Kerala High Court
V.N.Public Health And ... vs State Of Kerala on 17 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
WA NO. 1194 OF 2021
[AGAINST THE JUDGMENT DATED 27.08.2021 IN WP(C) NO.12550/2021 AND
ORDER DATED 08.09.2021 IN R.P. NO.576 OF 2021 IN W.P.(C) NO. 12550 OF 2021
ON THE FILE OF HIGH COURT OF KERALA]
APPELLANT/PETITONER IN THE WRIT PETITION & REVIEW PETITIONER IN
THE REVIEW PETITION:
V.N.PUBLIC HEALTH AND EDUCATIONAL TRUST,
A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD,
KOZHIKODE, REPRESENTED BY ITS MANAGING DIRECTOR,
V. ANIL KUMAR
BY ADVS. SRI. S. VINOD BHAT
SMT. ANAGHA LAKSHMY RAMAN
RESPONDENTS/RESPONDENTS:
1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. DIRECTORATE OF MEDICAL EDUCATION,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695001.
3. KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE P.O., THRISSUR-680596.
REPRESENTED BY ITS REGISTRAR.
4. NATIONAL MEDICAL COMMISSION,
DWARAKA, NEW DELHI-110077.
REPRESENTED BY ITS CHAIRMAN.
WA:1194/2021 :2:-
5. 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-110011.
R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.S.KANNAN,
R3 BY ADV. SRI.P.SREEKUMAR, SC,
R4 BY ADV. SRI.TITUS MANI, SC AND
R5 BY ADV. SRI.JAGADEESH LAKSHMANAN, CGC,
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA:1194/2021 :3:-
JUDGMENT
Shaji P. Chaly, J
This intra court appeal is filed by the writ petitioner, challenging
the judgment of the learned single Judge dated 27.08.2021 in W.P.(C)
No.12550/ 2021 and the order in R.P. No.576/2021 dated 8.9.2021 in the
said writ petition.
2. The subject issue relates to a proposal submitted by the
appellant/writ petitioner, to establish a medical college for the Academic
Year 2021-2022 at Walayar in Palakkad District. The 1 st respondent/State
of Kerala, has to issue an Essentiality Certificate (EC) and the 3 rd
respondent, i.e. the Kerala University of Health Sciences, Thrissur (KUHS)
has to issue Consent of Affiliation (CoA) as a prerequisite for the
establishment of the medical college.
3. Writ petitioner/appellant herein is a trust set up with the object
of promoting education in health and medicine. According to the
appellant, the trust has set up a three hundred bed hospital in Walayar
and they have approached the Government for issuance of EC for
starting a medical college. The respondents have rejected their request,
according to the appellant, in spite of Exhibit P1 report given in its favour
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by the Director of Medical Education, and it was aggrieved by the said
rejection, W.P.(C) No.12550 of 2021 was filed.
4. The case has a checkered history. The appellant had been
granted an EC on 24.1.2004 for starting a course with 100 seats. The
Medical Council of India (MCI), the body empowered to grant
recognition, as it was then, rejected the EC, since the same was not
issued in the required format. Thereafter, on 18.06.2009, the appellant
was issued with an EC, but the MCI again rejected the application, for
the reason that the EC was issued beyond the time period prescribed for
consideration of the application. For the third time, the appellant was
issued with an EC on 12.01.2011, which was valid for the Academic Years
2011-2012 and 2012-2013. While so, KUHS had been formed.
Therefore, for starting a medical college, CoA from the KUHS was
required. KUHS granted CoA, much after the time schedule, resultantly
the appellant could not establish the college during the aforesaid years.
5. On 10.06.2014, the State Government issued a renewed EC.
Since there were some errors, a corrected EC was issued on 11.12.2015,
much after the date of submission of the application to the Central
Government for the establishment of the medical college. Therefore, the
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MCI again rejected the application for the Academic Year 2014-2015.
Later, the applications submitted by the appellant/writ petitioner for the
year 2015-2016 was rejected by the Government of India on the ground
that the CoA submitted along with the proposal was not valid for the
Academic Year 2015-2016. The litigation started from that stage.
6. Appellant/writ petitioner preferred W.P.(C) No.29462 of 2014,
wherein an interim order was passed by a learned single Judge of this
Court on 22.11.2014 directing the MCI to consider the application and
direct the KUHS to conduct inspection for grant of a fresh CoA. Pursuant
to the same, appellant was granted with a provisional CoA by KUHS for
the Academic Year 2016-17, but the State Government have issued EC
for the said year only on 31.08.2015, which happens to be the last date
for submission of the application, and further that it was issued in a
wrong format. Being aggrieved, the appellant filed W.P.(C) No.25705 of
2015 and this Court on 25.11.2015 directed the State Government to
correct the format and also directed the Central Government to consider
the application of the appellant. Accordingly, a revised EC was issued to
the appellant on 11.12.2015.
7. However, the MCI filed S.L.P(C) No.5326 of 2015 on the ground
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that the EC was issued belatedly and, therefore, they are not liable to
consider the application submitted by the appellant. But the fact
remains, the civil appeal arising out of the above said S.L.P(C) was
allowed and the judgment of this Court was set aside. Appellant again
moved this Court by filing W.P.(C) Nos.21581 of 2017 and 22103 of 2017
alleging non-consideration of the application by the State Government
and KUHS. On 28.09.2017, the State Government again rejected the
application for renewal of EC, which order was challenged in W.P.(C)
No.40290 of 2017. Though directions were issued by the learned single
Judge, the operation of the judgment in the said writ petition was stayed
by a Hon'ble Division Bench of this Court in W.A. Nos. 1370 and 1372 of
2018. The appellant, thereafter applied for EC and CoA for the Academic
Year 2020-2021 before the State Government and KUHS respectively,
which was followed by W.P.(C) Nos.18238 and 23460 of 2019. W.P.(C)
No.23460 of 2019 was disposed of on 4.9.2019 with a direction to the
State Government to take a decision on the application, within forty-five
days from the date of receipt of a copy of the judgment. W.P.(C)
No.18238 of 2019 was dismissed on 05.09.2019 on the ground that the
last date of submission of the application before MCI was over.
WA:1194/2021 :7:-
8. Whatever that be, on 09.09.2019, MCI granted 10 days' time to
the appellant for submission of the relevant documents. Appellant again
filed W.P.(C) No.25254 of 2019 seeking for a direction to KUHS to revise
the CoA for the Academic Year 2020-21, whereby an interim order was
passed by this Court directing to consider the application submitted by
the appellant. However, on 29.07.2019, KUHS rejected the application.
9. Later, W.P.(C) No.25254 of 2019 was withdrawn by the
appellant, with liberty to challenge the order dated 27.09.2019. On
01.10.2019, the State Government also rejected the application seeking
grant of EC. Aggrieved by the order dated 01.10.2019 issued by the
State Government as well as the order dated 27.09.2019 issued by
KUHS, appellant filed W.P.(C) Nos.27266 and 29098 of 2019. W.P.(C)
No.27266 of 2019 was disposed of by this Court on 19.11.2019, directing
the State Government to issue EC to the appellant on or before
30.11.2019 and further directing the MCI to accept the renewed EC, as
one received in time. The Writ Appeal filed by the State Government
against the judgment dated 30.11.2019 was dismissed by a Hon'ble
Division Bench of this Court vide judgment dated 5.12.2019, which was
challenged in S.L.P(C) No.3008 of 2019 before the Hon'ble Apex Court.
WA:1194/2021 :8:-
10. Appellant later filed W.P.(C) No.34275 of 2019 seeking for a
direction to the MCI for processing the application submitted by the
appellant, without insisting for EC and CoA, which was disposed of vide
judgment dated 13.12.2019, directing the MCI and Union of India, to
process the application of the appellant, without insisting for EC and CoA,
subject to the outcome of the S.L.P(C) No.3008 of 2019, pending before
the Hon'ble Apex Court.
11. The said judgment dated 13.12.2019 was challenged before
the Hon'ble Supreme Court and on 7.8.2020, the Hon'ble Apex Court
quashed the orders passed in W.P.(C) No.34275 of 2019 and W.A.
No.2443 of 2013, and directed to reconsider W.P.(C) Nos.27266, 29098
and 34275 of 2019, which were in relation to the Academic Year 2020-
2021, together and decide finally. Pursuant to the said direction, the
learned single Judge has reconsidered the above said writ petitions and
by Judgment dated 12.02.2020, WP(C) Nos 29098 and34275 of 2019
were dismissed, and W.P.(C) No.27266 of 2019 was allowed, to the
extent of setting aside the order dated 01.10.2020 issued by the State
Government, denying EC, and CoA by KUHS for starting a new medical
College by the appellant. The learned single Judge while disposing of the
WA:1194/2021 :9:-
said writ petitions, further directed that if the appellant submits an
application for EC for the academic year 2022-23, the State Government
shall consider the same on merits, taking into account the findings and
observations made in the judgment and further, to pass orders within
one month from the date of receipt of the application.
12. Being dis-satisfied with the above said directions, appellant
filed a review petition, which was dismissed and against which W.A.
Nos.1401 and 1413 of 2020 were filed, whereupon, a Division Bench of
this Court vide judgment dated 3.11.2020 modified the directions issued
by the learned single Judge to the extent of directing the respondents to
consider the application of the appellant for establishment of a medical
college for the A.Y: 2021-2022. Directions were also issued to the State
Government, as well as KUHS, to jointly carry out an inspection and find
out as to whether EC could be issued and CoA can be granted to the
appellant for the A.Y: 2021-2022.
13. The above-said order was challenged by the appellant before
the Hon'ble Supreme Court by filing S.L.P(C) Nos.14219 and 14220 of
2020. Even though leave was granted by the Hon'ble Apex Court,
ultimately as per Exhibit-P1 judgment dated 24.02.2021, the Civil Appeal
WA:1194/2021 :10:-
Nos.703 and 704 of 2021 were dismissed holding that the relief as
prayed for by the appellant for the A.Yr:2020-2021 cannot be granted.
However, the appellant was granted liberty to make appropriate
application for grant of EC and CoA for the next academic year, after
rectifying the defects, and the State Government, as well as KUHS were
directed to dispose of the applications submitted by the appellant as per
the time schedule fixed, in accordance with law and the procedure
prescribed. But, the fact remains, the time schedule prescribed for
starting a new medical college for the A.Yr: 2020-2021 was already over.
That apart, the date for the academic year 2021-22 extended upto
15.12.2020 in view of COVID-19 pandemic, was also over. Therefore,
the observation made by the Hon'ble Apex Court in Exhibit-P1 judgment
can never be related to the A.Yr: 2021-2022.
14. The State Government, as well as KUHS, rejected the
application submitted by the appellant on 21.11.2020 and 23.11.2020
respectively, which were challenged in W.P.(C) Nos.26397 and 26777 of
2020. The said writ petitions were considered together and dismissed
vide judgment dated 15.12.2020. Therefore, it could be seen that the
grant of EC and CoA by the respective statutory authorities for the
WA:1194/2021 :11:-
academic years upto 2021-22 remains concluded. However, the
appellant filed W.P.(C) No.11004 of 2021 before this Court seeking for
directions to the Government and KUHS to take a decision on the request
for issuance of EC and CoA, at the earliest, and a learned single Judge of
this Court vide judgment dated 25.05.2021 directed the respondents to
consider the request of the appellant and take appropriate decision. In
the said judgment, the academic year for which the appellant has
submitted the application was not specified. However, from the judgment
dated 15.12.2020 in W.P.(C) Nos.26397 & 26777 of 2020, it could be
deduced that this Court had rejected the challenge regarding EC and CoA
for the A.Yr: 2020-2021. These are the background facts projected by
the appellant in the writ petition.
15. In the writ petition in question, basically the appellant has
sought to quash Exhibit-P7 order passed by the Government of Kerala
dated 31.05.2021, whereby the application for EC was rejected holding
that in the inspection report of the direction of Medical Education (DME),
it is mentioned that the operation theatres are nearing completion as a
separate block, and dialysis room is getting completed; as far as
equipments are concerned, it is mentioned that, referred equipments in
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major departments are now being arranged; blood bank licence to be
obtained; the faculty is deficient, and moreover, the facilities and faculty
need to be augmented. It was further pointed out in Exhibit-P7 order
that infrastructure needs refinement, in terms of redistribution and
strengthening in areas of wards, theatres, emergency department,
central lab, pre and para clinical labs, etc. It was also found that over all,
the facilities and infrastructure need further strengthening and
augmentation and, therefore, the application has no merit, in order to
issue EC.
16. Perusal of Exhibit-P7 order shows that for the academic years
for which EC was sought for, were 2021-2022 and 2022-2023, as is
discernible from the letter submitted by the Managing Trustee of the
appellant. Appellant had also a case that the application submitted for
CoA was to be considered, taking into account Exhibit-P4 inspection
report dated 22.04.2021 by the KUHS. The learned single Judge after
taking into account basically the judgments rendered by this Court earlier
and Exhibit-P1 judgment of the Hon'ble Apex Court, disposed of the writ
petition directing the 1st respondent to consider and pass orders on
Exhibit-P40 application dated 12.07.2021 apparently submitted by the
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appellant on the basis of the interim direction issued by the writ court in
W.P.(C) No.12550 of 2021 dated 7.7.2021, which is the writ petition
leading to his appeal, and Exhibit-P41 reminder dated 19.07.2021, within
three weeks from the date of receipt of a copy of the judgment.
17. The appellant was also granted liberty to approach KUHS, if an
Essentiality Certificate is issued by the State Government, by filing a
suitable and proper application, within one week of receipt of EC and
thereupon, KUHS was also directed to consider the request of the
appellant and pass orders, within three weeks of the receipt of such
application. It was further observed that the KUHS shall not insist on the
dates for submission of the application and treat the application as one
filed within time, in the special circumstances . It is thus challenging the
legality and correctness of the judgment of the learned single Judge
dated 27.08.2021 in W.P.(C) No.12550 of 2021, instant writ appeal is
preferred by the appellant.
18. The paramount contention advanced by the learned counsel for
the appellant is that the learned single Judge ought to have quashed
Exhibit-P7 order of the State Government dated 31.05.2021 ; that the
learned single Judge was not correct in not issuing a writ of mandamus
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as sought for in relief No.(ii), i.e., seeking for a direction to the State
Government to grant EC at the earliest ; that it is abundantly clear from
Exhibit-P7 order dated 31.05.2021 that the application was submitted for
the A.Yrs: 2021-2022 and 2022-2023 and it is clear that the inspection
conducted by the State Government and Director of Medical Education
were for the said academic years. Therefore, the sum and substance of
the argument advanced by the learned counsel for the appellant is that
there was no necessity for the learned single Judge to direct the
appellant to submit a fresh application for the academic year 2022-2023
and to further direct consideration of the said application by the 1 st
respondent.
19. Learned counsel for the appellant further contended that even
though Exhibit-P40 application dated 12.07.2021 was submitted by the
appellant on the basis of an interim order passed by this Court dated
7.7.2021, no action was taken by the State Government, willfully and
intentionally, in order to coerce the appellant to seek for final hearing of
the writ petition, to save the time running against the appellant. It is also
the case of the appellant that the State Government had willfully and
intentionally, with ulterior motives, sent inspection team on 13.08.2021
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and 10.09.2021, to defeat the appellant's interest, since by letter dated
31.07.2021, the appellant has informed the State Government of the
changed circumstances in its hospital on account of it being converted as
a Covid Treatment Centre.
20. The predominant argument advanced by the appellant is that
due to the present emergent situation of COVID-19 pandemic, the
facilities and infrastructure had been stripped down and modulated, to
make the hospital a fully operational one, to deal with COVID-19 cases
and further that, the hospital is now functioning under the orders of the
District Administration. That apart, other contentions are also raised.
21. On the other hand, learned Government Pleader submitted that
the contentions putforth by the appellant are contrary to the findings
rendered by the Hon'ble Supreme Court in Exhibit-P1 judgment dated
24.02.2021, and all the issues now raised by the appellant, in regard to
the clinical facilities; the law laid by a Bench decision of the Hon'ble Apex
Court in Chintpurni Medical College & Hospital & Anr. v. State of
Punjab & Ors., reported in (2018) 15 SCC 1; and all other relevant
judgments, were considered by the Hon'ble Apex Court, and therefore,
any argument made contrary to the directions/observations and the
WA:1194/2021 :16:-
findings contained in Ext P1 judgment can never be sustained under law.
22. Inviting the attention of this Court to Annexure-I Government
order dated 11.06.2021 produced along with the statement dated
29.06.2021, learned Government Pleader has submitted that the
Government have examined the matter in detail, taking into account
Exhibit-P4 inspection report of the DME, and the application for EC was
rejected, which was not under challenge in the writ petition in question.
23. Learned Standing Counsel appearing for the KUHS also has
taken us through Exhibit-P1 judgment of the Hon'ble Supreme Court
dated 24.02.2021 and submitted that the contentions advanced by the
appellant are quite contrary to the findings rendered by the Hon'ble Apex
Court in the inter party judgment. It was also submitted that since the
appellant has to confine himself to the findings in Exhibit-P1 judgment,
appellant is not entitled to get any benefit from the proposition of law
laid down by the Hon'ble Apex Court in the judgment in Chintpurni
Medical College & Hospital case (cited supra), wherein the facts and
circumstances were entirely different. It was also submitted that the
judgment in Chintpurni Medical College & Hospital case (cited
supra) was departed by a three Judge Bench of the Hon'ble Supreme
WA:1194/2021 :17:-
Court in Sukh Sagar Medical College and Hospital v. State of
Madhya Pradesh and Ors., reported in (2020) SCC Online SC 851, and
therefore, the contentions advanced in the appeal based on paragraphs
23 and 24 of the judgment in Chintpurni Medical College & Hospital
(supra) is no more available.
24. We have heard Mr. Vinod Bhat, learned counsel for the
appellant/writ petitioner; Mr. S. Kannan, learned Government Pleader for
the State; and Mr. P. Sreekumar, learned Standing Counsel for KUHS,
and perused the pleadings and material on record.
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
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remaining in infrastructure, equipment, clinical material, 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.
26. It is curious to note that Exhibit-P4 report of the DME dated
22.04.2021 and order passed by the State Government dated 11.06.2021
(Annexure-I) were never under challenge in the writ petition. Moreover,
it is an admitted fact that learned single Judge has passed an interim
order on 7.7.2021 directing the appellant to submit a fresh application
seeking EC to the State Government and the appellant has complied with
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the direction, according to them, on 12.07.2021, which date is disputed
by the learned Government Pleader and submitted that the said
application was received only on 14.07.2021. Whatever that be, when
the appellant has complied with the directions contained in the interim
order dated 07.07.2021, we are of the view that appellant conceded to a
situation, wherein a fresh request for EC was sought to be considered,
taking into account Exhibit-P4 report of the DME dated 22.4.2021.
27. It is also an admitted fact by the appellant that the inspection
team visited the college on 13.08.2021 and 10.09.2021 respectively, for
carrying out the inspection, which were obstructed by the appellant for
its own justification. According to the appellant, the obstruction made by
the college on 13.08.2021 was absolutely justified, since the writ petition
was heard prior to that and the judgment was reserved, and therefore, if
in any case the application submitted by the appellant was rejected, the
writ petition would have been made virtually infructuous.
28. Analysing the situation as above, we find force in the
contention advanced by the learned Government Pleader, as well as
learned Standing Counsel for KUHS, that the appellant cannot raise
contentions deviating from the findings rendered by the Hon'ble Apex
WA:1194/2021 :20:-
Court in Exhibit-P1 inter-party judgment dated 24.02.2021. In order to
ascertain the said situation, we may deem it fit to extract the relevant
paragraphs of Exhibit-P1 judgment of the Hon'ble Apex Court passed in
S.L.P(C) No.14219-14220 of 2020 dated 24.02.2021, as under:
"6. The primary arguments advanced by Shri Shyam
Divan, learned Senior Counsel for the appellant, is that
the issue of Essentiality Certificate is a ministerial job and
the purpose of EC is limited to certify to the Central
Government that it is essential to establish a Medical
College. It was further submitted that since the appellant
was issued EC by the State Government and also CoA by
the University in the year 2015 itself, therefore, it was
entitled for the same in 2020 as well. It is also submitted
at the time of issuance of EC, the State Government has
to only consider the desirability and feasibility of
establishment of Medical College in the proposed location
and certify as to the availability of infrastructure and
other clinical material required to run a Medical College
and the same cannot be withheld by the State
Government on any policy consideration. Reliance was
placed on the following observations made by this Court
in Thirumuruga Kirupananda Variyar Thavathiru
Sundara Sawmigal Medical Educational &
Charitable Trust v. State of Tamil Nadu & Ors.,
(1996) 3 SCC 15:
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"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."
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
WA:1194/2021 :22:-
decision-making process cannot be accepted. 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 up 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
WA:1194/2021 :23:-
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. 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 to CoA by the
University. The First Statute of KUHS prescribes that the
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,
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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.
22. A two-Judge Bench decision in the case of
Chintpurni Medical College (Supra) was considered by
a three-Judge Bench in the case of Sukh Sagar Medical
College and Hospital Vs. State of Madhya Pradesh
and Ors. [(2020) SCC Online SC 851]. In paragraph 13
of the reports, the three-Judge Bench though agreed with
the dictum in Chintpurni Medical College (Supra) that
the act of the State in issuing EC is a quasi-judicial
function. It further went on to note the exception carved
out in the case of Chintpurni Medical College (Supra),
wherein the State Government can cancel/revoke/
withdraw the EC in paragraph 36. It was finally observed
in paragraph 25 of the reports in Sukh Sagar Medical
College and Hospital (Supra) as under:
"25. We are conscious of the view taken and
conclusion recorded in Chintpurni Medical
College (Supra). Even though the fact situation
in that case may appear to be similar, however,
in our opinion, in a case such as the present
one, where the spirit behind the Essentiality
WA:1194/2021 :25:-
Certificate issued as back as on 27.08.2014 has
remained unfulfilled by the appellant-college for
all this period (almost six years), despite
repeated opportunities given by the MCI, as
noticed from the summary/ observation in the
assessment report, it can be safely assumed
that the substratum for issuing the Essentiality
Certificate has completely disappeared. The
State Government cannot be expected to wait
indefinitely, much less beyond the period of five
years, thereby impacting the interests of the
student community in the region and the
increased doctor-patient ratio and denial of
healthcare facility in the attached hospital due
to gross deficiencies. Such a situation, in our
view, must come within the expected category,
where the State Government ought to act upon
and must take corrective measures to undo the
hiatus situation and provide a window to some
other institute capable of fulfilling the minimum
standards/norms specified by the MCI for
establishment of a new medical college in the
concerned locality or within the State. Without
any further ado, we are of the view that the
appellant-college is a failed institute thus far
and is unable to deliver the aspirations of the
student community and the public at large to
produce more medical personnel on year to
year basis as per the spirit behind issuance of
the subject Essentiality Certificate dated
27.08.2014. To this extent, we respectfully
depart from the view taken in Chintpurni
Medical College (Supra)."
Let us make it clear that there can be no analogy
drawn between the facts of Chintpurni case (Supra) and
the present case. The Sukh Sagar Case (Supra) actually
expanded the circumstances in which the State
Government may withdraw the EC. The dictum of Sukh
Sagar (Supra) actually supports the case of respondents.
xx xxx xxxx
WA:1194/2021 :26:-
24. In the case at hand, even though initially a
conditional EC was granted in the year 2004 subject to
removal of deficiencies and since then 17 years elapsed,
the appellant has been unsuccessful in removing the
deficiencies. Reference may be made to the last joint
inspection carried out on 07th November, 2020, wherein a
number of deficiencies were noted and the facilities were
found inadequate for consideration of an application for
the year 2021-2022. What is true in case of vanishing of
substratum applies with equal force where the
substratum is missing right from the very inception.
26. Once again reverting back to the factual
matrix of the present case, an inspection of the appellant
institution was carried out on 09.11.2020 and following
deficiencies were found:
"I. Infrastructure
i. Needs thorough refinement to start a medical college.
Construction of the building is not completed.
II. Equipments
i. Needs refined equipments in theatre, Laundry, Labs,
Histopathology and Radiology.
ii. Blood Bank - Nil
iii. Practical Laboratories- Available I (required 3)
iv. Journals - Nil
v. ICU/ICCU/PICU/NICU/SICU/Obstetric ICU/ICU -
Available 18 beds (required -60 beds)
vi. X-Ray Mobile Unit- Available 1 (required 2)
vii. No in house facilities are available and spaces are
available, most requirements are outsourced for
WA:1194/2021 :27:-
Microbiology and Pathology Laboratories.
III. Clinical Materials
As per records, it is not clear whether a 300
bedded hospital (NMC Norms) is running for the past 2
years. Records shows hospital is functioning only from
2019 onwards. On the day of inspection, Bed occupancy
is 30 % only. OPD required is 600 and there is only less
than 200 attendance on the day of inspection.
IV. Faculty Deficiencies
The following faculty deficiencies was noted:
i. One Professor in the Dept. of Biochemistry.
ii. Associate Professor -8 (Anatomy-1, Physiology-1,
Pharmacology-1, Pathology-1, General Medicine-1,
Orthopaedics-1, Anaesthesia-1, Radiodiagnosis-1)
iii. Assistant Professor-11 (Anatomy-2, Physiology-3,
Forensic Medicine-1, Community Medicine-1,
General Medicine-1, Respiratory Medicine-1, OBG-
1, Anasthesiology-1)
iv. Tutor/Demostrator/SR-29 (Anatomy-4, Physiology-
2, Biochemistry-4, pathology-1, Microbiology-1,
Forensic Medicine-1, General Medicine-3,
Paediatrics-1, Pulmonary Medicine-1, DVL-1,
Psychiatry-1, General Surgery-3, ENT-1, OBG-2,
Anasthesia-1, Radiodiagnosis1, Dentistry-1)
4. There is a total Faculty deficiency of 32% and
Tutor/Demonstrator/SR deficiency of 78%."
xx xxx xxxx
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
WA:1194/2021 :28:-
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 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."
29. Going by the findings rendered by the Hon'ble Apex Court in
Exhibit-P1 judgment, we are of the considered view that the paramount
contention advanced by the learned counsel for the appellant, in regard
to the nature of clinical materials, as was considered in the decision in
Chintpurni Medical College & Hospital (cited supra), would not
include the deficiencies noted in Exhibit-P7 order dated 31.05.2021, may
not have much bearing, for the reason that the decision in Chintpurni
Medical College & Hospital 's case (cited supra) is a Bench judgment,
whereas Exhibit-P1 inter party judgment dated 24.02.2021 is rendered by
a three Judge Bench. That apart, the decision in Chintpurni Medical
College & Hospital (supra) is departed by a three Judge Bench of the
WA:1194/2021 :29:-
Hon'ble Apex Court in Sukh Sagar Medical College and Hospital
(cited supra). 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 our view, the other contentions
raised relying on various other materials and aspects, cannot have much
bearing, in the light of the findings and observations of the Hon'ble Apex
Court in the inter party judgment discussed above, in detail. Added to
this, the rejection of EC by the State Government as per Exhibit-P7 order
dated 31.05.2021, was sought to be reviewed by the appellant, by
submitting Exhibit-P8 application dated 11.06.2021 to the Secretary,
Department of Health and Family Welfare, Thiruvananthapuram. We
have also no hesitation to say that the contentions advanced by the
appellant in the writ petition, as it originally stood, may not have much
WA:1194/2021 :30:-
bearing, since the appellant has acquiesced with his subsequent conduct
of having complied with the interim direction and submitted a fresh
application seeking EC which alone was directed to be considered by the
learned Single Judge, along with a subsequent reminder. In view of the
law laid down by the Hon'ble Apex Court in its judgments discussed
above, the issuance of EC and CoA by the State and KUHS, is not an
empty formality, but on the other hand, a serious obligation to be
discharged with utmost care and responsibility, taking into consideration
the future and the plight of the students and the undertaking to be made
in the EC by the State that, in the event of the failure of the college to
carry on with the institution, it would shoulder the responsibility.
30. Perusal of Exhibit-P8 review dated 11.06.2021 would make it
clear that the request made by the appellant is to reconsider the decision
for rejection of its application for renewed EC. It is significant to note
that the application for review was filed by the appellant on the date on
which the State Government has issued Annexure-I order dated
11.06.2021, rejecting the EC sought for by the appellant.
31. Considering the above aspects and taking into account the
clear cut observations made by the Hon'ble Apex Court in Exhibit-P1
WA:1194/2021 :31:-
judgment dated 24.02.2021, we are of the considered opinion that the
appellant has not made out a case to interfere with the judgment of the
learned single Judge in W.P.(C) No.12550 of 2021 dated 27.08.2021 and
the order in R.P. No.576/2021 dated 8.9.2021, whereby, a writ of
mandamus for quashing Exhibit-P7 order dated 31.05.2021 issued by the
1st respondent and a further writ of mandamus to issue EC, were
declined. However, learned counsel for the appellant at that point of
time, submitted that apart from Exhibits-P40 and P41 applications dated
12.07.2021 and 19.07.2021, which were directed to be considered by the
State Government, Exhibit-P8 review application dated 11.06.2021, may
also directed to be considered, within a time period, since, after the
disposal of the writ petition, by the impugned judgment, the National
Medical Commission has fixed the last date for submitting fresh
application for the current academic year as 25.09.2021. Therefore, it is
submitted that unless and until a timely action is directed to be made,
the appellant would be put to serious prejudice and irreparable loss and
damages, it was submitted. We, in regard to the submission made about
Exhibit-P8, are of the opinion that it is an innocuous relief, in view of
other directions issued.
WA:1194/2021 :32:-
32. Taking into account the above said aspects, and the facts and
circumstances dealt with by us, we direct the State Government to
consider the applications submitted by the appellant [Exhibit-P8 dated
11.06.2021, Exhibit-P40 dated 12.09.2021 & Exhibit-P41 dated
19.07.2021], in accordance with the law, i.e., the relevant statutes/
regulations in force, the proposition of law laid down by the Hon'ble Apex
Court in general, and also taking into account the observations made in
Exhibit-P1 judgment of the Hon'ble Apex Court dated 24.02.2021, and
pass an order, at the earliest and at any rate on or before 23.09.2021.
In the result, the Writ Appeal is disposed of modifying the
judgment of the learned single Judge dated 27.08.2021 passed in W.P.
(C) No.12550 of 2021 to the extent as above.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
krj
WA:1194/2021 :33:-
APPENDIX
APPELLANT'S ANNEXURES:-
ANNEXURE-A1: COMPARATIVE STUDY OF EXTS.P9 AND P4.
ANNEXURE-A2: COPY OF LETTER DATED 13-08-2021 SENT BY THE PETITIONER
TO 2ND RESPONDENT.
ANNEXURE-A3: COPY OF LETTER NO.VNPT/H&FWD/EC/007/2021 DATED 31-07-
2021 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.
ANNEXURE-A4:- COPY OF LETTER DATED 10-09-2021 SENT BY THE PETITIONER
TO 2ND RESPONDENT.
ANNEXURE-A5:- COPY OF TABULAR COLUMN GIVING DETAILS OF THE NUMBER OF
BEDS CONVERTED TO COVID BEDS AND THAT RETAILED FOR
GENERAL PATIENTS.
RESPONDENTS' EXHIBIT- NIL
//TRUE COPY//
P.A. TO C.J.
