Supreme Court of India
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC.versusSTATE OF KERALA & ORS. ETC.
- Citation
- 2021 INSC 117
- Decided
- 24 February 2021
- Disposal
- Dismissed
- Bench
- A M KHANWILKAR
Holding
The issuance of an Essentiality Certificate is a quasi‑judicial act, the State may withdraw it on grounds of fraud or vanishing substratum, and the EC and CoA for 2020‑2021 cannot be granted due to persistent deficiencies and the expiry of the statutory time‑schedule.
Summary
The appellant, V.N. Public Health and Educational Trust, sought an Essentiality Certificate (EC) and Consent of Affiliation (CoA) to start a medical college for the academic year 2020‑2021, but the State Government and Kerala University of Health Sciences repeatedly rejected its applications citing deficiencies. The High Court had earlier set aside a rejection and directed the appellant to apply for the 2022‑2023 session, which the appellant appealed. The Supreme Court examined whether the issuance of an EC is a ministerial act, whether it can be withdrawn, and whether the EC and CoA could be granted despite the lapse of the prescribed time‑schedule and persistent infrastructural shortcomings. The Court held that granting an EC is a quasi‑judicial function, not merely ministerial, and the State may withdraw it where fraud or the substratum vanishes. Given the appellant’s failure to remedy deficiencies over 17 years and the expiry of the time‑schedule, the Court refused to order issuance of EC or CoA for 2020‑2021. The appeals were dismissed, leaving the appellant to re‑apply for a later academic year after complying with the regulations.
Issues considered
- Whether the issuance of an Essentiality Certificate is a ministerial act or a quasi‑judicial function.
- Whether an Essentiality Certificate, once issued, can be withdrawn by the State Government.
- Whether the State Government and the University can be directed to grant EC and CoA for the academic year 2020‑2021 despite the appellant’s deficiencies and the lapse of the prescribed time‑schedule.
Legislation cited
- Indian Medical Council Act, 1956s. 10-A, s. 33
- Kerala University of Health Sciences Act, 2013s. Chapter XXI Clause X(I)
- Medical Council of India Establishment of Medical College Regulations, 1999s. Regulation 8(3)
Subjects
Essentiality CertificateConsent of AffiliationMedical College establishmentQuasi‑judicial functionWithdrawal of certificateTime scheduleMedical Council of India regulationsKerala University of Health SciencesInfrastructure deficienciesPublic interest
Judgment
[2021] 1 S.C.R. 1013 1013
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. A
v.
STATE OF KERALA & ORS. ETC.
(Civil Appeal Nos.703-704 of 2021)
FEBRUARY 24, 2021 B
[A. M. KHANWILKAR, B. R. GAVAI
AND KRISHNA MURARI, JJ.]
Indian Medical Council Act, 1956 – Appellant sought grant
of Essentiality Certificate (EC) for Academic Year 2020-2021 –
Application rejected by State Government – Eventually, Single Judge C
inter alia set aside the said order while further giving opportunity to
the appellant to apply for the Academic Year 2022-2023 instead of
Academic Year 2020-2021 – Review petition filed by appellant,
dismissed – Division Bench refused to grant permission for Academic
Year 2020-2021, instead directed the respondents to consider D
appellant’s application for establishment of a Medical College for
the Academic Year 2021-2022 – On appeal, held: Conditional
Essentiality Certificate was first issued in 2004 subject to removal
of deficiencies – Since then 17 years have elapsed and the appellant
has been unsuccessful in removing the deficiencies and securing
requisite permissions from MCI – Appellant has been long trying to E
escape its responsibility and fill up the lacuna through judicial
process by getting orders from the High Court for Consent of
Affiliation (CoA) and consideration of its belated half-baked
applications before the MCI – In the inspections carried out in 2015
and 2020, the appellant was found lacking proper facilities – F
Appellant has no real interest in running a hospital and thus, cannot
call foul upon rejection of EC, CoA or its applications before MCI
– Further, time schedule prescribed for starting a new Medical
College for the Academic Year 2020-2021 is over long back – Even
the last date for the year 2021-2022 which was extended to 15.12.20,
in view of Covid-19 pandemic is also over by now – Thus, the State G
Government or the University cannot be directed to issue EC or
CoA to the appellant for the year 2020-2021 – Medical Council of
India Establishment of Medical College Regulations , 1999 –
Regulation 8(3) – Kerala University of Health Sciences First Statute,
H
1013
1014 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 2013 – Chapter XXI – Establishment of Medical College Regulations
(Amendment), 2015.
Indian Medical Council Act, 1956 – s.10-A – Requirement of
Essentiality Certificate under – Discussed.
Indian Medical Council Act, 1956 – Issuance of Essentiality
B Certificate, if a ministerial job – Held: Issuance/re-issuances of an
essentiality certificate is not in any way a ministerial job – While
dealing with a case of maintaining standards in a professional
college, strict approach must be adopted – Education.
Kerala University of Health Sciences First Statute, 2013 –
C Chapter XXI – Clause X(I) – Grant of affiliation – Discussed.
Education – Establishment of new medical college –
Withdrawal of Essentiality Certificate (EC) – Held: State Government
has power to withdraw the EC where it is obtained by playing fraud
on it or where the very substratum on which the EC was granted
D vanishes or for any other reason of like nature – Indian Medical
Council Act, 1956.
Dismissing the appeals, the Court
HELD: 1.1 An EC is mandatorily required by a person
before he receives permission for establishment of a Medical
E
College. The Legislative scheme that imposes the requirement
of the EC is prescribed in Section 10(A) of the Medical Council
of India Act, which requires the previous permission of the Central
Government for establishing a Medical College or opening a new
course of study or training. Every person or Medical College
F must submit to the Central Government a scheme as prescribed.
The Central Government then refers the scheme to the MCI for
its recommendations. The Medical Council is required to consider
the same and satisfy itself by obtaining any particulars as are
necessary and after having the defects if any removed, make its
recommendations to the Central Government. The Central
G
Government, may on receipt of the scheme, approve it
conditionally or disapprove the same. [Para 16][1033-D-F]
1.2 The power to permit the establishment of a Medical
College is thus conferred on the Central Government by the MCI
H
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1015
STATE OF KERALA
Act. The Regulations were framed in exercise of powers A
conferred under Section 10(A) read with Section 33 of the MCI
Act prescribed the qualifying criteria. These criteria lay down
the eligibility to apply for permission to establish a Medical
College. One of the criteria is that the person who is desirous of
establishing a Medical College should obtain an Essentiality
B
Certificate as prescribed in Form 2 of the Regulations, certifying
that the State Government/Union Territory Administration has
no objection for the establishment of the proposed Medical
College at the proposed site and availability of adequate clinical
material. Thus, the State Government is required to certify that
it has decided to issue an Essentiality Certificate for the C
establishment of a Medical College with a specified number of
seats in public interest and further such establishment is feasible.
[Para 17][1033-F-H; 1034-A]
2. Form 2 in which the EC must be obtained indicates the
facts which are considered relevant for determining whether the D
establishment of a proposed college is justified. The 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 E
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 F
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 G
unambiguous. An Essentiality Certificate by the State Government
legitimises 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
H
1016 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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, this Court comes
to the conclusion that the issuance/re-issuances of an essentiality
certificate is not in any way a ministerial job and while dealing
B
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/
C clinical materials; devaluation of merit in admission, particularly
in private institutions; increasing capitation fees; a debilitated
assessment and accreditation system, are problems plaguing the
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
D
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/
E 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
F
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 the proposed
G site. The grant of affiliation is dependent upon fulfilment 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. [Paras 18, 19][1034-B; 1035-D-H; 1036-A-G]
H
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1017
STATE OF KERALA
3. The State Government has power to withdraw the EC A
where it is obtained by playing fraud on it or where the very
substratum on which the EC was granted vanishes or any other
reason of like nature. [Para 23][1039-C]
Chintpurni Medical College & Hospital & Anr. Vs. State
of Punjab & Ors. (2018) 15 SCC 1 : [ 2018] 5 SCR B
147 – distinguished.
Sukh Sagar Medical College and Hospital Vs. State of
Madhya Pradesh and Ors (2020) SCC Online SC 851
– relied on.
4. In the case at hand, even though initially a conditional C
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 and is not in a position
to secure requisite permissions from the MCI. Reference may
be made to the last joint inspection carried out on 7th November, D
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. The Appellant Institution
has been long trying to escape its responsibility and fill up the E
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 F
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. Further, not only proper facilities and infrastructure G
including teaching faculty is absolutely necessary but adherence
to time schedule is also equally important. Regulation 8(3) of the
1999 Regulations provides a schedule for the receipt of
applications for establishment of new Medical Colleges and
processing of the applications by the Central Government and H
1018 SUPREME COURT REPORTS [2021] 1 S.C.R.
A the Medical Council of India. Initial time schedule fixed under
the Regulations for establishment of a new Medical College was
amended in 2015 vide Establishment of Medical College
Regulations (Amendment), 2015. Time and again, this Court has
emphasized that time schedule either for establishment of new
Medical College or to increase intake in existing colleges shall
B
be adhered to strictly by all concerned. There is no manner of
doubt that the time schedule prescribed in receipt of starting a
new Medical College for the year 2020- 2021 is already over
long back. Even the last date for the Academic Year 2021-2022
which was extended to 15.12.2020, in view of prevailing Covid-
C 19 Pandemic is also over by now. Thus the State Government or
the University cannot be directed to issue EC or CoA to the
appellant for the year 2020-2021 even notionally. The relief
prayed for by the appellant for the Academic Year 2020-2021, is
not liable to be granted. [Paras 24, 28-33][1039-D-E; 1041-B-E,
F-G; 1042-D-F]
D
Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.
(2005) 2 SCC 65 : [2005] 1 SCR 380 – relied on.
Thirumuruga Kirupananda Variyar Thavathiru Sundara
Sawmigal Medical Educational & Charitable Trust Vs.
E State of Tamil Nadu & Ors. (1996) 3 SCC 15 : [1996] 2
SCR 422; Government of Andhra Pradesh & Anr. Vs.
Medwin Educational Society & Ors. (2004) 1 SCC 86
: [2003] 5 Suppl. SCR 408; Medical Council of India
Vs. Principal, KMCT Medical College & Anr. (2018) 9
SCC 766 : 2018 (8 ) JT 179; Medical Council of India
F Vs. The Chairman, S.R. Educational and Charitable
Trust and Another (2018) SCC Online SC 2276 –
referred to.
Case Law Reference
G [1996] 2 SCR 422 referred to Para 6
[2018] 5 SCR 147 distinguished Para 7
[2003] 5 Suppl. SCR 408 referred to Para 9
[2005] 1 SCR 380 relied on Para 29
H
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1019
STATE OF KERALA
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 703- A
704 of 2021.
From the Judgment and Order dated 03.11.2020 of the High Court
of Kerala at Ernakulam in Writ Appeal Nos. 1401 and 1413 of 2020.
Shyam Divan, Sr. Adv., Udayaditya Banerjee, Ms. Sneha Ravi
Iyer, Advs. for the Appellants. B
K. M. Nataraj, ASG., Jaideep Gupta, Sr. Adv., Ms. Priyanka
Prakash, Ms. Beena Prakash, G. Prakash, Ms. Neela Kedar Gokhale,
Sharath Nambiar, Gurmeet Singh Makkar, Gaurav Sharma, Dhawal
Mohan, Prateek Bhatia, Venkita Subramoniam T.R., Advs. for the
Respondents. C
The Judgment of the Court was delivered by
KRISHNA MURARI, J.
1. Leave granted.
D
2. These appeals arises out of the Judgment and Order dated
03.11.2020 passed by the Kerala High Court in Writ Appeal Nos. 1401
and 1413 of 2020, wherein the Division Bench of the said High Court
modified the directions of the learned Single Judge to the extent of
consideration for establishment of Medical College by the appellant for
the Academic Year 2021-2022. E
3. The issue arising for consideration before us is whether
Essentiality Certificate (hereinafter referred to as ‘EC’) and Consent of
Affiliation (hereinafter referred to as ‘CoA’) should be granted for the
year 2020-2021 to the appellant. The other issues which need to be
addressed are :- F
(i) Whether grant of Essentiality Certificate by the State
Government is only a Ministerial Act?
(ii) Whether Essentiality Certificate, once issued, can be
withdrawn?
G
4. Facts in brief :-
The appellant is a trust set up with the object of promoting education
in Health and Medicine. To start a Medical College, the appellant claims
to have set up a 300 bedded hospital in Walayar, Palakkad District in
2006. According to the case set up by the appellant, the requisite
H
1020 SUPREME COURT REPORTS [2021] 1 S.C.R.
A infrastructure was put in place and it has been trying to establish a
Medical College from the year 2006 onwards but due to the arbitrary
and discriminatory action of the State Government and the Kerala
University of Health Sciences by denying the EC and CoA, it has
miserably failed in its attempt. It has been asserted in the pleading that in
presenti, the appellant’s hospital has 76 doctors, 380 nurses and
B
paramedical staff, 4 major operation theatres, 2 minor operation theatres,
along with all other facilities and infrastructure required to run a Medical
College.
The EC was granted for the first time to the appellant on
24.01.2004 for 100 seats. However, since the same was not in the
C prescribed format, therefore, Medical Council of India (hereinafter
referred to as ‘MCI’) refused to accept the application of the appellant.
The EC was again issued to the appellant on 18.06.2009 for 100 seats.
Since the same was beyond the prescribed time limit, hence it was again
rejected by the MCI. The appellant was again issued an EC dated
D 12.01.2011. However, the Kerala University of Health and Allied Science
(hereinafter referred to as ‘KUHS’) granted CoA belatedly much after
the time schedule as such the college could not be established. It may be
pertinent to point out that the Essentiality Certificate dated 12.01.2011
was valid only for the Academic Year 2011-2012 and 2012-2013. It is an
admitted fact that the appellant failed to establish the college during the
E Academic Year 2011-2012 and 2012-2013 for which the EC was valid.
On 10.06.2014, the State Government issued a renewed EC which
contained a clerical error which was corrected belatedly on 11.12.2015
much after the date for submission of the application to the Central
Government for establishment of Medical College. As a consequence,
F the MCI returned/ rejected the application for the Academic Year 2014-
2015. Application made by the appellant for establishment of the Medical
College for the year 2015-2016 was returned by the Government of
India vide letter dated 17.10.2014, on the ground that CoA submitted
along with the proposal was not valid for the Academic Year 2015-2016
leaving it open to the appellant to submit a fresh application for the
G Academic Year 2016-2017. It may be pertinent to note at this stage that
the appellant had preferred Writ Petition No. 29462 of 2014 before the
High Court, wherein an interim order dated 22.11.2014 was passed
directing the MCI to consider the application provisionally and further
direction was issued to KUHS to conduct inspection for grant of fresh
H CoA. However, the fresh CoA could not be granted and with the elapse
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1021
STATE OF KERALA [KRISHNA MURARI, J.]
of time the petition was rendered infructuous. The appellant was granted A
provisional CoA by KUHS for the Academic Year 2016-2017. Insofar
as EC is concerned, it was issued by the State Government for the said
Academic Year on 31.08.2015 which was the last date for submission of
the application and it was in a wrong format. The appellant approached
the High Court by filing Writ Petition No. 25705 of 2015. The High
B
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 appellant. A revised EC was issued to the appellant
on 11.12.2015. However, MCI filed an SLP (C ) No. 5326 of 2016 on
the ground that the certificate had been issued belatedly, hence the
application was not liable to be considered. Civil Appeal No. 3964 of C
2016 arising out of the said SLP was allowed vide Judgment dated
18.04.2016 and the orders impugned by the High Court were set aside.
It was left open to the appellant to submit a fresh application for the next
Academic Year in consonance with the provisions of the Regulations of
the MCI as per the time schedule.
D
The appellant again moved the High Court by filing Writ Petition
(C) Nos. 21581 of 2017 and 22103 of 2017 alleging non-consideration of
his application by the State Government and KUHS. Vide order dated
28.09.2017, the State Government rejected the application of the appellant
for renewal of EC. The appellant filed yet another Writ Petition (C) No.
40290 of 2017, challenging the order dated 28.09.2017 which was disposed E
of. However, the orders passed therein were stayed by the Division
Bench of the High Court in Writ Appeals i.e., Writ Appeal No.1371 of
2018 and Writ Appeal No. 1370 of 2018.
For the Academic Year 2020-2021, the appellant again made an
application for grant of EC and CoA before the State Government and F
KUHS, respectively. When no action was taken, appellant filed Writ
Petition No. 18238 of 2019 seeking direction to KUHS to consider his
application. Another Writ Petition No. 23460 of 2019 was also filed
seeking direction to the State Government to consider the application for
grant of EC. Writ Petition No. 18238 of 2019 seeking direction against G
the KUHS was dismissed vide order dated 05.09.2019 on the ground
that last date for submission of application before the Medical Council
of India was over. Insofar as, Writ Petition No. 23460 of 2019, the same
was disposed of vide order dated 04.09.2019 directing the State
Government to take a decision in the matter at the earliest and at any
H
1022 SUPREME COURT REPORTS [2021] 1 S.C.R.
A rate, within 45 days from the date of receipt of the order. In the meantime,
the appellant received a letter dated 09.09.2019 from the MCI granting
it further 10 days time to submit the relevant documents. The appellant
again preferred Writ Petition No. 25254 of 2019 seeking a direction to
KUHS to revise CoA for Academic Year 2020-2021, wherein an interim
direction was issued to consider the application of the appellant. Vide
B
order dated 27.09.2019, KUHS rejected the application of the appellant.
Ultimately, Writ Petition No. 25254 of 2019 was withdrawn by the
appellant with liberty to challenge the order dated 27.09.2019. Vide order
dated 01.10.2019, the State Government rejected the application of the
appellant for grant of EC. The appellant again approached the High
C Court by filing Writ Petition No. 27266 of 2019 seeking quashing of the
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
to command the State Government to renew the EC. The order dated
27.09.2019 passed by KUHS was challenged in Writ Petition No. 29098
of 2019. Vide order dated 19.11.2019, the High Court disposed of Writ
D
Petition No. 27266 of 2019 directing the State Government to issue EC
to the appellant 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 against the said order was dismissed by Division Bench vide
Judgment dated 05.12.2019, which was challenged in SLP (C) No. 3008
E of 2019. The appellant filed yet another Writ Petition No. 34275 of 2019
seeking a direction to the MCI for processing of the application of the
petitioner without insisting upon EC and CoA. The said Writ Petition
was disposed of vide Judgment 13.12.2019 directing the MCI and the
Union of India to process the application of the appellant without insisting
on EC and CoA which was made subject to the outcome of the SLP (C)
F
No. 30008 of 2019. The State Government challenged the interim order
dated 13.12.2019 before this Court. Vide Judgment and Order dated
07.08.2020, this Court set aside the orders passed in Writ Petition (C)
No. 34275 of 2019 and Writ Appeal No. 2443 of 2019 and directed that
the Writ Petitions, namely, the three Petitions i.e., Writ Petition No.27266
G of 2019, Writ Petition No.29098 of 2019 and Writ Petition No. 34275 of
2019, to be heard together and finally decided.
In pursuance to the aforesaid judgment and order of this Court,
the learned Single Judge of the High Court heard the matters and by a
common judgment and order dated 12.10.2020 dismissed Writ Petition
H No. 29098 of 2019 and WP No. 34275 of 2019 and whereas the Writ
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1023
STATE OF KERALA [KRISHNA MURARI, J.]
Petition No. 27266 of 2019 was allowed to the extent that order dated A
01.10.2019 of the State Government denying NOC and EC for starting
a new Medical College, was set aside and quashed, and the State
Government was directed to issue/renew the EC of the appellant. The
learned Single Judge further gave opportunity to apply for the Academic
Year 2022-2023 instead of Academic Year 2020-2021 for which the
B
dispute was being raised. The Review Petition filed by the appellant
was dismissed. The appellant challenged the order of the learned Single
Judge by filing two Writ Appeals i.e., Writ Appeal No. 1413 of 2020 and
Writ Appeal No. 1401 of 2020. The main challenge was to the finding by
the learned Single Judge in paragraph 32 of the Judgment that since the
time schedule prescribed for starting a medical college in the year 2020- C
2021 is already over, and as such no relief in respect of the said Academic
Session can be granted. Vide common Judgment and final Order dated
03.11.2020, the Division Bench of Kerala High Court modified the
directions of the learned Single Judge to the extent of directing the
respondents to consider the application for the petitioner for establishment
D
of a Medical College for the Academic Year 2021-2022. While refusing
to grant permission to the appellant to start the Medical College for the
Academic Year 2020-2021, the Division Bench gave time bound directions
to the State and the University to jointly carry out an inspection to see
whether Essentiality Certificate could be issued and whether consent
for Affiliation could be given for 2021-22. E
5. Aggrieved by the refusal of relief for the Academic Year 2020-
2021, the appellant is in appeal before us.
6. The primary arguments advanced by Shri Shyam Divan, learned
Senior Counsel for the appellant is that issue of Essentiality Certificate
is a ministerial job and the purpose of EC is limited to certify to the F
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 G
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
H
1024 SUPREME COURT REPORTS [2021] 1 S.C.R.
A by this Court in Thirumuruga Kirupananda Variyar Thavathiru
Sundara Sawmigal Medical Educational & Charitable Trust Vs.
State of Tamil Nadu & Ors.1 ;
“34.It is no doubt true that in the scheme that has been
prescribed under the Regulations relating to establishment of
B 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……….
C 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
D consideration because the policy in the matter of establishment
of a new medical college now rests with the Central
Government alone.”
7. It was further argued on behalf of the appellant that the State
does not have the power to withdraw the EC once granted and once
E issued, the same shall remain valid. To support the contentions, reliance
was placed on following observation in the decision in Chintpurni Medical
College & Hospital & Anr. Vs. State of Punjab & Ors.2;
“It would be impermissible to allow any authority including a
State Government which merely issues an Essentiality
F Certificate, to exercise any power which could have the effect
of terminating the existence of a Medical College permitted
to be established by the Central Government. Thus, the State
Government may not do either directly or indirectly. Moreover,
the purpose of the Essentiality Certificate is limited to certifying
G to the Central Government that it is essential to establish a
Medical College. It does not go beyond this. In other words,
once the State Government has certified that the establishment
of a Medical College is justified, it cannot at a later stage
1
(1996) 3 SCC 15
2
H (2018) 15 SCC 1
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1025
STATE OF KERALA [KRISHNA MURARI, J.]
say that there was no justification for the establishment of A
the College. Surely, a person who establishes a Medical
College upon an assurance of a State Government that such
establishment is justified cannot be told at a later stage that
there was no justification for allowing him to do so. Moreover,
it appears that the power to issue an Essentiality Certificate
B
is a power that must be treated as exhausted once it is
exercised, except of course in cases of fraud. The rules of
equity and fairness and promissory estoppel do not permit
this Court to take a contrary view.”
8. Our attention was also drawn towards the scope of examination
by the respondent no.2/University for issuance of CoA by the learned C
Counsel for the Petitioner. It was put forth that the entire field in respect
of Establishment of Medical College is governed by the MCI Act and all
aspects regarding establishment of a Medical College rests with the
Medical Council and Central Government, as such the role of the
University is limited to granting of affiliation. Further, the affiliation is D
only a qualifying criterion and the University cannot abrogate to itself
the role of MCI, as found in the present case. He submits that the MCI
Act and Regulations thereunder provides for inspection by the MCI which
has to evaluate the infrastructure facilities, managerial and financial
capabilities, etc. and submit its recommendation.
E
9. Shri Jaideep Gupta, learned Senior Advocate appearing for the
State-Respondent submits that grant of EC/CoA are by no means a
ministerial job. The State Government not only has to also to verify and
certify that the norms of Medical Council of India are satisfied by the
appellant and that infrastructure and other clinical materials are sufficiently
available for setting up a new Medical College. It has also to give an F
undertaking that if the Medical College is unable to provide proper facility
as prescribed by the MCI, in subsequent year it would be bound to find
place for the students admitted in alternative medical colleges. To support
the aforesaid, reliance is placed upon the judgment of this Court in
Government of Andhra Pradesh & Anr. Vs. Medwin Educational G
Society & Ors.3
10. Mr. Gupta further contends that the Judgment in
Thirumuruga’s Case (Supra) was not rendered with reference to the
3
(2004) 1 SCC 86 H
1026 SUPREME COURT REPORTS [2021] 1 S.C.R.
A responsibility cast upon the State Government and the local university
by the Regulations framed in 1999. The rationale of the said judgment is
only that after the introduction of Section 10 (A) of Medical Council
Act, 1956, the policy decision to permit a Medical College was to be
taken up by the Central Government on the recommendation of the MCI
and the State Government cannot reject such applications on a ground
B
of policy. Our attention was also drawn to the observations made by this
Court in the Judgment and Order dated 07.08.2020 passed in Civil Appeal
No. 2920 of 2020 along with Civil Appeal No. 2921 of 2020 between the
parties; wherein it has been held that by quashing of order based on
policy, the grant of EC or CoA does not follow automatically. It may be
C relevant to extract the following observations from the said judgment as
under :-
“As several considerations may be common, the grant for
consent of affiliation and Essentiality Certificate may depend
upon several factors. As per the guidelines of the Government
D and of the University , various aspects are to be examined.
By merely quashing of an order passed on policy, the grant
of Essentiality Certificate or consent for affiliation does not
follow automatically. They have to be considered as per
prevailing norms”.
E 11. Learned Counsel appearing for the Respondent No.2-
University, submitted that the contentions on behalf of the appellant that
since it has been given CoA by the University in the year 2015 and,
therefore, it is entitled to the same in 2020 is without merits. It is pointed
out that consent in the year 2015 was given in view of the Order passed
by the High Court, directing to give provisional Affiliation to apply to the
F Medical Council of India. After giving provisional Affiliation, the appellant
institution was inspected in the year 2015 and it was found that it is
neither having infrastructure nor fulfills the other essential requirements
for starting the Medical College. He vehemently contended that MCI
Regulations as well as Statutes of Kerala University of Health and
G Sciences emphatically mandates that the CoA could be given only after
the institution fulfills the essential requirements. In the present case, the
appellant institution did not fulfill any of the requirements till date and,
therefore, is not entitled for grant of CoA.
12. Reliance was placed upon the inspection of the institution
H carried out by the officials of the University on 07.11.2020, wherein it
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1027
STATE OF KERALA [KRISHNA MURARI, J.]
was found that the institution does not have the requisite infrastructure. A
It was having only 18 ICU Beds as against the requirement of 60 and
there is no Blood Bank in the hospital, even the required laboratory was
not there and most of the tests are outsourced by the appellant. The bed
occupancy was only 24 out of 72 beds and a remark has been made by
the inspection team that genuineness of some of the patients for IP
B
admission is doubtful and documentation do not co-relate with the
inspection findings. With respect to faculty, there was a deficiency of
32% and Tutor, Demonstrator-SR Deficiency of 78%. The Scrutiny
Committee categorically recorded a finding that the appellant institution
is not entitled for establishing a medical college. He also made a reference
to the objections submitted by the appellant to the Inspection Report, C
wherein the findings of the Inspection Report have been virtually admitted.
He also placed reliance on the judgment rendered by this Court in
Medical Council of India Vs. Principal, KMCT Medical College &
Anr. 4and Medical Council of India Vs. The Chairman, S.R.
Educational and Charitable Trust and Another5.
D
13. In the case of Medical Council of India (Supra), it has been
held that the Court has repeatedly observed that the decision taken by
the Union of India on the basis of the recommendation of the expert
body, cannot be interfered with lightly and interference is permissible
only when the college demonstrates jurisdictional errors ex-facie
perversity or malafides. In the case of The Chairman, S.R. Educational E
and Charitable Trust & Anr. (Supra), this Court observed as under : -
“High Court at the same time has ordered inspection and if
the deficiencies are found to existence then the Medical
Council of India and Govt. of India have been given liberty
to take appropriate decision. Such orders may ruin the entire F
carrier of the students. Once permission to admit students is
granted, it should not be such conditional one. Considering
the deficiencies, it would be against the efficacious medical
education and would amount to permit the unequipped medical
College to impart Medical education without proper G
infrastructure and faculty, patients serve as the object of
teaching by such an approach ultimately interest of the society
would suffer and half- baked doctors cannot be left loose on
4
(2018) 9 SCC 766
5
(2018) SCC Online SC 2276 H
1028 SUPREME COURT REPORTS [2021] 1 S.C.R.
A society like drones and parasites to deal with the life of the
patients in the absence of proper educational training. It would
be dangerous and again the right to life itself in case
unequipped medical colleges are permitted to impart
substandard medical education without proper facilities and
infrastructure.”
B
14. We have considered and analyzed the rival contentions of the
parties.
15. Before proceeding any further in the matter, it may be relevant
to refer the apposite Sections and Rules of the Medical Council of India
C Act, 1956 and Medical Council of India Establishment of Medical College
Regulations, 1999 and the First Statue, 2013 of the KUHS Act :-
“Section 10-A of the Indian Medical Council Act 1956
(Hereinafter MCI Act) is reproduced hereunder’
SECTION 10-A . PERMISSION FOR ESTABLISHMENT OF
D NEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC.
(1) Notwithstanding anything contained in this Act or any
other law for the time being in force:-
(a) no person shall establish a medical college or
E (b) no medical college shall:-
(i) open a new or higher course of study or training (including
a postgraduate course of study or training) which would
enable a student of such course or training to qualify himself
for the award of any recognised medical qualification; or
F (ii) increase its admission capacity in any course of study or
training (including a postgraduate course of study or
training), except with the previous permission of the Central
Government obtained in accordance with the provisions of
this section.
G Explanation 1-. For the purposes of this section, “person”
includes any University or a trust but does not include the
Central Government.
Explanation 2.- For the purposes of this section “admission
capacity” in relation to any course of study or training
H
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1029
STATE OF KERALA [KRISHNA MURARI, J.]
(including postgraduate course of study or training) in a A
medical college, means the maximum number of students that
may be fixed by the Council from time to time for being
admitted to such course or training.
(2) (a) Every person or medical college shall, for the purpose
of obtaining permission under sub-section (1), submit to the B
Central Government a scheme in accordance with the
provisions of clause (b) and the central Government shall
refer the scheme to the Council for its recommendations.
(b) The Scheme referred to in clause (a) shall be in such form
and contain such particulars and be preferred in such manner C
and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme by the Council under sub-section
(2) the Council may obtain such other particulars as may be
considered necessary by it from the person or the medical
college concerned, and thereafter, it may – D
(a) if the scheme is defective and does not contain any
necessary particulars, give a reasonable opportunity to the
person or college concerned for making a written
representation and it shall be open to such person or medical
college to rectify the defects, if any, specified by the Council. E
(b) consider the scheme, having regard to the factors referred
to in sub-section (7) and submit the scheme together with its
recommendations thereon to the Central Government.
XXXXXX
F
(7) The Council, while making its recommendations under
clause (b) of sub-section (3) and the Central Government,
while passing an order, either approving or disapproving the
scheme under sub-section (4), shall have due regard to the
following factors, namely:-
(a) whether the proposed medical college or the existing G
medical college seeking to open a new or higher course of
study or training, would be in a position to offer the minimum
standards of medical education as prescribed by the Council
under section 19A or, as the case may be under section 20 in
the case of postgraduate medical education. H
1030 SUPREME COURT REPORTS [2021] 1 S.C.R.
A (b) whether the person seeking to establish a medical college
or the existing medical college seeking to open a new or higher
course of study or training or to increase it admission capacity
has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment,
B accommodation, training and other facilities to ensure proper
functioning of the medical college or conducting the new
course or study or training or accommodating the increased
admission capacity, have been provided or would be provided
within the time-limit specified in the scheme.
C (d) whether adequate hospital facilities, having regard to the
number or students likely to attend such medical college or
course of study or training or as a result of the increased
admission capacity, have been provided or would be provided
within the time-limit specified in the scheme;
D (e) whether any arrangement has been made or programme
drawn to impart proper training to students likely to attend
such medical college or course of study or training by persons
having the recognised medical qualifications;
(f) the requirement of manpower in the field of practice of
E medicine; and
(g) any other factors as may be prescribed.
XXXXXX
(B) Medical Council of India Establishment of Medical
College Regulations , 1999 (Regulations)
F
3. The establishment of a medical college – No person shall
establish a medical college except after obtaining prior
permission from the Central Government by submitting a
Scheme annexed with these regulations.
G “Scheme For Obtaining Permission of the Central
Government to Establish a Medical College”
……..
2. Qualifying Criteria - The eligible persons shall qualify to
apply for permission to establish a medical college if the
H following conditions are fulfilled:-
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1031
STATE OF KERALA [KRISHNA MURARI, J.]
(1) that medical education is one of the objectives of the A
applicant in case the applicant is an autonomous body,
registered society, charitable trust & companies registered
under Company Act.
(2) XXXXX
(3) that Essentiality Certificate in Form 2 regarding No B
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/ C
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 D
than 300 beds with necessary infrastructural facilities capable
of being developed into teaching institution in the campus of
the proposed medical college.
(6) that the person has not admitted students to the proposed
medical college. E
(7) That the person provides two performance bank
guarantees from a Scheduled Commercial Bank valid for a
period of five years, in favour of the Medical Council of India,
New Delhi, one for a sum of rupees one hundred lakhs (for
50 admissions), rupees one hundred and fifty lakhs (for 100 F
admissions) and rupees two hundred lakhs (for 150 annual
admissions) for the establishment of the medical college and
its infrastructural facilities and the second bank guarantee
for a sum of rupees 350 lakhs (for 400 beds), rupees 550
lakhs (for 500 beds) and rupees 750 lakhs (for 750 beds)
G
respectively for the establishment of the teaching hospital and
its infrastructural facilities : Provided that the above
conditions shall not apply to the persons who are State
Governments/Union Territories if they give an undertaking
to provide funds in their plan budget regularly till the requisite
facilities are fully provided as per the time bound programme. H
1032 SUPREME COURT REPORTS [2021] 1 S.C.R.
A (8) Opening of a medical college in hired or rented building
shall not be permitted. The Medical college shall be set up
only on the plot of land earmarked for that purpose as
indicated.
6. EVALUATION BY MEDICAL COUNCIL OF INDIA
B The Council will evaluate the application in the first instance
in terms of the desirability and prima facie feasibility of setting
up the medical college at the proposed location. Therefore, it
shall assess the capability of the applicant to provide the
necessary sources and infrastructure for the scheme. While
C evaluating the application, the Council may seek further
information, clarification or additional documents from the
applicant as considered necessary and shall carry out physical
inspection to verify the information supplied by the applicant.
XXXXXX
D (C) The Kerala University of Health Sciences First Statute,
2013 (KUHS Act)
Chapter XXI Clause 10. Grant of Affiliation
(1) The University may appoint a commission to inspect the
proposed site of a new college/or to make a physical
E
verification of the facilities that may exist for starting the new
college/course if the application is considered favorably by
the University. The Commission will inspect the suitability of
the proposed site, verify the title deeds as regards the
proprietary rights of the management over the land(and
F buildings if any) offered, building accommodation provided
if any, assets of the management, constitution of the registered
body, capability of maintaining academic standards and all
other relevant matters…….
2) The Grant of affiliation shall depend upon the fulfillment
G by the management of all the conditions that are specified
here or that may be specified later for the satisfactory
establishment and maintenance of the proposed institution/
courses of studies and on the reports of inspection by the
Commission or commission which the university may appoint
for the purpose.
H
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1033
STATE OF KERALA [KRISHNA MURARI, J.]
….. A
(5)The Management shall be prepared to abide by such
conditions and instructions as regards staff, infrastructure
facility, hospital, Internet and audiovisual facilities,
equipment, library, reading room, playground, hostel etc. as
the University may, from time to time impose or issue in relation B
to the college.
(8) After Considering the commission report and other
enquiries if any and after obtaining the essentiality certificate
from the Central and/or State Councils or authorities in the
concerned disciple and after obtaining the essentiality C
certificate from the Government, the Governing Council shall
decide whether the affiliation be granted or refused either in
whole or part.”
16. Thus, an EC is mandatorily required by a person before he
receives permission for establishment of a Medical College. The D
Legislative scheme that imposes the requirement of the EC is prescribed
in Section 10(A) of the Medical Council of India Act, which requires the
previous permission of the Central Government for establishing a Medical
College or opening a new course of study or training. Every person or
Medical College must submit to the Central Government a scheme as
prescribed. The Central Government then refers the scheme to the MCI E
for its recommendations. The Medical Council is required to consider
the same and satisfy itself by obtaining any particulars as are necessary
and after having the defects if any removed, make its recommendations
to the Central Government. The Central Government, may on receipt of
the scheme, approve it conditionally or disapprove the same. F
17. The power to permit the establishment of a Medical College
is thus conferred on the Central Government by the MCI Act. The
Regulations referred above, were framed in exercise of powers
conferred under Section 10(A) read with Section 33 of the MCI Act
prescribed the qualifying criteria. These criteria lay down the eligibility G
to apply for permission to establish a Medical College. One of the criteria
is that the person who is desirous of establishing a Medical College
should obtain an Essentiality Certificate as prescribed in Form 2 of the
Regulations, certifying that the State Government/Union Territory
Administration has no objection for the establishment of the proposed
Medical College at the proposed site and availability of adequate clinical H
1034 SUPREME COURT REPORTS [2021] 1 S.C.R.
A material. Thus, the State Government is required to certify that it has
decided to issue an Essentiality Certificate for the establishment of a
Medical College with a specified number of seats in public interest and
further such establishment is feasible.
18. Form 2 in which the EC must be obtained indicates the facts
B which are considered relevant for determining whether the establishment
of a proposed college is justified. Form 2 is reproduced hereunder :-
“Form-2 Subject: Essentiality Certificate No.
Government of _____ The Department of Health, Dated, the
__ To (applicant), Sir, The desired certificate is as follows:
C
(1) No. of institutions already existing in the State.
(2) No. of seats available or No. of doctors being produced
annually (3) No. of doctors registered with the State Medical
Council.
D (4) No. of doctors in Government Service
(5) No. of Government posts vacant and those in rural/difficult
areas.
(6) No. of doctors registered with Employment Exchange.
E (7) Doctor population ratio in the State.
(8) How the establishment of the college would resolve the
problem of deficiencies of qualified medical personnel in the
State and improve the availability of such medical manpower
in the State.
F (9) The restrictions imposed by the State Government, if any,
on students who are not domiciled in the State from obtaining
admissions in the State be specified.
(10) Full justification for opening of the proposed college.
(11) Doctor-patient ration proposed to be achieved. The (Name
G
of the person)_________has applied for establishment of a
medical college at__________. On careful consideration of
the proposal, the Government for_________has decided to
issue an essentiality certificate to the applicant for the
establishment of a Medical College with__________(no.)
H seats. It is certified that:
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1035
STATE OF KERALA [KRISHNA MURARI, J.]
(a) The applicant owns and manages a 300 bedded hospital A
which was established in _________.
(b) It is desirable to establish a medical college in the public
interest;
(c) Establishment of a medical college at________by (the
name of Society/Trust) is feasible. B
(d) Adequate clinical material as per the Medical Council of
India norms is available. It is further certified that in case the
applicant fails to create infrastructure for the medical college
as per MCI norms and fresh admissions are stopped by the
Central Government, the State Government shall take over C
the responsibility of the students already admitted in the
College with the permission of the Central Government.
Yours faithfully, (Signature of the Competent Authority)”
19. Whether issuance of an Essentiality Certificate is only D
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
E
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
F
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 G
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.
H
1036 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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
B
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
C 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
D
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
E 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
F 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,
G 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
H appellant in this regard.
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1037
STATE OF KERALA [KRISHNA MURARI, J.]
20. Whether Essentiality Certificate once issued, can be A
withdrawn :-
Much emphasis has been laid by the learned counsel for the
appellant on decision of this Court in Chintpurni Medical College
(Supra). In the said case, Medical College was granted permission to
break ground for Academic Year 2011-2012 and consequently the first B
batch was admitted. However, it was denied Essentiality Certificate for
the subsequent years 2012-13 and 2013-14. In this circumstances, this
Court observed as under:-
“It would be impermissible to allow any authority including a
State Government which merely issues an essentiality C
certificate, to exercise any power which could have the effect
of terminating the existence of a medical college permitted to
be established by the Central Government. This the State
Government may not do either directly or indirectly. Moreover,
the purpose of the essentiality certificate is limited to certifying
to the Central Government that it is essential to establish a D
medical college. It does not go beyond this. In other words,
once the State Government has certified that the establishment
of a medical college is justified, it cannot at a later stage say
that there was no justification for the establishment of the
college. Surely, a person who establishes a medical college E
upon an assurance of a State Government that such
establishment is justified cannot be told at a later stage that
there was no justification for allowing him to do so. Moreover,
it appears that the power to issue an essenitality certificate is
a power that must be treated as exhausted once it is exercised,
except of course in cases of fraud. The rules of equity and F
fairness and promissory estoppel do not permit this Court to
take a contrary view.”
21. In Paragraph 36, it was observed:-
“We may not be understood to be laying down that under no G
circumstances can an essentiality certificate be withdrawn.
The State Government would be entitled to withdraw such
certificate where it is obtained by playing fraud on it or any
circumstance where the very substratum on which the
essentiality certificate was granted disappears or any other
reason of like nature.” H
1038 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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.6 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
B
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:-
C “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 Certificate issued as
D 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
E cannot be expected to wait indefinitely, much less beyond
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
F view, must come within the excepted 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
G 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
6
H (2020) SCC Online SC 851
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1039
STATE OF KERALA [KRISHNA MURARI, J.]
year basis as per the spirit behind issuance of the subject A
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 B
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.
23. The law thus stand settled that the State Government has
power to withdraw the EC where it is obtained by playing fraud on it or C
where the very substratum on which the EC was granted vanishes or
any other reason of like nature.
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 D
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. E
25. In view of above, this issue is also answered against the
appellant and in favour of the respondents.
26. Once again reverting back to the factual matrix of the present
case, an inspection of the appellant institution was carried out on F
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 G
i. Needs refined equipments in theatre, Laundry, Labs,
Histopathology and Radiology.
ii. Blood Bank – Nil
H
1040 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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)
B vi. X-Ray Mobile Unit- Available 1 (required 2)
vii. No in house facilities are available and spaced are available
most requirement are out sourced for Microbiology and
Pathology Laboratories.
III. Clinical Materials
C
As per records, it is not clear whether a 300 bedded hospital
(NMC Norms) is running for 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
D of inspection.
IV. Faculty Deficiencies
The following faculty deficiencies was noted:
i. One Professor in the Dept. of Biochemistry.
E 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,
F 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-
G 1, OBG-2, Anasthesia-1, Radiodiagnosis-1, Dentistry-1)
4. There is total Faculty deficiency of 32% and Tutor/
Demonstrator/SR deficiency of 78%.”
27. The appellant institution was duly intimated about the
deficiencies calling for their remarks. No objection was raised regarding
H
V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. 1041
STATE OF KERALA [KRISHNA MURARI, J.]
inspection though a compliance report was submitted contending that A
facilities available are sufficient to grant affiliation. However, noting gross
deficiencies found during inspection the application for grant of CoA for
Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020.
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 B
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 C
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 D
EC, CoA or its applications before MCI.
29. There is yet another aspect of the matter not only proper
facilities and infrastructure including teaching faculty is absolutely
necessary but adherence to time schedule is also equally important. This
Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India E
& Ors.7 has observed in Paragraph 13 as under:-
“It cannot be doubted that proper facilities and infrastructure
including a teaching faculty and doctors is absolutely necessary
and so also the adherence to time schedule for imparting teaching
of highest standards thereby making available to the community F
best possible medical practitioners.”
30. Regulation 8(3) of the 1999 Regulations provides a schedule
for the receipt of applications for establishment of new Medical Colleges
and processing of the applications by the Central Government and the
Medical Council of India. G
31. Initial time schedule fixed under the Regulations for
establishment of a new Medical College was amended in 2015 vide
Establishment of Medical College Regulations (Amendment), 2015. The
said amendment substituted the following schedule :-
7
(2005)2 SCC 65 H
1042 SUPREME COURT REPORTS [2021] 1 S.C.R.
A TIME SCHEDULE FOR RECEIPT OF APPLICATIONS FOR
ESTABLISHMENT OF NEW MEDICAL COLLEGES/RENEWAL
OF PERMISSION AND PROCESSING OF THE APPLICATIONS
BY THE CENTRAL GOVERNMENT AND THE MEDICAL
COUNCIL OF INDIA
B
C
D
32. Time and again, this Court has emphasized that time schedule
either for establishmentof new Medical College or to increase intake in
existing colleges shall be adhered to strictly by all concerned. There is
no manner of doubt that the time schedule prescribed in receipt of starting
E a new Medical College for the year 2020-2021 is already over long
back. Even the last date for the Academic Year 2021-2022 which was
extended to 15.12.2020, in view of prevailing Covid-19 Pandemicis also
over by now. Thus the State Government of theUniversitycannot be
directed to issue EC or CoA to the appellant for the year 2020-2021
even notionally as suggested by the learned counsel for the appellant.
F
33. In view of the facts and circumstances discussed herein above,
the relief prayed for by the appellant for the Academic Year 2020-2021,
is not liable to be granted. The appeals, accordingly, fail and stand
dismissed. It is left open to the appellant to make an appropriate application
for grant of EC and CoA for the next Academic Year before the
G 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.
34. In the circumstances, we do not make any order as to costs.
H Divya Pandey Appeals dismissed.
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