V.N.Public Health & Educational ... vs State Of Kerala
2022 Latest Caselaw 5835 Ker

                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

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

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,

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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,

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

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

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

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

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

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

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

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

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

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

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)

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

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).

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