Anil K. Narendran, J.
2. In W.P.(C)No.25194 of 2025, the learned Standing
18.08.2025, opposing the relief sought for. The petitioner filed a
addressed to the Registrar of the 1st respondent University. After
petition. Paragraphs 9 to 11 and also the last paragraph of that
11. The petitioners did not submit application for the academic
year 2025-2026 in the concerned subject within the stipulated
time. The petitioners have submitted application based on a
subsequent notification in which the academic year was
erroneously shown as 2025-206, and in respect of which an
Erratum Notification was subsequently issued.
In the circumstances, I find the writ petition is without any
merit and the writ petition is hence dismissed."
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3. Challenging the judgment dated 09.09.2025 of the
learned Single Judge in W.P.(C)No.25194 of 2025, the appellants-
petitioners are before this Court in this writ appeal, invoking the
provisions under Section 5(i) of the Kerala High Court Act, 1958.
Along with this writ appeal, the appellants have placed on record
Annexure A1 statement dated 24.03.2025 filed by the 1st
respondent University in another writ petition, i.e.,
W.P.(C)No.10989 of 2025; Annexure A2 relevant extract of
notification dated 12.09.2025 issued by the 1st respondent
University; and Annexure A3 letter dated 29.09.2025 of the 2 nd
appellant addressed to the Registrar of the 1st respondent
University.
4. We heard arguments of the learned counsel for the
appellants-petitioners, the learned Senior Counsel for the 1st
respondent Kerala University of Health Sciences and the learned
Standing Counsel for National Medical Commission for
respondents 2 and 3.
5. The issue that requires consideration is as to whether
any interference is warranted in the impugned judgment dated
09.09.2025 of the learned Single Judge in W.P.(C)No.25194 of
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2025, whereby the writ petition stands dismissed for the reasons
stated therein.
6. As noticed by the learned Single Judge in the impugned
judgment, the appellant-petitioner submitted an application
seeking provisional affiliation for DM Critical Care with three seats
in Malabar Medical College Hospital and Research Centre, pursuant
to a notification issued by the 1st respondent University, inviting
applications from institutions which are having affiliated courses
of the University for provisional affiliation to start new under
graduate/post graduate/superspeciality courses mentioned in the
appendix to the said notification. In the notification dated
31.12.2024, the academic year was erroneously mentioned as
'2025-26' against all medical postgraduate/superspeciality
courses, instead of '2026-27'. Therefore, the 1st respondent
University issued Ext.P7 erratum notification dated 15.01.2025,
whereby the academic year in the notification dated 31.12.2024
was corrected as '2026-27', instead of '2025-26'. In view of Ext.P7
erratum notification dated 15.01.2025 issued by the 1st
respondent University, the application made by the appellants-
petitioners for provisional affiliation for DM Critical Care with three
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seats in Malabar Medical College Hospital and Research Centre can
be considered only for the academic year 2026-27. Therefore, by
invoking the writ jurisdiction of this Court under Article 226 of the
Constitution of India, the appellants-petitioners cannot seek a writ
of mandamus, as sought for in W.P.(C)No.25194 of 2025,
commanding the 1st respondent University to consider the said
application for provisional affiliation for the academic year 2025-
26, since no mandamus can be issued directing the statutory
authorities to do something contrary to the statute. See:
Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259].
7. The appellants-petitioners had earlier approached this
Court in W.P.(C)No.10989 of 2025 seeking provisional affiliation
for DM Critical Care with three seats in Malabar Medical College
Hospital and Research Centre, for the academic year 2025-26, as
a special case. The said writ petition ended in dismissal by Ext.P10
judgment dated 26.03.2025. In paragraph 19 of the said
judgment, the learned Single Judge declined the reliefs sought for
in that writ petition, considering the fact that the original
application submitted by the petitioners are for the academic year
2026-27 and that the deadline for making applications and for
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allotment of seats for the academic year 2025-26 had long
expired. It is after the dismissal of W.P.(C)No.10989 of 2025, the
appellants-petitioners have chosen to file another writ petition
before this Court, i.e., W.P.(C)No.25194 of 2025 seeking the very
same relief, i.e., provisional affiliation for DM Critical Care with
three seats in Malabar Medical College Hospital and Research
Centre, for the academic year 2025-26, which is legally
impermissible.
8. From the pleadings and materials on record, we notice
that even without obtaining consent of affiliation/provisional
affiliation from the 1st respondent University for starting DM
Critical Care with three seats in Malabar Medical College Hospital
and Research Centre, for the academic year 2025-26, the
appellants-petitioners have chosen to submit an application before
the 2nd respondent Medical Assessment and Rating Board (MARB)
of the 3rd respondent National Medical Commission, pursuant to
Ext.P4 public notice dated 18.09.2024. The document marked as
Ext.P5 is an application made by the appellants pursuant to Ext.P4
notification. The said application made through web portal is
extracted hereunder;
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9. As evident from Ext.P5 application made by the
appellants through web portal, instead of the consent of affiliation
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or provisional affiliation obtained from the 1st respondent
University, the appellants have attached Ext.P2 essentiality
certificate dated 22.12.2022 issued by the State Government in
PDF format, against the column 'Consent of Affiliation' which has
already been attached in Ext.P5 application, against the column
'Essentiality Certificate'. It is pertinent to note at this juncture,
condition No.5 stipulated in Ext.P4 public notice dated 18.09.2024
issued by the 2nd respondent Medical Assessment and Rating
Board (MARB) inviting applications for the academic year 2025-
26, which reads thus;
"5. The medical college/institution are instructed to upload the
following three documents in PDF format in the online
application form-
• Valid Essentiality Certificate (EC) in the prescribed
Proforma for starting of new Post-Graduate medical
courses in an established medical institution, establishing
a new Post-Graduate Medical Institution (standalone PG
institute) under the heading/column "Essentiality
Certificate". (As per Annexure 1)
• Valid Consent of Affiliation (CoA) in the prescribed
Proforma. (As per Annexure 2) and
• Justification for the number of requested seats (as
per Annexure 3)"
10. In exercise of the powers conferred vide sub-section
(2) of Section 57 read with Sections 26, 28 and 29 of the National
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Medical Commission Act, 2019, the National Medical Commission
made the Establishment of New Medical Institutions, Starting of
New Medical Courses, Increase of Seats for Existing Courses and
Assessment and Rating Regulations, 2023, in short the
Establishment of Medical institutions, Assessment and Rating
Regulations, 2023 (EMAR 2023). The said Regulations came into
force with effect from 02.06.2023, the date of publication in the
official gazette. Section 2(e) of EMAR 2023 defines 'Consent of
Affiliation' (in its abbreviated form CoA) to mean a letter in writing
obtained from a recognised University, issued in the name of the
applicant, agreeing to affiliate the medical institution for the award
of the necessary qualifications by the University. Section 2(f)
defines 'Essentiality Certificate' (in its abbreviated form EC) to
mean written permission from the Central or concerned State
Government or the Union Territory administration, as the case
may be, for the establishment of a new medical institution.
11. As per Section 4 of EMAR 2023, no medical college or
medical institution can be established, or new medical course or
courses can be started, unless it is granted permission by the
MARB in writing, in response to an application submitted in this
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regard. As per the proviso to Section 4, any such permission by
the MARB may be issued subject to such conditions as it may think
fit to impose.
12. In view of the provisions contained in Section 9 of
EMAR 2023, no application submitted by the eligible entity shall
be entertained unless it is accompanied by the Essentiality
Certificate (EC) issued by the concerned State Government or
Union Territory administration or the appropriate authority, as the
case may be, unless otherwise specified, which shall be valid at
the time of application, and a Consent of Affiliation (CoA) letter
obtained from a recognised university, issued in the name of the
applicant entity in writing, which shall also be valid at the time of
application. Section 9 of EMAR 2023 reads thus;
"9. No application submitted by the eligible entity shall be
entertained unless it is accompanied with
a. Essentiality Certificate (EC) issued by the concerned State
Government or Union Territory administration or the
appropriate authority as the case may be unless otherwise
specified. The EC shall be valid at the time of application; and
b. A Consent of Affiliation (CoA) letter obtained from a
recognized university, issued in the name of the applicant
entity in writing. The CoA shall be valid at the time of
application, and
c. Documentary proof indicating the establishment of a corpus
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fund by the entity dedicatedly applicable to functioning of the
new medical institution year after year, and
d. A solvency certificate issued by a Chartered Accountant
within ninety days prior to the last date of submission of the
application as mandated by the Notification issued by the
MARB, and
e. Documents by way of proof that such reasonable area of
land is either owned or arranged under lease or such other
arrangement by the eligible entity, and
f. Capabilities with regard to the provision of required basic
infrastructure, administrative and financial support of the
applicant, if the eligible entity is other than Central in a State
Government or Territory administration, and
g. Documentary proof of owning or naming a hospital of
required capacity as indicated in the MSRs.
h. Proof indicating remittance of prescribed application fee and
bank guarantee; and
i. Any such other documents are to be notified from time to
time by the MARB
Explanation 1 - the period of validity of the EC indicated in (a)
above shall be in accordance with that mentioned by the
issuing authority for a period of three years from the date of
issue or an earlier date if the issuing authority has specified.
Explanation 2 - the CoA obtained from a recognized university
issued in the name of the eligible entity shall lose its validity
after the application for which it was used. The eligible entity
shall obtain a new CoA if the application is rejected. Provided
the CoA shall have a total life of three years from the date of
its issuance or an earlier date if the issuing authority has
specified.
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Explanation 3 - Established medical institutions applying for
seats for new medical courses, may be exempted from some
of these documents as will be specified, while calling the
applications
Provided any incomplete applications received, meaning
applications without the mandated documents specified in the
present Regulation, shall be rejected by the MARB
Provided further that once rejected the eligible entity shall lose
the chance of reapplying till the next window of opportunity in
calling for the applications."
13. In Medical Council of India v. V.N. Public Health
and Educational Trust [(2016) 11 SCC 216], a decision relied
on by the learned Senior Counsel for the 1st respondent University,
the Apex Court reiterated the law laid down by a Three-Judge
Bench in Royal Medical Trust v. Union of India [(2015) 10
SCC 19] that the initial assessment of the application at the first
level should comprise of checking necessary requirements such as
essentiality certificate, consent for affiliation and physical features
like land and hospital requirement. If an applicant fails to fulfil
these requirements, the application on the face of it would be
incomplete and be rejected. Those who fulfil the basic
requirements would be considered at the next stage.
14. In V.N. Public Health and Educational Trust
[(2016) 11 SCC 216] the Apex Court has referred to the decision
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in D.Y. Patil Medical College v. Medical Council of India
[(2015) 10 SCC 51], wherein the controversy had arisen due to
rejection of the application of the institution on the ground that
Essentiality Certificate was not filed along with the application
form. The Apex Court dwelled upon the principles stated in
Educare Charitable Trust v. Union of India [(2013) 16 SCC
474], Royal Medical Trust [(2015) 10 SCC 19] and various
other decisions and, after anaylsing the scheme of the Indian
Medical Council Act, 1956, held that as it is apparent from the
aforesaid decisions and the regulations that the application at the
first instance is required to be complete and incomplete
applications are liable to be rejected. Thereafter, there has to be
an inspection and other stages of decision-making process.
15. As already noticed hereinbefore, the mandate of
Section 9 of EMAR 2023 is that, no application submitted by the
eligible entity shall be entertained unless it is accompanied by the
Essentiality Certificate issued by the concerned State Government
or Union Territory administration or the appropriate authority, as
the case may be, unless otherwise specified, which shall be valid
at the time of application, and a Consent of Affiliation letter
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obtained from a recognised university, issued in the name of the
applicant entity in writing, which shall also be valid at the time of
application. When the application is not supported by an
Essentiality Certificate issued by the concerned State Government
or Union Territory Administration or the appropriate authority, as
the case may be, and the Consent of Affiliation/provisional
affiliation letter obtained from a recognised University, both valid
at the time of application, the application on the face of it would
be incomplete and liable to the rejected. Such an application,
which does not fulfill the basic requirements, is not required to be
considered at the next stage.
16. In the case at hand, admittedly, Ext.P5 application
made by the appellants-petitioners before the Medical Assessment
and Rating Board of the National Medical Commission for starting
DM Critical Care with three seats in Malabar Medical College
Hospital and Research Centre, for the academic year 2025-26, was
not supported by a consent of affiliation/provisional affiliation
letter issued by the 1st respondent University, valid at the time of
that application. Such an application on the face of it is incomplete,
which can only be rejected by the Medical Assessment and Rating
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Board. Therefore, instead of issuing Ext.P14 show cause notice
dated 13.08.2025, the Medical Assessment and Rating Board
should have rejected Ext.P5 application made by the appellants-
petitioners. When the aforesaid application made by the
appellants-petitioners was incomplete, in view of the mandatory
requirements of Section 9 of EMAR 2023, placing reliance on
Ext.P14 show cause notice, the appellants-petitioners cannot seek
a writ of mandamus for consideration of Ext.P3 application for
consent of affiliation by the 1st respondent University, for the
academic year 2025-26.
In the result, no interference is warranted in the impugned
judgment dated 09.09.2025 of the learned Single Judge in
W.P(C)No.25194 of 2025. This writ appeal fails and the same is
accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
2025:KER:81119
APPENDIX OF WA 2463 OF 2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE STATEMENT OF THE 1ST
RESPONDENT IN W.P.(C)NO.10989/2025 DATED 24-
03-2025
Annexure A2 TRUE COPY OF THE RELEVANT PAGES OF
NOTIFICATION DATED 12-09-2025 ISSUED BY THE
1ST RESPONDENT
Annexure A3 TRUE COPY OF LETTER DATED 29-09-2025 WRITTEN
BY THE 1ST/ 2ND APPELLANT TO THE 1ST
RESPONDENT
