(i) Whether grant of Essentiality Certificate by the State Government is only a Ministerial Act? (ii) Whether Essentiality Certificate, once issued, can be withdrawn?
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.703-704 OF 2021
ARISING OUT OF
SPECIAL LEAVE PETITION (C) NOS. 14219-14220 OF 2020
V.N. PUBLIC HEALTH AND
EDUCATIONAL TRUST ETC.
….. APPELLANT(S)
VERSUS
STATE OF KERALA & ORS. ETC. ….. RESPONDENT(S)
J U D G M E N T
KRISHNA MURARI, J.
Leave granted.
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.
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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 :-
(i) Whether grant of Essentiality Certificate by the State Government is only a
Ministerial Act?
(ii) Whether Essentiality Certificate, once issued, can be withdrawn?
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 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
paramedical staff, 4 major operation theatres, 2 minor operation theatres, along with all
other facilities and infrastructure required to run a Medical College.
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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 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 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 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, 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 Academic Year 2016-2017. It may be pertinent to note at this
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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 CoA. However, the fresh CoA could not be granted
and with the elapse of time the petition was rendered infructuous. The appellant was
granted 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 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 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.
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
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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 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 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 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 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
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direction was issued to consider the application of the appellant. Vide 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
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
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 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)
No. 30008 of 2019. The State Government challenged the interim order dated 13.12.2019
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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 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 No. 29098 of 2019 and WP No. 34275 of 2019 and
whereas the Writ Petition No. 27266 of 2019 was allowed to the extent that order dated
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 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
2020-2021 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
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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 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.
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 Central Government that it is essential to
establish a Medical College. It was further submitted that since the appellant was issued
EC by the State Government and also CoA by the University in the year 2015 itself,
therefore, it was entitled for the same in 2020 as well. It is also submitted at the time of
issuance of EC, the State Government has to only consider the desirability and feasibility
of establishment of Medical College in the proposed location and certify as to the
availability of infrastructure and other clinical material required to run a Medical College
and the same cannot be withheld by the State Government on any policy consideration.
8
Reliance was placed on the following observations made 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 new medical colleges one of the conditions for the
qualifying criteria laid down is that Essentiality Certificate
regarding desirability and feasibility of having the proposed
college at the proposed location should be obtained from the
State Government……….
For the purpose of granting the Essentiality Certificate as
required under the qualifying criteria prescribed under the
scheme, the State Government is only required to consider
the desirability and feasibility of having the proposed
medical college at the proposed location. The Essentiality
Certificate cannot be withheld by the State Government on
any policy consideration because the policy in the matter of
establishment of a new medical college now rests with the
Central Government alone.”
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 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
Certificate, to exercise any power which could have the
effect of terminating the existence of a Medical College
1 (1996) 3 SCC 15
2 (2018) 15 SCC 1
9
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 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 say
that there was no justification for the establishment of 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 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 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 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.
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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
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 Society & Ors.3
10. Mr. Gupta further contends that the Judgment in Thirumuruga’s Case (Supra)
was not rendered with reference to the 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 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
3 (2004) 1 SCC 86
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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 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 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”.
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
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 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
12
for grant of CoA.
12. Reliance was placed upon the inspection of the institution carried out by the
officials of the University on 07.11.2020, wherein it was found that the institution does
not have the requisite infrastructure. 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 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, 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.4
and Medical Council of India Vs. The Chairman, S.R. Educational
and Charitable Trust and Another5
.
4 (2018) 9 SCC 766
5 (2018) SCC Online SC 2276
13
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 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 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 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 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.”
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 Act, 1956 and Medical
14
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 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
(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
(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.
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
(including postgraduate course of study or training) in 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 Central Government a scheme in accordance
15
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 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 –
(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.
(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
(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
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.
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(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, 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.
(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;
(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
medicine; and
(g) any other factors as may be prescribed.
XXXXXX
(B) Medical Council of India Establishment of Medical
College Regulations , 1999 (Regulations)
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.
“Scheme For Obtaining Permission of the Central
Government to Establish a Medical College”
17
……..
2. Qualifying Criteria - The eligible persons shall qualify to
apply for permission to establish a medical college if the
following conditions are fulfilled:-
(1) that medical education is one of the objectives of the
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
objection of the State Government/Union Territory
Administration for the establishment of the proposed
medical college at the proposed site and availability of
adequate clinical material as per the council regulations,
have been obtained by the person from the concerned State
Government/ Union Territory Administration.
(4) that Consent of affiliation in Form-3 for the proposed
medical college has been obtained by the applicant from a
University.
(5) That the person owns and manages a hospital of not less
than 300 beds with necessary infrastructural facilities
capable of being developed into teaching institution in the
campus of the proposed medical college.
(6) that the person has not admitted students to the
proposed medical college.
(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 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) respectively for the establishment of the
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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.
(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
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 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
(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
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 buildings if any) offered, building accommodation
provided if any, assets of the management, constitution of
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the registered body, capability of maintaining academic
standards and all other relevant matters…….
2) The Grant of affiliation shall depend upon the fulfillment
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.
…..
(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 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 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 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 for its recommendations. The
20
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.
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 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 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 which are
considered relevant for determining whether the establishment of a proposed college is
justified. Form 2 is reproduced hereunder :-
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"Form-2 Subject: Essentiality Certificate No.
Government of _____ The Department of Health, Dated, the __
To (applicant), Sir, The desired certificate is as follows:
(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.
(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.
(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.
(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
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.) seats. It is certified
that:
(a) The applicant owns and manages a 300 bedded hospital
which was established in _________.
22
(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.
(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 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 a Ministerial Act :-
This Essentiality Certificate in the prescribed form is crucial for avoiding cases
where the colleges despite grant of initial permission could not provide the
infrastructure, teaching and other facilities as a result whereof the students who had
already been admitted suffered serious prejudice.
Medical Council of India Regulations as well as Kerala University Health
Sciences Statutes very emphatically mandate that the consent of affiliation can only
be given after the Institution fulfills the essential requirements. The contention of the
Appellant that the absence of Essentiality Certificate is not one of the factors for
consideration and is extraneous to the decision-making process cannot be accepted.
Whilst granting the Essentiality Certificate, the State Government undertakes to take
23
over the obligations of the private educational institution in the event of that
institution becoming incapable of setting of the institution or imparting education
therein. Such an undertaking on the part of the State Government is unequivocal and
unambiguous. An Essentiality Certificate by the State Government legitimizes a
medical college declaring it fit to impart medical education and gives accouchement
to the expectation amongst the stakeholders that the Applicant College shall fulfill
basic norms specified by the MCI to start and operate a medical college. Bearing in
mind that the question of justified existence of a college and irregular/illegal
functioning of an existing college belong to a different order of things and cannot be
mixed up. We come to the conclusion that the issuance/re-issuances of an essentiality
certificate is not in any way a ministerial job and while dealing with a case of
maintaining standards in a professional college, strict approach must be adopted as
these colleges are responsible for ensuring that medical graduate has the required
skill set to work as a doctor in the country. Poor assessment system; exploding
number of medical colleges; shortage of patients/clinical materials; devaluation of
merit in admission, particularly in private institutions; increasing capitation fees; a
debilitated assessment and accreditation system, are problems plaguing our Medical
Education system. Allowing such deficient colleges to continue to function
jeopardizes the future of the student community and leading to incompetent doctors
to graduate from such colleges and ultimately pose a bigger risk to the society at
24
large defeating the very purpose of the Essentiality Certificate issued by the State.
The State would be deterring from its duty if it did not conduct an inspection from
time to time to ensure that the requisite standards as set by the MCI are met before
issuing/renewing the Essentiality certificate. That is by no stretch of imagination
‘merely a ministerial job’. Considering especially that while issuing the Essentiality
Certificate the State Govt undertakes that should the Medical College fail to provide
the requisite infrastructure and fresh admissions are stopped by the Central
Government, the State Government shall take over the responsibility of the students
already admitted in the College.
Same is the position with respect of CoA by the University. The First Statute
of KUHS prescribes that University may appoint a Commission to inspect the
proposed site to make a physical verification of the existing facilities and suitability
of proposed site. The grant of affiliation is dependent upon fulfillment of all the
conditions that are specified in Clause X(I) of First Statues or that may be specified
which includes staff, infrastructure facility, hospital, internet, library, playground,
hostel, etc. Thus, even grant of CoA by the University also cannot be said to be
merely a ministerial act.
In view of above, we are of the considered opinion that grant of EC by the
State Government and CoA by the University is not simply a ministerial act and we
do not find any merit in the argument of the appellant in this regard.
25
20. Whether Essentiality Certificate once issued, can be 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 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
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 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 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 fairness and
promissory estoppel do not permit this Court to take a
contrary view.”
26
21. In Paragraph 36, it was observed:-
“We may not be understood to be laying down that under no
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.”
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 function. It further went on to note the exception carved out in the
case of Chintpurni Medical College (Supra), wherein the State Government can
cancel/revoke/withdraw the EC in paragraph 36. It was finally observed in
paragraph 25 of the reports in Sukh Sagar Medical College and Hospital (Supra)
as under:-
“25. We are conscious of the view taken and conclusion
recorded in Chintpurni Medical College (Supra). Even
though the fact situation in that case may appear to be
similar, however, in our opinion, in a case such as the
present one, where the spirit behind the Essentiality
Certificate issued as back as on 27.08.2014 has remained
6 (2020) SCC Online SC 851
27
unfulfilled by the appellant-college for all this period
(almost six years), despite repeated opportunities given by
the MCI, as noticed from the summary/observation in the
assessment report, it can be safely assumed that the
substratum for issuing the Essentiality Certificate has
completely disappeared. The State Government cannot be
expected to wait indefinitely, much less beyond period of
five years, thereby impacting the interests of the student
community in the region and the increased doctor-patient
ratio and denial of healthcare facility in the attached
hospital due to gross deficiencies. Such a situation, in our
view, must come within the 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 State. Without any further
ado, we are of the view that the appellant-college is a failed
institute thus far and is unable to deliver the aspirations of
the student community and the public at large to produce
more medical personnel on year to year basis as per the
spirit behind issuance of the subject Essentiality Certificate
dated 27.08.2014. To this extent, we respectfully depart
from the view taken in Chintpurni Medical College
(Supra).”
Let us make it clear that there can be no analogy drawn between the facts of
Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra)
actually expanded the circumstances in which the State Government may
withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of
respondents.
28
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 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 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.
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 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.
29
II. Equipments
i. Needs refined equipments in theatre, Laundry, Labs,
Histopathology and Radiology.
ii. Blood Bank – Nil
iii. Practical Laboratories- Available I (required 3)
iv. Journals - Nil
v. ICU/ICCU/PICU/NICU/SICU/Obstetric ICU/ICU –
Available 18 beds (required -60 beds)
vi. X-Ray Mobile Unit- Available 1 (required 2)
vii. No in house facilities are available and spaced are available
most requirement are out sourced for Microbiology and
Pathology Laboratories.
III. Clinical Materials
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 of
inspection.
IV. Faculty Deficiencies
The following faculty deficiencies was noted:
i. One Professor in the Dept. of Biochemistry.
ii. Associate Professor -8 (Anatomy-1, Physiology-1,
Pharmacology-1, Pathology-1, General Medicine-1,
Orthopaedics-1, Anaesthesia-1, Radiodiagnosis-1)
iii. Assistant Professor-11 (Anatomy-2, Physiology-3,
Forensic Medicine-1, Community Medicine-1, General
Medicine-1, Respiratory Medicine-1, OBG-1,
Anasthesiology-1)
iv. Tutor/Demostrator/SR-29 (Anatomy-4, Physiology-2,
Biochemistry-4, pathology-1, Microbiology-1, Forensic
Medicine-1, General Medicine-3, Paediatrics-1,
Pulmonary Medicine-1, DVL-1, Psychiatry-1, General
Surgery-3, ENT-1, OBG-2, Anasthesia-1, Radiodiagnosis1, Dentistry-1)
4. There is total Faculty deficiency of 32% and
Tutor/Demonstrator/SR deficiency of 78%.”
30
27. The appellant institution was duly intimated about the deficiencies calling
for their remarks. No objection was raised regarding inspection though a
compliance report was submitted contending that 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 not in a position to secure
requisite permissions from the MCI. It is quite apparent that the Appellant
Institution has been long trying to escape its responsibility and fill up the lacuna
through judicial process by getting Orders from the High Court for consent of
affiliation and consideration of its belated half-baked applications before the MCI.
In both the inspections in 2015 and 2020, it was found that the Appellant
Institution lacks proper facilities. Even though the Appellant claims to be running a
hospital since 2006 neither adequate amenities nor infrastructure on inspection was
found to be in existence. This lackadaisical attitude is testament to the fact that the
Appellant has no real interest in running a Hospital in that place and has no ground
to call foul upon rejection of EC, CoA or its applications before MCI.
31
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 & 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 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.
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 :-
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
7 (2005)2 SCC 65
32
Sl.
Nos.
Stage of Processing Last Date
1. Receipt of applications by the Central
Government
Between 15th June to 07th
July (both days
inclusive) of any year
2. Forwarding application by the Central
Government to the Medical Council of India.
By 15th July
3. Technical scrutiny, assessment and
recommendations for letter of permission by
the Medical Council of India
By 15th December
4. Receipt of reply/compliance from the applicant
by the Central Government and for personal
hearing thereto, if any, and forwarding of
compliance by the Central Government to the
Medical Council of India
Two months from receipt
of recommendation from
MCI but not beyond 31st
January
5. Final recommendations for the letter of
permission by the Medical Council of India
By 30th April
6. Issue of letter of permission by the Central
Government.
By 31st May
32. 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
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-19 Pandemic is also
over by now. Thus the State Government of the University cannot 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.
33
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 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.
.…...........….....................J.
(A.M.KHANWILKAR)
…………………………..J.
(B.R.GAVAI)
.……..............................J.
(KRISHNA MURARI)
NEW DELHI;
24 FEBRUARY, 2021
34
