V.N. Public Health And ... vs State Of Kerala
2023 Latest Caselaw 9045 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
                                   &
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
     WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                          WA NO. 1436 OF 2023
AGAINST THE JUDGMENT IN WP(C) 22754/2023 DATED 26.07.2023 OF HIGH
                            COURT OF KERALA
APPELLANT/PETITIONER:

          V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST
          A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD,
          KOZHIKODE. REPRESENTED BY ITS MANAGING TRUSTEE-
          SECRETARY, V. ANILKUMAR, PIN - 673006
          BY ADVS.
          S.VINOD BHAT
          ANAGHA LAKSHMY RAMAN
          GREESHMA CHANDRIKA.R


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT
          OF HEALTH AND FAMILY WELFARE, SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695001
    2     DIRECTORATE OF MEDICAL EDUCATION
          EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM,
          REPRESENTED BY ITS DIRECTOR., PIN - 695011
    3     NATIONAL MEDICAL COMMISSION
          DWARAKA, NEW DELHI- REPRESENTED BY ITS CHAIRMAN., PIN -
          110077
    4     MEDICAL ASSESMENT & RATING BOARD (MARB)
          NATIONAL MEDICAL COMMISSION (NMC), POCKET-14, SECTOR-8,
          DWARKA PHASE-1 NEW DELHI-REPRESENTED BY ITS PRESIDENT.,
          PIN - 110077
    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.,
          PIN - 110011
          BY ADVS.
          TITUS MANI VETTOM
          SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50)
     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.08.2023,
 WA NOS. 1436, 1431 & 1432 OF 2023


                               -2-

ALONG WITH WA.1431/2023, 1432/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WA NOS. 1436, 1431 & 1432 OF 2023


                                -3-



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
                                &
                THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                       WA NO. 1431 OF 2023
AGAINST THE JUDGMENT IN WP(C) 24363/2023 DATED 26.07.2023 OF
                       HIGH COURT OF KERALA
APPELLANT/PETITIONER:

          V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST
          A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD,
          KOZHIKODE. REPRESENTED BY ITS MANAGING TRUSTEE-
          SECRETARY, V. ANILKUMAR, PIN - 673006
          BY ADVS.
          S.VINOD BHAT
          ANAGHA LAKSHMY RAMAN
          GREESHMA CHANDRIKA.R


RESPONDENT/S:

    1     KERALA UNIVERSITY OF HEALTH OF SCIENCES
          MEDICAL COLLEGE P.O., THRISSUR REPRESENTED BY ITS
          REGISTRAR, PIN - 680596
    2     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          DEPARTMENT OF HEALTH AND FAMILY WELFARE,
          SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
    3     DIRECTORATE OF MEDICAL EDUCATION
          MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM,
          REPRESENTED BY ITS DIRECTOR, PIN - 695011
    4     NATIONAL MEDICAL COMMISSION
          DWARAKA, NEW DELHI, REPRESENTED BY ITS CHAIRMAN,
          PIN - 110077
    5     MEDICAL ASSESSMENT & RATING BOARD (MARB)
 WA NOS. 1436, 1431 & 1432 OF 2023


                                  -4-

            NATIONAL MEDICAL COMMISSION (NMC), POCKET-14,
            SECTOR-8, DWARAKA PHASE-1, NEW DELHI, REPRESENTED
            BY ITS PRESIDENT, PIN - 110077
    6       UNION OF INDIA
            REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
            MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN
            BHAVAN, NEWAR UDYOG BHAVAN METRO STATION, MOULANA
            AZAD ROAD, NEW DELHI, PIN - 110011
            BY ADVS.
            P.SREEKUMAR
            TITUS MANI VETTOM
            SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50)


     THIS    WRIT   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
23.08.2023, ALONG WITH WA.1436/2023 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NOS. 1436, 1431 & 1432 OF 2023


                                -5-



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
                                &
                THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                       WA NO. 1432 OF 2023
AGAINST THE JUDGMENT IN WP(C) 23416/2023 DATED 26.07.2023 OF
                       HIGH COURT OF KERALA
APPELLANT/PETITIONER:

          V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST
          A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD,
          KOZHIKODE 673006 REPRESENTED BY ITS MANAGING
          TRUSTEE- SECRETARY, V. ANILKUMAR, PIN - 673006
          BY ADVS.
          S.VINOD BHAT
          ANAGHA LAKSHMY RAMAN
          GREESHMA CHANDRIKA.R


RESPONDENT/S:

    1     NATIONAL MEDICAL COMMISSION
          DWARAKA, NEW DELHI, REPRESENTED BY ITS CHAIRMAN,
          PIN - 110077
    2     MEDICAL ASSESSMENT & RATING BOARD (MARB)
          NATIONAL MEDICAL COMMISSION (NMC), POCKET-14,
          SECTOR-8, DWARKA PHASE-1, NEW DELHI, REPRESENTED
          BY ITS PRESIDENT, PIN - 110077
    3     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, PIN - 110011

          BY ADV TITUS MANI VETTOM
 WA NOS. 1436, 1431 & 1432 OF 2023


                                 -6-



     THIS   WRIT   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
23.08.2023, ALONG WITH WA.1436/2023 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NOS. 1436, 1431 & 1432 OF 2023


                                    -7-

                       JUDGMENT

[WA Nos.1436/2023, 1431/2023, 1432/2023]

A.J.DESAI, CJ.

The appellant, who is the petitioner in all the captioned writ

petitions, is a registered charitable trust having the object of

promoting education in the field of health and medicine intended to

start Medical Colleges from the year 2003-2004. The appellant owns

a 330 bedded hospital, but, for various reasons, the appellant could

not start a Medical College. For the purpose of establishing the

Medical College, in the year 2014, Essentiality Certificate was issued

by the Department of Health, Government of Kerala, in favour of the

present appellant for establishing a Medical College with 150 seats.

Thereafter, for one or other reason, the appellant petitioner could not

establish or start the Medical College. Meanwhile, the State of Kerala

adopted a policy that no Essentiality Certificate will be issued for self

financing medical colleges in the State and therefore, a request made

by the appellant for establishing the Medical College came to be

rejected on 28.09.2017. W.P.(C)No.40209/2017 was filed by the

present appellant challenging the policy, however, due to lack of desire

in commencing the Medical College, the same was withdrawn by the WA NOS. 1436, 1431 & 1432 OF 2023

appellant. Another request made by the appellant for establishing the

Medical College in the year 2020-2021 came to be rejected by order

dated 01.10.2019. In W.P.(C)No.27266/2019, the policy of not issuing

Essentiality Certificate was quashed and ultimately, certain

inspections were conducted on 30.04.2021 by the Directorate of

Medical Education. However, having found certain deficiencies, the

application filed for establishment of Medical College came to be

rejected vide order dated 31.05.2021. Again an inspection report was

submitted in the month of September and the request for Essentiality

Certificate was rejected, observing that the State Government is not

issuing any Essentiality Certificate for any new Medical Colleges and

the appellant had failed to comply with the prescribed norms. By the

judgment in W.P.(C)No.21894/2021 dated 31.05.2022, struck down

such policy and held that the State Government cannot withhold

Essentiality Certificate on any policy consideration, in the light of a

decision of the Hon'ble Apex Court. Since the judgment delivered by

this Court was against the petitioner, the same was challenged by the

present appellant by filing Special Leave Petition (C) No.16319/2022.

During the pendency of the aforesaid SLP(C), the National Medical WA NOS. 1436, 1431 & 1432 OF 2023

Commission (hereinafter referred as NMC) conducted an inspection

on 11.01.2023, assessing the petitioner's institution for eligibility to

admit 150 students. SLP(C) No.16319/2022 was disposed of by an

order dated 09.05.2023, directing the State Government to conduct a

fresh inspection of the hospital within a period of two months from

the date of the order, to consider the question of grant of Essentiality

Certificate. The appellant was also permitted to apply for consent of

affiliation from the Kerala University of Health Sciences and the

University was directed to take a decision on the application within

two months.

2. It appears from the record of the three writ petitions that,

though two months time was granted to inspect the institution of the

appellant and to take decision on the applications, such exercise was

made only at the fag end of the second month. The University, by

communication dated 07.07.2023, gave consent of affiliation for 150

seats, keeping in view of the inspection report dated 02.06.2023,

carried out by the Medical Inspector deputed by the Director of

Medical Education. Though the appellant fulfilled all criteria, by the

communication dated 07.07.2023, the Health and Family Welfare WA NOS. 1436, 1431 & 1432 OF 2023

Department, through the Principal Secretary, Government of Kerala,

granted consent for establishment of Medical College only for 100

seats. Being aggrieved with the said decision, the appellant preferred

W.P.(C)No.22754/2023.

3. Relying upon the decision dated 07.07.2023 of the State

Government, the University passed fresh order reducing the seats

from 150 to 100, which came to be challenged by the present appellant

by way of filing W.P.(C)No.24363/2023. In the meantime, the NMC,

by communication dated 12.07.2023, rejected the application for

establishment of new Medical College with 150 MBBS seats for the

academic year 2023-2024 on the ground that certain documents like

revised consent of affiliation and Essentiality Certificate were not

submitted in time. This is the subject matter of W.P.

(C)No.23416/2023. All the three petitions were heard together by the

learned Single Judge and came to be dismissed by a common

judgment dated 26.07.2023, which has been challenged by the

aforesaid three different appeals.

4. Sri. Vinod Bhat, learned Counsel for the appellant would

submit that the impugned order dated 07.07.2023 issued by the WA NOS. 1436, 1431 & 1432 OF 2023

Principal Secretary to Government, Health and Family Welfare

Department, is contrary to the regulations namely "Minimum

requirement for annual MBBS Admission Regulations, 2020", which

came to be issued by NMC vide notification dated 28.10.2020. By

taking us through regulation No.B.1, he would submit that at the time

of submission of application for starting Medical College with intake of

upto 150 students, there shall be available a fully functional hospital

with 300 beds. He would submit that, for the purpose of recognition,

the institutions having the bed strength referred as stipulated in B.3.1

would be considered, whereas the Letter of Permission can be granted

as provided in B.3.1(2), following the procedure prescribed under

Annexures I to IV.

5. By taking us through the relevant annexures, he would submit

that for the Letter of Permission for 150 MBBS seats, permission can

be granted for the institutions having 330 beds. He would further

submit that, in the order impugned, by which the seats have been

reduced from 150 to 100, the authority has wrongly relied upon the

bed strength referred in B.3.1 which is with regard to recognition of a

degree, which is also referred in Annexure II of the said regulations. WA NOS. 1436, 1431 & 1432 OF 2023

He would submit that the appellant is having 330 beds in its hospital

and is therefore entitled for 150 seats. He would further submit that

there are no reasons assigned by the authority, whatsoever, for

reducing the seats from 150 to 100 when the appellant was entitled for

150 seats, as per the regulations of 2020.

6. By taking us through a report dated 02.06.2023 issued by the

Medical Inspector deputed by the Department of Medial Education, he

would submit that it has been specifically observed that the appellant

has 330 beds in its hospital and has also adequate infrastructure,

faculty, clinical material and other facilities as per the Kerala

University of Health Sciences norms as on that day. This report is

referred by the department subsequent to the judgment of the Hon'ble

Apex Court and therefore, in the absence of any other reasons, the

authority ought not to have reduced the number of seats which the

appellant is entitled for starting a new Medical College. He would

submit that all these aspects have not been properly dealt with by the

learned Single Judge, and the impugned order requires to be quashed

and set aside.

7. Learned Counsel Sri. Vinod Bhat, would further submit that WA NOS. 1436, 1431 & 1432 OF 2023

the challenge in W.P.(C)No.24363/2023 is the consequential order

passed by the University reducing the seats from 150 to 100. He took

us through the affidavit filed by the University, particularly paragraph

No.6, to point out that the University has categorically admitted that

the order reducing the number of seats was passed in view of the order

dated 07.07.2023 of the State Government and therefore, if the order

dated 07.07.2023 is quashed and set aside, the effect would be

quashing the order of the University reducing the seats from 150 to

100. Sri. Vinod Bhat, would further submit that the Hon'ble Apex

Court, while disposing of SLP No.16139/2022, had granted two

months time to the concerned authority to inspect the institution,

however, the reports came to be submitted in the month of July only

and immediately on receiving the orders dated 07.07.2023, the

appellant had submitted its application to the NMC and had raised its

concern about getting 150 seats and requested to grant the same. But

before the application was sent on 11.07.2023, and before the requisite

particulars reached to the NMC, the impugned order dated 12.07.2023

came to be passed stating that the reports were not submitted within

the time limit granted by the Government authorities. He would WA NOS. 1436, 1431 & 1432 OF 2023

submit that the appellant is not at fault in submitting the report, since

at the fag end of time granted by the Apex Court, the same was

received and immediately it was forwarded to NMC and therefore, the

same is required to be quashed and set aside and appropriate orders

are required to be passed.

8. On the other hand, learned Government Pleader appearing for

the State of Kerala has supported the decision passed by the learned

Single Judge and requested not to interfere with the order passed by

the Principal Secretary, Health and Family Welfare Department,

Government of Kerala. He would submit that even if the regulations

2020 makes provision for granting admission to 150 MBBS students,

the same is not mandatory and the same can be reduced keeping in

mind the necessity of medical practitioners in the State of Kerala. He

would submit that the appellant himself had approached the Hon'ble

Apex Court against the judgment delivered by this Court. Again there

was refusal for grant of permission to start Medical College in the

academic year 2021. While disposing of the petition, which was filed

challenging the judgment dated 24.02.2021, the Apex Court has held

that granting Essentiality Certificate is not a ministerial act and WA NOS. 1436, 1431 & 1432 OF 2023

fulfilling of criteria is not, by itself, sufficient to accept the application

submitted by the concerned institution. By taking us through the said

decision, he would submit that, even the Hon'ble Apex Court has

relied on the schedule for admission to Medical Colleges.

9. Learned Advocate appearing for NMC has supported the

order passed by the Medical Council. He would submit that it is an

undisputed fact that the documents required to be submitted by the

appellant were not submitted to NMC and therefore, the impugned

order was passed. He would submit that under sub section 2 of

Section 28 of the National Medical Commission Act, 2019, permission

for establishment of new Medical College can be granted only after

fulfilling all the particulars which have been specified under the

Regulations, but in the present case, the same was not done in time.

He therefore would submit that the appeal can be dismissed.

10. Learned Advocate appearing for the University would submit

that as per Regulations 2020, the appellant is fulfilling the criteria for

letter of permission for establishment of new Medical College, since

the appellant is having 330 beds.

11. Learned Advocate appearing for the NMC would submit that WA NOS. 1436, 1431 & 1432 OF 2023

the admission to Medical Colleges for the current academic year has

already been started and 2nd round is going on and therefore, at this

stage, if this Court interfere with the orders, it would be impossible to

reshuffle the students who have already secured their admission in

some Medical College in the State of Kerala.

12. On the other hand, in reply to the submissions made by the

learned Advocates for the respondents, Sir. Vinod Bhat, learned

Counsel appearing for the appellant has placed details about the

admission process going on through the Commissioner for Entrance

Examinations in the State of Kerala and submitted that the same may

end by October 2023 and therefore, the respondent authorities can

take appropriate steps for allotment of students in the Medical

Colleges, if the appellant is permitted to start imparting education for

the current academic year 2023-2024.

13. We heard the learned Counsel appearing for respective

parties.

14. We are of the considered opinion that the issue involved in

the matter is with regard to the sustainability of the decision dated

07.07.2023 of the Principal Secretary to Government, Health and WA NOS. 1436, 1431 & 1432 OF 2023

Family Welfare Department, by which, though the application was

made by the petitioner for 150 seats, Essentiality Certificate was

granted to the appellant to start the Medical College only with 100

students. As per the Regulations 2020, particularly Clause B.3.1, the

bed strength of the teaching hospitals is to be considered only at the

time of recognition for qualification aquired by the first batch of MBBS

students. The same is reproduced as under:

WA NOS. 1436, 1431 & 1432 OF 2023

15. The present case pertains to an application made by the

appellant for getting letter of permission for establishment of new

Medical College which is dealt as under:

B.3.1

1.xxxx

2. The details of the bed requirements for the different

clinical teaching departments from LOP till recognition for

annual intakes from 100-250 students is provided in Annexure I-

IV appended to this regulation.

16. Since it is a question of granting Letter of Permission, the

same is referred in Annexure II, which deals with eligibility for an

intake for 150 MBBS seats. As per the said Annexure, if the institution

wants to get admitted 150 students, there must be minimum 330 beds.

Annexure II is reproduced as under:

WA NOS. 1436, 1431 & 1432 OF 2023

17. It is pertinent to note that it is made clear in the aforesaid

method of admission that the bed strength should be increased WA NOS. 1436, 1431 & 1432 OF 2023

proportionately between the letter of permission and the 3rd renewal

and it is also referred in the aforesaid agreement that recognition shall

be granted only after completion of MBBS course by the first batch, ie,

after the 4th renewal. That means, recognition which is referred in

B.3.1 can be considered at the end of the 4 th renewal and not at the

time of admission for the first year. The authority has committed

error in considering the seats referred as 150, since the same is

required to be considered only at the time of giving recognition to

those students who have completed their MBBS course. Therefore, we

are of the considered opinion that the case of the appellant should

have been considered for 150 MBBS seats.

18. It is true that as per the decision of Hon'ble Apex Court in

V.N.Public Health and Educational Trust Etc. v. State of

Kerala and Others (AIR 2021 SC 2673), the act of grant of

Essentiality Certificate is not a ministerial action. However, while the

authority may have the power to reduce the intake from 150 to 100,

there must be some legal and valid reasons to do so. In the present

case, apart from a reference to the Regulations of 2020, there is no

explanation whatsoever in any of the affidavits filed by the State of WA NOS. 1436, 1431 & 1432 OF 2023

Kerala to reduce the seats from 150 to 100. On that ground also, we

are of the considered opinion that the impugned order has been

passed contrary to the Regulations 2020, and it requires to be quashed

and set aside.

19. As far as W.A.No.1431/2023 which has been filed against the

judgment in W.P.(C)No.24363/2023 is concerned, as stated herein

above, the University reduced the seats from 150 to 100, relying upon

the decision dated 07.07.2023, which has been categorically stated in

paragraph No.6 of the counter affidavit. Hence, the same also requires

to be quashed and set aside in view of the fact that the order dated

07.07.2023 has already been quashed by this Court.

20. As far as W.A.No.1432/2023 is concerned, while disposing of

SLP(C)No.16319/2023, the Hon'ble Apex Court by order dated

09.05.2023, granted time to authorities to conduct a fresh inspection,

to find out whether the Essentiality Certificate can be issued or not,

within a period of two months. Such exercise was undertaken only at

the fag end of the period of two months granted by the Hon'ble Apex

Court. It is pertinent to note that the reports have been received by

the appellant only after 07.07.2023, and immediately it has forwarded WA NOS. 1436, 1431 & 1432 OF 2023

the same to the NMC by registered post. It appears that, before those

documents reached the NMC on 12.07.2023, the impugned order was

passed on the ground that the documents have not been received. It is

also pertinent to note that in all the reports received, including the

report dated 02.06.2023, the State authorities have found that the

appellant has complied with necessary conditions and therefore in our

opinion, NMC could have passed the impugned order only after

receiving the reports from the State authorities. Hence, in our

opinion, this order also requires to be quashed and set aside.

Accordingly, all appeals are allowed and the impugned order is

hereby quashed and set aside. Consequences of the judgment passed

by this Court shall follow.

Sd/-

A.J.DESAI CHIEF JUSTICE

Sd/-

V.G.ARUN JUDGE

uu/24.08.2023 WA NOS. 1436, 1431 & 1432 OF 2023

APPENDIX OF WA 1436/2023

PETITIONER ANNEXURES Annexure-A1 Copy of notification dated 28-10-2020 of 3rd respondent