LAW FOR ALL

Thursday, March 4, 2021

Covid Effect = Civil Services (Preliminary) Examination = mandamus to the 1st respondent to extend one additional attempt to the petitioners/intervenors as they are being barred from attempting the examination in future on account of exhausting of available attempts or on account of age bar subsequent to Examination 2020. = not only the petitioners/intervenors before this Court, but there are large number of candidates who appeared in the various examinations in the year 2020 during Covid 19 pandemic and everyone must have faced some constraints/impediments/inconvenience in one way or the other and this Court can take a judicial notice that these petitioners have appeared in the same pattern of examination in the previous years since the year 2015 and what is being claimed and prayed for under the guise of Covid 19 pandemic is nothing but a lame excuse in taking additional attempt to participate in the Civil 38 Service Examination 2021 to be held in future and we find no substance in either of the submissions which has been made before us. 47. The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during Covid 19 pandemic and selections must have been held by State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution. 48. We, however, make it clear that this decision would not restrict the 1st respondent or the executive in exercising its discretion in meeting out the nature of difficulties as being projected to this Court, if come across in future in dealing with the situation, if required.

Covid Effect = Civil Services (Preliminary) Examination = mandamus to the 1st respondent to extend one additional attempt to the petitioners/intervenors as they are being barred from attempting the examination in future on account of exhausting of available attempts or on account of age bar subsequent to Examination 2020. = not only the petitioners/intervenors before this Court, but there are large number of candidates who appeared in the various examinations in the year 2020 during Covid 19 pandemic and everyone must have faced some constraints/impediments/inconvenience in one way or the other and this Court can take a judicial notice that these petitioners have appeared in the same pattern of examination in the previous years since the year 2015 and what is being claimed and prayed for under the guise of Covid 19 pandemic is nothing but a lame excuse in taking additional attempt to participate in the Civil 38 Service Examination 2021 to be held in future and we find no substance in either of the submissions which has been made before us. 47. The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during Covid 19 pandemic and selections must have been held by State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution. 48. We, however, make it clear that this decision would not restrict the 1st respondent or the executive in exercising its discretion in meeting out the nature of difficulties as being projected to this Court, if come across in future in dealing with the situation, if required.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO(s). 1410 OF 2020

RACHNA & ORS. …..PETITIONER(S)

VERSUS

UNION OF INDIA & ANR. ….RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Application(s) for intervention are allowed.

2. The batch of petitioners were hopeful that in their last

attempt, they may qualify in the Civil Services (Preliminary)

Examination, 2020 (in short “Examination 2020”) which was held

on 4th October 2020 but when they failed to achieve their goal,

approached this Court by filing the instant writ petition under

Article 32 of the Constitution seeking mandamus to the 1st

respondent to extend one additional attempt to the

petitioners/intervenors as they are being barred from attempting

the examination in future on account of exhausting of available

attempts or on account of age bar subsequent to Examination

2020.

3. The prayer which has been made in the instant petition is as

follows:

“(a) Issue a writ of mandamus or any other appropriate writ,

order or direction in the nature thereof and declare that the

action of the respondents of not issuing appropriate policy

for grant of an extra attempt to candidates for whom civil

services examination 2020 would be last attempt as being

violative of Articles 14, 19, 29 and 21 of the Constitution of

India, and by way of issuance of an appropriate writ, order

or direction of or in the nature of mandamus, and/or any

other writ, order or direction, interalia, direct the

Respondent/s to provide one extra attempt to the last

attempt candidates including the petitioners, in addition to

number of permissible attempts: and/or

(b) Pass any other order or direction as this Hon’ble Court

may deem fit and proper in the facts and circumstances of

the case and in the interest of justice.”

Brief Factual Matrix

4. The background facts delineated from the records and relevant

for the purpose are that the Civil Services Examination is

conducted every year by the 2nd respondent (Union Public Service

CommissionUPSC) and for the year 2020, the Ministry of

Personnel, Public Grievances and Pensions (Department of

Personnel and Training) published Gazette Notification dated 12th

February, 2020 notifying the rules for competitive examination,

2020(hereinafter being referred to as “Rules 2020”) to be held by the

nd respondent for the purpose of recruitment to 24 services/posts

to be held in three stages: (i) preliminary (ii) mains (iii) personality

test.

5. The scheme of Rules 2020 published on 12th February, 2020 is

a complete code for the purposes of final selection to civil services.

The parameters prescribed for eligibility with regard to number of

attempts and age have been provided under Rule 4 and Rule 6 of

the Rules 2020. Rule 4 and Rule 6 which are relevant for the

purpose are mentioned hereunder:

“4. Every candidate appearing at the examination who is

otherwise eligible, shall be permitted six attempts at the

examination.

Provided that this restriction on the number of

attempts will not apply in the case of Scheduled Castes and

Scheduled Tribes candidates who are otherwise eligible.

Provided further that the number of attempts

permissible to candidates belonging to Other Backward

Classes, who are otherwise eligible, shall be nine. The

relaxation will be available to the candidates who are

eligible to avail of reservation applicable to such candidates.

Provided further that candidates belonging to persons

with benchmark disability will get as many attempts as are

available to candidates other than persons with benchmark

disability of his or her community, subject to the condition

that a candidate of person with benchmark disability

belonging to the General and EWS Category shall be eligible

for nine attempts. Necessary action to make corresponding

changes in respective Rules/regulations pertaining to

various services is being taken separately. The relaxation

will be available to the candidate of persons with

benchmark disability who are eligible to avail of reservation

applicable to such candidates.

Note:

(I) An attempt at a Preliminary Examination shall be

deemed to be an attempt at the Civil Services Examination.

(II) If a candidate actually appears in any one paper in the

Preliminary Examination, he/she shall be deemed to have

made an attempt at the Examination.

(III) Notwithstanding the disqualification/cancellation of

candidature, the fact of appearance of the candidate at the

examination will count as an attempt.

6. (a) A candidate must have attained the age of 21 years

and must not have attained the age of 32 years on the 1st of

August, 2020 i.e., he must have been born not earlier than

nd August, 1988 and not later than 1st August, 1999.

Necessary action to make corresponding changes in

respective Rules/Regulations pertaining to various services

is being taken separately.

(b) The upper agelimit prescribed above will be relaxable:

(i) up to a maximum of five years if a candidate

belongs to a Scheduled Caste or a Scheduled

Tribe;

(ii) up to a maximum of three years in the case of

candidates belonging to Other Backward Classes

who are eligible to avail of reservation applicable

to such candidates;

(iii) up to a maximum of three years in the case of

Defence Services Personnel, disabled in operations

during hostilities with any foreign country or in a

distributed area and released as a consequence

thereof;

(iv) up to a maximum of five years in the case of

exservicemen including Commissioned Officers

and ECOs/SSCOs who have rendered at least five

years Military Service as on 1st August, 2020 and

have been released;

(a) on completion of assignment

(including those whose assignment is

due to be completed within one year

from 1st August, 2020 otherwise than by

way of dismissal or discharge on

account of misconduct or inefficiency; or

(b) on account of physical disability

attributable to Military Service; or

(v) up to a maximum of five years in the case of

ECOs/SSCOs who have completed an initial

period of assignment of five years of Military

Service as on 1st August, 2020 and whose

assignment has been extended beyond five years

and in whose case the Ministry of Defence issues

a certificate that they can apply for civil

employment and that they will be released on

three months’ notice on selection from the date of

receipt of offer of appointment.

(vi) up to a maximum of 10 years in the case of

Persons with Benchmark Disabilities viz. (a)

blindness and low vision; (b) deaf and hard of

hearing; (c) locomotor disability including cerebral

palsy, leprosy cured, dwarfism, acid attack victims

and muscular dystrophy; (d) autism, intellectual

disability, specific learning disability and mental

illness; (e) multiple disabilities from amongst

person under clauses (a) to (d) including deafblindness.

Note I : Candidates belonging to the Scheduled

Castes and the Scheduled Tribes and the Other

Backward Classes who are also covered under any

other clauses of Rule 6(b) above, viz. those coming

under the category of Exservicemen, Persons with

Benchmark Disabilities [viz. (a) blindness and low

vision; (b) deaf and hard of hearing; (c) locomotor

disability including cerebral palsy, leprosy cured,

dwarfism, acid attack victims and muscular

dystrophy; (d) autism, intellectual disability,

specific learning disability and mental illness; (e)

multiple disabilities from amongst person under

clauses (a) to (d) including deafblindness.] will be

eligible for grant of cumulative agerelaxation

under both the categories.

Note II : The details of Functional Classification

(FC) and Physical Requirements (PR) of each

service are indicated in Appendix IV of these Rules

which are identified and prescribed by the

respective Cadre Controlling Authorities (CCAs)

as per the provisions of Section 33 and 34 of the

Rights of Persons with Disabilities Act, 2016. Only

those category(ies) of disability(ies) mentioned in

Appendix IV shall apply for the examination under

Persons with Benchmark Disability (PwBD)

category. Therefore, the candidates belonging to

the Persons with Benchmark Disability categories

are advised to read it carefully before applying for

the examination.

Note III: The term Exservicemen will apply to the

persons who are defined as Exservicemen in the

Exservicemen (Reemployment in Civil Services

and Posts) Rules, 1979, as amended from time to

time.

Note IV: The age concession under Rule 6(b)(iv)

and (v) will be admissible to Exservicemen i.e. a

person who has served in any rank whether as

combatant or noncombatant in the Regular

Army, Navy and Air Force of the Indian Union and

who either has been retired or relieved or

discharged from such service whether at his own

request or being relieved by the employer after

earning his or her pension.

Note V: Notwithstanding the provision of agerelaxation under Rule 6(b)(vi) above, Candidates of

Persons with Benchmark Disability will be

considered to be eligible for appointment only if

he/she (after such physical examination as the

Government or appointment authority, as the case

may be, may prescribe) is found to satisfy the

requirements of physical and medical standards

for the concerned Services/Posts to be allocated to

the Candidates of Persons with Benchmark

Disability by the Government.

Save as provided above, the agelimits

prescribed can in no case be relaxed.

….”

6. It may be relevant to note that for the candidates who appear

in the open category in the examination, they are permitted six

attempts but for the candidates who are the members of Scheduled

Castes and Scheduled Tribes, there is no restriction on the number

of attempts provided, they are otherwise eligible. For the

candidates who are belonging to OBC/EWS category, they can avail

nine attempts. A clarification has further been made that if the

candidate appears even in one paper of the preliminary

examination, it shall be deemed to be treated as an attempt. At the

same time under Rule 6, the age at the entry point is 21 years and

exit at the age of 32 years. But the upper age limit is relaxable to

the categories of vertical/horizontal reservations and there is no

such enabling provision granting relaxation in the upper age limit to

the candidates belonging to general category as such those

candidates of general category who have attained the age of 32

years on 1st August, 2020 as in the instant case became ineligible

to participate in the ensuing Civil Services Examination, 2021(in

short “CSE 2021”).

7. Pursuant to the notification dated 12th February, 2020

published in the Official Gazette by the 1st respondent, process of

selection was initiated by the Commission inviting applications from

the eligible candidates who wish to appear in the Examination

2020. According to the notice published by the Commission,

preliminary examination was to be held on 31st May 2020.

Appendix IIB annexed thereto deals with the procedure for

withdrawal of application after submission of online application, it

could be withdrawn from 12th March, 2020 to 18th March, 2020.

Thereafter the admit cards were issued to all the candidates who

intended to participate in the selection process, but because of the

unprecedented Covid19 pandemic, which was notified by the

National Disaster Management Authority vide its order dated 24th

March 2020, the Commission by its Press Release dated 4th May,

2020 deferred the Examination 2020 and further informed that the

revised schedule of examination will be notified at a later stage.

8. Taking note of the unlock 1.0 guidelines published on 5th

June 2020, the Commission decided to conduct the preliminary

examination on 4th October, 2020. Several candidates submitted

their objections. Taking note thereof, the Commission allowed the

candidates to submit their revised choice of examination center by

its letter dated 1st July, 2020 and further opened the window for

withdrawal of the application from 1st August, 2020 to 8th August,

2020. This Court can take judicial notice of the fact that after a

second opportunity was afforded to the candidates for withdrawal of

the application, only such of the candidates were left who had made

up their mind and were mentally prepared to appear in the ensuing

preliminary examination which was scheduled to be held on 4th

October, 2020.

9. As alleged that when no decision was taken by the respondent

on their representations/objections for deferring of the examination,

certain candidates filed Writ Petition (Civil) No.1012 of 2020 before

this Court on 5th September, 2020 seeking postponement of the

Examination 2020 and the prayer for relaxation in upper age limit

and an additional attempt. This Court was not persuaded to issue

a direction to the Commission to defer the schedule of examination

to be held on 4th October, 2020 on the submissions made by the

writ petitioners who approached this Court. Moreover, on one of

the issues, this Court expressed a sanguine hope that possibility of

providing one more attempt to such candidates with corresponding

extension of age limit, if possible, can be explored by the concerned

authorities. The submission made to merge the two examinations,

namely, to be conducted on 4th October, 2020 with the examination

scheduled for 2021, however, did not find favour by this Court.

10. The relevant part of the order dated 30th September, 2020 is

extracted as under:

“(iv) The fourth point raised before us is that some of the

candidates may be giving last attempt and also likely to

become agebarred for the next examination, and if such

candidates are unable to appear in the examination due to

Covid19 pandemic situation, it would cause great prejudice

to them.

In this regard, we have impressed upon Mr. S.V. Raju,

learned Additional Solicitor General appearing for the

Ministry of Home Affairs (MHA), Ministry of Health and

Family Welfare (MoHFW) and Department of Personnel and

Training (DoPT) to explore the possibility of providing one

more attempt to such candidates with corresponding

extension of age limit. He has agreed to convey the

sentiments of the Court to all concerned and to take a

formal decision thereon expeditiously.”

11. The fact is that all the writ petitioners/intervenors appeared in

the preliminary examination held on 4th October, 2020 which was

conducted in 74 cities. During the course of arguments, following

information was brought to the notice of this Court:

Number of candidates who enrolled for the Examination

2020 10,56,835.

Number of candidates who appeared on 4th October, 2020

4,86,952.

Number of last attempt candidates who appeared for

Examination 2020 and have not attained age bar for 2021

3863

Number of last attempt candidates who appeared in

Examination 2020 and would reach age bar for CSE 2021

2236

Candidates having last attempt in terms of age bar but did

not appear 4237

Combined effect of last attempt appeared : 3863 + 2236 =

6099 which comes to around 1.25% of candidates who

appeared for the examination.

Combined effect of candidates who appeared and nonappeared and who require relaxation for 2021, i.e. total =

3863+2236+4237 = 10,336 which comes to 0.97% of total

candidates who enrolled for Examination, 2020.

12. When the present petitioners/intervenors failed to qualify in

the preliminary examination held on 4th October, 2020 by the

Commission, they approached this Court by filing of the instant

writ petition, and this Court took note of the fact that in the light of

the order passed in the earlier proceedings dated 30th September,

2020, the decision of the competent authority to fulfil the legitimate

aspirations of the candidates was still pending with the authority.

During the pendency of the writ petition in deference to this Court,

a decision was taken by the 1st respondent and placed for perusal

dated 5th February, 2021 in which it was agreed in principle to give

one time restricted relaxation, limited to CSE 2021 to only those

candidates who appeared in Examination 2020 as their last

permissible attempt and otherwise are not agebarred from

appearing in CSE 2021, and no relaxation to the candidates will be

given who have not exhausted their permissible number of attempts

or to those candidates who are otherwise agebarred from appearing

in CSE 2021. The extract of the decision which was placed on

record dated 5th February, 2021 is reproduced hereunder:

“As per the suggestion of this Hon’ble Court, the Union

of India is agreeable for the following exgratia, onetime,

restricted relaxation to be granted to the prospective

candidates, subject to the same being part of a consent

order, disposing off the petition. The conditions, agreeable

to the Respondent, are as under:

1. Relaxation, only to the extent of providing one

extra attempt for Civil Service Examination (CSE),

specifically limited to CSE2021, may be granted

to only those candidates who appeared for CSE2020 as their last permissible attempt and are

otherwise not agebarred from appearing in CSE2021.

2. No relaxation shall be granted for CSE2021 to

those candidates who have not exhausted their

permissible number of attempts or to those

candidates who are otherwise agebarred from

appearing in CSE2021 as per the prescribed age

limits of different categories, or to any other

candidate for any other reason whatsoever.

3. This relaxation for the candidates and to the

extent as prescribed above, shall be a onetime

relaxation only and shall apply only for appearing

in CSE2021 and shall not be treated as a

precedent.

4. The relaxation provided at Point 1, shall not

create any vested right whatsoever or any other

purported right on ground of parity or otherwise,

in favour of any other set/class of candidates at

any time in the future.”

Submissions of the parties

13. The main thrust of submission of learned counsel for the

petitioners is that the sudden and strict lockdown due to

unprecedented pandemic in March, 2020 had made a large

disruption in the life of the common man and the measures adopted

led to difficulties and impediments in the preparation of the

Examination 2020 for many aspirants and the Government failed to

take any policy decision for the last attemptees before holding

Examination 2020 to enable them to take an appropriate/suitable

decision and noticing precedence from the earlier policy of 1st

respondent to grant an extra attempt to lastattemptees in the event

causing widespread hardships left with no choice except to appear

in the examination even though they did not have an adequate

opportunity and infrastructure and they were left out blinded with

uncertainty.

14. Learned counsel for the petitioners submits that petitioners

are placed in the disadvantageous position with the onset of the

pandemic and due to the unprecedented measures imposed in the

wake thereof. That apart, candidates working in essential services

did not have the benefit of seeking leave or claiming exemption from

duty/overtime duty looking to the nature of their services and in

the light of invocation of The Essential Services Maintenance Act,

1968 and The Disaster Management Act, 2005. There is no benefit

accruing to persons in essential services and public employment,

consequent to the unlock guidelines.

15. Learned counsel further submits that denial of an additional

attempt to the petitioners will make them to suffer serious

discrimination amongst who have not faced such hurdles as being

faced by the petitioners in their preparation during the

unprecedented pandemic. While others had a choice of leaving the

Examination 2020, while taking care of their health, the last

attemptees particularly in terms of age, were left with no choice and

had to sit for the exam despite the lack of opportunity to prepare

which is in violation of Articles 14 and 21 of the Constitution of

India.

16. Learned counsel further submits that the petitioners were

deprived of their basic facilities for preparation in view of the

innumerable, inevitable circumstances suffered by them due to

Covid19 pandemic, which prevailed in the entire country during

the crucial period of their preparation and even on the date of

examination, but the impact may not be uniform on all the

participants and at least to those who are essential service

providers and such candidates deserve one more attempt when they

virtually lost for unavoidable circumstances their last attempt in

2020 and there are past precedents to grant of extra attempt in

addition to age relaxation for such years when UPSC Civil Services

Examinations’ aspirants faced hardships due to various reasons.

17. Learned counsel for the intervenors in addition further

submitted that the discretion exercised by the 1st respondent dated

th February, 2021 to grant one time relaxation limited to only

those candidates who appeared for Examination 2020 as their last

permissible attempt and otherwise not agebared from appearing in

CSE 2021 with no relaxation to the candidates who have not

exhausted their permissible number of attempts or to those

candidates who are otherwise agebarred from appearing in CSE

2021 is not a rational decision and no such classification could be

made amongst the group of candidates who had participated in

Examination 2020 as a last attempt and are debarred to appear in

CSE 2021 because of the attempt being exhausted or having

crossed the upper age limit and it was expected from the 1st

respondent to take a holistic view of the situation and grant one

time relaxation to all the candidates who had participated in

Examination 2020 regardless of the fact whether one has availed all

the attempts or crossed the age barrier disqualifying to appear in

CSE 2021.

18. Learned counsel for intervenors further submits that the

candidates who appeared in Examination 2020 by and large are

affected because of unprecedented pandemic and they were unable

to prepare themselves to appear in the examination due to various

impediments which came in front of them of which adequate

reasons have been furnished to this Court. In the given

circumstances, at least taking a lenient and a holistic view of the

matter, this Court may exercise its jurisdiction under Article 142 of

the Constitution granting one time relaxation to the candidates who

appeared in Examination 2020 with one additional attempt

regardless of the fact whether one has exhausted the number of

attempts or crossed the upper age limit as prescribed under the

Rules 2020 and it does not affect either the integrity of the

examination or any restriction on the prospective participants of

CSE 2021 and to those who have already availed the attempts. All

hopes of the candidates remain in the last attempt but that had

gone in vain because of the unprecedented situation which came in

front of them and that was the only reason for which they have not

been able to put their full potential to qualify the Examination

2020.

19. Per contra, counter affidavits have been filed by the

respondents in their defence and it has been stated that the

syllabus for the preliminary examination has not been changed

since 2015 and examination of this nature is not possible for a

candidate to prepare at the last moment and it needs a lot of

planning, spanning of a number of going through this preparation.

Entry age of candidates is 21 years and exit age for general

candidates is 32 years. Relaxations/upper age limits are available

to candidates who appear in certain categories of vertical/horizontal

reservations. Hence, for general candidates there is a time of 11

years if they would be able to start preparing at the age of 21. After

the process was initiated pursuant to Rules 2020, as per the

scheme, the examination was scheduled for 31st May, 2020. There

was a clear time of three and a half months and by the time

candidate appeared in their last attempt, they would have a lot of

experience so it could easily be inferred that they have consumed

sufficient time to prepare for the preliminary examination as no

change in the syllabus has been given effect to after the year 2015

but taking note of the unprecedented situation of Covid19

pandemic, the policy decision was taken by the Commission to

defer the examination and on 5th June 2020, it was declared that

the examination is to be scheduled on 4th October, 2020. Therefore,

instead of three months which is the requirement under the scheme

of rules, candidates got almost five additional months (i.e. eight

months) to prepare for the Examination 2020 and to compensate

the hardships caused by Covid19 pandemic, different modalities

were adopted by the respondent. So far as the demand made by the

petitioners for extra attempt or extra year is concerned, it has been

specifically stated that giving of an extra attempt or the year would

result in hardships being caused to the candidates who are

appearing for the CSE 2021 and that apart an additional attempt

has been demanded by the petitioners who are the last attempters

or who have crossed the age bar.

20. According to the learned counsel, that would result in

discrimination for the reason that all attemptees irrespective of the

nature of attempt (i.e., 1st, 2nd etc.) must have suffered during this

Covid19 pandemic and hence the consideration of giving an

additional attempt to only last attemptees would be discriminatory.

At the same time, such of the successful candidates can also

complain but for Covid19, their rankings in the list of successful

candidates would have been much higher, therefore, they should

also be given an additional chance. Similar reasoning would apply

as far as the upper age is concerned and so far as the submissions

made by learned counsel for the petitioners are concerned, these

are without prejudice to the main contention that they are not

entitled for relaxation as prayed for.

21. It has been further stated that the first national lockdown

came into force on 25th March, 2020, i.e., after one and a half

month of the notice of examination published on 12th February

2020. From 1st June, 2020, gradual unlocking of the lockdown had

started on monthly basis and the preliminary examination was held

on 4th October, 2020 when the unlock guidelines 5.0 were in force.

To meet out the bone of contention of the petitioners that there are

precedents for granting relaxation on earlier occasions is concerned,

it has been stated that these are the policy decisions taken by the

executive in a particular facts and circumstances and the present

decision has to be tested independently in the given circumstances,

which has no relativity or comparison.

22. It has also been stated that the candidates who had appeared

in the examination had accepted the rules of the Examination 2020

and now having appeared and failed, they cannot be permitted to

approbate and reprobate in the same breath after they had failed in

the Examination 2020. The submission may not hold good for the

reason that their prayer is to grant additional attempt to appear in

CSE 2021 and the petitioners have not questioned the procedure of

selection held of Preliminary Examination 2020, deserves rejection.

23. The 2nd respondent (UPSC) has also filed its counter affidavit

and it has been stated that due to prevailing conditions in the

country in the year 2020 on account of Covid19 pandemic, several

decisions were taken by the Commission to reschedule the

examinations as a matter of fact, no examination was held during

the period of lockdown. The resumption of examinations started

with the NDA & NA Examination (I) & (II) on 6th September, 2020

and apart from Examination 2020, following are the examinations

and recruitment tests held by the Commission during the period 6th

September, 2020 to 20th December, 2020:

Sl.

No.

Name of

Examination

Date of

Examination

Number of

candidates

applied

Number of

candidates

appeared

1 NDA/NA Exam

(I) & (II)

06.09.2020 530185 240445

2 Civil Services

(Pre) Exam

04.10.2020 1040060 482770

3 Indian Economic

Service

1618 Oct,

2020

10458 1461

4 Indian

Statistical

Service Exam

1618 Oct,

2020

12090 1753

5 Combined

Geoscientist

(Main) Exam

1718 Oct,

2020

720 619

6 Engineering

Services (Main)

Exam

10.10.2020 2263 1955

7 Combined

Medical Services

Exam

22.10.2020 43120 20213

8 Combined

Defence Services

ExamII

08.11.2020 234343 118250

9 Central Armed

Police Forces

Exam

20.12.2020 296066 89946

10 CBRTs 20.12.2020 26988 14250

Total 2196293 971662

24. Learned counsel for the Commission submits that although

the decision has to be taken by the 1st respondent in meeting out

the prayer made by the writ petitioners but so far as the 2nd

respondent (UPSC) is concerned, all effective measures were

adopted in holding the examinations/recruitment tests of various

Central Services during the said period and indulgence which has

been prayed for by the petitioners appeared in Examination 2020,

in the given circumstances, of which the details have been

furnished need no further indulgence by this Court.

Analysis

25. We have heard Mr. Shyam Divan, learned senior counsel

appearing for the petitioners; Mr. S.V. Raju, learned Additional

Solicitor General and Mr. Naresh Kaushik, learned counsel

appearing for the respondents; Mr. P.V. Narasimha and Mr. Pallav

Shishodia, learned senior counsel appearing for the intervenors and

with their assistance perused the material available on record.

“The question that emerges for our consideration

is that whether the petitioners/intervenors and

other similarly placed candidates are entitled to

another/additional chance for CSE 2021 on account

of the unprecedented Covid19 pandemic which as

alleged has deprived them from effectively

participating in the Examination 2020”.

26. There is no doubt that for India or for rest of the world, Covid19 has been a disaster of unprecedented proportions. The crisis of

Covid19 pandemic has provided the sternest test for disaster

management response in most countries, including India. Due to

unprecedented spread of the virus, the world had gone into a virtual

lockdown as several countries initiated strict screening of potential

cases introduced in their territory. Disasters are testing times for

the institutions and individuals, processes and procedures, and

policies and their implementation mechanisms. We can take

judicial notice that when Covid19 struck India, the country already

had in place legal and administrative instruments to empower and

enable the State to contain and manage the several crisis that

would arise from the pandemic. Two of the most legal instruments

are the Distaster Management Act, 2005 and the Epidemic Diseases

Act, 1897 amended in the year 2020.

27. The World Health Organization(WHO) has declared it as a

global pandemic. Not only that but because of its rampant spread,

countries were forced to stop international traveling as well as

locked up themselves. Also, the lockdown has been recognised at

the given point of time as the only method to control the spread of

the pandemic and almost every country has adopted this method.

28. On 25th March, 2020, the Disaster Management Act 2005(DM

Act) was invoked in India for the first time since it was passed

almost a month and a half ago, to tackle the Covid19 pandemic

that was then in its initial stages of spreading. The National

Disaster Management Authority(NDMA) which was created by the

Ministry of Home Affairs(MHA) in pursuance of the Disaster

Management Act 2005, issued a notification dated 24th March,

2020 under Section 6(2)(i) of the DM Act. The order directed the

ministries and departments of Government of India and State

Governments along with State Disaster Management Authorities to

take measures for “ensuring social distancing so as to prevent the

spread of Covid19 in the country”.

29. In the early phases of this spread of Covid19 pandemic, the

response attempted to control the ingress of the virus in our

country through border control, screening of persons entering the

country, followup surveillance and contract tracing. This was

followed by series of countrywide lockdown measures: Lockdown 1

(25th March, 2020 to 15th April, 2020), Lockdown 2(16th April, 2020

to 3rd May, 2020) and Lockdown 3 and 4 (4th May, 2020 to 17th May,

2020 and then through May 31st). Instituted and publicized by the

Central Government under the Disaster Management Act 2005,

these lockdowns varied in scope and nature, depending on the

situation on the ground.

30. Despite that Covid19 pandemic has affected the livelihood of

the common man at all levels, be it a level of education system,

from preschool to tertiary education. Different countries

introduced various policies in meeting out the widespread socioeconomic implications but the Covid19 pandemic has left its

footprints for us to learn from the unprecedented situation, which

everyone has come across and suddenly changed the lifestyle of

every individual in the society, his way of working, from social

security to individual human rights, from macro economy to

household income and has made us more stronger to face, if any

difficult situation arises in future and this is what by experience we

learn. There is an old saying “there is good in every evil”. Still life

has to move on in all situations, and this is what this country has

faced, but resiliently fought back this unprecedented situation and

the economy and life of the common man is on the path towards

normalcy in a short period of time than expected.

31. While reverting to the facts of the instant case of the

petitioners, what is prayed by them in the first blush appears to be

attractive but it lacks legal strength and foundation for various

reasons.

32. The scheme of Rules 2020 of which a detailed reference has

been made and Rules 4 & 6 in particular, clearly stipulate that the

entry age to participate in this competition is 21 years and the exit

age for general candidates is 32 years and at least each candidate

gets minimum 11 years to participate in the competitive

examination, i.e., CSE, in the instant case. For those who claim

reservation vertical/ horizontal, they have numerous/unlimited

chances and are also entitled for age relaxations. Thus, the scheme

takes note in providing adequate opportunities to the candidates to

participate in this competitive examination at all levels. It may

further be noticed that under Rule 6 of Rules 2020, there is a clear

mandate that age limit prescribed in no case can be relaxed subject

to the relaxations which have been enumerated for various

categories. So far as the candidates who appear in the general

category and have crossed the age of 32 years, no discretion is left

with the authority to grant any relaxation in upper age limit

prescribed for the candidates appeared in the instant Examination

2020.

33. The syllabus of the preliminary examination has not changed

since 2015 and after the Rules 2020 were notified by the 1st

respondent for Civil Services Exam 2020, the notice, in the first

instance, was published on 12th February 2020 and the scheduled

date of the examination was fixed on 31st May, 2020 but because of

the unprecedented situation of Covid19 pandemic, the Commission

took a policy decision to defer the examination and in the changed

situation, after there was a relaxation in the lockdown, ultimately

on 5th June, 2020 took a decision to hold the examination on 4th

October 2020 and, therefore, instead of three months, the

candidates got additional five months (i.e. eight months) to which

one ordinarily can prepare for appearing in the examination in

terms of the scheme of Rules 2020.

34. Under the scheme of Rules 2020, mere filling up of the form is

not sufficient to avail an attempt. If someone appeared in either of

the paper of the preliminary examination, that was considered to be

an attempt availed by the candidate and, in the given situation,

after the application form was filled, the candidates who wanted to

withdraw their application form at the later stage because of the

Covid19 pandemic, the commission took a policy decision to open

the window for the second time, which in the ordinary course is not

available under the scheme of rules, for the candidates who

intended to withdraw their application from 1st August, 2020 to 8th

August, 2020. Since the examination was scheduled for 4th

October, 2020 only those candidates were left who were mentally

prepared to appear and willing to avail an opportunity of appearing

in the Examination 2020 and after appearing in the examination,

when they could not qualify, it has given a way to the present

litigation on the specious ground of Covid19 pandemic that they

were unable to effectively participate in the process of selection

which has been initiated by the Commission in holding preliminary

examination on 4th October, 2020.

35. This court cannot lose sight of the fact that apart from the

present Examination 2020, it has been brought to the notice of this

Court that remedial measures were adopted for the candidates who

had participated in the various examinations/recruitment tests

held for Central services by the Commission at the given point of

time during the Covid 19 pandemic and apart from that, the State

Commissions/recruiting agencies must have conducted their

examinations/recruitment tests for various services and merely

because the present petitioners made a complaint to this Court,

cannot be taken into isolation for the purpose of seeking additional

chance/attempt in the backdrop of Covid19 pandemic, which has

been faced by not only the candidates appeared in Examination

2020 but by the candidates appeared in the various

examinations/recruitment tests held by the State Commissions or

by other recruiting agencies and by and large, every member of the

society in one way or the other but that does not in any manner

give legitimate right to the petitioners to claim additional

benefit/attempt which is otherwise not permissible under the

scheme of Rules 2020.

36. So far as the instant case is concerned, there are limited

attempts for the candidates who appeared in the general category

and the scheme of Rules 2020 does not provide any discretion to

the 1st respondent to grant relaxation either in attempt or in age

and any exercise of discretion which does not vest with the 1st

respondent, if exercised, may go in contravention to the scheme of

Rules 2020.

37. Taking note of the order of this Court dated 30th September,

2020 passed in Writ Petition(Civil) No. 1012 of 2020 in the earlier

proceedings, this Court has shown some sympathy for the

candidates who were having their last attempt and were also likely

to become age barred for next examination, if any indulgence could

be shown to them. In compliance of the order of this Court, the 1st

respondent has made endeavour to find out a way which is possible

to give solace to such candidates and placed it before this Court

that too with reservation that there is a possibility in providing one

extra attempt for the candidates who had availed the last and final

attempt in Examination 2020 provided they are within their

respective age brackets as provided under Rule 6 of the Rules 2020.

After the proposal was placed on record, even the

petitioners/intervenors inter se made their submission to the Court

that the proposal which has been placed by the 1st respondent for

consideration of this Court according to them is discriminatory and

is in violation of Article 14 of the Constitution.

38. We do find substance in what being urged by learned counsel

for the petitioners inter se in questioning the decision placed by 1st

respondent for our consideration. If an additional attempt remains

restricted to the last attemptees for the reason that they had

suffered during Covid 19 pandemic, all attemptees irrespective of

the nature of attempt (i.e. 1st, 2nd etc.) who appeared in Examination

2020 must have faced the same consequences as being faced by the

writ petitioners and each one of them have suffered in one way or

the other during the Covid19 pandemic. At the same time, this

reasoning would equally apply to those who have crossed the upper

age barrier. More so, when no discretion is left with the 1st

respondent to grant relaxation in the age bracket to the candidates

other than provided under Rule 6 of the scheme of Rules 2020

which indeed the present petitioners are not entitled to claim as a

matter of right and that apart, those who have withdrawn their

forms either because of lack of preparation or because of some

personal reasons but have crossed the upper age limit to appear in

CSE 2021, they would also be equally entitled to claim and no

distinction could be made whether the candidate has appeared in

the Examination 2020 and availed the last attempt or attempts is

still available at his disposal or has crossed the upper age limit.

39. We do find substance that any concession either in attempt or

age is not available under the scheme of Rules 2020, at the same

time, proposal which has been placed by the 1st respondent before

us apart from complaint made inter se by the

petitioners/intervenors themselves of being discriminatory in

character, we are also of the view that it is advisable to avoid this

situation and any relaxation which is not permissible either in

attempt or age under the scheme of Rules 2020 apart from being in

contravention to the rules, it may be discriminatory and it is

advisable not to exercise discretion in implementing what being

proposed by the 1st respondent in compliance of the order of this

Court dated 30th September, 2020.

40. The thrust of submission of learned counsel for the petitioners

was that discretion has been exercised by the respondent as a

matter of policy in the earlier selections and the present petitioners

have a legitimate expectation that the Government must exercise its

discretion to overcome the unprecedented situation which the

petitioners have faced while appearing in the Examination 2020

and their right of fair consideration and effective participation in the

selection process has been denied to them which is in violation of

Articles 14 and 21 of the Constitution.

41. The submission, in our view, is without substance for the

reason that the policy decisions which had been taken by the

executive on earlier occasions of which a reference has been made

always depend on the facts and circumstances at the given point of

time and has to be tested independently in the circumstances in

which it has been exercised by the competent authority or the 1st

respondent as in the instant case.

42. Their further grievance that there is always a change in the

upper age limit and number of attempts in different spell and

further emphasis was that in the year 2015, the 1st respondent

allowed one more attempt in the Civil Service Examination 2015 for

the candidates who appeared in CSE 2011. Although the

justification has been tendered by the respondents in their response

that as there was a substantial change in the pattern of Civil

Service (Preliminary) Examination 2011, in the given

circumstances, the 1st respondent in its wisdom considered it

appropriate to grant one more attempt in Civil Service Examination,

2015 to such candidates who appeared in Civil Service

Examination, 2011 either due to reaching upper age limit or due to

exhausting of number of attempts and that was the given situation

which prevailed upon the 1st respondent in taking a policy decision

in granting permission but that cannot be made to be the basis or a

foundation for the petitioners to site as a precedent in claiming to

seek one additional attempt as a matter of right which is not

permissible under the scheme of Rules 2020 or with the aid of

Article 14 of the Constitution to take a call in meeting out the

difficulties which have been faced as alleged in the given

circumstance.

43. It is the settled principle of law that policy decisions are open

for judicial review by this Court for a very limited purpose and this

Court can interfere into the realm of public policy so framed if it is

either absolutely capricious, totally arbitrary or not informed of

reasons and has been considered by this Court in Union of India

and Others Vs. M. Selvakumar and Another 2017(3) SCC 504.

The relevant portion is as under:

“47. There is one more reason due to which we are unable

to subscribe to the view taken by the Madras High Court

and Delhi High Court. The horizontal reservation and

relaxation for Physically Handicapped Category candidates

for Civil Services Examination, is a matter of Governmental

policy and the Government after considering the relevant

materials has extended relaxation and concessions to the

Physically Handicapped candidates belonging to the

Reserved Category as well as General Category. It is not in

the domain of the courts to embark upon an inquiry as to

whether a particular public policy is wise and acceptable or

whether better policy could be evolved. The Court can only

interfere if the policy framed is absolutely capricious and

noninformed by reasons, or totally arbitrary, offending the

basic requirement of Article 14 of the Constitution.”

(Emphasis supplied)

44. It was the case where the number of attempts granted to

physically handicapped persons were increased from 4 to 7 in the

UPSCCSE examination and the candidates belonging to the OBC

had moved this Court requesting for an increase of the number of

attempts from 7 to 10 that is an additional 3 attempts as it was

done in the case of the physically handicapped category but that

was repelled by this Court for the reasons indicated above.

45. Judicial review of a policy decision and to issue mandamus to

frame policy in a particular manner are absolutely different. It is

within the realm of the executive to take a policy decision based on

the prevailing circumstances for better administration and in

meeting out the exigencies but at the same time, it is not within the

domain of the Courts to legislate. The Courts do interpret the laws

and in such an interpretation, certain creative process is involved.

The Courts have the jurisdiction to declare the law as

unconstitutional. That too, where it is called for. The Court is

called upon to consider the validity of a policy decision only when a

challenge is made that such policy decision infringes fundamental

rights guaranteed by the Constitution or any other statutory right.

Merely because as a matter of policy, if the 1st respondent has

granted relaxation in the past for the reason that there was a

change in the examination pattern/syllabus and in the given

situation, had considered to be an impediment for the participant in

the Civil Service Examination, no assistance can be claimed by the

petitioners in seeking mandamus to the 1st respondent to come out

with a policy granting relaxation to the participants who had availed

a final and last attempt or have crossed the upper age by appearing

in the Examination 2020 as a matter of right.

46. It has been brought to our notice that not only the

petitioners/intervenors before this Court, but there are large

number of candidates who appeared in the various examinations in

the year 2020 during Covid 19 pandemic and everyone must have

faced some constraints/impediments/inconvenience in one way or

the other and this Court can take a judicial notice that these

petitioners have appeared in the same pattern of examination in the

previous years since the year 2015 and what is being claimed and

prayed for under the guise of Covid 19 pandemic is nothing but a

lame excuse in taking additional attempt to participate in the Civil

Service Examination 2021 to be held in future and we find no

substance in either of the submissions which has been made before

us.

47. The data furnished to this Court by the Commission clearly

indicate that various selections have been held by the Commission

for Central Services in the year 2020 during Covid 19 pandemic and

selections must have been held by State Commissions and other

recruiting agencies, if this Court shows indulgence to few who had

participated in the Examination 2020, it will set down a precedent

and also have cascading effect on examinations in other streams,

for which we are dissuaded to exercise plenary powers under Article

142 of the Constitution.

48. We, however, make it clear that this decision would not

restrict the 1st respondent or the executive in exercising its

discretion in meeting out the nature of difficulties as being

projected to this Court, if come across in future in dealing with the

situation, if required.

49. Consequently, the petition fails and is accordingly dismissed.

50. Pending application(s), if any, stand disposed of.

…………………………………….J.

(A.M. KHANWILKAR)

……………………………………J.

(INDU MALHOTRA)

…………………………………….J.

(AJAY RASTOGI)

NEW DELHI

FEBRUARY 24, 2021

(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.

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.

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

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

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

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

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

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.

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

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.

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

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

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. 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

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

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.

(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;

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”

……..

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

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

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

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

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 :-

"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 _________.

(b) It is desirable to establish a medical college in the public

interest;

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

over the obligations of the private educational institution in the event of that

institution becoming incapable of setting of the institution or imparting education

therein. Such an undertaking on the part of the State Government is unequivocal and

unambiguous. An Essentiality Certificate by the State Government legitimizes a

medical college declaring it fit to impart medical education and gives accouchement

to the expectation amongst the stakeholders that the Applicant College shall fulfill

basic norms specified by the MCI to start and operate a medical college. Bearing in

mind that the question of justified existence of a college and irregular/illegal

functioning of an existing college belong to a different order of things and cannot be

mixed up. We come to the conclusion that the issuance/re-issuances of an essentiality

certificate is not in any way a ministerial job and while dealing with a case of

maintaining standards in a professional college, strict approach must be adopted as

these colleges are responsible for ensuring that medical graduate has the required

skill set to work as a doctor in the country. Poor assessment system; exploding

number of medical colleges; shortage of patients/clinical materials; devaluation of

merit in admission, particularly in private institutions; increasing capitation fees; a

debilitated assessment and accreditation system, are problems plaguing our Medical

Education system. Allowing such deficient colleges to continue to function

jeopardizes the future of the student community and leading to incompetent doctors

to graduate from such colleges and ultimately pose a bigger risk to the society at

large defeating the very purpose of the Essentiality Certificate issued by the State.

The State would be deterring from its duty if it did not conduct an inspection from

time to time to ensure that the requisite standards as set by the MCI are met before

issuing/renewing the Essentiality certificate. That is by no stretch of imagination

‘merely a ministerial job’. Considering especially that while issuing the Essentiality

Certificate the State Govt undertakes that should the Medical College fail to provide

the requisite infrastructure and fresh admissions are stopped by the Central

Government, the State Government shall take over the responsibility of the students

already admitted in the College.

Same is the position with respect of CoA by the University. The First Statute

of KUHS prescribes that University may appoint a Commission to inspect the

proposed site to make a physical verification of the existing facilities and suitability

of proposed site. The grant of affiliation is dependent upon fulfillment of all the

conditions that are specified in Clause X(I) of First Statues or that may be specified

which includes staff, infrastructure facility, hospital, internet, library, playground,

hostel, etc. Thus, even grant of CoA by the University also cannot be said to be

merely a ministerial act.

In view of above, we are of the considered opinion that grant of EC by the

State Government and CoA by the University is not simply a ministerial act and we

do not find any merit in the argument of the appellant in this regard.

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.”

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

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

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.

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.

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%.”

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.

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

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. 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

whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation. Therefore, we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.

whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation. Therefore, we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3786-3787 OF 2020

JOYDEEP MAJUMDAR APPELLANT(S)

VERSUS

BHARTI JAISWAL MAJUMDAR RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

1. Heard Mr. Gopal Sankaranarayanan, the learned

Senior Counsel appearing for the appellant (Husband).

Also heard Mr. Ahmad Ibrahim, learned counsel

appearing for the respondent (Wife).

2. The challenge in these appeals is to the

analogous judgment and order dated 25.6.2019 in the

Page 1 of 12

First Appeal No. 81 of 2017 and First Appeal No. 82

of 2017 whereby the High Court of Uttarakhand had

allowed both appeals by reversing the common order

dated 4.7.2017 of the Family Court, Dehradun. Before

the Family Court, the appellant succeeded with his

case for dissolution of marriage but the respondent

failed to secure a favourable verdict in her petition

for restitution of conjugal rights.

3. The appellant is an Army Officer with M.Tech

qualification. The respondent is holding a faculty

position in the Government P G College, Tehri with

Ph.d degree. They got married on 27.9.2006 and lived

together for few months at Vishakhapatnam and at

Ludhiana. But from the initial days of married life,

differences cropped up and since 15.9.2007, the

couple have lived apart.

4. Following the estrangement, the appellant earlier

applied for divorce from the Family Court at

Vishakhapatnam. The respondent then filed a petition

Page 2 of 12

against the respondent in the Dehradun Court for

restitution of conjugal rights. Later, when she

learnt of the case filed by the appellant at

Vishakhapatnam, the respondent filed Transfer

Petition (C) No. 1366/2011 before this Court. The

appellant appeared before the Supreme Court and

stated that the case at Vishakhapatnam would be

withdrawn. This Court then recorded the following

order:

“Counsel for the respondent states that

the respondent would withdraw his

petition pending before the Family

Court at Visakhapatnam, Andhra Pradesh

and in case he has to file any petition

seeking any relief against the

petitioner (his estranged wife), he

will file the petition only before the

proper Court at Dehradun, Uttarakhand.

In view of the statement made at the

Bar, the petitioner is left with no

grievance.

The transfer petition is disposed of.

We may, however, observe that in case

the respondent files a petition at

Dehradun, the Dehradun Court shall take

it up and dispose it of expeditiously

and without any undue loss of time.”

Page 3 of 12

5. In the divorce proceeding, the appellant pleaded

that he was subjected to numerous malicious

complaints by the respondent which have affected his

career and loss of reputation, resulting in mental

cruelty. On the other hand, the respondent in her

case for restitution of conjugal rights contended

that the husband without any reasonable cause had

deserted her and accordingly she pleaded for

direction to the appellant, for resumption of

matrimonial life.

6. The Family Court at Dehradun analogously

considered both cases. The learned judge applied his

mind to the evidence led by the parties, the

documents on record and the arguments advanced by the

respective counsel and gave a finding that the

respondent had failed to establish her allegation of

adultery against the husband. It was further found

Page 4 of 12

that the respondent had subjected the appellant to

mental cruelty with her complaints to the Army and

other authorities. Consequently, the Court allowed

the appellant’s suit for dissolution of marriage and

simultaneously dismissed the respondent’s petition

for restitution of conjugal rights.

7. The aggrieved parties then filed respective First

Appeals before the Uttarakhand High Court. On

consideration of the pleadings and the issues framed

by the trial Court, the High Court noted that cruelty

is the core issue in the dispute. The Court then

proceeded to examine whether the wife with her

complaints to various authorities including the

Army’s top brass, had treated the appellant with

cruelty to justify his plea for dissolution of

marriage. While it was found that the wife did write

to various authorities commenting on the appellant’s

character and conduct, the Division Bench opined that

those cannot be construed as cruelty since no court

Page 5 of 12

has concluded that those allegations were false or

fabricated. According to the Court, the conduct of

the parties against each other would at best be

squabbles of ordinary middle class married life.

Accordingly, the High Court set aside the decree for

dissolution of marriage and allowed the respondent’s

suit for restitution of conjugal rights, under the

impugned judgment.

8. Challenging the High Court’s decision, Mr. Gopal

Sankaranarayanan, the learned Senior Counsel

highlights that the respondent had filed a series of

complaints against the appellant before the superior

officers in the Army upto the level of the Chief of

Army Staff and to other authorities and these

complaints have irreparably damaged the reputation

and mental peace of the appellant. The appellant

cannot therefore be compelled to resume matrimonial

life with the respondent, in the face of such

unfounded allegations and cruel treatment. Moreover,

Page 6 of 12

matrimonial life lasted only for few months and the

couple have been separated since 15.9.2007 and after

all these years, restitution would not be justified

or feasible.

9. Per contra, Mr. Ahmad Ibrahim, the learned

counsel submits that the respondent is keen to resume

her matrimonial life with the appellant. According

to the counsel, the respondent wrote letters and

filed complaints only to assert her legal right as

the married wife of the appellant and those

communications should therefore be understood as

efforts made by the wife to preserve the marital

relationship. It is further contended that only

because the appellant had filed the divorce case

before the Vishakhapatnam Court and had obtained an

ex-parte order, the respondent was constrained to

write to various authorities to assert her right as

the legally wedded wife of the appellant.

Page 7 of 12

10. For considering dissolution of marriage at the

instance of a spouse who allege mental cruelty, the

result of such mental cruelty must be such that it is

not possible to continue with the matrimonial

relationship. In other words, the wronged party

cannot be expected to condone such conduct and

continue to live with his/her spouse. The degree of

tolerance will vary from one couple to another and

the Court will have to bear in mind the background,

the level of education and also the status of the

parties, in order to determine whether the cruelty

alleged is sufficient to justify dissolution of

marriage, at the instance of the wronged party. In

Samar Ghosh Vs. Jaya Ghosh1, this Court gave

illustrative cases where inference of mental cruelty

could be drawn even while emphasizing that no uniform

standard can be laid down and each case will have to

be decided on its own facts.

1 (2007) 4 SCC 511

Page 8 of 12

11. The materials in the present case reveal that the

respondent had made several defamatory complaints to

the appellant’s superiors in the Army for which, a

Court of inquiry was held by the Army authorities

against the appellant. Primarily for those, the

appellant’s career progress got affected. The

Respondent was also making complaints to other

authorities, such as, the State Commission for Women

and has posted defamatory materials on other

platforms. The net outcome of above is that the

appellant’s career and reputation had suffered.

12. When the appellant has suffered adverse

consequences in his life and career on account of the

allegations made by the respondent, the legal

consequences must follow and those cannot be

prevented only because, no Court has determined that

the allegations were false. The High Court however

felt that without any definite finding on the

credibility of the wife’s allegation, the wronged

Page 9 of 12

spouse would be disentitled to relief. This is not

found to be the correct way to deal with the issue.

13. Proceeding with the above understanding, the

question which requires to be answered here is

whether the conduct of the respondent would fall

within the realm of mental cruelty. Here the

allegations are levelled by a highly educated spouse

and they do have the propensity to irreparably damage

the character and reputation of the appellant. When

the reputation of the spouse is sullied amongst his

colleagues, his superiors and the society at large,

it would be difficult to expect condonation of such

conduct by the affected party.

14. The explanation of the wife that she made those

complaints in order to protect the matrimonial ties

would not in our view, justify the persistent effort

made by her to undermine the dignity and reputation

of the appellant. In circumstances like this, the

Page 10 of 12

wronged party cannot be expected to continue with the

matrimonial relationship and there is enough

justification for him to seek separation.

15. Therefore, we are of the considered opinion that

the High Court was in error in describing the broken

relationship as normal wear and tear of middle class

married life. It is a definite case of cruelty

inflicted by the respondent against the appellant and

as such enough justification is found to set aside

the impugned judgment of the High Court and to

restore the order passed by the Family Court. The

appellant is accordingly held entitled to dissolution

of his marriage and consequently the respondent’s

application for restitution of conjugal rights stands

dismissed. It is ordered accordingly.

16. With the above order, the appeals stand disposed

of leaving the parties to bear their own cost.

Page 11 of 12

……………………………………………………J.

(SANJAY KISHAN KAUL)

……………………………………………………J.

(DINESH MAHESHWARI)

……………………………………………………J.

(HRISHIKESH ROY)

NEW DELHI

FEBRUARY 26, 2021

Page 12 of 12

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Thursday, March 4, 2021

(i) Whether grant of Essentiality Certificate by the State Government is only a Ministerial Act? (ii) Whether Essentiality Certificate, once issued, can be withdrawn?