTS: 1. UNION OF INDIAREP. BY ITS SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, NEW DELHI. 2. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 3. THE SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4. DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM- 695 001. 5. KERALA UNIVERSITY OF HEALTH & ALLIED SCIENCES, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O, THRISSUR-680 596. 6. DENTAL COUNCIL OF INDIA, ALWAL-E-GALIB MARG, KOTALA ROAD, NEW DELHI-110 002. 7. ALL KERALA SELF FINANCING DENTAL COLLEGES CONSORTIUM, ANNOOR DENTAL COLLEGE, PERUMATTAM PO, MUVATTUUZHA-686 673. REP. BY ITS SECRETARY. - BY ADV. SRI.P.PARAMESWARAN NAIR FOR R1 - GOVT. PLEADER SRI.GEORGE MECHERIL FOR R2-R4 ADV.SRI.P.SREEKUMAR FOR R5 - ADV. SRI.ALEXANDER THOMAS FOR R-6 - ADV. SRI.C.S.MANU FOR R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 29092/2011 EXT. P1 TRUE COPY OF THE COMMUNICATION (VIES) OF DENTAL COUNCIL OF INDIA EXT. P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER EXT. P3 TRUE COPY OF THE NEWS REPORT APPEARED IN MATHRUBHOOMI DAILY EXT. P4 TRUE COPY OF THE NEWS REPORT APPEARED IN MATHRUBHOOMI DAILY EXT. P5 TRUE COPY OF THE JUDGMENT IN WA 2014/2010 EXT. P6 TRUE COPY OF THE INTERIM ORDER MADE IN WA 2014/2010 /TRUE COPY/ Manjula Chellur, Ag.C.J. & C.N.Ramachandran Nair, J. ------------------------------------------------------------- W.P.(C)No.29092 of 2011 S ------------------------------------------------------------- Dated this the 10[th] day of November, 2011 ## **JUDGMENT** ## Manjula Chellur, Ag.C.J The present petition is filed by one Dr.Madhu, who claims to be a public spirited person, seeking the following directions at the hands of this Court: - a) Issue a writ of mandamus or other appropriate writ or order directing the State Government - respondents 2 to 4 to abstain themselves from granting Essentiality Certificates to self financing institutions to open new Dental Colleges in the State. - b) Issue a writ of mandamus or other appropriate writ or order directing the State Government to recall its decision to grant Essentiality Certificates to self financing institutions to open new Dental Colleges in the State. WPC 29092/2011 2 - c) Issue a writ of mandamus or other appropriate writ or order directing the State Government to accept the views of the Dental Council of India (Exhibit P1) to comprehend the true spirit and content of Exhibit P1 and to abstain themselves from granting Essentiality Certificates to self financing institutions to open new Dental Colleges in the State. - d) Grant such other reliefs that this Hon'ble Court may deem fit to grant under the facts and circumstances of this case. 2. According to the petitioner, the decision of the State Government, unilaterally deciding to grant Essentiality Certificates to self financing institutions to start new Dental Colleges in the State in spite of deficiencies and objections pointed out in several judgments of the Apex Court, cannot be permitted, as the present available Colleges are sufficient to cater to the needs of the locals within the State of Kerala. According to him, scarcity of Post-graduate degree holders would lead to deficiency in the teaching faculty in the existing WPC 29092/2011 3 Colleges, if more number of Colleges are permitted. If Essentiality Certificate is issued in spite of deficiency of qualified faculties in the State of Kerala, qualitative education will not be possible, therefore, in the light of such deficiency, the Dental Council of India took up a stand that since 2008 onwards not to open new Dental Colleges in the State of Kerala. It is further contended that in spite of such stand of the Dental Council of India, the State of Kerala, totally ignoring the consent of the Dental Council of India, is proceeding with issuance of Essentiality Certificates to self financing institutions to open new Dental Colleges though there are good number of Dental Colleges. Hence, he seeks intervention of the court to grant the above reliefs against the respondents herein. 3. According to the learned Government Pleader, Government would definitely keep in mind the needs of the society depending upon the different local needs and the demand for grant of Dental doctors in the State and only if the self financing institutions have the necessary infrastructure as per WPC 29092/2011 4 the norms to issue the Essentiality Certificate, State would give such permission to start new Dental Colleges. According to him, concerned authorities would look into the entire situation and take into consideration the requirements and the offer made by the self financing institutions complying with such requirements, and would issue Essentiality Certificates. So far as the stand of the Dental Council of India is concerned, the first step to start any new Dental College would be securing an Essentiality Certificate from the concerned State Government. Once the Essentiality Certificate is issued, Dental Council of India would recommend for the grant-of permission to Union Government to start such College, provided, the institution seeking permission to start new College complies with all the requirements and the norms indicated by the Dentists Act and Regulations. 4. According to the petitioner, there are good number of Colleges and there is no need for starting any new College at all in the State. The duty of the State is to cater education, which includes medical education as well depending upon the WPC 29092/2011 5 requirement in the local area. Whenever an application to start new Medical/Dental College is forwarded to the Government, it has to see whether Government is in a position to start as many Colleges as required, catering to the needs of the public in the State and if it is not in a position to start Government Dental Colleges, it has to consider the application forwarded by the self financing institutions, provided, there is need to commence such new Colleges. 5. The Apex Court has laid down what should be the criterion to start new Colleges and how the State Government has to consider the application. Definitely, State Government is not expected to allow growth of any Medical/Dental College like mushrooms hampering the quality of education if no norms are complied with. Even otherwise, if required number of students are not available, the institution, which got the permission to start the College, has to be closed down. Keeping in mind all these facts, State Government has to consider the applications of the self financing institutions. WPC 29092/2011 6 6. It is relevant to refer to the decision of the Apex Court in **Govt. of A.P. And another v. Medwin Educational Society and others** ((2004) 1 SCC 86), wherein their Lordships have explained why the issuance of Essentiality Certificate was entrusted to the State Government in order to ensure parliamentary statute completely worthwhile. Paragraph 45 refers to what exactly Essentiality Certificate and local needs mean as held in the case of **State of Maharashtra v. Indian Medical Association** ((2002) 1 SCC 589), which was reiterated in the case of **Islamic Academy of Education v. State of Karnataka** ((2003) 6 SCC 697). 7. The apprehension of the petitioner seems to be that without verifying the requirements and the local needs, State may accord Essentiality Certificates to self financing institutions which would, in turn, result in mushroom growth of Dental Colleges in the State of Kerala and it may be a situation where teaching faculty would be a scarcity. The very purpose of giving WPC 29092/2011 7 the Essentiality Certificate is to read the local needs and then proceed with the matter taking into consideration whether such a need is in existence or not. If the need is there, Essentiality Certificate could be issued. So far as grant-of permission is concerned, when the self financing institution makes an application, it has to give the details of different aspects of the application which includes particulars of the teaching faculties available with the institution to start such College, apart from information of other infrastructural facilities. 8. Exhibit P1 is a letter dated 04.07.2011, addressed to the Honourable Chief Minister of Haryana, Chandigarh. According to the petitioner, similar letters were addressed to all the States, of which learned Government Pleader pleads ignorance. Learned standing counsel appearing for the Dental Council of India informs that such letters might have been sent to all the States. However, we are of the opinion that the letter at Exhibit P1 is relevant and at the time of considering the application for issuance of Essentiality Certificate to self financing institutions, WPC 29092/2011 8 they should take into consideration the points raised by the Dental Council of India also, apart from the norms of the State Government, in the light of the observations of the Apex Court in the case of **Andhra Pradesh** (cited supra). With these observations, we dispose of this writ petition. (Manjula Chellur, Ag. Chief Justice) (C.N.Ramachandran Nair, Judge) tkv