V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. versus STATE OF KERALA & ORS. ETC. on 24 February 2021

[2021] 1 S.C.R. 1013

V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC.

v.

STATE OF KERALA & ORS. ETC.

(Civil Appeal Nos.703-704 of 2021)

FEBRUARY 24, 2021

[A. M. KHANWILKAR, B. R. GAVAIAND KRISHNA MURARI, JJ.]

Indian Medical Council Act, 1956 – Appellant sought grantof Essentiality Certificate (EC) for Academic Year 2020-2021 –Application rejected by State Government – Eventually, Single Judgeinter alia set aside the said order while further giving opportunity tothe appellant to apply for the Academic Year 2022-2023 instead ofAcademic Year 2020-2021 – Review petition filed by appellant,dismissed – Division Bench refused to grant permission for AcademicYear 2020-2021, instead directed the respondents to considerappellant’s application for establishment of a Medical College forthe Academic Year 2021-2022 – On appeal, held: ConditionalEssentiality Certificate was first issued in 2004 subject to removalof deficiencies – Since then 17 years have elapsed and the appellanthas been unsuccessful in removing the deficiencies and securingrequisite permissions from MCI – Appellant has been long trying toescape its responsibility and fill up the lacuna through judicialprocess by getting orders from the High Court for Consent ofAffiliation (CoA) and consideration of its belated half-bakedapplications before the MCI – In the inspections carried out in 2015and 2020, the appellant was found lacking proper facilities –Appellant has no real interest in running a hospital and thus, cannotcall foul upon rejection of EC, CoA or its applications before MCI– Further, time schedule prescribed for starting a new MedicalCollege for the Academic Year 2020-2021 is over long back – Eventhe last date for the year 2021-2022 which was extended to 15.12.20,in view of Covid-19 pandemic is also over by now – Thus, the StateGovernment or the University cannot be directed to issue EC orCoA to the appellant for the year 2020-2021 – Medical Council ofIndia Establishment of Medical College Regulations , 1999 –Regulation 8(3) – Kerala University of Health Sciences First Statute,

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A2013 – Chapter XXI – Establishment of Medical College Regulations(Amendment), 2015.

Indian Medical Council Act, 1956 – s.10-A – Requirement ofEssentiality Certificate under – Discussed.

Indian Medical Council Act, 1956 – Issuance of EssentialityBCertificate, if a ministerial job – Held: Issuance/re-issuances of anessentiality certificate is not in any way a ministerial job – Whiledealing with a case of maintaining standards in a professionalcollege, strict approach must be adopted – Education.

Kerala University of Health Sciences First Statute, 2013 –CChapter XXI – Clause X(I) – Grant of affiliation – Discussed.

Education – Establishment of new medical college –Withdrawal of Essentiality Certificate (EC) – Held: State Governmenthas power to withdraw the EC where it is obtained by playing fraudon it or where the very substratum on which the EC was grantedDvanishes or for any other reason of like nature – Indian MedicalCouncil Act, 1956.

Dismissing the appeals, the Court

HELD: 1.1 An EC is mandatorily required by a personbefore he receives permission for establishment of a MedicalECollege. The Legislative scheme that imposes the requirementof the EC is prescribed in Section 10(A) of the Medical Councilof India Act, which requires the previous permission of the CentralGovernment for establishing a Medical College or opening a newcourse of study or training. Every person or Medical CollegeFmust submit to the Central Government a scheme as prescribed.The Central Government then refers the scheme to the MCI forits recommendations. The Medical Council is required to considerthe same and satisfy itself by obtaining any particulars as arenecessary and after having the defects if any removed, make itsrecommendations to the Central Government. The CentralGGovernment, may on receipt of the scheme, approve itconditionally or disapprove the same. [Para 16][1033-D-F]

1.2 The power to permit the establishment of a MedicalCollege is thus conferred on the Central Government by the MCI

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Act. The Regulations were framed in exercise of powersconferred under Section 10(A) read with Section 33 of the MCIAct prescribed the qualifying criteria. These criteria lay downthe eligibility to apply for permission to establish a MedicalCollege. One of the criteria is that the person who is desirous ofestablishing a Medical College should obtain an EssentialityCertificate as prescribed in Form 2 of the Regulations, certifyingthat the State Government/Union Territory Administration hasno objection for the establishment of the proposed MedicalCollege at the proposed site and availability of adequate clinicalmaterial. Thus, the State Government is required to certify thatit has decided to issue an Essentiality Certificate for theestablishment of a Medical College with a specified number ofseats in public interest and further such establishment is feasible.[Para 17][1033-F-H; 1034-A]

2. Form 2 in which the EC must be obtained indicates thefacts which are considered relevant for determining whether theestablishment of a proposed college is justified. The EssentialityCertificate in the prescribed form is crucial for avoiding caseswhere the colleges despite grant of initial permission could notprovide the infrastructure, teaching and other facilities as a resultwhereof the students who had already been admitted sufferedserious prejudice. Medical Council of India Regulations as wellas Kerala University Health Sciences Statutes very emphaticallymandate that the consent of affiliation can only be given after theInstitution fulfills the essential requirements. The contention ofthe appellant that the absence of Essentiality Certificate is notone of the factors for consideration and is extraneous to thedecision-making process cannot be accepted. Whilst granting theEssentiality Certificate, the State Government undertakes to takeover the obligations of the private educational institution in theevent of that institution becoming incapable of setting of theinstitution or imparting education therein. Such an undertakingon the part of the State Government is unequivocal andunambiguous. An Essentiality Certificate by the State Governmentlegitimises a medical college declaring it fit to impart medicaleducation and gives accouchement to the expectation amongstthe stakeholders that the Applicant College shall fulfill basic norms AB

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Aspecified by the MCI to start and operate a medical college.Bearing in mind that the question of justified existence of a collegeand irregular/illegal functioning of an existing college belong to adifferent order of things and cannot be mixed up, this Court comesto the conclusion that the issuance/re-issuances of an essentialitycertificate is not in any way a ministerial job and while dealingBwith a case of maintaining standards in a professional college,strict approach must be adopted as these colleges are responsiblefor ensuring that medical graduate has the required skill set towork as a doctor in the country. Poor assessment system;exploding number of medical colleges; shortage of patients/Cclinical materials; devaluation of merit in admission, particularlyin private institutions; increasing capitation fees; a debilitatedassessment and accreditation system, are problems plaguing theMedical Education system. Allowing such deficient colleges tocontinue to function jeopardizes the future of the studentcommunity and leading to incompetent doctors to graduate fromDsuch colleges and ultimately pose a bigger risk to the society atlarge defeating the very purpose of the Essentiality Certificateissued by the State. The State would be deterring from its duty ifit did not conduct an inspection from time to time to ensure thatthe requisite standards as set by the MCI are met before issuing/Erenewing the Essentiality certificate. That is by no stretch ofimagination ‘merely a ministerial job’. Considering especially thatwhile issuing the Essentiality Certificate the State Govtundertakes that should the Medical College fail to provide therequisite infrastructure and fresh admissions are stopped by theCentral Government, the State Government shall take over theFresponsibility of the students already admitted in the College.Same is the position with respect to CoA by the University. TheFirst Statute of KUHS prescribes that the University may appointa Commission to inspect the proposed site to make a physicalverification of the existing facilities and suitability of the proposedGsite. The grant of affiliation is dependent upon fulfilment of allthe conditions that are specified in Clause X(I) of First Statues orthat may be specified which includes staff, infrastructure facility,hospital, internet, library, playground, hostel, etc. Thus, even grantof CoA by the University also cannot be said to be merely aministerial act. [Paras 18, 19][1034-B; 1035-D-H; 1036-A-G]H

3. The State Government has power to withdraw the ECwhere it is obtained by playing fraud on it or where the verysubstratum on which the EC was granted vanishes or any otherreason of like nature. [Para 23][1039-C]

Chintpurni Medical College & Hospital & Anr. Vs. Stateof Punjab & Ors. (2018) 15 SCC 1 : [ 2018] 5 SCR147 – distinguished.

Sukh Sagar Medical College and Hospital Vs. State ofMadhya Pradesh and Ors (2020) SCC Online SC 851– relied on.

4. In the case at hand, even though initially a conditionalEC was granted in the year 2004 subject to removal of deficienciesand since then 17 years elapsed, the appellant has beenunsuccessful in removing the deficiencies and is not in a positionto secure requisite permissions from the MCI. Reference maybe made to the last joint inspection carried out on 7th November,2020, wherein a number of deficiencies were noted and thefacilities were found inadequate for consideration of an applicationfor the year 2021-2022. What is true in case of vanishing ofsubstratum applies with equal force where the substratum ismissing right from the very inception. The Appellant Institutionhas been long trying to escape its responsibility and fill up thelacuna through judicial process by getting Orders from the HighCourt for consent of affiliation and consideration of its belatedhalf-baked applications before the MCI. In both the inspectionsin 2015 and 2020, it was found that the Appellant Institution lacksproper facilities. Even though the Appellant claims to be runninga hospital since 2006 neither adequate amenities norinfrastructure on inspection was found to be in existence. Thislackadaisical attitude is testament to the fact that the Appellanthas no real interest in running a Hospital in that place and has noground to call foul upon rejection of EC, CoA or its applicationsbefore MCI. Further, not only proper facilities and infrastructureincluding teaching faculty is absolutely necessary but adherenceto time schedule is also equally important. Regulation 8(3) of the1999 Regulations provides a schedule for the receipt ofapplications for establishment of new Medical Colleges andprocessing of the applications by the Central Government and A

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Athe Medical Council of India. Initial time schedule fixed underthe Regulations for establishment of a new Medical College wasamended in 2015 vide Establishment of Medical CollegeRegulations (Amendment), 2015. Time and again, this Court hasemphasized that time schedule either for establishment of newMedical College or to increase intake in existing colleges shallBbe adhered to strictly by all concerned. There is no manner ofdoubt that the time schedule prescribed in receipt of starting anew Medical College for the year 2020- 2021 is already overlong back. Even the last date for the Academic Year 2021-2022which was extended to 15.12.2020, in view of prevailing Covid-C19 Pandemic is also over by now. Thus the State Government orthe University cannot be directed to issue EC or CoA to theappellant for the year 2020-2021 even notionally. The reliefprayed for by the appellant for the Academic Year 2020-2021, isnot liable to be granted. [Paras 24, 28-33][1039-D-E; 1041-B-E,F-G; 1042-D-F]DMridul Dhar (Minor) & Anr. Vs. Union of India & Ors.(2005) 2 SCC 65 : [2005] 1 SCR 380 – relied on.

Thirumuruga Kirupananda Variyar Thavathiru SundaraSawmigal Medical Educational & Charitable Trust Vs.EState of Tamil Nadu & Ors. (1996) 3 SCC 15 : [1996] 2SCR 422; Government of Andhra Pradesh & Anr. Vs.Medwin Educational Society & Ors. (2004) 1 SCC 86: [2003] 5 Suppl. SCR 408; Medical Council of IndiaVs. Principal, KMCT Medical College & Anr. (2018) 9SCC 766 : 2018 (8 ) JT 179; Medical Council of IndiaFVs. The Chairman, S.R. Educational and CharitableTrust and Another (2018) SCC Online SC 2276 –referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 703-704 of 2021.

From the Judgment and Order dated 03.11.2020 of the High Courtof Kerala at Ernakulam in Writ Appeal Nos. 1401 and 1413 of 2020.

Shyam Divan, Sr. Adv., Udayaditya Banerjee, Ms. Sneha RaviIyer, Advs. for the Appellants.

K. M. Nataraj, ASG., Jaideep Gupta, Sr. Adv., Ms. PriyankaPrakash, Ms. Beena Prakash, G. Prakash, Ms. Neela Kedar Gokhale,Sharath Nambiar, Gurmeet Singh Makkar, Gaurav Sharma, DhawalMohan, Prateek Bhatia, Venkita Subramoniam T.R., Advs. for theRespondents.

The Judgment of the Court was delivered by KRISHNA MURARI, J.

1. Leave granted.

2. These appeals arises out of the Judgment and Order dated03.11.2020 passed by the Kerala High Court in Writ Appeal Nos. 1401and 1413 of 2020, wherein the Division Bench of the said High Courtmodified the directions of the learned Single Judge to the extent ofconsideration for establishment of Medical College by the appellant forthe Academic Year 2021-2022.

3. The issue arising for consideration before us is whetherEssentiality Certificate (hereinafter referred to as ‘EC’) and Consent ofAffiliation (hereinafter referred to as ‘CoA’) should be granted for theyear 2020-2021 to the appellant. The other issues which need to beaddressed are :-

(i) Whether grant of Essentiality Certificate by the StateGovernment is only a Ministerial Act?

(ii) Whether Essentiality Certificate, once issued, can bewithdrawn?

4. Facts in brief :-

The appellant is a trust set up with the object of promoting educationin Health and Medicine. To start a Medical College, the appellant claimsto have set up a 300 bedded hospital in Walayar, Palakkad District in2006. According to the case set up by the appellant, the requisite A

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Ainfrastructure was put in place and it has been trying to establish aMedical College from the year 2006 onwards but due to the arbitraryand discriminatory action of the State Government and the KeralaUniversity of Health Sciences by denying the EC and CoA, it hasmiserably failed in its attempt. It has been asserted in the pleading that inpresenti, the appellant’s hospital has 76 doctors, 380 nurses andBparamedical staff, 4 major operation theatres, 2 minor operation theatres,along with all other facilities and infrastructure required to run a MedicalCollege.

The EC was granted for the first time to the appellant on24.01.2004 for 100 seats. However, since the same was not in theCprescribed format, therefore, Medical Council of India (hereinafterreferred 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 againrejected by the MCI. The appellant was again issued an EC datedD12.01.2011. However, the Kerala University of Health and Allied Science(hereinafter referred to as ‘KUHS’) granted CoA belatedly much afterthe time schedule as such the college could not be established. It may bepertinent to point out that the Essentiality Certificate dated 12.01.2011was valid only for the Academic Year 2011-2012 and 2012-2013. It is anadmitted fact that the appellant failed to establish the college during theEAcademic Year 2011-2012 and 2012-2013 for which the EC was valid.On 10.06.2014, the State Government issued a renewed EC whichcontained a clerical error which was corrected belatedly on 11.12.2015much after the date for submission of the application to the CentralGovernment for establishment of Medical College. As a consequence,Fthe MCI returned/ rejected the application for the Academic Year 2014-2015. Application made by the appellant for establishment of the MedicalCollege for the year 2015-2016 was returned by the Government ofIndia vide letter dated 17.10.2014, on the ground that CoA submittedalong with the proposal was not valid for the Academic Year 2015-2016

leaving it open to the appellant to submit a fresh application for theGAcademic Year 2016-2017. It may be pertinent to note at this stage thatthe appellant had preferred Writ Petition No. 29462 of 2014 before theHigh Court, wherein an interim order dated 22.11.2014 was passeddirecting the MCI to consider the application provisionally and furtherdirection was issued to KUHS to conduct inspection for grant of freshHCoA. However, the fresh CoA could not be granted and with the elapse of time the petition was rendered infructuous. The appellant was grantedprovisional CoA by KUHS for the Academic Year 2016-2017. Insofaras EC is concerned, it was issued by the State Government for the saidAcademic Year on 31.08.2015 which was the last date for submission ofthe application and it was in a wrong format. The appellant approachedthe High Court by filing Writ Petition No. 25705 of 2015. The HighCourt vide order dated 25.11.2015 directed the State Government tocorrect the format and also directed the Central Government to considerthe application of the appellant. A revised EC was issued to the appellanton 11.12.2015. However, MCI filed an SLP (C ) No. 5326 of 2016 onthe ground that the certificate had been issued belatedly, hence theapplication was not liable to be considered. Civil Appeal No. 3964 of2016 arising out of the said SLP was allowed vide Judgment dated18.04.2016 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 nextAcademic Year in consonance with the provisions of the Regulations ofthe 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 ofhis application by the State Government and KUHS. Vide order dated28.09.2017, the State Government rejected the application of the appellantfor renewal of EC. The appellant filed yet another Writ Petition (C) No.40290 of 2017, challenging the order dated 28.09.2017 which was disposedof. However, the orders passed therein were stayed by the DivisionBench of the High Court in Writ Appeals i.e., Writ Appeal No.1371 of2018 and Writ Appeal No. 1370 of 2018.

For the Academic Year 2020-2021, the appellant again made anapplication for grant of EC and CoA before the State Government andKUHS, respectively. When no action was taken, appellant filed WritPetition No. 18238 of 2019 seeking direction to KUHS to consider hisapplication. Another Writ Petition No. 23460 of 2019 was also filedseeking direction to the State Government to consider the application forgrant of EC. Writ Petition No. 18238 of 2019 seeking direction againstthe KUHS was dismissed vide order dated 05.09.2019 on the groundthat last date for submission of application before the Medical Councilof India was over. Insofar as, Writ Petition No. 23460 of 2019, the samewas disposed of vide order dated 04.09.2019 directing the StateGovernment to take a decision in the matter at the earliest and at any A

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Arate, 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 grantingit further 10 days time to submit the relevant documents. The appellantagain preferred Writ Petition No. 25254 of 2019 seeking a direction toKUHS to revise CoA for Academic Year 2020-2021, wherein an interimdirection was issued to consider the application of the appellant. VideBorder dated 27.09.2019, KUHS rejected the application of the appellant.Ultimately, Writ Petition No. 25254 of 2019 was withdrawn by theappellant with liberty to challenge the order dated 27.09.2019. Vide orderdated 01.10.2019, the State Government rejected the application of theappellant for grant of EC. The appellant again approached the HighCCourt by filing Writ Petition No. 27266 of 2019 seeking quashing of theorder dated 01.09.2019 passed by the State Government rejecting theapplication for grant of EC. A further relief of mandamus was also prayedto command the State Government to renew the EC. The order dated27.09.2019 passed by KUHS was challenged in Writ Petition No. 29098of 2019. Vide order dated 19.11.2019, the High Court disposed of WritDPetition No. 27266 of 2019 directing the State Government to issue ECto the appellant on or before 30.11.2019 and further directed the MCI toaccept the renewed EC as one received on time. Writ Appeal filed bythe State against the said order was dismissed by Division Bench videJudgment dated 05.12.2019, which was challenged in SLP (C) No. 3008Eof 2019. The appellant filed yet another Writ Petition No. 34275 of 2019seeking a direction to the MCI for processing of the application of thepetitioner without insisting upon EC and CoA. The said Writ Petitionwas disposed of vide Judgment 13.12.2019 directing the MCI and theUnion of India to process the application of the appellant without insistingon EC and CoA which was made subject to the outcome of the SLP (C)FNo. 30008 of 2019. The State Government challenged the interim orderdated 13.12.2019 before this Court. Vide Judgment and Order dated07.08.2020, this Court set aside the orders passed in Writ Petition (C)No. 34275 of 2019 and Writ Appeal No. 2443 of 2019 and directed thatthe Writ Petitions, namely, the three Petitions i.e., Writ Petition No.27266Gof 2019, Writ Petition No.29098 of 2019 and Writ Petition No. 34275 of2019, 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 acommon judgment and order dated 12.10.2020 dismissed Writ PetitionHNo. 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 dated01.10.2019 of the State Government denying NOC and EC for startinga new Medical College, was set aside and quashed, and the StateGovernment was directed to issue/renew the EC of the appellant. Thelearned Single Judge further gave opportunity to apply for the AcademicYear 2022-2023 instead of Academic Year 2020-2021 for which thedispute was being raised. The Review Petition filed by the appellantwas dismissed. The appellant challenged the order of the learned SingleJudge by filing two Writ Appeals i.e., Writ Appeal No. 1413 of 2020 andWrit Appeal No. 1401 of 2020. The main challenge was to the finding bythe learned Single Judge in paragraph 32 of the Judgment that since thetime 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 AcademicSession can be granted. Vide common Judgment and final Order dated03.11.2020, the Division Bench of Kerala High Court modified thedirections of the learned Single Judge to the extent of directing therespondents to consider the application for the petitioner for establishmentof a Medical College for the Academic Year 2021-2022. While refusingto grant permission to the appellant to start the Medical College for theAcademic Year 2020-2021, the Division Bench gave time bound directionsto the State and the University to jointly carry out an inspection to seewhether Essentiality Certificate could be issued and whether consentfor 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, learnedSenior Counsel for the appellant is that issue of Essentiality Certificateis a ministerial job and the purpose of EC is limited to certify to theCentral Government that it is essential to establish a Medical College. Itwas further submitted that since the appellant was issued EC by theState Government and also CoA by the University in the year 2015itself, therefore, it was entitled for the same in 2020 as well. It is alsosubmitted at the time of issuance of EC, the State Government has toonly consider the desirability and feasibility of establishment of MedicalCollege in the proposed location and certify as to the availability ofinfrastructure and other clinical material required to run a Medical Collegeand the same cannot be withheld by the State Government on any policyconsideration. Reliance was placed on the following observations made A

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Aby this Court in Thirumuruga Kirupananda Variyar ThavathiruSundara Sawmigal Medical Educational & Charitable Trust Vs.State of Tamil Nadu & Ors.[1] ; “34.It is no doubt true that in the scheme that has beenprescribed under the Regulations relating to establishment ofBnew medical colleges one of the conditions for the qualifyingcriteria laid down is that Essentiality Certificate regardingdesirability and feasibility of having the proposed college atthe proposed location should be obtained from the StateGovernment……….

CFor the purpose of granting the Essentiality Certificate asrequired under the qualifying criteria prescribed under thescheme, the State Government is only required to considerthe desirability and feasibility of having the proposed medicalcollege at the proposed location. The Essentiality Certificatecannot be withheld by the State Government on any policyDconsideration because the policy in the matter of establishmentof a new medical college now rests with the CentralGovernment alone.”

7. It was further argued on behalf of the appellant that the Statedoes not have the power to withdraw the EC once granted and onceEissued, the same shall remain valid. To support the contentions, reliancewas placed on following observation in the decision in Chintpurni MedicalCollege & Hospital & Anr. Vs. State of Punjab & Ors.[2]; “It would be impermissible to allow any authority including aState Government which merely issues an EssentialityFCertificate, to exercise any power which could have the effectof terminating the existence of a Medical College permittedto be established by the Central Government. Thus, the StateGovernment may not do either directly or indirectly. Moreover,the purpose of the Essentiality Certificate is limited to certifyingto the Central Government that it is essential to establish aGMedical College. It does not go beyond this. In other words,once the State Government has certified that the establishmentof a Medical College is justified, it cannot at a later stage 1 (1996) 3 SCC 15H2 (2018) 15 SCC 1

say that there was no justification for the establishment ofthe College. Surely, a person who establishes a MedicalCollege upon an assurance of a State Government that suchestablishment is justified cannot be told at a later stage thatthere was no justification for allowing him to do so. Moreover,it appears that the power to issue an Essentiality Certificateis a power that must be treated as exhausted once it isexercised, except of course in cases of fraud. The rules ofequity and fairness and promissory estoppel do not permitthis Court to take a contrary view.”

8. Our attention was also drawn towards the scope of examinationby the respondent no.2/University for issuance of CoA by the learnedCounsel for the Petitioner. It was put forth that the entire field in respectof Establishment of Medical College is governed by the MCI Act and allaspects regarding establishment of a Medical College rests with theMedical Council and Central Government, as such the role of theUniversity is limited to granting of affiliation. Further, the affiliation isonly a qualifying criterion and the University cannot abrogate to itselfthe role of MCI, as found in the present case. He submits that the MCIAct and Regulations thereunder provides for inspection by the MCI whichhas to evaluate the infrastructure facilities, managerial and financialcapabilities, etc. and submit its recommendation.

9. Shri Jaideep Gupta, learned Senior Advocate appearing for theState-Respondent submits that grant of EC/CoA are by no means aministerial job. The State Government not only has to also to verify andcertify that the norms of Medical Council of India are satisfied by theappellant and that infrastructure and other clinical materials are sufficientlyavailable for setting up a new Medical College. It has also to give anundertaking that if the Medical College is unable to provide proper facilityas prescribed by the MCI, in subsequent year it would be bound to findplace for the students admitted in alternative medical colleges. To supportthe aforesaid, reliance is placed upon the judgment of this Court inGovernment of Andhra Pradesh & Anr. Vs. Medwin EducationalSociety & Ors.[3]

10. Mr. Gupta further contends that the Judgment inThirumuruga’s Case (Supra) was not rendered with reference to the AB

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Aresponsibility cast upon the State Government and the local universityby the Regulations framed in 1999. The rationale of the said judgment isonly that after the introduction of Section 10 (A) of Medical CouncilAct, 1956, the policy decision to permit a Medical College was to betaken up by the Central Government on the recommendation of the MCIand the State Government cannot reject such applications on a groundBof policy. Our attention was also drawn to the observations made by thisCourt in the Judgment and Order dated 07.08.2020 passed in Civil AppealNo. 2920 of 2020 along with Civil Appeal No. 2921 of 2020 between theparties; wherein it has been held that by quashing of order based onpolicy, the grant of EC or CoA does not follow automatically. It may beCrelevant to extract the following observations from the said judgment asunder :- “As several considerations may be common, the grant forconsent of affiliation and Essentiality Certificate may dependupon several factors. As per the guidelines of the GovernmentDand of the University , various aspects are to be examined.By merely quashing of an order passed on policy, the grantof Essentiality Certificate or consent for affiliation does notfollow automatically. They have to be considered as perprevailing norms”.

E11. Learned Counsel appearing for the Respondent No.2-University, submitted that the contentions on behalf of the appellant thatsince 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 pointedout that consent in the year 2015 was given in view of the Order passedby the High Court, directing to give provisional Affiliation to apply to theFMedical Council of India. After giving provisional Affiliation, the appellantinstitution was inspected in the year 2015 and it was found that it isneither having infrastructure nor fulfills the other essential requirementsfor starting the Medical College. He vehemently contended that MCIRegulations as well as Statutes of Kerala University of Health andGSciences emphatically mandates that the CoA could be given only afterthe institution fulfills the essential requirements. In the present case, theappellant 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 institutionHcarried 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 andthere is no Blood Bank in the hospital, even the required laboratory wasnot there and most of the tests are outsourced by the appellant. The bedoccupancy was only 24 out of 72 beds and a remark has been made bythe inspection team that genuineness of some of the patients for IPadmission is doubtful and documentation do not co-relate with theinspection findings. With respect to faculty, there was a deficiency of32% and Tutor, Demonstrator-SR Deficiency of 78%. The ScrutinyCommittee categorically recorded a finding that the appellant institutionis not entitled for establishing a medical college. He also made a referenceto 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 inMedical 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 Another[5].

13. In the case of Medical Council of India (Supra), it has beenheld that the Court has repeatedly observed that the decision taken bythe Union of India on the basis of the recommendation of the expertbody, cannot be interfered with lightly and interference is permissibleonly when the college demonstrates jurisdictional errors ex-facieperversity or malafides. In the case of The Chairman, S.R. Educationaland Charitable Trust & Anr. (Supra), this Court observed as under : - “High Court at the same time has ordered inspection and ifthe deficiencies are found to existence then the MedicalCouncil of India and Govt. of India have been given libertyto take appropriate decision. Such orders may ruin the entirecarrier of the students. Once permission to admit students isgranted, it should not be such conditional one. Consideringthe deficiencies, it would be against the efficacious medicaleducation and would amount to permit the unequipped medicalCollege to impart Medical education without properinfrastructure and faculty, patients serve as the object ofteaching by such an approach ultimately interest of the societywould suffer and half- baked doctors cannot be left loose on 4 (2018) 9 SCC 766

5 (2018) SCC Online SC 2276

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1028SUPREME COURT REPORTS

Asociety like drones and parasites to deal with the life of thepatients in the absence of proper educational training. It wouldbe dangerous and again the right to life itself in caseunequipped medical colleges are permitted to impartsubstandard medical education without proper facilities andinfrastructure.”B14. We have considered and analyzed the rival contentions of theparties.

15. Before proceeding any further in the matter, it may be relevantto refer the apposite Sections and Rules of the Medical Council of IndiaCAct, 1956 and Medical Council of India Establishment of Medical CollegeRegulations, 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 OFDNEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC.

(1) Notwithstanding anything contained in this Act or anyother law for the time being in force:- (a) no person shall establish a medical college or E(b) no medical college shall:-

(i) open a new or higher course of study or training (includinga postgraduate course of study or training) which wouldenable a student of such course or training to qualify himselffor the award of any recognised medical qualification; or F

(ii) increase its admission capacity in any course of study ortraining (including a postgraduate course of study ortraining), except with the previous permission of the CentralGovernment obtained in accordance with the provisions ofthis section.

GExplanation 1-. For the purposes of this section, “person”includes any University or a trust but does not include theCentral Government.

Explanation 2.- For the purposes of this section “admissioncapacity” in relation to any course of study or training H

(including postgraduate course of study or training) in amedical college, means the maximum number of students thatmay be fixed by the Council from time to time for beingadmitted to such course or training.

(2) (a) Every person or medical college shall, for the purposeof obtaining permission under sub-section (1), submit to theCentral Government a scheme in accordance with theprovisions of clause (b) and the central Government shallrefer the scheme to the Council for its recommendations.

(b) The Scheme referred to in clause (a) shall be in such formand contain such particulars and be preferred in such mannerand 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 beconsidered necessary by it from the person or the medicalcollege concerned, and thereafter, it may –

(a) if the scheme is defective and does not contain anynecessary particulars, give a reasonable opportunity to theperson or college concerned for making a writtenrepresentation and it shall be open to such person or medicalcollege to rectify the defects, if any, specified by the Council.

(b) consider the scheme, having regard to the factors referredto in sub-section (7) and submit the scheme together with itsrecommendations thereon to the Central Government.

XXXXXX

(7) The Council, while making its recommendations underclause (b) of sub-section (3) and the Central Government,while passing an order, either approving or disapproving thescheme under sub-section (4), shall have due regard to thefollowing factors, namely:- (a) whether the proposed medical college or the existingmedical college seeking to open a new or higher course ofstudy or training, would be in a position to offer the minimumstandards of medical education as prescribed by the Councilunder section 19A or, as the case may be under section 20 inthe case of postgraduate medical education.

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SUPREME COURT REPORTS

[2021] 1 S.C.R.

A(b) whether the person seeking to establish a medical collegeor the existing medical college seeking to open a new or highercourse of study or training or to increase it admission capacityhas adequate financial resources;

(c) whether necessary facilities in respect of staff, equipment,Baccommodation, training and other facilities to ensure properfunctioning of the medical college or conducting the newcourse or study or training or accommodating the increasedadmission capacity, have been provided or would be providedwithin the time-limit specified in the scheme.

C(d) whether adequate hospital facilities, having regard to thenumber or students likely to attend such medical college orcourse of study or training or as a result of the increasedadmission capacity, have been provided or would be providedwithin the time-limit specified in the scheme; D(e) whether any arrangement has been made or programmedrawn to impart proper training to students likely to attendsuch medical college or course of study or training by personshaving the recognised medical qualifications; (f) the requirement of manpower in the field of practice ofEmedicine; and (g) any other factors as may be prescribed.

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(B) Medical Council of India Establishment of MedicalCollege Regulations , 1999 (Regulations)F

3. The establishment of a medical college – No person shallestablish a medical college except after obtaining priorpermission from the Central Government by submitting aScheme annexed with these regulations.

G“Scheme For Obtaining Permission of the CentralGovernment to Establish a Medical College”

……..

2. Qualifying Criteria - The eligible persons shall qualify toapply for permission to establish a medical college if theHfollowing conditions are fulfilled:-

(1) that medical education is one of the objectives of theapplicant in case the applicant is an autonomous body,registered society, charitable trust & companies registeredunder Company Act.

(2) XXXXX

(3) that Essentiality Certificate in Form 2 regarding Noobjection of the State Government/Union TerritoryAdministration for the establishment of the proposed medicalcollege at the proposed site and availability of adequateclinical material as per the council regulations, have beenobtained by the person from the concerned State Government/Union Territory Administration.

(4) that Consent of affiliation in Form-3 for the proposedmedical college has been obtained by the applicant from aUniversity.

(5) That the person owns and manages a hospital of not lessthan 300 beds with necessary infrastructural facilities capableof being developed into teaching institution in the campus ofthe proposed medical college.

(6) that the person has not admitted students to the proposedmedical college.

(7) That the person provides two performance bankguarantees from a Scheduled Commercial Bank valid for aperiod of five years, in favour of the Medical Council of India,New Delhi, one for a sum of rupees one hundred lakhs (for50 admissions), rupees one hundred and fifty lakhs (for 100admissions) and rupees two hundred lakhs (for 150 annualadmissions) for the establishment of the medical college andits infrastructural facilities and the second bank guaranteefor a sum of rupees 350 lakhs (for 400 beds), rupees 550lakhs (for 500 beds) and rupees 750 lakhs (for 750 beds)respectively for the establishment of the teaching hospital andits infrastructural facilities : Provided that the aboveconditions shall not apply to the persons who are StateGovernments/Union Territories if they give an undertakingto provide funds in their plan budget regularly till the requisitefacilities are fully provided as per the time bound programme.

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SUPREME COURT REPORTS

[2021] 1 S.C.R.

(8) Opening of a medical college in hired or rented buildingshall not be permitted. The Medical college shall be set uponly on the plot of land earmarked for that purpose asindicated.

A

6. EVALUATION BY MEDICAL COUNCIL OF INDIA

B

The Council will evaluate the application in the first instancein terms of the desirability and prima facie feasibility of settingup the medical college at the proposed location. Therefore, itshall assess the capability of the applicant to provide thenecessary sources and infrastructure for the scheme. Whileevaluating the application, the Council may seek furtherinformation, clarification or additional documents from theapplicant as considered necessary and shall carry out physicalinspection to verify the information supplied by the applicant.

C

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D

(C) The Kerala University of Health Sciences First Statute,2013 (KUHS Act)

Chapter XXI Clause 10. Grant of Affiliation

(1) The University may appoint a commission to inspect theproposed site of a new college/or to make a physicalEverification of the facilities that may exist for starting the newcollege/course if the application is considered favorably bythe University. The Commission will inspect the suitability ofthe proposed site, verify the title deeds as regards theproprietary rights of the management over the land(andFbuildings if any) offered, building accommodation providedif any, assets of the management, constitution of the registeredbody, capability of maintaining academic standards and allother relevant matters…….

E

2) The Grant of affiliation shall depend upon the fulfillmentby the management of all the conditions that are specifiedhere or that may be specified later for the satisfactoryestablishment and maintenance of the proposed institution/courses of studies and on the reports of inspection by theCommission or commission which the university may appointfor the purpose.

G

H

…..

(5) The Management shall be prepared to abide by suchconditions and instructions as regards staff, infrastructurefacility, hospital, Internet and audiovisual facilities,equipment, library, reading room, playground, hostel etc. asthe University may, from time to time impose or issue in relationto the college.

(8) After Considering the commission report and otherenquiries if any and after obtaining the essentiality certificatefrom the Central and/or State Councils or authorities in theconcerned disciple and after obtaining the essentialitycertificate from the Government, the Governing Council shalldecide whether the affiliation be granted or refused either inwhole or part.”

16. Thus, an EC is mandatorily required by a person before hereceives permission for establishment of a Medical College. TheLegislative scheme that imposes the requirement of the EC is prescribedin Section 10(A) of the Medical Council of India Act, which requires theprevious permission of the Central Government for establishing a MedicalCollege or opening a new course of study or training. Every person orMedical College must submit to the Central Government a scheme asprescribed. The Central Government then refers the scheme to the MCIfor its recommendations. The Medical Council is required to considerthe same and satisfy itself by obtaining any particulars as are necessaryand after having the defects if any removed, make its recommendationsto the Central Government. The Central Government, may on receipt ofthe scheme, approve it conditionally or disapprove the same.

17. The power to permit the establishment of a Medical Collegeis thus conferred on the Central Government by the MCI Act. TheRegulations referred above, were framed in exercise of powersconferred under Section 10(A) read with Section 33 of the MCI Actprescribed the qualifying criteria. These criteria lay down the eligibilityto apply for permission to establish a Medical College. One of the criteriais that the person who is desirous of establishing a Medical Collegeshould obtain an Essentiality Certificate as prescribed in Form 2 of theRegulations, certifying that the State Government/Union TerritoryAdministration has no objection for the establishment of the proposedMedical College at the proposed site and availability of adequate clinical A

B

C

DE

F

GH

Amaterial. Thus, the State Government is required to certify that it hasdecided to issue an Essentiality Certificate for the establishment of aMedical College with a specified number of seats in public interest andfurther such establishment is feasible.

18. Form 2 in which the EC must be obtained indicates the factsBwhich are considered relevant for determining whether the establishmentof a proposed college is justified. Form 2 is reproduced hereunder :- “Form-2 Subject: Essentiality Certificate No.

Government of _____ The Department of Health, Dated, the__ To (applicant), Sir, The desired certificate is as follows:C

(1) No. of institutions already existing in the State.

(2) No. of seats available or No. of doctors being producedannually (3) No. of doctors registered with the State MedicalCouncil.

D(4) No. of doctors in Government Service(5) No. of Government posts vacant and those in rural/difficultareas.

(6) No. of doctors registered with Employment Exchange.

E(7) Doctor population ratio in the State.(8) How the establishment of the college would resolve theproblem of deficiencies of qualified medical personnel in theState and improve the availability of such medical manpowerin the State.

F(9) The restrictions imposed by the State Government, if any,on students who are not domiciled in the State from obtainingadmissions in the State be specified.

(10) Full justification for opening of the proposed college.

(11) Doctor-patient ration proposed to be achieved. The (NameGof the person)_________has applied for establishment of amedical college at__________. On careful consideration ofthe proposal, the Government for_________has decided toissue an essentiality certificate to the applicant for theestablishment of a Medical College with__________(no.)Hseats. It is certified that:

(a) The applicant owns and manages a 300 bedded hospitalwhich was established in _________.

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

(c) Establishment of a medical college at________by (thename of Society/Trust) is feasible.

(d) Adequate clinical material as per the Medical Council ofIndia norms is available. It is further certified that in case theapplicant fails to create infrastructure for the medical collegeas per MCI norms and fresh admissions are stopped by theCentral Government, the State Government shall take overthe responsibility of the students already admitted in theCollege with the permission of the Central Government.

Yours faithfully, (Signature of the Competent Authority)”

19. Whether issuance of an Essentiality Certificate is onlya Ministerial Act :- This Essentiality Certificate in the prescribed form is crucial foravoiding cases where the colleges despite grant of initial permission couldnot provide the infrastructure, teaching and other facilities as a resultwhereof the students who had already been admitted suffered seriousprejudice.

Medical Council of India Regulations as well as Kerala UniversityHealth Sciences Statutes very emphatically mandate that the consent ofaffiliation can only be given after the Institution fulfills the essentialrequirements. The contention of the Appellant that the absence ofEssentiality Certificate is not one of the factors for consideration and isextraneous to the decision-making process cannot be accepted. Whilstgranting the Essentiality Certificate, the State Government undertakesto take over the obligations of the private educational institution in theevent of that institution becoming incapable of setting of the institution orimparting education therein. Such an undertaking on the part of the StateGovernment is unequivocal and unambiguous. An Essentiality Certificateby the State Government legitimizes a medical college declaring it fit toimpart medical education and gives accouchement to the expectationamongst the stakeholders that the Applicant College shall fulfill basicnorms specified by the MCI to start and operate a medical college.

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B

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H

A

B

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D

E

F

G

H

ABearing in mind that the question of justified existence of a college andirregular/illegal functioning of an existing college belong to a differentorder of things and cannot be mixed up. We come to the conclusion thatthe issuance/re-issuances of an essentiality certificate is not in any waya ministerial job and while dealing with a case of maintaining standardsin a professional college, strict approach must be adopted as theseBcolleges are responsible for ensuring that medical graduate has therequired skill set to work as a doctor in the country. Poor assessmentsystem; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in privateinstitutions; increasing capitation fees; a debilitated assessment andCaccreditation system, are problems plaguing our Medical Educationsystem. Allowing such deficient colleges to continue to functionjeopardizes the future of the student community and leading toincompetent doctors to graduate from such colleges and ultimately posea bigger risk to the society at large defeating the very purpose of theEssentiality Certificate issued by the State. The State would be deterringDfrom its duty if it did not conduct an inspection from time to time toensure that the requisite standards as set by the MCI are met beforeissuing/renewing the Essentiality certificate. That is by no stretch ofimagination ‘merely a ministerial job’. Considering especially that whileissuing the Essentiality Certificate the State Govt undertakes that shouldEthe Medical College fail to provide the requisite infrastructure and freshadmissions are stopped by the Central Government, the State Governmentshall take over the responsibility of the students already admitted in theCollege.

Same is the position with respect of CoA by the University. The FFirst Statute of KUHS prescribes that University may appoint aCommission to inspect the proposed site to make a physical verificationof the existing facilities and suitability of proposed site. The grant ofaffiliation is dependent upon fulfillment of all the conditions that arespecified in Clause X(I) of First Statues or that may be specified whichincludes staff, infrastructure facility, hospital, internet, library, playground,Ghostel, etc. Thus, even grant of CoA by the University also cannot besaid to be merely a ministerial act.

In view of above, we are of the considered opinion that grant ofEC by the State Government and CoA by the University is not simply aministerial act and we do not find any merit in the argument of theHappellant in this regard.

20. Whether Essentiality Certificate once issued, can bewithdrawn :- Much emphasis has been laid by the learned counsel for theappellant on decision of this Court in Chintpurni Medical College(Supra). In the said case, Medical College was granted permission tobreak ground for Academic Year 2011-2012 and consequently the firstbatch was admitted. However, it was denied Essentiality Certificate forthe subsequent years 2012-13 and 2013-14. In this circumstances, thisCourt observed as under:-

“It would be impermissible to allow any authority including aState Government which merely issues an essentialitycertificate, to exercise any power which could have the effectof terminating the existence of a medical college permitted tobe established by the Central Government. This the StateGovernment may not do either directly or indirectly. Moreover,the purpose of the essentiality certificate is limited to certifyingto the Central Government that it is essential to establish amedical college. It does not go beyond this. In other words,once the State Government has certified that the establishmentof a medical college is justified, it cannot at a later stage saythat there was no justification for the establishment of thecollege. Surely, a person who establishes a medical collegeupon an assurance of a State Government that suchestablishment is justified cannot be told at a later stage thatthere was no justification for allowing him to do so. Moreover,it appears that the power to issue an essenitality certificate isa power that must be treated as exhausted once it is exercised,except of course in cases of fraud. The rules of equity andfairness and promissory estoppel do not permit this Court totake a contrary view.”

21. In Paragraph 36, it was observed:-

“We may not be understood to be laying down that under nocircumstances can an essentiality certificate be withdrawn.The State Government would be entitled to withdraw suchcertificate where it is obtained by playing fraud on it or anycircumstance where the very substratum on which theessentiality certificate was granted disappears or any otherreason of like nature.”

A

B

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F

GH

A22. A two-Judge Bench decision in the case of ChintpurniMedical College (Supra) was considered by a three-Judge Bench inthe case of Sukh Sagar Medical College and Hospital Vs. State ofMadhya Pradesh and Ors.[6 ]In paragraph 13 of the reports, the three-Judge Bench though agreed with the dictum in Chintpurni MedicalCollege (Supra)that the act of the State in issuing EC is a quasi-judicialBfunction. It further went on to note the exception carved out in the caseof Chintpurni Medical College(Supra), wherein the State Governmentcan cancel/revoke/withdraw the EC in paragraph 36. It was finallyobserved in paragraph 25 of the reports in Sukh Sagar Medical College and Hospital (Supra) as under:-C

and Hospital (Supra) as under:-C

“25. We are conscious of the view taken and conclusionrecorded in Chintpurni Medical College (Supra). Even thoughthe 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 asDback as on 27.08.2014 has remained unfulfilled by theappellant-college for all this period (almost six years), despiterepeated opportunities given by the MCI, as noticed from thesummary/observation in the assessment report, it can be safelyassumed that the substratum for issuing the EssentialityCertificate has completely disappeared. The State GovernmentEcannot be expected to wait indefinitely, much less beyondperiod of five years, thereby impacting the interests of thestudent community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attachedhospital due to gross deficiencies. Such a situation, in ourFview, must come within the excepted category, where the StateGovernment ought to act upon and must take correctivemeasures to undo the hiatus situation and provide a windowto some other institute capable of fulfilling the minimumstandards/norms specified by the MCI for establishment of anew medical college in the concerned locality or within theGState. Without any further ado, we are of the view that theappellant-college is a failed institute thus far and is unableto deliver the aspirations of the student community and thepublic at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subjectEssentiality Certificate dated 27.08.2014. To this extent, werespectfully depart from the view taken in Chintpurni MedicalCollege (Supra).”

Let us make it clear that there can be no analogy drawn betweenthe facts of Chintpurni case (Supra) and the present case. The SukhSagar Case (Supra) actually expanded the circumstances in which theState 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 haspower to withdraw the EC where it is obtained by playing fraud on it orwhere the very substratum on which the EC was granted vanishes orany other reason of like nature.

24. In the case at hand, even though initially a conditional EC wasgranted in the year 2004 subject to removal of deficiencies and sincethen 17 years elapsed, the appellant has been unsuccessful in removingthe deficiencies. Reference may be made to the last joint inspectioncarried out on 07[th] November, 2020, wherein a number of deficiencieswere noted and the facilities were found inadequate for consideration ofan application for the year 2021-2022. What is true in case of vanishingof substratum applies with equal force where the substratum is missingright from the very inception.

25. In view of above, this issue is also answered against theappellant and in favour of the respondents.

26. Once again reverting back to the factual matrix of the presentcase, an inspection of the appellant institution was carried out on09.11.2020 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

A

B

C

D

E

F

G

H

Aiii.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)

B

vii.No in house facilities are available and spaced are availablemost requirement are out sourced for Microbiology andPathology Laboratories.

III.Clinical Materials

C

As per records, it is not clear whether a 300 bedded hospital(NMC Norms) is running for past 2 years. Records showshospital is functioning only from 2019 onwards. On the dayof inspection, Bed occupancy is 30 % only. OPD requiredis 600 and there is only less than 200 attendance on the dayof inspection.

D

IV.Faculty Deficiencies

The following faculty deficiencies was noted:

i.One Professor in the Dept. of Biochemistry.

E

ii.Associate Professor -8 (Anatomy-1, Physiology-1,Pharmacology-1, Pathology-1, General Medicine-1,Orthopaedics-1, Anaesthesia-1, Radiodiagnosis-1)

iii.Assistant Professor-11 (Anatomy-2, Physiology-3, ForensicMedicine-1, Community Medicine-1, General Medicine-1,FRespiratory Medicine-1, OBG-1, Anasthesiology-1)

iv.Tutor/Demostrator/SR-29 (Anatomy-4, Physiology-2,Biochemistry-4, pathology-1, Microbiology-1, ForensicMedicine-1, General Medicine-3, Paediatrics-1, PulmonaryMedicine-1, DVL-1, Psychiatry-1, General Surgery-3, ENT-1, OBG-2, Anasthesia-1, Radiodiagnosis-1, Dentistry-1)

G

4. There is total Faculty deficiency of 32% and Tutor/Demonstrator/SR deficiency of 78%.”

27. The appellant institution was duly intimated about thedeficiencies calling for their remarks. No objection was raised regardingH

inspection though a compliance report was submitted contending thatfacilities available are sufficient to grant affiliation. However, noting grossdeficiencies found during inspection the application for grant of CoA forAcademic Year 2021-22 was rejected vide letter/order dated 23.11.2020.

28. In the case at hands, the Essentiality Certificate was firstissued in the year 2004 and over 17 years later the appellant College isnot in a position to secure requisite permissions from the MCI. It is quiteapparent that the Appellant Institution has been long trying to escape itsresponsibility and fill up the lacuna through judicial process by gettingOrders from the High Court for consent of affiliation and considerationof its belated half-baked applications before the MCI. In both theinspections in 2015 and 2020, it was found that the Appellant Institutionlacks proper facilities. Even though the Appellant claims to be running ahospital since 2006 neither adequate amenities nor infrastructure oninspection was found to be in existence. This lackadaisical attitude istestament to the fact that the Appellant has no real interest in running aHospital in that place and has no ground to call foul upon rejection ofEC, CoA or its applications before MCI.

29. There is yet another aspect of the matter not only properfacilities and infrastructure including teaching faculty is absolutelynecessary but adherence to time schedule is also equally important. ThisCourt 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 infrastructureincluding a teaching faculty and doctors is absolutely necessaryand so also the adherence to time schedule for imparting teachingof highest standards thereby making available to the communitybest possible medical practitioners.”

30. Regulation 8(3) of the 1999 Regulations provides a schedulefor the receipt of applications for establishment of new Medical Collegesand processing of the applications by the Central Government and theMedical Council of India.

31. Initial time schedule fixed under the Regulations forestablishment of a new Medical College was amended in 2015 videEstablishment of Medical College Regulations (Amendment), 2015. Thesaid amendment substituted the following schedule :- 7 (2005)2 SCC 65

A

BC

D

EF

G

H

ATIME SCHEDULE FOR RECEIPT OF APPLICATIONS FORESTABLISHMENT OF NEW MEDICAL COLLEGES/RENEWALOF PERMISSION AND PROCESSING OF THE APPLICATIONSBY THE CENTRAL GOVERNMENT AND THE MEDICAL

COUNCIL OF INDIA

B

C

D

32. Time and again, this Court has emphasized that time scheduleeither for establishmentof new Medical College or to increase intake inexisting colleges shall be adhered to strictly by all concerned. There isno manner of doubt that the time schedule prescribed in receipt of startingEa new Medical College for the year 2020-2021 is already over longback. Even the last date for the Academic Year 2021-2022 which wasextended to 15.12.2020, in view of prevailing Covid-19 Pandemicis alsoover by now. Thus the State Government of theUniversitycannot bedirected to issue EC or CoA to the appellant for the year 2020-2021even notionally as suggested by the learned counsel for the appellant.F

33. In view of the facts and circumstances discussed herein above,the relief prayed for by the appellant for the Academic Year 2020-2021,is not liable to be granted. The appeals, accordingly, fail and standdismissed. It is left open to the appellant to make an appropriate applicationfor grant of EC and CoA for the next Academic Year before theGconcerned Authority in accordance with the time schedule after removingthe alleged deficiencies and in case any such applications are made, thesame shall be disposed of by the concerned authorities in accordancewith law and the procedure prescribed.

34. In the circumstances, we do not make any order as to costs.

HDivya Pandey