IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
WP(C) NO. 21894 OF 2021
PETITIONER:
V.N.PUBLIC HEALTH & EDUCATIONAL TRUST
A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD,
KOZHIKODE, REPRESENTED BY ITS MANAGING TRUSTEE- V.ANIL
KUMAR.
BY ADVS.
S.VINOD BHAT
ANAGHA LAKSHMY RAMAN
GREESHMA CHANDRIKA.R
RESPONDENTS:
1 STATE OF KERALA,REPRESENTED BY THE SECRETARY TO
GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 DIRECTORATE OF MEDICAL EDUCATION
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011.
3 NATIONAL MEDICAL COMMISSION
DWARAKA, NEW DELHI - 110 077, REPRESENTED BY ITS
CHAIRMAN.
4 UNION OF INDIA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF
HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEAR UDYOG
BHAVAN METRO STATION, MOULANA AZAD ROAD, NEW DELHI -
110 011.
5 KERALA UNIVERSITY OF HEALTH SCIENCES
MEDICAL COLLEGE P.O., THRISSUR - 680 596, REPRESENTED
BY ITS REGISTRAR.
6 MEDICAL ASSESSMENT AND RATING BOARD(MARB)
NATIONAL MEDICAL COMMISSION (NMC), POCKET-14, SECTOR-8,
DWARAKA, PHASE-1, NEW DELHI - 110 077.
SHRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH
SCIENCES
SHRI.V.MANU, SENIOR G.P.
SHRI.MANU S., ASG OF INDIA
SHRI.J.RAMKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.15.2022, THE COURT ON 31.05.2022 DELIVERED THE FOLLOWING:
W.P.(C)No.21894/2021 2
JUDGMENT
The petitioner is a charitable trust set up with the object of promoting education in the field of health and medicine. With a view to start a Medical College, the petitioner-trust set up a 300 bedded hospital in Walayar in Palakkad District.
2. The petitioner was granted Ext. P1 Essentiality Certificate ('EC', for short) dated 24.01.2004 by the Government of Kerala for establishment of a Medical College with 100 seats. The Medical Council of India (hereinafter referred to as, 'MCI') rejected the EC since the same was not in the required format. Though the petitioner was issued with an EC on 18.06.2009, the MCI again rejected the application since the EC was issued beyond the time prescribed for consideration. The petitioner was issued with EC for the third time on 12.01.2011, which was valid for the academic years 2011-12 and 2012-13. By then, the Kerala University of Health Sciences (hereinafter referred to as, KUHS') was formed and starting of a Medical College required the Consent of Affiliation ('CoA', for short) from the W.P.(C)No.21894/2021 3 KUHS. The KUHS granted CoA to the petitioner long after the time schedule. The petitioner did not establish the Medical College either during 2011-12 or during 2012-13. The Government of Kerala issued a renewed EC to the petitioner on 10.06.2014. However, the EC contained clerical errors and a corrected EC was issued much after the date for submission of the application to the Central Government for the establishment of Medical College. Consequently, the MCI once again rejected the application for the academic year 2014-15. While so, the application submitted by the petitioner for the year 2015-16 was rejected by the Government of India on 17.10.2014 on the ground that the CoA submitted along with the proposal was not valid for the academic year 2015-16. The petitioner then preferred W.P.(C) No. 29462 of 2014 and this Court passed an interim order on 22.11.2014 directing the MCI to consider the application provisionally and directing the KUHS to conduct an inspection for grant of a fresh CoA. Though the petitioner was granted provisional CoA by KUHS for the academic year 2016-17, the State Government W.P.(C)No.21894/2021 4 issued EC for the said year only on 31.08.2015 which was the last date for submission of the application and that too, in a wrong format. The petitioner filed W.P.(C)No. 25705 of 2015 and this Court, vide order dated 25.11.2015, directed the State Government to correct the format and also directed the Central Government to consider the application of the petitioner. Accordingly, Ext.P2 renewed EC was issued to the petitioner on 11.12.2015. However, MCI filed SLP (C) No. 5326 of 2016 on the ground that the certificate had been issued belatedly and hence the application cannot be considered. Civil Appeal No. 3964 of 2016 arising out of the said SLP was allowed vide judgment dated 18.04.2016 and the judgment of this Court was set aside. It was left open to the petitioner to submit fresh application for the next academic year in consonance with the provisions of the Regulations of the MCI as per the time schedule. The petitioner again moved this Court by filing W.P(C) Nos. 21581 and 22103 of 2017 alleging non-consideration of their application by the State Government and KUHS. The State Government, vide Ext.P4 order dated 28.09.2017, W.P.(C)No.21894/2021 5 rejected the application of the petitioner for renewal of EC on the ground that the petitioner has not commenced the College even in the year 2017 and on account of changed circumstances prevailing in the State. The petitioner preferred W.P.(C) No.40290 of 2017 challenging Ext.P4 order and the directions of the Single Bench therein were stayed by the Division Bench in Writ Appeal Nos.1371 of 2018 and 1370 of 2018 and finally, the Writ Petition and Writ Appeals were dismissed as withdrawn.
3. For the academic year 2020-2021, the petitioner again made an application for grant of EC and CoA before the State Government and KUHS, respectively. When no action was taken, the petitioner filed W.P. (C) No. 18238 of 2019 seeking direction to KUHS to consider the application. W.P.(C)No. 23460 of 2019 was also filed by the petitioner seeking direction to the State Government to consider the application for grant of EC. W.P.(C)No.18238 of 2019 was dismissed vide order dated 05.09.2019 on the ground that last date for submission of application before the MCI was over. W.P.(C)No.23460 of 2019 was disposed of on W.P.(C)No.21894/2021 6 04.09.2019 directing the State Government to take a decision on the matter at the earliest and at any rate, within 45 days from the date of receipt of the order. While so, the petitioner received a letter dated 09.09.2019 from the MCI granting it 10 days' further time to submit the relevant documents. The petitioner then preferred W.P. (C)No.25254 of 2019 seeking a direction to KUHS to revise CoA for academic year 2020-2021, wherein an interim direction was issued to KUHS to consider the application of the petitioner. The KUHS, by order dated 27.09.2019, rejected the application of the petitioner. W.P.(C) No. 25254 of 2019 was withdrawn by the petitioner with liberty to challenge the said order. By Ext.P6 order dated 01.10.2019, the State Government rejected the application of the petitioner for grant of EC stating as follows:-
"........ at present the State Government is not granting NOC and Essentiality Certificate for starting new medical colleges in the private sector".
4. The petitioner filed W.P.(C)No.27266 of 2019 challenging Ext.P6 order dated 01.09.2019 passed by the State Government rejecting the application for grant of EC. W.P.(C)No.21894/2021 7 A further relief of mandamus was also prayed for, to command the State Government to renew the EC. The petitioner also challenged the order dated 27.09.2019 passed by KUHS in W.P.(C)No.29098 of 2019. This Court, by judgment dated 19.11.2019, disposed of W.P.(C)No.27266 of 2019 directing the State Government to issue EC to the petitioner on or before 30.11.2019 and further directed the MCI to accept the renewed EC as one received on time. Writ Appeal filed by the State Government against the said judgment was dismissed by the Division Bench vide judgment dated 05.12.2019 and the same was challenged in SLP (C) No. 3008 of 2019. Meanwhile, the petitioner filed yet another Writ Petition, viz; W.P.(C) No.34275 of 2019 seeking a direction to the MCI for processing of the application without insisting upon EC and CoA. In the said Writ Petition, an interim order dated 13.12.2019 was passed directing the MCI and the Union of India to process the application of the petitioner without insisting on EC and CoA, subject to the outcome of the SLP (C) No.3008 of 2019. The order dated 13.12.2019 was challenged by the W.P.(C)No.21894/2021 8 State Government before the Hon'ble Supreme Court and the Apex Court, by judgment dated 07.08.2020 in Civil Appeal Nos. 2920-2921 of 2020, set aside the orders passed in W.P.(C)No.34275 of 2019 and Writ Appeal No.2443 of 2019 and directed that W.P. (C) Nos.27266, 29098 and 34275 of 2019, to be heard together and finally decided.
5. Accordingly, the learned Single Judge, by Ext.P7 common judgment dated 12.10.2020, dismissed W.P.(C) Nos. 29098 and 34275 of 2019 and W.P. (C) No. 27266 of 2019 was allowed to the extent of setting aside Ext. P6 order dated 01.10.2019 issued by the State Government denying NOC and EC to the petitioner for starting new Medical College on the basis of policy consideration. In Ext.P7 judgment, this Court also directed that, in the event of the petitioner submitting application for EC for the year 2022-23 for starting Medical College, the State of Kerala shall consider the said application on merits taking into consideration the findings and observations in the judgment and pass orders thereon within a period of one month from W.P.(C)No.21894/2021 9 the date of receipt of the application. Though a Review Petition was filed by the petitioner against Ext.P7 judgment, the same was dismissed. The petitioner challenged Ext.P7 Judgment in W.A Nos. 1413 and 1401 of 2020 contending, inter alia, that since the time schedule prescribed for starting a medical college in the year 2020-2021 is already over, no relief in respect of the said academic session can be granted. The Division Bench of this Court by judgment dated 03.11.2020 modified the directions issued by the learned Single Judge to the extent of directing the respondents to consider the application of the petitioner for establishment of a Medical College for the academic year 2021-2022. The Division Bench also gave time bound directions to the State and the University to jointly carry out an inspection to see whether EC could be issued and whether CoA could be given for the year 2021-22.
6. Challenging the judgment passed by the Division Bench dated 03.11.2020 to the extent it refused relief for the academic year 2020-2021, the petitioner filed SLP Nos. 14219 and 14220, of 2020. Leave was granted and by W.P.(C)No.21894/2021 10 Ext.P8 judgment dated 24.02.2021(V.N.Public Health & Educational Trust v. State of Kerala and others [AIR 2021 SC 2673 : 2021 (2) KLT 730]), the Hon'ble Supreme Court dismissed Civil Appeal Nos. 703-704 of 2021. In Ext.P8 judgment, the Apex Court considered the question as to whether grant of EC by the State Government is a ministerial act or not and whether EC once issued can be withdrawn. The Apex Court held that the grant of EC by the State Government and CoA by the University is not simply a ministerial act. The Apex Court also held that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the substratum on which the EC was granted vanishes or on like reasons. On facts, the Apex Court found that though a conditional EC was granted to the petitioner in the year 2004 subject to removal of deficiencies and even though 17 years elapsed, the petitioner has been unsuccessful in removing the deficiencies. Thus, the Apex Court found that the very substratum on which the EC was granted is missing right from the very inception. In Ext.P8 judgment, it was held that W.P.(C)No.21894/2021 11 the State Government or the KUHS cannot be directed to issue EC or CoA to the petitioner for the year 2020-2021 even notionally. However, the Apex Court held that it is open to the petitioner to make appropriate application for grant of EC and CoA for the next academic year before the concerned authority in accordance with the time schedule after removing the alleged deficiencies and in case any such applications are made, the same shall be disposed of by the concerned authorities in accordance with law and the procedure prescribed.
7. Accordingly, the petitioner approached the State Government for issuance of EC and the KUHS for issuance of CoA. Pursuant thereto, the Government directed the Director of Medical Education (DME) to inspect the petitioner institution/Hospital for the purpose of issuance of EC for the year 2020-2021 and the DME inspected the institution and submitted Ext.P12 report recommending EC on strengthening and augmentation of facilities and infrastructures for LOP (Letter of Permission) inspection. However, by Ext.P13 order dated 31.05.2021, the W.P.(C)No.21894/2021 12 Government rejected the application of the petitioner for EC on the basis of Ext.P12 report finding that the faculty is deficient and infrastructure needs strengthening and augmentation. Though the petitioner sought for a review of Ext.P13 before the Government, the same was rejected by Ext.P14.
8. Against Ext.P13 order of rejection of EC, the petitioner preferred W.P (C) No.12250/2021. This Court, by Ext.P16 order dated 07.07.2021, directed the petitioner to approach the Government with a proper application for EC within a week and further directed the Government to consider the same and pass appropriate orders thereon at the earliest. Pursuant thereto, the petitioner filed Ext.P17 application dated 12-07-2021 and Ext.P18 application dated 19.07.2021 for issuance of EC. W.P (C) No.12250/2021 was finally disposed of by this Court by Ext.P19 judgment dated 27-08-2021 directing the Government to consider and pass orders on Exts.P17 and P18, in accordance with law within 3 weeks from the date of receipt of a copy of the judgment and further directing that, in case the petitioner is issued W.P.(C)No.21894/2021 13 with an EC, the petitioner may approach the KUHS with proper application for issuance of CoA, within one week of receipt of such EC and the KUHS shall consider the said request and pass orders thereon within three weeks. This Court also directed that the application shall be considered by KUHS as one filed within time.
9. The petitioner preferred a review petition against Ext.P19 judgment pointing out that the National Medical Commission has, in the meantime, set certain time lines for preferring applications before it for starting of new college for the year 2022-2023 whereby the last date for submission of application for establishment of new Medical College was fixed as 26.09.2021, whereas Ext.P19 judgment is dated 27.08.2021 and the judgment requires a review. This Court, by Ext.P20 order, dismissed the review petition and the petitioner preferred W.A. No.1194/2021 wherein the Division Bench, by Ext.P21 judgment, directed the State Government to consider Exts.P14, P17 and P18 applications in accordance with law and also taking into account the observations in Ext.P8 judgment and to pass W.P.(C)No.21894/2021 14 orders at the earliest, at any rate, on or before 23.09.2021.
10. Pursuant to Ext.P21 judgment, the DME once again inspected the petitioner's institution on 20.09.2021 and submitted a report. The Government, by Ext.P23 order dated 23.09.2021, rejected the application of the petitioner for EC for 2022-2023. The relevant portion of Ext.P23 order is extracted below;
"....Government have examined the matter in detail. The State Government is not currently issuing Essentiality Certificates for any new medical college in the private sector. Besides, the proposed college (which did have essentiality certificates) from 2008 onwards) has been unable to comply with MCI or NMC norms and start the college, even after all these years. The latest inspection also shows that there are deficiencies when comparing with NMC norms. It will not be possible therefore to state that it is feasible to start such a medical college or that adequate clinical material as per NMC norms is available...."
Ext. P23 refers to a letter dated 22.09.2021 of the DME and a report of inspection. The petitioner has produced the inspection report of the DME along with the letter of the DME dated 22.09.2021 as Ext.P33 along with I.A.No.1 of W.P.(C)No.21894/2021 15 2021.
11. The KUHS, by Ext.P31 letter, informed the petitioner that since the issuance of EC is pending consideration before this Court in W.P.(C)No.12550 of 2021, the request of the petitioner for grant of CoA cannot be considered favourably. During the pendency of the Writ Petition, the Medical Assessment and Rating Board (MARB), the 6th respondent, has issued letter dated 01.02.2022 informing the petitioner that since the petitioner Institution is not having EC and CoA valid for the academic year 2022- 23, the MARB has disapproved the application of the petitioner for establishment of new Medical College for the academic year 2022-23. The petitioner has preferred a statutory appeal against the decision of the MARB before the National Medical Commission. The petitioner has produced the letter of MARB as Ext.P37 and the appeal filed against Ext.P37 as Ext.P38 along with I.A.No.1 of 2022. Ext.P23 order of the State Government rejecting the EC and Ext.P31 issued by the KUHS refusing to grant CoA are challenged in the present Writ Petition. According to the W.P.(C)No.21894/2021 16 petitioner, EC cannot be rejected on the basis of any policy decision by the State Government. The petitioner contends that Ext.P12 report of the DME dated 22.04.2021, which recommended grant of EC to the petitioner, ought to have been accepted by the State Government and issued EC to the petitioner. A further relief is sought to declare that provision 2(iii) of Chapter XXI of the Kerala University of Health Sciences First Statute mandating EC for submission of application and grant of CoA as illegal and ultra vires the Constitution.
12. A Statement dated 17.11.2021 has been filed on behalf of respondents 1 and 2 resisting the challenge against rejection of EC. It is pointed out that the contention of the petitioner that Ext.P12 report was in favour of the petitioner was negatived by the Division Bench in Ext.P21 judgment. In the light of Ext.P21 judgment, the State Government directed the DME to conduct a surprise inspection of the petitioner Institution and the DME, by Ext.P33, noted various deficiencies in the petitioner Institution as per NMC norms. Since the NMC norms mandatory for starting new medical W.P.(C)No.21894/2021 17 college and issuing EC are not fulfilled by the petitioner Institution, the State Government has rejected the EC by Ext.P23. As an attempt to supplant the reason for rejecting EC as a policy decision, it is stated in the Statement that, two self financing Medical Colleges in the State had to be closed for want of facilities including clinical materials and the Government had to accommodate those students in other self financing Medical Colleges in the State as per the undertaking given by the State Government while issuing EC, which resulted in considerable difficulties including the lagging of the course. Further, taking into account the present doctor-patient ratio in the State and the educational needs, the Government have taken a decision not to currently grant EC to private Medical Colleges in the State. The Statement also states that, in the absence of averments as to jurisdictional error, ex facie perversity or malafides in the issuance of Ext.P23 order, the Court cannot grant relief to the petitioner.
13. A Statement has been filed on behalf of the KUHS contending that the petitioner Institution has not complied W.P.(C)No.21894/2021 18 with the minimum standards prescribed by the NMC for starting a Medical College. It is stated that the petitioner could apply for affiliation along with EC as and when the University invites application and the petitioner should have eligibility to apply at the relevant point of time. The NMC prescribes the minimum standards and the University verifies whether the applicant adheres to the norms of the NMC and grants CoA, before permitting the applicant to submit application before the NMC. Thereafter, the NMC takes a decision on the grant of letter of permission and the University conducts further inspection to ensure that facilities are in place before granting affiliation. According to the Statement, going by the findings in Ext.P8 judgment of the Apex Court and the present scenario existing in the petitioner Institution as evident from the report of the DME, the Institution lacks basic eligibility to apply for commencement of a Medical College. It is contended that, this Court, cannot, sit in appeal over the findings in the inspection report.
14. Heard Sri.S. Vinod Bhat, the learned counsel for W.P.(C)No.21894/2021 19 the petitioner, Sri.V. Manu, the learned Senior Government Pleader, on behalf of the State and the DME, Sri.P. Sreekumar, the learned Standing Counsel for KUHS and the learned ASGI and perused the pleadings and materials on record. Though various decisions have been referred to by both sides, the issues involved in the Writ Petition have to be considered in the light of the inter party judgments rendered by this Court in Exts.P7, P21 and P8 judgment of the Apex Court.
Whether EC can be denied to the petitioner on the ground that the State Government is not currently issuing EC for any new Medical College in the private sector.
15. According to the petitioner, the State Government has given EC to the petitioner for the years 2004, 2009, 2011, 2014 and 2015. However, for the years 2018-19 and 2019-20, the State Government by Ext.P4 order dated 28.09.2017, refused to issue EC stating that the petitioner has not commenced the College even in the year 2017 and situation in Kerala has changed considerably from 2004 and W.P.(C)No.21894/2021 20 several Medical Colleges have commenced in the State and hence, there is need to evaluate the necessity to start new Medical Colleges in the State. Though the petitioner challenged Ext.P4 before this Court, the Writ Petitions and Writ Appeals arising therefrom were withdrawn. The application of the petitioner for EC for the year 2020-21 was rejected by the State Government by Ext.P6 order dated 01.10.2019 on the ground that the State Government is not granting NOC and EC for starting new Medical Colleges in the private sector. The petitioner challenged Ext.P6 order in W.P.(C)No.27266 of 2019 and this Court, by Ext.P7 common judgment, relying on the decision of the Apex Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu [(1996) 3 SCC 15], held that Ext.P6 order dated 01.10.2019 of the State Government declining EC to the petitioner on a policy consideration, cannot stand the scrutiny of law and quashed Ext.P6. In Thirumuruga (supra), the Apex Court considered whether EC can be withheld by the State W.P.(C)No.21894/2021 21 Government on any policy consideration and observed as follows:-
"34. It is no doubt true that in the scheme that has been prescribed under the Regulations 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..........
For the purpose of granting the Essentiality Certificate as required under the qualifying criteria prescribed under the scheme, the State Government is only required to consider the desirability and feasibility of having the proposed medical college at the proposed location. The Essentiality Certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now rests with the Central Government alone."
Relying on Thirumuruga (supra) and the decisions of the Apex Court in State of Maharashtra v. Indian Medical Association and others [AIR 2002 SC 302] and Government of Andra Pradesh and another v. Medwin Educational Society and others [(2004) 1 SCC 86], this Court, in Ext.P7 judgment, held that Ext.P6 order of the Government of Kerala declining EC to the petitioner W.P.(C)No.21894/2021 22 on a policy consideration cannot stand the scrutiny of law. This Court further directed that, in the event of the petitioner submitting application for EC for the year 2022- 23, the State Government shall consider the said application on merits taking into consideration the findings and observations in the judgment. The Division Bench of this Court, by common judgment dated 03.11.2020 in W.A.Nos.1401 and 1413 of 2020, modified the directions of the learned Single Judge to the extent of directing the respondents to consider the application of the petitioner for establishment of Medical College for the academic year 2021-22 instead of 2022-23. The petitioner, aggrieved by the refusal of relief for the academic year 2020-21, filed Special Leave Petitions before the Hon'ble Supreme Court and the Apex Court, by Ext.P8 judgment, dismissed the civil appeals. While dismissing the Civil Appeals, the Apex Court observed in Ext.P8 judgment that it is left open to the petitioner to make an appropriate application for grant of EC and CoA for the next academic year before the concerned Authority in accordance with the time schedule W.P.(C)No.21894/2021 23 after removing the alleged deficiencies and in case any such applications are made, the same shall be disposed of by the concerned Authorities in accordance with law and the procedure prescribed. While considering the question as to whether EC and CoA should be granted to the petitioner for the year 2020-21, the Apex Court also considered the question whether grant of EC by the State Government is only a ministerial act. In paragraph 19 of Ext.P8 judgment, the Apex Court held as under:-
"19. Whether issuance of an Essentiality Certificate is only a Ministerial Act :-
This Essentiality Certificate in the prescribed form is crucial for avoiding cases where the colleges despite grant of initial permission could not provide the infrastructure, teaching and other facilities as a result whereof the students who had already been admitted suffered serious prejudice.
Medical Council of India Regulations as well as Kerala University Health Sciences Statutes very emphatically mandate that the consent of affiliation can only be given after the Institution fulfills the essential requirements. The contention of the Appellant that the absence of Essentiality Certificate is not one of the factors for consideration and is extraneous to the decision-making process cannot be accepted. Whilst granting the Essentiality Certificate, the State Government undertakes W.P.(C)No.21894/2021 24 to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. Such an undertaking on the part of the State Government is unequivocal and unambiguous. An Essentiality Certificate by the State Government legitimizes a medical college declaring it fit to impart medical education and gives accouchement to the expectation amongst the stakeholders that the Applicant College shall fulfill basic norms specified by the MCI to start and operate a medical college. Bearing in mind that the question of justified existence of a college and irregular/illegal functioning of an existing college belong to a different order of things and cannot be mixed up. We come to the conclusion that the issuance/re-issuances of an essentiality certificate is not in any way a ministerial job and while dealing with a case of maintaining standards in a professional college, strict approach must be adopted as these colleges are responsible for ensuring that medical graduate has the required skill set to work as a doctor in the country. Poor assessment system; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in private institutions; increasing capitation fees; a debilitated assessment and accreditation system, are problems plaguing our Medical Education system. Allowing such deficient colleges to continue to function jeopardizes the future of the student community and leading to incompetent doctors to graduate from such colleges and ultimately pose a bigger risk to the society at large defeating the very purpose of W.P.(C)No.21894/2021 25 the Essentiality Certificate issued by the State. The State would be deterring from its duty if it did not conduct an inspection from time to time to ensure that the requisite standards as set by the MCI are met before issuing/renewing the Essentiality certificate. That is by no stretch of imagination 'merely a ministerial job'. Considering especially that while issuing the Essentiality Certificate the State Govt undertakes that should the Medical College fail to provide the requisite infrastructure and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College.
Same is the position with respect of CoA by the University. The First Statute of KUHS prescribes that University may appoint a Commission to inspect the proposed site to make a physical verification of the existing facilities and suitability of proposed site. The grant of affiliation is dependent upon fulfillment of all the conditions that are specified in Clause X(I) of First Statues or that may be specified which includes staff, infrastructure facility, hospital, internet, library, playground, hostel, etc. Thus, even grant of CoA by the University also cannot be said to be merely a ministerial act.
In view of above, we are of the considered opinion that grant of EC by the State Government and CoA by the University is not simply a ministerial act and we do not find any merit in the argument of the appellant in this regard."
16. In Ext.P6 order dated 01.10.2019, the W.P.(C)No.21894/2021 26 Government, while rejecting the EC for establishment of the new Medical College, stated as under:-
"........ at present the State Government is not granting NOC and Essentiality Certificate for starting new medical colleges in the private sector".
This decision of the State Government was interfered with by this Court by Ext.P7 judgment holding that the State Government cannot decline EC to the petitioner on policy consideration. In Ext.P23, impugned in the present Writ Petition, the State Government have, inter alia, stated as follows:-
"The State Government is not currently issuing Essentiality Certificates for any new medical college in the private sector."
The stand of the State Government in Ext.P6 and Ext. P23 is the same. This Court, while quashing Ext. P6, held in Ext. P7 judgment that EC cannot be withheld by the State Government on any policy consideration. Further, the Apex Court in Ext.P8 judgment held that, issuance of EC is not merely a ministerial act. In the light of the dictum laid down in Ext.P7 judgment of this Court and Ext.P8 judgment of the W.P.(C)No.21894/2021 27 Apex Court, the State Government cannot withhold EC on any policy consideration. Therefore, Ext.P23 to the extent it declined EC on the basis of policy decision cannot stand the scrutiny of law.
Whether the Government can be directed to consider Exts.P17 and P18 applications in the light of Ext.P12 report dated 22.04.2021 of the DME.
17. To answer this point, it will be apposite to refer to paragraphs 25 and 29 of Ext.P21 judgment of the Division Bench wherein it was observed that Ext.P12 report of the DME dated 22.04.2021 is not in favour of the petitioner. They read as follows:-
"25. On an evaluation of the facts and circumstances and taking into account the documents produced by both parties, what we could gather is that on the basis of an application submitted by the appellant for the A.Yrs : 2021- 2022 and 2022-2023, the Director of Medical Education (DME) was directed by the Principal Secretary to the Government, Health and Family Welfare Department vide order dated 19.03.2021, to conduct inspection and submit a report. Even though the appellant has a contention that the report submitted by the DME is absolutely in its favour, we are unable to agree with the same, for the reason that the DME, in the report, has clearly stated the defects remaining in infrastructure, equipment, clinical material, W.P.(C)No.21894/2021 28 faculty and residence. It is true that the DME has stated in its report that the appellant having a 300 bedded hospital and proposed medical college is undergoing infrastructural modification and interior works, and it was recommended that, since the institution is situated close to Walayar, near National Highway, it has potential to develop. It was taking into account the report of the DME that Exhibit-P7 order was passed by the State Government, rejecting the application of the appellant for EC. It is also clear from Annexure-I dated 11.06.2021 produced along with the statement filed by the State before the writ court, that the State Government have passed a detailed order rejecting the application submitted by the appellant, after taking into account the report of the DME.
xxxx xxxx xxxx
29. ............Therefore, the scope of nature of the inspection to be conducted by the State Government, has to be in terms of Exhibit-P1 judgment of the Hon'ble Apex Court dated 24.02.2021. It is equally significant to note that whatever defect highlighted in the Exhibit-P1 judgment is still remaining to be rectified. This we can say with precision and clarity because, whatever defect noted in the impugned order is nothing but a replica of the findings in the Exhibit-P4 report of the DME dated 22.04.2021, which is self- styled by the appellant as a report in its favour, whereas, in reality, it is not so........."
In the light of Ext.P21 inter party judgment of the Division Bench, the petitioner cannot seek any direction to the respondents to act upon Ext.P12 report of the DME dated W.P.(C)No.21894/2021 29 22.04.2021 for issuance of, EC, CoA or LoP. Whether EC is mandatory for submission of application and grant of CoA.
18. The establishment of Medical Colleges is guided by the provisions made by the National Medical Commission. Section 28(1) of the National Medical Commission Act, 2019 provides that no person shall establish a Medical College or start a postgraduate course or increase the number of seats without the prior permission of Medical Assessment and Rating Board. Though the Indian Medical Council Act, 1956 stands repealed by the National Medical Commission Act, 2019, by virtue of Section 61(2) of the National Medical Commission Act, the Medical Council of India Establishment of Medical College Regulation, 1999 (for short '1999 Regulation'), as amended on 28.10.2020, regulates the EC and CoA to be obtained by the applicants from the State Government. Regulations 2(3), 2(4) and 2(5) of the 1999 Regulation read as follows:-
"(2) XXXXX (3) that Essentiality Certificate in Form 2 regarding No W.P.(C)No.21894/2021 30 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. (4) that Consent of affiliation in Form-3 for the proposed medical college has been obtained by the applicant from a University.
(5) That the person owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into teaching institution in the campus of the proposed medical college."
Thus, it is mandatory for any person who wish to establish a Medical College to obtain Essentiality Certificate of the State Government in Form 2 of the Regulation certifying that the State Government has no objection for the establishment of the proposed Medical College at the proposed site and availability of adequate clinical material as per MCI norms. After referring to the Indian Medical Council Act, 1956, the 1999 Regulation and the KUHS Act and First Statute, the Apex Court has held in Ext.P8 judgment that EC is mandatorily required by a person before he receives permission for establishment of a W.P.(C)No.21894/2021 31 Medical College. In the light of Ext.P8 inter party judgment, the petitioner cannot contend that EC is not mandatory for submission of application and grant of CoA. Whether the rejection of EC by the State Government by Ext.P23 based on Ext.P33 report of the DME sustainable in law.
19. Ext.P33 report of the DME is based on an inspection conducted at the petitioner's Institution on 20.09.2021. The major observations and deficiencies pointed out in the report of the DME are as follows:-
"1. Infrastructure The campus is situated in about 40 acres of land along the National Highway Palakkad - Coimbatore at Walayar. The 300 bedded Hospital building is and is functional. Blood Bank license has to be obtained. Academic block building is completed. Furnishing and setting of practical laboratories are nearing completion. Furnished lecture halls, short group discussion halls, Library & Examination hall are available. Hostel buildings for Girls & boys and residential quarters are available in the campus.
2. Equipments Adequate equipments are available in the operation theaters and casualty CT scan installed has to be made functional. Installation of equipments in the practical laboratories in the academic block has to be completed.
3. Clinical Material W.P.(C)No.21894/2021 32 There is deficiency in clinical material. Bed occupancy is below 50%. OPD and casualty are functional.
4. Faculty and Residents As per NMC guidelines for LOP for 100 MBBS admissions, there is deficiency of faculty and residents as follows: There is 41% deficiency of Faculty (36/61) & 71% deficiency of Residents (7/24).
6. Any other matter Setting up of laboratories and furnishing of academic block has to be done before students intake. Deficiency of Clinical material and faculty has to be rectified."
Relying on the DME report, the Government refused to grant EC stating that there are deficiencies to comply with NMC norms and adequate clinical materials as per NMC norms are not available. The rejection of EC is based on the deficiencies pointed out in Ext.P33 report of DME. Ext.P33 report of DME is not under challenge in the Writ Petition. The deficiencies noted are in relation to infrastructure, equipment, clinical material and faculty. The petitioner has explained before the inspection team that the deficiency in clinical material is due to Covid situation and travel restriction and the inspection team has in the report observed that, consideration may be given for deficiency of clinical material on the said ground. The same did not merit W.P.(C)No.21894/2021 33 any consideration with the State Government, and rightly, the Government on the basis of the report found that NMC norms are not complied with. As per Form 2 of the Medical Council of India Establishment of Medical College Regulation, 1999, the undertaking required to be given by the State Government while granting EC is that, "adequate clinical material as per the Medical Council of India norms is available." Therefore, when Ext. P33 report says that there is deficiency in clinical material, the State Government is justified in rejecting the EC. In the contextual situation, at the risk of repetition, the relevant portion of Ext.P8 judgment of the Apex Court is extracted hereunder and it reads as follows:-
"19....Whilst granting the Essentiality Certificate, the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. Such an undertaking on the part of the State Government is unequivocal and unambiguous. An Essentiality Certificate by the State Government legitimizes a medical college declaring it fit to impart medical education and gives accouchement to the expectation amongst the stakeholders that the Applicant College shall fulfill basic norms specified by the W.P.(C)No.21894/2021 34 MCI to start and operate a medical college. Bearing in mind that the question of justified existence of a college and irregular/illegal functioning of an existing college belong to a different order of things and cannot be mixed up. We come to the conclusion that the issuance/re- issuances of an essentiality certificate is not in any way a ministerial job and while dealing with a case of maintaining standards in a professional college, strict approach must be adopted as these colleges are responsible for ensuring that medical graduate has the required skill set to work as a doctor in the country. Poor assessment system; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in private institutions; increasing capitation fees; a debilitated assessment and accreditation system, are problems plaguing our Medical Education system. Allowing such deficient colleges to continue to function jeopardizes the future of the student community and leading to incompetent doctors to graduate from such colleges and ultimately pose a bigger risk to the society at large defeating the very purpose of the Essentiality Certificate issued by the State".
When it is reported that adequate clinical material as per the MCI norms is not available, the State can reject the EC. Though the petitioner has produced Ext.P34 letter dated 27.10.2021 to show that blood bank licence is issued by the Drugs Controller General of India, after the inspection on W.P.(C)No.21894/2021 35 20.09.2021, various other deficiencies noted in Ext.P33 report of the DME are to be rectified. The defects noted as per the inspection report of DME, the experts in the field, can be interfered with by this Court only when it is demonstrated that the issuance of EC is vitiated by jurisdictional error, ex facia perversity or malafides. Ext. P23 does not call for interference by this Court under Article 226 of the Constitution of India. In the light of the deficiencies noted by the DME, the Government cannot be faulted in rejecting the EC. In paragraph 28 of Ext.P8 judgment, the Apex Court observed as follows:-
"28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the W.P.(C)No.21894/2021 36 fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI."
20. Even now, the petitioner has not taken steps to remove the deficiencies pointed out by the DME in Ext.P12 and Ext.P33 to conform to the norms prescribed by the NMC for grant of EC. Therefore, this Court finds no reason to interfere with Ext.P23 order passed by the State Government rejecting EC to the petitioner Institution. Since CoA can be issued only after fulfilling the conditions specified in clause X(1) of KUHS First Statutes including infrastructure and other facilities, no interference is called for against Ext.P31 issued by KUHS refusing to consider application of the petitioner for CoA.
21. In view of the facts and circumstances discussed above, the writ petition is disposed of with the following directions:-
(i) It is declared that the 1st respondent cannot have any policy decision not to grant EC to new Medical Colleges in the private sector.
(ii) The rejection of EC by Ext.P23 by the State W.P.(C)No.21894/2021 37 Government based on Ext.P33 report of the DME is sustained. Consequently, the challenge against Ext.P31 also fails.
(iii) It is left open to the petitioner to make appropriate application for grant of EC and CoA before the concerned authorities in accordance with the time schedule after the petitioner satisfies the criteria fixed by the National Medical Commission.
There will be no order as to costs.
Sd/-
MURALI PURUSHOTHAMAN JUDGE W.P.(C)No.21894/2021 38 APPENDIX OF WP(C) 21894/2021 PETITIONER'S EXHIBITS:
Exhibit P1 COPY OF ESSENTIALLY CERTIFICATE NO.37489/S3/2003 H&FWD DATED 24/01/2004. Exhibit P2 COPY OF RENEWED ESSENTIALITY CERTIFICATE NO.19602/S3/2015/H&FWD DATED 11/12/2015. Exhibit P3 COPY OF AFFIDAVIT FILED IN I.A.2/2020 IN WP(C) 27266/2019 OF HIGH COURT OF KERALA. Exhibit P4 COPY OF ORDER NO.2686/2017/H&FWD DATED 28/09/2017.
Exhibit P5 COPY OF ORDER NO.G.O.(RT) 2474/2003/H&FWD DATED 22/08/2003.
Exhibit P6 COPY OF ORDER NO.S3/272/2019-HEALTH DATED 01/10/2019.
Exhibit P7 COPY OF JUDGMENT DATED 12/10/2020 IN WP(C) 27266/2019 OF HIGH COURT OF KERALA.
Exhibit P8 COPY OF JUDGMENT DATED 24/02/2021 IN CIVIL APPEAL NOS.703-704 OF 2021 OF SUPREME COURT OF INDIA.
Exhibit P9 COPY OF LETTER NO.S3/8/2021-HEALTH DATED 05/01/2021 ISSUED BY THE 1ST RESPONDENT TO STANDING COUNSEL.
Exhibit P10 COPY OF LETTER NO.S3/76/2021-HEALTH DATED 19/03/2021 ISSUED BY 1ST RESPONDENT TO 2ND RESPONDENT.
Exhibit P11 COPY OF LETTER NO.DME/4017/2020-B4 DATED 09/04/2021 OF 2ND RESPONDENT.
Exhibit P12 COPY OF REPORT NO.DME/4017/2020-B4 DATED 22/04/2021 OF 2ND RESPONDENT.
Exhibit P13 COPY OF ORDER NO.S3/76/2021-HEALTH DATED 31/05/2021 OF 1ST RESPONDENT.
Exhibit P14 COPY OF LETTER NO.VNPT/H&FWD/ESSENTIALITY CERTIFICATE/006/2021 DATED 11/06/2021 WITH ANNEXURES.
Exhibit P15 COPY OF INSPECTION REPORT DATED 13/11/2020 OF 2ND RESPONDENT.
Exhibit P16 COPY OF ORDER DATED 07/07/2021 IN WP(C) 12550/2021 OF HIGH COURT OF KERALA.
Exhibit P17 COPY OF LETTER/APPLICATION NO.VNPT/H&FWD/EC/007/2021 DATED 12/07/2021 SENT BY THE PETITIONER TO 1ST RESPONDENT.
Exhibit P18 COPY OF LETTER/APPLICATION NO.VNPT/H&FWD/EC/007/2021 DATED 19/07/2021 SENT BY THE PETITIONER TO 1ST RESPONDENT. Exhibit P19 COPY OF JUDGMENT DATED 27/08/2021 IN WP(C) W.P.(C)No.21894/2021 39 12550/2021 OF HIGH COURT OF KERALA.
Exhibit P20 COPY OF ORDER DATED 08/09/2021 IN RP 576/2021 IN WP(C) 12550/2021 OF HIGH COURT OF KERALA.
Exhibit P21 COPY OF THE JUDGMENT DATED 17/09/2021 IN W.A.1194/2021 OF HIGH COURT OF KERALA.
Exhibit P22 COPY OF APPLICATION ID NMC/UG2022-
23/000156.
Exhibit P23 COPY OF ORDER NO.G.O.(RT)
NO.2061/2021/H&FWD DATED 23/09/2021.
Exhibit P24 COPY OF LETTER NO.VNPT/H&FWD/EC/007/2021
DATED 31/07/2021 SENT BY THE PETITIONER TO 1ST RESPONDENT.
Exhibit P25 COPY OF TABULAR COLOUMN GIVING DETAILS OF THE NUMBER OF BEDS CONVERTED TO COVID BEDS AND THAT RETAINED FOR GENERAL PATIENTS.
Exhibit P26 COPY OF LETTER DATED 13/08/2021 SENT BY THE PETITIONER TO 2ND RESPONDENT.
Exhibit P27 COPY OF LETTER DATED 10/09/2021 SENT BY THE PETITIONER TO 2ND RESPONDENT.
Exhibit P28 COPY OF LETTER NO.VNPT/KUHS/CONSENT OF AFFILIATION/03/2021 DATED 15/03/2021 SENT BY THE PETITIONER TO 5TH RESPONDENT.
Exhibit P29 COPY OF LETTER NO.VNPT/KUHS/COA/04/2021 DATED 12/04/2021 SENT BY THE PETITIONER TO 5TH RESPONDENT.
Exhibit P30 COPY OF LETTER NO.VNPT/KUH/COA/04/2021 DATED 20/04/2021 SENT BY THE PETITIONER TO 5TH RESPONDENT.
Exhibit P31 COPY OF LETTER NO.23772/2020/Ac1/MED B3/KUHS DATED 11/08/2021 ISSUED BY 5TH RESPONDENT.
Exhibit P32 COPY OF LETTER NO.VNPT/H&FWD/EC/007/2021 DATED 30/07/2021 SENT BY THE PETITIONER TO 1ST RESPONDENT.
Exhibit P33 COPY OF LETTER NO.DME/4017/2020-B4 DATED
22/09/2021 WITH REPORT FROM THE 2ND
RESPONDENT.
COPY OF LETTER NO.ML2.7742/2021/DC DATED Exhibit P34 27.10.2021 SENT BY DRUGS CONTROLLER, KERALA STATE.
Exhibit P35 COPY OF PUBLIC NOTICE DATED 8-12-2021 ISSUED BY 6TH RESPONDENT.
Exhibit P36 COPY OF LETTER DATED 23-11-2021 ISSUED BY CENTRAL LICENCE APPROVING AUTHORITY (WITH ENCLOSURE) Exhibit P37 COPY OF LETTER NO.NMC/UG/2022-
23/000156/008521 DATED 01/2/2022 ISSUED BY W.P.(C)No.21894/2021 40 6TH RESPONDENT Exhibit P38 COPY OF LETTER (APPEAL) NO VNPT/.NMC/UG/2022 DATED 07/2/2022 SENT BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit P39 COPY OF REPORT PUBLISHED BY MEDICAL DIALOGUES DATED 4/12/2021 Exhibit P40 COPY OF E-MAIL TRAIL DATED 05/01/2021.
Exhibit P41 COPY OF LETTER NO.S3/8/2021-HEALTH DATED
05/01/2021 OF PRINCIPAL SECRETARY TO
GOVERNMENT SENT TO ADV.G.PRAKASH.
Exhibit P42 COPY OF EXTRACT FROM THE WEBSITE OF THE
HON'BLE SUPREME COURT PERTAINING TO SLP(C) 14219/2020 (CASE STATUS).
spc/