# THIRUMURUGA KIRUPANANDA VARIYAR THA VATHIRU SUNDARA SWAMIGAL MEDICAL EDUCATIONAL AND CHARITABLE TRUST v. STATE OF TAMIL NADU AND OTHERS

- **Citation:** [1996] 2 S.C.R. 422
- **Court:** Supreme Court of India
- **Decided:** 1996-02-12
- **Case number:** Civil Appeal Nos. 32143215 of 1996
- **Bench:** S.C. Agrawal, G.T. Nanavati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thirumuruga-kirupananda-variyar-tha-vathiru-sundara-swamigal-medical-13942
- **Pages:** 30

## Headnote

. Constitution of India, J950: Article 254(J) and proviso.
Legislation on concun-ent subject-State and Central Acts-Repugnancy between-Test to detennine-Central Act expressely or impliedly inteiided
to cover the entire field-State Act-Plior enactment-Assent of President
received-Held : Central Act would prevail over state Act-State Act to the
extent of repugnancy would be repealed.
·
Indian Medical Council Act, J956: Sect~on JOA.
New medical college-Establishment of-Prior pennission of Medical
Council-Mandatory-Proviso to Section 5(5) of Dr. M.G.R. MedM:al University, Tamil Nadu Act, J989 also providing affiliation of new medical college
E to University-Prior pennission of State Govemment-Mandato~eld :
Both provisions dealt with establishment of college-Section JOA covered the
entire field-Hence proviso to Section 5(5) of State Act r.epugnant to Section
JOA of Central Act-State Act-Assent of President received-Section
JOA ( J )-Central Act--Non-obstante clause-Gave overriding effect to Section
F
JOA-Repealed proviso to Section 5(5) of State Act-Hence it would not
prevail in State-Accordingly, under proviso to Article 254(2) of the Constitution, Section JOA would prevail over proviso to Section 5(5) of State Act-Dr.
M.G.R. Medical University, Tamil Nadu Act, J989.
G
University :
Establishment of New Medical Colleges, Opening of Higher Courses of
Study and Increase of Admission CapaCity in .Medical Colleges Regulations,
J993:
Essentiality Certificate-Grant of-:l3y State Govemment--R.egarding
H desirability and feasibility of proposed medical college at proposed loca-
,..
422
-
-
T.K.V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE
423
tion--not same as obtaining for plior pemiission from State Govenunent A
under proviso to Section 5(5) of Dr. M.G.R. Medical University Tamil Nadu
Act, 1989-State Govemment could not refuse.
The appellant-Trust submitted an application to the University seeking affiliation of a medical college which it wanted to start. The University,
however, refused to entertain the said application of the Trust on the
ground that a no objection certificate should be obtained from the State
Government for starting a medical college and without the no objection
certificate the application could not be considered. The appellant filed a
writ petition in the High Court again the aforesaid order of the University.
B
The High Court directed the University to consider the application of the C
appellant-Trust on merits without insisting upon prior permission of the
State Government. Thereafter, the ap11ellant submitted an application to
the University for affiliation of the medical college. The University rejected
the application as it was received beyond the prescribed period. The
appellant filed another writ petition in the High Court challenging the D
aforesaid order. The High Court allowed the writ petition and directed the
University to re-consider the said application of the appellant-Trust on
merits.
In the meanwhile, the State Legislature had enacted Dr. M.G.R.
Medical University Tamil Nadu (Amendment and Validation) Act, 1989. It E
was prescribed by the said Act that no college would be affiliated to the
University unless permission of the State Government was obtained. In
the meantime, pursuant to the decision of the High Court the University
had conducted a joint inspection and rejected the application for affiliation of the appellant-Trust on the ground that there were certain deficienF
cies in the infrastructure that was made available for the medical college
by it. The appellant Trust filed a third writ petition in the High Court
against the aforesaid order. The said writ petition was allowed by Single
Judge of the High Court and the matter was remitted to the University for
reconsideration. The respondents filed writ appeal in the High Court
against the aforesaid Judgment. The appellant-Trust also filed an appeal G
against the said judgment of the High Court.
During the pendency of both these app

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THIRUMURUGA KIRUPANANDA VARIYAR THA VATHIRU
SUNDARA SWAMIGAL MEDICAL EDUCATIONAL AND
CHARITABLE TRUST
v.
STATE OF TAMIL NADU AND OTHERS
FEBRUARY 12, 1996
[S.C. AGRAWAL AND G.T. NANAVATI, JJ.]
. Constitution of India, J950: Article 254(J) and proviso.
Legislation on concun-ent subject-State and Central Acts-Repugnancy between-Test to detennine-Central Act expressely or impliedly inteiided
to cover the entire field-State Act-Plior enactment-Assent of President
received-Held : Central Act would prevail over state Act-State Act to the
extent of repugnancy would be repealed.
·
Indian Medical Council Act, J956: Sect~on JOA.
New medical college-Establishment of-Prior pennission of Medical
Council-Mandatory-Proviso to Section 5(5) of Dr. M.G.R. MedM:al University, Tamil Nadu Act, J989 also providing affiliation of new medical college
E to University-Prior pennission of State Govemment-Mandato~eld :
Both provisions dealt with establishment of college-Section JOA covered the
entire field-Hence proviso to Section 5(5) of State Act r.epugnant to Section
JOA of Central Act-State Act-Assent of President received-Section
JOA ( J )-Central Act--Non-obstante clause-Gave overriding effect to Section
F
JOA-Repealed proviso to Section 5(5) of State Act-Hence it would not
prevail in State-Accordingly, under proviso to Article 254(2) of the Constitution, Section JOA would prevail over proviso to Section 5(5) of State Act-Dr.
M.G.R. Medical University, Tamil Nadu Act, J989.
G
University :
Establishment of New Medical Colleges, Opening of Higher Courses of
Study and Increase of Admission CapaCity in .Medical Colleges Regulations,
J993:
Essentiality Certificate-Grant of-:l3y State Govemment--R.egarding
H desirability and feasibility of proposed medical college at proposed loca-
,..
422
-
-
T.K.V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE
423
tion--not same as obtaining for plior pemiission from State Govenunent A
under proviso to Section 5(5) of Dr. M.G.R. Medical University Tamil Nadu
Act, 1989-State Govemment could not refuse.
The appellant-Trust submitted an application to the University seeking affiliation of a medical college which it wanted to start. The University,
however, refused to entertain the said application of the Trust on the
ground that a no objection certificate should be obtained from the State
Government for starting a medical college and without the no objection
certificate the application could not be considered. The appellant filed a
writ petition in the High Court again the aforesaid order of the University.
B
The High Court directed the University to consider the application of the C
appellant-Trust on merits without insisting upon prior permission of the
State Government. Thereafter, the ap11ellant submitted an application to
the University for affiliation of the medical college. The University rejected
the application as it was received beyond the prescribed period. The
appellant filed another writ petition in the High Court challenging the D
aforesaid order. The High Court allowed the writ petition and directed the
University to re-consider the said application of the appellant-Trust on
merits.
In the meanwhile, the State Legislature had enacted Dr. M.G.R.
Medical University Tamil Nadu (Amendment and Validation) Act, 1989. It E
was prescribed by the said Act that no college would be affiliated to the
University unless permission of the State Government was obtained. In
the meantime, pursuant to the decision of the High Court the University
had conducted a joint inspection and rejected the application for affiliation of the appellant-Trust on the ground that there were certain deficienF
cies in the infrastructure that was made available for the medical college
by it. The appellant Trust filed a third writ petition in the High Court
against the aforesaid order. The said writ petition was allowed by Single
Judge of the High Court and the matter was remitted to the University for
reconsideration. The respondents filed writ appeal in the High Court
against the aforesaid Judgment. The appellant-Trust also filed an appeal G
against the said judgment of the High Court.
During the pendency of both these appeals the Indian Medical
Council (Amendment) Act, 1993 was enacted by Parliament which inserted
Section lOA in the Central Act section lOA prescribed that establishment H
424
SUPREME COURT REPORTS
(1996] 2 S.C.R.
A
of a new medical college can only be done with the previous sanction of the
Central Government. However, the High Court allowed the appeal of the
respondents .and dismissed the writ petition of the appellant-Trust. Aggrieved by the High Court's judgment the appellant-Trust preferred the
present appeal.
B
When the petition of the appellant was placed before this Court that
appellant Trust was directed to submit an application before the Medical
Council, and to produce a letter of affiliation from the University. Thereupon this Court further directed the appellant to seek the permission of
the State Government for opening the medical college which it did. HowC ever the State Government rejected the application of the appellant· Trust.
D
E
F
G
H
Thereafter, this Court directed the Medical Council to conduct inspection
of the medical college. In inspection report submitted by the Medical
Council it was stated that the appellant-Trust had sufficient infrastructure
to open the medical college. On the request of the appellant the University
also conducted an inspection of the college and took the view that the
medical college was eligible for affiliation.
When the matter ag;:tin came up before this Court, the appellantTrust was directed to seek permission of the Central Government under
Section lOA of the Central Act to open the Medical College. The Central
Government granted permission and issued a letter of intent to open the
medical college. The said letter of intent was issued subject to the appellant
Trust obtaining from the State Government and essentiality certificate
regarding the desirability and feasibility of having the proposed medical
college at the!proposed location. This condition was imposed in view of the
E~tablishment of new Medical Colleges, opening of Higher Courses of
Study and Increase of Admission Capacity in Medical Colleges Regulations, 1993 made under Sec. lOA of the Central Act whereunder obtaining
of an Essentiality Certificate from the State Government was mandatory
before granting of permission by the Central Government to open a new
Medical College.
After receiving the said letter of intent the appellant-Trust submitted
a representation to the State Government for grant of essentiality eertificate/no objection certificate for the establishment of the medical c6llege.
However, the State Government rejectea the said application.
On behalf of the appellant it was contended that the Central Act bad
....
--
T.K V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE
425
been enacted in exercise of the power conferred by Entry 25 of List III of A
the Seventh Schedule to the Constitution and that proviso to Section 5(5)
of the Medical University Act, enacted by the State Act, was repugnant to
Section lOA of the Act, has fo be treated as void virtue of Article 254 of
the Constitution since the Central Act was enacted after the enactment of
the State Act.
On behalf of the respondents it was contended that since the State
Act had received the assent of the President, it would prevail over the
Central Act in view of Article 254(2) of the Constitution; that there was no
repugnancy between the proviso to Section 5(5) of the Medical University
B
Act and Section lOA of the Central Act because the requirement of both C
the provisions could be complied with; and that prior permission of the
State Government to open a new medical college was mandatory as framed
by the Regulations.
Allowing the appeal, this Court
HELD : 1.1. The test of two legislations containing contradictory
provisions is not the only criterion of repugnance. Repugnancy may arise
between two enactments even though obedience to each of them is possible
without disobeying the other if a competent legislature with a superior
efficacy expressly or impliedly evinced an intention to cover the whole field.
[ 441-G; 442-A]
Deep Chand v. The State of Uttar Pradesh & Ors., [1959] 2 Supp. SCR
8, State of 01issa v. M.A. Tulloch & Co., [1964] 4 SCR 461 and J.P.
Unnikrishnan & Ors. v. State of Andhra Pradesh & Ors., [1993] 1 SCC 645,
relied on.
G.P. Stewart v. B.K. Roy Chaudhary, AIR (1939) Cal. 628, approved.
D
E
F
1.2. Though Section 5(5) of Dr. M.G.R. Medical University Act, 1989
relates to affiliation of colleges the proviso inserted therein deals with the
establishment of a college and imposes a condition that for the purpose of G
affiliation of a college, permission of the State Government to establish the
college is necessary. The said proviso that has been inserted by the State
Act, in pith and substance is a provision relating to the establishment of a
college and merely because it is placed in a provision relating to affiliation
of colleges to the University the said proviso would not cease to be a
provision dealing with establishment of a college. However, in Section lOA H
426
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
of the Indian Medical Council Act, 1956 Parliament has made a complete
and exhaustive provision covering the entire filed for establishment of new
medical colleges in the country. No further scope is left for the operation
of the State legislation in the said field which is fully covered by the law
made by Parliament. The legislative entry which is relevant for the purpose
of the present case is Entry 25 of List III (as amended).
[442-G-H; 443-A; 448-A-B; 438-D]
B
1.3. The proviso to sub-section (5) of Section 5 of the Medical University Act which was inserted by the Dr. M.G.R. University Tamil Nadu
(Amendment and Validation) Act, 1989 requiring prior permission of the
State Government for establishing a college is repugnant to Section lOA of
C the Central Act which prescribes the conditions for establishing a new
medical college in the country. The said repugance is, however, confine to
the field covered by Section lOA, viz., establishment of a new medical college
and would not extend to establishment of other colleges. [ 449-B-C]
D
E
2.1. The fact that the State Act has received the assent of the President
would be of no avail because the repugnancy is with the Central Act which
was enacted by Parliament after the enactment of the State Act. In view of
the proviso to sub-Article (2) of Article 254 Parliament could add to, amend,
vary or repeal the State Act. In exercise of this power Parliament could
repeal the State Act either expressly or by implication. [ 449-D]
Zaverbhai Amaidas v. The State of Bombay, [1995] 1 SCR 799 and
Deep Chand v. State of U.P. & Ors., [1959] 2 Supp. SCR 8, relied on.
2.2. Though the Central Act does not expressly amend or repeal the
State Act, effect of the non-obstante clause in sub- section (1) of Section lOA
F
which gives over-riding effect to the provisions of Section lOA over anything contained in the Medical Council Act or any other law for the time
being in force, is to render inapplicable, and thereby repeal impliedly, the
proviso inserted in sub-section (5) of Section 5 of the Medical University
Act in the matter of establishment of a new medical college in the State and
G its affiliation by the Medical University and for the purpose of establishing
a medical college permission of the Central Government has to be obtained
in accordance with the provisions of Section lOA. If such a permission is
granted by the Central Government a further permission of the State
Government under the proviso to Section 5(5) of the Medical University
Act would not be required for the purpose of obtaining affiliation of such
H a college to the Medical University. [448-E-H; 449-A]
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE (S.C. AGRA WAL, J.) 427
3.1 It is no doubt true that in the scheme that has been prescribed A
under the Establishment of New Medical Colleges, Opening of Higher
Courses of Study and Increase of Admission Capacity in Medical College
Regulations, 1993 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 and
feasibility of having the proposed college at the proposed location cannot
B
be equated with obtaining prior permission of the State Government for
establishing a new medical college as required under the qualifying criteria
prescribed under the scheme, the State Government is only required to C
consider the desirability and feasibility of having the proposed medical
college at the proposed location. [ 449-G-H; 450-A]
3.2. Since the appellant-Trust has already established the infrastructure for establishing a medical college and the reports of the inspection
conducted by the Medical Council as well as by the University indicate the D
facilities that are available are adequate for starting a medical college, it
would serve no useful purpose to insist upon obtaining an essentiality
certificate from the State Government regarding desirability and
feasibility of having the proposed medical college at the proposed location.
The matter of grant of permission for establishing a new medical college E
by the appellant-Trust should be considered by the Central Government
without insisting upon this condition. [450-G-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 32143215 of 1996.
From the Judgment and Order dated 30.4.93 of the Madras High
Court in W.A. No. 301 and 387 of 1992.
K. Parasaran, Mohan Parasaran, V. Balaji, G. Umpathy and A.T.M.
Sampath for the Appellants.
G.L. Sanghi, Ms. A. Subhashini, L.R. Singh, Navin Prakash, AV.
Rangam and A. Ranganadhan for the Respondents.
The Judgment of the Court was delivered by
S.C. AGRAWAL, J. Special leave granted.
F
G
H
428
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
These appeals by Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational and Charitable Trust (hereinafter
referred to as 'the Trust') relate to the establishment of a medical college
at Salem in the State of Tamil Nadu. The Trust has been formed for
establishing various educational institutions and for other charitable purposes. It has established a Pharmacy College, a Dental College, a
B Homeopathy College, an Engineering College, a Polytechnic, an Industrial
Training Institute, etc. in the town of Salem. It is desirous of establishing
a medical college at Salem.
In 1987, the Tamil Nadu State Assembly enacted the Tamil Nadu
C Medical University Act, 1987 (Act No. 37of1987) which is now re-named
as Dr. M.G.R. Medical University Act (hereinafter referred to as 'the
Medical University Act') whereby Tamil Nadu Medical University, renamed as Dr. M.G.R. Medical University, (hereinafter referred to as the
University') was established. Sub-section (5) of Section 5 of the Medical
D University act empowers the University to affiliate colleges to the University as affiliated colleges, within the University area under conditions
prescribed and withdraw such affiliation. On December 2, 1987, the Trust
submitted an application to the University seeking affiliation to the University a medical college which the Trust wanted to start. The University,
E however, refused to entertain the said application of the Trust on the
ground that a no objection certificate should be obtained from the Government of Tamil Nadu (hereinafter referred to as 'the State Government')
for starting a medical college and without such a no objection certificate
the application could not be considered. The Trust filed a Writ Petition
F
(W.P~ No. 2776 of 1989) in the Madras High Court against the said order
of the University refusing to entertain the application of the Trust for
affiliation of the proposed medical college to the University. On the said
Writ Petition, a learned single Judge (K. Venkataswamy J., as the learned
Judge then was) passed an order, on April, 13, 1989, with the consent of
the parties, wherein it was recorded that the University would not insist on
G the prior permission of the Government and that the Trust would apply
for affiliation in the prescribed form and the University would consider the
same on merits without insisting upon prior permission of the State
. Government and pass orders in accordance with law. Thereafter, the Trust
submitted an application for affiliation of the medical college on October
H 30, 1989. The said application was rejected by the University by order dated
/
\
. _)
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE jS.C. AGRA WAL, J.] 429
December 18, 1989 on the ground that the application ought to have been A
received on or before October 31, 1989 and it was received on November
7, 1989. The Trust filed another Writ Petition (W.P. No. 10453 of 1990) in
the Madras High Court against the said order of the University dated
December 18, 1989. The said Writ petition of the Trust was allowed by a
learned single Judge of the High Court (Somasundram J.) by order dated B
February 1, 1991 and the order date December 18, 1989 was set aside on
the ground that application for affiliation has been sent by post on October
30, 1989 and the requirement of statute 37 with regard to the period of
. limitation for submitting the application was complied with. The University
was directed to re-consider the said application of the Trust on merits. In
the meanwhile, the Tamil Nadu State Legislature had enacted Dr. M.G.R.
Medical University Tamil Nadu (Amendment and Validation) Act, 1989
(XXXII of 1990) (hereinafter referred to as 'the State Act') on July 6, 1990.
By the said Act, which was brought into force with effect from September
c
24, 1987, a proviso was inserted in sub-section (5) of Section 5 of the
Medical University Act whereby it was prescribed that "no college shall be D
affiliated to the University unless the permission of the Government to
establish such college has been obtained and the terms and conditions, if
any, of such permission have been complied with". Similarly, a proviso was
also inserted in sub-section (7) of Section 5 which prescribes that "no
institution shall be approved by the University unless the permission of the E
Government to establish such institution has been obtained and the terms
and conditions, if any, of such permission have been complied with".
After the decision of the High Court dated February l, 1991, the
University conducted a joint inspection and by order dated August 16, 1991 F
rejected that application for affiliation submitted by the Trust on the
ground that there were certain deficiencies in the infrastructure that was
made available for the medical college by the Trust. The Trust filed a third
Writ Petition (W.P. No. 13392 of 1991) challenging the said order of the
University dated August 16, 1991. The said Writ Petition was allowed by a G
learned single Judge (Bakthavatsalam J.) by judgment dated February 7,
1982 and the order dated August 16, 1991 was quashed and the matter was
remitted back to the University for reconsideration. The learned judge was
of the view that while rejecting the application for affiliation the University
had taken irrelevant and extraneous considerations into account. Feeling
aggrieved by the said judgment of the learned single Judge, the State of H
430
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
Tamil Nadu filed an appeal (W.A. No. 301 of 1992) before a Divi_sion
Bench of the High Court. The Trust also filed an appeal (W.A. No. 387 of
1992) against the said judgment of the learned single Judge.
During the pendency of both these appeals, the President of India
promulgated the Indian Medical Council (Amendment) Ordinance (OrB
dinance No. 13 of 1992) on August 27, 1992. The said Ordinance was
subsequently replaced by the Indian Medical Council (Amendment) Act,
1993 (Central Act No. 31 of 1993) (hereinafter referred to as 'the Central
Act') which was brought into force with effect from August 27, 1992. By
the Central Act, Sections lOA, lOB and lOC were inserted in the Indian
C Medical Council Act, 1956. Section lOA deals with the establishment of a
new medical college or opening of a new or higher course of study or
training and prescribes that this can be done only with the previous
permission of the Central Government obtained in accordance with the
provisions of the said section.
D
In view of the said amendments, the Central Government was impleaded as a party in the Writ Appeals which were pending before the
Division Bench of the High Court. The stand of the Central Government
was that after the promulgation of Ordinance No. 13 of 1992, which was
later on replaced by the Central Act, the Central legislation has occupied
E
the entire field and the State legislation must be treated to have been·
rendered inoperative and, as a result, the approval of the State Government
was no longer necessary for establishing a medical college as required
under proviso to sub-section (5) of Section 5 of the Medical University Act.
The Writ appeals filed by the State Government as well as by the
F
Trust were disposed of by the High Court by the impugned judgment dated
April- 30, 1993 whereby Writ Appeal (W.A. No. 301 of 1992) filed by the
State Government was allowed and the Writ Appeal (W.A. No. 387 of
1992) filed by the Trust was dismissed. The High Court held that the
amendment introduced in clause (5) of Section 5 of the Medical University
G Act by the State Act was not, in any way, affected by the Central legislation
and' that even after insertion of Section lOA in the Indian Medical Council
Act, 1956 prior permission of the State Government was required for
establishing a medical college.
On July 18, 1993 when the special leave petitions filed by the Trust
H . were placed before this Court, the following order was passed:
'\
....
• ,!
T.K.V.T.S.S. MEDICALEDUCATIONALANDCHARITABLETRUSTv. STATE[S.C. AGRAWAL.J.\ 431
"Issue notice on the Special leave Petitions; Prayer for interim A
relief is rejected.
Mr. P.R. Seetharaman, learned counsel, accepts notice on
behalf of the respondents. In the meantime, it will be open to the
. petitioner to approach the Central Government and Indian Medical Council for necessary permission which shall be considered in
accordance with law.
Liberty to mention for an early hearing."
Thereupon, the Trust submitted an application before the Medical
Council of Indian (for short "Medical Council") But the Medical Council
by its letter dated December 15, 1993 informed the Trust that in order to
enable the Medical Council to comply with the orders of this Court to
consider the application of the Trust in accordance with law, the Trust
should produce a letter of affiliation from the University. On January 21,
1994, this Court passed the following order :
"In this case, having regard to the circumstance that the
petitioners has had to go to various authorities where sanctions
and permission are said to be necessary to obtain affiliation, it is
necessary for the petitioner to know from which authority, sequenB
c
D
tially, to commence with.
E
We direct the petitioner to apply to the State Government for
the requisite permission. If the application in this behalf is filed
within three weeks from today, the State Government will dispose
of the same within four weeks thereafter. If the State Government
declined the permission, they shall state the reasons for doing so.
The petitioner need not have recourse to another petition to
question the correctness of that decision. The order made by the
State Government shall be placed before this Court in these
proceedings.
Call this matter after six weeks."
In pursuance of the said directions given by this Court, the Trust
moved the State Government for grant of permission and also submitted
papers with regard to the acquisition of 150 acres of land by the Trust for
F
G
the medical college and making of endowment deposit of Rs. 50 lakhs and H
432
SUP.REME COURT REPORTS
[1996] 2 S.C.R.
A
appointment of teaching staff, no:a-teaching staff, professors, lecturers, etc.
and purchase of equipment and providing other infrastructural facilities for
the college. By order dated March 9, 1994, the State Government rejected
the application of the Trust for the following reasons :
B
c
D
E
F
G
H
"(a) There are three Private Medical Colleges functioning in the
Tamil Nadu for which permission was given by the Tamil Nadu
Government on 24.7.1985 and that after that date the Government
have not given permission to start private Self-financing Medical
Colleges even though several private Self-financing Private Organizationsffrust approached the government for permission. This
was mainly due to the reason that the Government of India are
not in favour of starting new Medical Colleges either by the
Government or by private agencies as the present annual turnover
of Medical graduates every year is considered adequate to meet
the requirements of the country.
(b) In February 1988, the Union Minister of Health and Family
Welfare, Government of India in his D.O. letter referred to the
recommendations of the Central Council of Health and Family
Welfare held in February 1988, that no Medical College should be
allowed to be opened in any part of the country or no additions
to the existing admission capacity in the Medical College should
be permitted as the qualified Medical practitioners made available
from the existing medical colleges were sufficient for the near
future and that there has been reports of surplus of doctors all
over the world by 2000 AD.
( c) The Government have decided not to accept the request of the
petitioner Trust to recommend to Tamil Nadu Dr. M.G.R. Medical
University to permit it to start the medical college because of the
policy of the Government not to permit private organisationff rusts
to start self-financing Medical College in this Stage.
(d) In Tamil Nadu, there are 9 Government Medical Colleges and
Four Medical Colleges under private management besides one
University Medical College under Annamalai University, Chidambaram. The annual intake of students in the said colleges are 1477.
The number of qualifying doctors seeking employment on the live
' .
':::...
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLETRUSTv. STATE[S.C. AGRAWAL,J.] 433
registers of Employment Exchange in the State as on 28.2.1994 are A
2412. For recruitment of Doctors for the post of Assistant Surgeon
in Tamil Nadu Medical Service for the 1992, for 378 vacancies,
4,631 candidates applied for appointment, taking into account of
these and other factors set out above, the Government consider
that the existing Medical College in Tamil Nadu are more than
sufficient and that there is no need for starting any more Medical
Colleges in the State."
On January 27, 1995. this Court passed the following order :
B
"Pending decision on merit in the SLP's, after hearing Mr. K.
C
Parasaran, learned senior counsel for the petitioner, Mr. R.K. Jain,
learned senior counsel for the State of Tamil Nadu and Mr. Navin
Prakash, learned counsel for the Medical Council of India, it is
ordered:
On 15.2.1993, the Medical Council of India did write to the D
petitioner a letter of affiliation from the Dr. M.G.R. Medical
University. Since the petitioner had not mentioned in their letter
that they had applied to M.G.R. Medical University for obtaining
affiliation. If an expert body like that Medical Council of India
certifies that the petitioner establishment conforms to the requireE
ments of Medical Council of India, more than half the battle is
won. Therefore, we would first like to have the opinion of the
Medical Council of India. From this point of view, a direction shall
issue to Medical Council of India to keep aside the question of
affiliation from M.G.R. Medical University and the perrnission of
Tamil Nadu Government and consider whether the infrastructure
F
provided by the petitioner's establishment (Medical College) conforms to its norms and submit a report to this Court. It is open to
the Medical Council of India to take the necessary inspection, if
it so desires. In so deciding regard shall be had to its letter dated
March 15, 1994, addressed to the Secretary to the petitioner's G
Trust.
The said report shall be submitted within six weeks from today.
List the matter after eight weeks."
Consequent to the said order passed by this Court on January 27, H
434
SUPREME COURT REPORTS
(1996) 2 S.C.R.
A
1995, the Medical Council conducted inspection of the college on March
8 and 9, 1995 to assess whether the infrastructure provided by the establishment (Medical College) conforms to the norms of the Medical Council.
The In~pectors in their report have stated that the Trust is having sufficient
infrastructure for accommodation, equipment and staff component in preB
c
clinical departments for 100 students each year and have recommended
that permission to start teaching may be granted. It appears that after the
said inspection by the Medical Council, the Trust also approached the
University for inspection of the institution and that on the basis of the said
request, the University also conducted an inspection and it is stated that
the report of the said inspection takes the view that the college is eligil;>le
for being affiliated to the University as it has satisfied all norms laid down
by the University for being affiliated.
When the matter came before the Court, on August 30, 1995, the
learned counsel for the Trust submitted that since the Trust has not
D obtained the necessary permission under Section lOA of the Central Act,
the Trust would move for the said permission to the Central Government
within two weeks and this Court directed that in case such an application
was submitted, the Central Government shall consider the same in accordance with law without insisting upon the requirement of affiliation of the
medical college with the University and shall pass order on the said
E application within two months after the filing of the application. In accordance with the said order, the Trust submitted an application dated Septem~
ber 13, 1995 before the Central Government and after considering the said
application, the Government of India, Ministry of Health and Family
Welfare have sent a Letter of Intent dated December 12,1995 to the Trust
F
G
H
wherein it is stated :
"2. The scheme submitted by the .Secretary, Thirumuruga
Kirupananda Variyar Thavathiru Sundara Swamigal Medical
Educational & Charitable Trust, Salem was referred to the Medical Council of India on the 17th October, 1995 for its recommendations. The Council had already appointed inspectors on the
directiOns of the Hon'ble Supreme Court to inspect the infrastructural facilities available in the proposed medical college and the
inspection was done in March, 1995. The Council recommended
a Latter of intent may be given to the applicant to start a medical
college for 100 admissions. (A copy of the Inspection Report is
-I
).
(_
-
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUST" STATE(S.C. AGRAWAL_J.] 435
enclosed).
A
3. After care consideration of the Scheme, inspection report,
directions of the Hon'ble Supreme Court of India and recommendations of the Medical Council of India and factors mentioned in
section lOA of the Indian Medical Council Act, 1956, this Ministry
has come to the conclusion that a 'Letter of Intent' for starting a
new medical College at Salem by Thirumuruga Kirupananda
Variyar Thavathiru Sundara Swamigal Medical Educational and
Charitable Trust, Salem may be issued. Hence this letter of Intent.
4. This letter of Intent is subject to the fulfillment of the following
conditions :
(i) As per the Medical Council of India Notification No. MCI34( 41)/93-med.(N) dated 20.9.93, an essentiality certificate regardB
c
ing the desirability and feasibility of having the proposed medical
college at the proposed location is required to be obtained by the D
applicant from the State Government concerned. The applicant
submits that the question of State Government permission is pending before the Supreme Court of India. This requirement of the
State Government permission will be subject to the Supreme
Court's directions.
(ii) Two performance bank guarantees one for a sum of Rs. 150
lakhs (for 100 admissions) for the establishment of the medical
college and its infrastructural facilities and the second amount to
Rs. 550 lakhs (for 700 beds) for establishment of teaching hospital
and its infrastructural facilities as per Medical Council of India
norms may be provided.
·
(iii) A time-bound four year project completion report may be
provided.
E
F
(iv) Consent of affiliation with a recognised university is not inG
sisted upon in pursuance of the Hon'ble Supreme Court directions
dated 30.8.95.
(v) The deficiencies in Inspection Report may be rectified.
5. Action to issue the grant of permission for admission to MBBS H
436
A
SUPREME COURT REPORTS
[1996) 2 S.C.R.
course will be taken on receipt of a letter accepting the conditions
enumerated in para 4 above mentioned on verification of the latest
staff position and infrastructural facilities by the Medical Council
of India and after the bank guarantees are received in this Ministry."
B
After receiving the letter dated December 12, 1995, the Trust submitted a reP.resentation dated January 6, 1996, before the State Government for grant of essentiality certificate/no objection certificate for the
establishment of medical college at Salem. The said request of the Trust
has been rejected by letter dated January 10, 1996 sent by the Secretary,
C Health and Family Welfare Department, State of Tamil Nadu, wherein it
is stated :
D
E
"In your representation dated 6.1.96, you have required the
Government to grant Essentiality Certificate/No Objection Certificate to your Medical College at Salem. The Government have
examined the request.
The Government have not changed the policy of not permitting
any private Trust or Management to start as Medical/Dental College. I am therefore directed to state that the request to grant
Essentiality Certificate/No Objection Certificat~ to start a Medical
College at Salem is rejected."
From the aforesaid narration of facts, it would appear that after the
insertion of Section lOA in the Central Act, the question regarding grant
of permission for establishing medical college by the Trust was consideredF
by the State Government twice during the pendency of these appeals. The
matter was first considered by the State Government on the basis of the
application submitted by the Trust in pursuance of the order dated January
21, 1994 passed by this Court and by their letter dated March 9, 1994; the
State Government refused to grant the permission. Thereafter, the matter
was considered by the Medical Council and the Central Government and
G on December 12, 1995, the Central Government issued a Letter of Intent
which requires the fulfillment of the conditions mentioned therein. One of
the conditions mentioned in the said Letter of Intent is obtaining an
essentiality certificate from the State Government regarding the desirability
and feasibility of having the proposed medical college at the proposed
H location. The matter was considered by the State Government for the
j-
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSf v. SfATE [S.C. AGRA WAL, J.) 437
second time when a request was made by the Trust for issuing an essenA
tiality certificate/no objection certificate as required by the Letter of Intent
dated December 12, 1995 of the Central Government. The said request was
rejected by the State Government by letter dated January 10, 1996. The
University has also conducted an inspection of the facilities available at the
college proposed to the established by the Trust and appears to be satisfied
about the college being eligible for being affiliated to the University.
B
Now the only impediment in the establishment of the medical college
by the Trust is the stand of the State Government that permission cannot
be given to a private trust to establish the medical college. This raises the
question : what is the role of the State Government in the matter of C
establishment of a medical college? The State Government assert its right
on the basis of the proviso to sub-section (5) of Section 5 of the Medical
University Act, inserted by the State Act, which prescribes that "no college
shall be affiliated to the University unless the permission of the Government to establish such. college has been obtain and the terms and condiD
tions for such permission have been complied with". The said claim is
disputed by the Trust on the ground that subsequent to the enactment of
the State Act, Parliament has enacted the Central Act whereby Section lOA
has been inserted in the Indian Medical Council Act, 1956 and said
provision deals with establishment of a new medical college or opening of
a new or higher course of study or training and prescribes that notE
withstanding anything contained in the India Medical Council Act, 1956 or
any other law for the time being in force no person shall establish a medical
college except with the previous permission of the Central Government
obtained in accordance with the provisions of the said Section. According
to the Trust Section 10-A introduced by the Central Act would prevail over F
the proviso to Section 5(5) of the Medical University Act introduced by
the State Act. It is, therefore, necessary to consider whether and, if so, to
what extent the proviso to sub-section (5) of Section 5 of the Medical
University Act is applicable in the matter of establishment of medical
college in the State of Tamil Nadu. The answer to this question would
depend on the scope and ambit of the legislative power of Parliament and G
the State Legislature in this field relating to establishment of a medical
college, viz., education.
The legislative power in relation to 'education' was earlier distributed
in all the three legislative lists in the Seventh Schedule to the Constitution. H
I
~
(.
438
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A Parliament was conferred legislative power in respect of matters specified
in Entries 63, 64, 65 and 66 of the. List I (Union List) while the State
Legislatures were conferred the power in respect of matters specified in
Entry 11 of List II (State List) and Parliament and State Legislatures were
conferred concurrent power in respect of matters specified in Entry 25 of
B List III (Concurrent List). By the Constitution (Forty Second Amendment)
Act, 1976, Entry 11 of List II has been deleted and Entry 25 in List III
has been enlarge to cover matters which were earlier specified in Entry 11
of List II. In view of the said amendment, the legislative power in respect
of education is now conferred exclusively on Parliament in respect of
matters specified in Entries 63 to 66 of List I and concurrently on ParliaC ment and State Legislatures in respect of matters specified in Entry 25 of
List III.
The State Act has undoubtedly been enacted in exercise of the power
conferred by Entry 25 of List III. Shri Parasaran; the learned senior counsel
appearing for the Trust, has also made his submissions on the basis that
D the Central Act has been enacted in exercise of the power conferred by
Entry 25 of List III. Therefore, the legislative entry which is relevant for
the purpose of the presep.t case is Entry 25 of List III (as amended) which
reads as under :
E
"25.