2000 Supreme(AP) 845

Andhra Pradesh High Court
Judges : GODA RAGHURAM, M.S.LIBERHAN, S.SUBHASHAN REDDY
Government of A.P. - Appellant
Versus
Medwin Educational Society - Respondent
Decided On : 11-08-00

Headnote:

Constitution of India - Article 50, 371-D - Indian Medical Council Act, 1956 - Dentists Act, 1948 - Writ Petition – Education - In these appeals the common question of fact and law have been raised - State having decided locations for establishment of medical colleges and dental colleges, constituted a Committee headed by a sitting Judge of this Court with the other members i. e. , the Director of Institute of Medical Sciences and the Vice-Chancellor of University of Health Sciences - Committee was required to examine the applications in detail in accordance with the procedure provided and required to be followed - Learned single Judge found that the function of the Committee is part of quasi-judicial or executive functions of the State - High Court Judge ought not to associate and function as head of such Committee in view of the doctrine of separation of powers enshrined in Article 50 and further that it is not desirable for a sitting Judge to take part in the process of recommending eligible applicants for grant of essentiality certificate - Participation of the Vice-Chancellor was faulted on the ground that the University being a separate entity having its own role at the time of granting affiliation, the Vice-Chancellor ought not to be associated with the Committee - It was further found that Article 371-D and the Presidential Order thereunder have an overriding effect - The State Government has a say in the matter of determining the locations for establishment of medical and dental college - Need for establishing the colleges under private management is not disputed - Action of the State in permitting medical colleges and dental colleges being established was on an earlier occasion quashed by a Full Bench of this Court and confirmed by the Supreme Court on other grounds, not germane to the issues herein –Held, - Having regard to court declaration herein that a fresh notification should be issued by the State Government calling for applications and that on receipt of applications, all the applications including the existing ones, should be considered de novo for the purpose of grant of essentiality certificate, the recommendations already made by the committee constituted under Government order dated under the Chairmanship Justice would no longer be operational - Validity of any such recommendations would no longer survive as a live issue to be considered by this Court - For the foregoing reasons, we are of the considered view and hold (I) that the State is at liberty, while considering the grant of essentiality certificate under paragraph - of the qualifying criteria set out in the scheme for establishment of colleges, to consider the feasibility and desirability of establishing the proposed institutions in the proposed locations in terms of the factors set out in Form II of the Establishment of the New Medical Colleges Regulations, - Other cognate factors are outside the domain of the State Government, having not been delegated to it - (II) The grant or refusal of the essentiality certificate by the State Government constitutes but a tentative or provisional determination of the issue - It is the Medical or Dental council which is empowered and obligated to independently consider the feasibility of recommending the grant of permission to the Centre for the establishment of medical college or dental college - (III) Denial of grant of essentiality certificate by the State by itself is not sufficient for the Council to refuse the recommendation for grant of permission to establish a college (IV) Article 371 D does not empower the State to withhold essentiality certificate on a policy consideration with regard to location - (V) The State cannot provide a prior prescription of location by it to restrict the applications to such locations alone - State is bound to consider the applications proposing locations other than the locations even if prima facie identified by the State for grant of essentiality certificate; we, however, hold that the State is at liberty to consider the grant of essentiality certificate within the parameters set out in view of the observations made in the judgment - (VI) The State is obligated to record reasons for grant or refusal to grant an essentiality certificate - Regarding of reasons ensures that the same has been arrived on the basis of the germane, relevant and rational parameters within the jurisdiction and domain of the State Government. (VII) The scheme for establishment of colleges can be submitted without the State calling for the applications – Undoubtedly the constitutional issue as to the legality or constitutional propriety of the participation/ association of a sitting Judge with a commission of Inquiry under the commissions of Inquiry Act, or Chancellor or Vice-Chancellor of a University or as a Member/chairperson of a Pay Revision Commission or a Member of a committee or any such similar associations with governmental or quasi-governmental institutions involving, discharge of functions other than the functions enjoined by the Constitution upon a Judge while discharging his judicial office or functions which involve evaluation of policy choices by the executive branch of the State, is a matter of profound constitutional import and of recurring nature - Such a question has been raised in this lis - Having regard, however, to the fact that the sitting Judge of this Court who was associated as Chairperson of the committee constituted by the State Government to evaluate applications for grant of essentiality certificates for establishment of medical or dental colleges in the State, has demitted office on retirement and also having regard to the fact that we have held that the recommendations of the said committee are no longer operational in view of this court having directed issuance of a fresh notification calling for applications and processing of the same, this issue is no longer a live issue warranting adjudication in the case on hand - We remind ourselves of the settled principle of constitutional adjudication that constitutional issues should not be considered by the judicial branch as an academic issue - There is also a settled principle that if a lis could be decided on grounds other than constitutional issues the lis should be decided on the other issues - In the totality of the circumstances of this case and in the light of the above settled principles we decline to adjudicate upon the issue as to the constitutional propriety and validity of the participation of a siting Judge with functions other than those enjoined upon such a Judge by and under the Constitution - These questions may fall for consideration in an appropriate case in future if warranted - Disposed of accordingly.