V. N. Public Health and Educational Trust Etc. v. State of Kerala & Ors. Etc.

KRISHNA MURARI, J. 1. Leave granted. 2. These appeals arises out of the Judgment and Order da ted 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 (ii) Whether Essentiality Certificate, once issued, can be withdrawn? 4.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 Distri ct in 2006. According to the case set up by the appellant, t he requisite V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA infrastructure was put in place and it has been trying to establish a Medical College from the year 2006 onwards but due to the arbitr ary and discriminatory action of the State Government and the Kerala University of Health Sciences by denying the EC and CoA, i t 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 appell ant on 24.01.2004 for 100 seats. However, since the same was no t 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 w hich 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 appli cation 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 passe d 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 1021 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 N o. 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 o rder 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 D ivision 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 fil ed 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 directi ng the State Government to take a decision in the matter at the earlie st and at any V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] 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 app ellant. Vide order dated 27.09.2019, KUHS rejected the application of the appellant. Ultimately, Writ Petition No. 25254 of 2019 was withdrawn b y 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 v ide 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 Petiti on (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 1023 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, an d the State Government was directed to issue/renew the EC of the appell ant. 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 t he 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 se e whether Essentiality Certificate could be issued and whethe r 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 c ertify to the Central Government that it is essential to establish a Medical College. It was further submitted that since the appellant was iss ued 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 Gove rnment has to only consider the desirability and feasibility of establishment of Medical College in the proposed location and certify as to the a vailability 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 V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] by this Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Sawmigal Medical Educational & Charitable Trus t 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 qualifyi ng criteria laid down is that Essentiality Certificate re garding desirability and feasibility of having the proposed colle ge at the proposed location should be obtained from the St ate Government………. For the purpose of granting the Essentiality Certif icate as required under the qualifying criteria prescribed u nder the scheme, the State Government is only required to con sider the desirability and feasibility of having the proposed medical college at the proposed location. The Essentiality Certifi cate cannot be withheld by the State Government on any p olicy consideration because the policy in the matter of establis hment 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 on ce 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 Essentialit y Certificate, to exercise any power which could have the ef fect of terminating the existence of a Medical College perm itted 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 e stablish a Medical College. It does not go beyond this. In other words, once the State Government has certified that the establis hment of a Medical College is justified, it cannot at a l ater stage 1 (1996) 3 SCC 15 2 (2018) 15 SCC 1 1025 say that there was no justification for the establi shment of the College. Surely, a person who establishes a Med ical College upon an assurance of a State Government that su ch 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 Cert ificate is a power that must be treated as exhausted once i t 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 lea rned 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 r ole 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 sat isfied by the appellant and that infrastructure and other clinical materials are sufficiently available for setting up a new Medical College. It has al so 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 Co urt in Government of Andhra Pradesh & Anr. Vs. Medwin Educati onal Society & Ors. 3 10. Mr. Gupta further contends that the Judgment in Thirumuruga’s Case (Supra) was not rendered with reference to the 3 (2004) 1 SCC 86 V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] 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 t o 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 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 de pend upon several factors. As per the guidelines of the Governme nt and of the University , various aspects are to be ex amined. By merely quashing of an order passed on policy, the gr ant of Essentiality Certificate or consent for affiliat ion 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 201 5 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 t hat 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 He alth 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 insti tution carried out by the officials of the University on 07.11.2020, wherein it 1027 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 patient s for IP admission is doubtful and documentation do not co-relate with the inspection findings. With respect to faculty, there was a de ficiency of 32% and Tutor, Demonstrator-SR Deficiency of 78%. The Scruti ny 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 Inspect ion Report, wherein the findings of the Inspection Report have been virtually admitted. He also placed reliance on the judgment rendered by this C ourt in Medical Council of India Vs. Principal, KMCT Medical Coll ege & Anr. 4and 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 been held that the Court has repeatedly observed that the decisio n taken by the Union of India on the basis of the recommendation of the e xpert body, cannot be interfered with lightly and interference is permissible only when the college demonstrates jurisdictional er rors 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 i f the deficiencies are found to existence then the Me dical Council of India and Govt. of India have been given li berty 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. Conside ring the deficiencies, it would be against the efficacio us medical education and would amount to permit the unequipped medical College to impart Medical education without proper infrastructure and faculty, patients serve as the o bject of teaching by such an approach ultimately interest of the socie ty would suffer and half- baked doctors cannot be left loose on 4 (2018) 9 SCC 766 5 (2018) SCC Online SC 2276 V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] society like drones and parasites to deal with the lif e 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 w ould 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 stud y or training (including a postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisio ns of this section. Explanation 1-. For the purposes of this section, “ person” includes any University or a trust but does not inc lude the Central Government. Explanation 2.- For the purposes of this section “admi ssion capacity” in relation to any course of study or tra ining 1029 (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 b eing admitted to such course or training. (2) (a) Every person or medical college shall, for the purpos e 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 fo rm 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-se ction (2) the Council may obtain such other particulars as may be considered necessary by it from the person or the m edical 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 t he Council. (b) consider the scheme, having regard to the factors re ferred to in sub-section (7) and submit the scheme together with i ts recommendations thereon to the Central Government. XXXXXX (7) The Council, while making its recommendations u nder clause (b) of sub-section (3) and the Central Gover nment, 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 exi sting medical college seeking to open a new or higher cou rse 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. V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] (b) whether the person seeking to establish a medical colle ge or the existing medical college seeking to open a new or higher course of study or training or to increase it admission cap acity has adequate financial resources; (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting th e new course or study or training or accommodating the increa sed 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 t he number or students likely to attend such medical colleg e or course of study or training or as a result of the i ncreased 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 programm e drawn to impart proper training to students likely t o attend such medical college or course of study or training by person s having the recognised medical qualifications; (f) the requirement of manpower in the field of pra ctice of medicine; and (g) any other factors as may be prescribed. XXXXXX (B) Medical Council of India Establishment of Medica l College Regulations , 1999 (Regulations) 3. The establishment of a medical college – No person s hall establish a medical college except after obtaining prior permission from the Central Government by submittin g 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 qual ify to apply for permission to establish a medical college if the following conditions are fulfilled:- 1031 (1) that medical education is one of the objectives of the applicant in case the applicant is an autonomous bo dy, registered society, charitable trust & companies re gistered under Company Act. (2) XXXXX (3) that Essentiality Certificate in Form 2 regardi ng No objection of the State Government/Union Territory Administration for the establishment of the proposed medi cal college at the proposed site and availability of ad equate clinical material as per the council regulations, h ave been obtained by the person from the concerned State Government/ Union Territory Administration. (4) that Consent of affiliation in Form-3 for the p roposed medical college has been obtained by the applicant f rom a University. (5) That the person owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities capabl e of being developed into teaching institution in the cam pus 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 f or 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 (fo r 100 admissions) and rupees two hundred lakhs (for 150 an nual admissions) for the establishment of the medical college an d its infrastructural facilities and the second bank guarantee for a sum of rupees 350 lakhs (for 400 beds), rupee s 550 lakhs (for 500 beds) and rupees 750 lakhs (for 750 beds) respectively for the establishment of the teaching hospital a nd its infrastructural facilities : Provided that the above conditions shall not apply to the persons who are S tate Governments/Union Territories if they give an under taking to provide funds in their plan budget regularly till the re quisite facilities are fully provided as per the time bound program me. V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] (8) Opening of a medical college in hired or rented build ing shall not be permitted. The Medical college shall be s et 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 instan ce in terms of the desirability and prima facie feasibility of s etting up the medical college at the proposed location. Therefore , it shall assess the capability of the applicant to pro vide the necessary sources and infrastructure for the scheme . While evaluating the application, the Council may seek fu rther information, clarification or additional documents f rom the applicant as considered necessary and shall carry out physical inspection to verify the information supplied by the appli cant. XXXXXX (C) The Kerala University of Health Sciences First Statute, 2013 (KUHS Act) Chapter XXI Clause 10. Grant of Affiliation (1) The University may appoint a commission to inspe ct the proposed site of a new college/or to make a physica l verification of the facilities that may exist for startin g the new college/course if the application is considered favorabl y by the University. The Commission will inspect the suitability of the proposed site, verify the title deeds as regard s the proprietary rights of the management over the land( and buildings if any) offered, building accommodation pro vided if any, assets of the management, constitution of the reg istered body, capability of maintaining academic standards and all other relevant matters……. 2) The Grant of affiliation shall depend upon the fulfillm ent by the management of all the conditions that are sp ecified here or that may be specified later for the satisfa ctory establishment and maintenance of the proposed insti tution/ courses of studies and on the reports of inspection by the Commission or commission which the university may appoint for the purpose. 1033 ….. (5)The Management shall be prepared to abide by suc h conditions and instructions as regards staff, infra structure facility, hospital, Internet and audiovisual facili ties, 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 oth er enquiries if any and after obtaining the essentiality certi ficate from the Central and/or State Councils or authorities in the concerned disciple and after obtaining the essentia lity certificate from the Government, the Governing Council shal l 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 C ollege. 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 perso n or Medical College must submit to the Central Government a s cheme as prescribed. The Central Government then refers the scheme to the MCI for its recommendations. The Medical Council is required to co nsider 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 Medi cal 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 p roposed Medical College at the proposed site and availability of adequate clinical V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] material. Thus, the State Government is required to certif y that it has decided to issue an Essentiality Certificate for the est ablishment 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 foll ows: (1) No. of institutions already existing in the State. (2) No. of seats available or No. of doctors being pro duced 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 reso lve the problem of deficiencies of qualified medical personnel i n 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 c ollege. (11) Doctor-patient ration proposed to be achieved. The (Name of the person)_________has applied for establishment of a medical college at__________. On careful consideratio n of the proposal, the Government for_________has decide d to issue an essentiality certificate to the applicant for the establishment of a Medical College with__________(n o.) seats. It is certified that: 1035 (a) The applicant owns and manages a 300 bedded hospita l which was established in _________. (b) It is desirable to establish a medical college in the p ublic interest; (c) Establishment of a medical college at________by (the name of Society/Trust) is feasible. (d) Adequate clinical material as per the Medical Council of India norms is available. It is further certified that in ca se the applicant fails to create infrastructure for the medical co llege 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 Authori ty)” 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 suffere d 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 t he 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 undertake s 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 ex pectation amongst the stakeholders that the Applicant College shal l fulfill basic norms specified by the MCI to start and operate a medical college. V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] 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 ado pted as these colleges are responsible for ensuring that medical graduate has the required skill set to work as a doctor in the country. Poor asses sment system; exploding number of medical colleges; shortage of patie nts/ 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 E ducation system. Allowing such deficient colleges to continu e 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 purp ose 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 m et before issuing/renewing the Essentiality certificate. That is b y 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 ma y 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. 1037 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 t o 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 essentialit y certificate, to exercise any power which could have the eff ect of terminating the existence of a medical college permit ted 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 e stablish a medical college. It does not go beyond this. In other words, once the State Government has certified that the establis hment of a medical college is justified, it cannot at a later stag e say that there was no justification for the establishme nt of the college. Surely, a person who establishes a medical c ollege 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 exerci sed, except of course in cases of fraud. The rules of eq uity and fairness and promissory estoppel do not permit this Co urt 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 wit hdrawn. 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.” V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] 22. A two-Judge Bench decision in the case of Chintpurni Medical College (Supra) was considered by a three-Judge Bench in the case of Sukh Sagar Medical College and Hospital Vs. State of Madhya Pradesh and Ors. 6 In paragraph 13 of the reports, the three- Judge Bench though agreed with the dictum in Chintpurni Medical College (Supra)that the act of the State in issuing EC is a quasi-judicial function. It further went on to note the exception carved out in the case of Chintpurni Medical College(Supra), wherein the State Government can cancel/revoke/withdraw the EC in paragraph 36. It was finally observed in paragraph 25 of the reports in Sukh Sagar Medical College and Hospital (Supra) as under:- “25. We are conscious of the view taken and conclus ion recorded in Chintpurni Medical College (Supra). Even though the fact situation in that case may appear to be si milar, 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 unfulfilled by t he appellant-college for all this period (almost six years) , despite repeated opportunities given by the MCI, as noticed from th e summary/observation in the assessment report, it can be safe ly assumed that the substratum for issuing the Essenti ality Certificate has completely disappeared. The State Governme nt cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interes ts of the student community in the region and the increased d octor- patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situatio n, in our view, must come within the excepted category, where the State Government ought to act upon and must take correcti ve measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the m inimum standards/norms specified by the MCI for establishmen t of a new medical college in the concerned locality or withi n 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 6 (2020) SCC Online SC 851 1039 year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this ex tent, 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 va nishes 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 a nd since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joi nt 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 V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] 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, Radiodiagnosis-1, Dentistry-1) 4. There is total Faculty deficiency of 32% and Tuto r/ Demonstrator/SR deficiency of 78%.” 27. The appellant institution was duly intimated ab out the deficiencies calling for their remarks. No objection was raised regarding 1041 inspection though a compliance report was submitted conte nding 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 infrastruct ure on inspection was found to be in existence. This lackadaisica l 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 rejec tion of EC, CoA or its applications before MCI. 29. There is yet another aspect of the matter not only pr oper facilities and infrastructure including teaching facult y 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 infrastruct ure 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 t he Medical Council of India. 31. Initial time schedule fixed under the Regulatio ns for establishment of a new Medical College was amended in 2015 vid e Establishment of Medical College Regulations (Amendment), 2015. The said amendment substituted the following schedule :- 7 (2005)2 SCC 65 V. N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. v. STATE OF KERALA [KRISHNA MURARI, J.] 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 32. Time and again, this Court has emphasized that time schedule either for establishmentof new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020-2021 is already over l ong back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemicis also over by now. Thus the State Government of theUniversitycannot b e directed to issue EC or CoA to the appellant for the year 2020-2 021 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 acc ordance with law and the procedure prescribed. 34. In the circumstances, we do not make any order as to cos ts. Divya Pandey Appeals dismissed.