Case: V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC Vs. STATE OF KERALA &amp; ORS. ETC

no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents. 23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature. 24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception. 25. In view of above, this issue is also answered against the appellant and in favour of the respondents. 26. Once again reverting back to the factual matrix of the present case, an inspection of the appellant institution was carried out on 09.11.2020 and following deficiencies were found : I. Infrastructure i. Needs thorough refinement to start a medical college. Construction of the building is not completed. II. Equipments i. Needs refined equipments in theatre, Laundry, Labs, Histopathology and Radiology. ii. Blood Bank – Nil iii. Practical Laboratories- Available I (required 3) iv. Journals - Nil v. ICU/ICCU/PICU/NICU/SICU/Obstetric ICU/ICU – Available 18 beds (required -60 beds) vi. X-Ray Mobile Unit- Available 1 (required 2) vii. No in house facilities are available and spaced are available most requirement are out sourced for Microbiology and Pathology Laboratories. III. Clinical Materials As per records, it is not clear whether a 300 bedded hospital (NMC Norms) is running for past 2 years. Records shows hospital is functioning only from 2019 onwards. On the day of inspection, Bed occupancy is 30 % only. OPD required is 600 and there is only less than 200 attendance on the day of inspection. IV. Faculty Deficiencies The following faculty deficiencies was noted: i. One Professor in the Dept. of Biochemistry. ii. Associate Professor -8 (Anatomy-1, Physiology-1, Pharmacology-1, Pathology-1, General Medicine-1, Orthopaedics-1, Anaesthesia-1, Radiodiagnosis-1) iii. Assistant Professor-11 (Anatomy-2, Physiology-3, Forensic Medicine-1, Community Medicine-1, General Medicine-1, Respiratory Medicine-1, OBG-1, Anasthesiology-1) iv. Tutor/Demostrator/SR-29 (Anatomy-4, Physiology-2, Biochemistry-4, pathology-1, Microbiology-1, Forensic Medicine-1, General Medicine-3, Paediatrics-1, Pulmonary Medicine-1, DVL-1, Psychiatry-1, General Surgery-3, ENT-1, OBG-2, Anasthesia-1, Radiodiagnosis1, Dentistry-1) 4. There is total Faculty deficiency of 32% and Tutor/Demonstrator/SR deficiency of 78%. 27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020. 28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI. 29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:- It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners. 30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India. 31. Initial time schedule fixed under the Regulations for establishment of a new Medical College was amended in 2015 vide Establishment of Medical College Regulations (Amendment), 2015. The said amendment substituted the following schedule :- TIME SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL COLLEGES/RENEWAL OF PERMISSION AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA TABLE 32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. In the case of Medical Council of India (Supra), it has been held that the Court has repeatedly observed that the decision taken by the Union of India on the basis of the recommendation of the expert body, cannot be interfered with lightly and interference is permissible only when the college demonstrates jurisdictional errors ex-facie perversity or malafides. In the case of The Chairman, S.R. Educational and Charitable Trust & Anr. (Supra), this Court observed as under : -High Court at the same time has ordered inspection and if the deficiencies are found to existence then the Medical Council of India and Govt. of India have been given liberty to take appropriate decision. Such orders may ruin the entire carrier of the students. Once permission to admit students is granted, it should not be such conditional one. Considering the deficiencies, it would be against the efficacious medical education and would amount to permit the unequipped medical College to impart Medical education without proper infrastructure and faculty, patients serve as the object of teaching by such an approach ultimately interest of the society would suffer and half- baked doctors cannot be left loose on society like drones and parasites to deal with the life of the patients in the absence of proper educational training. It would be dangerous and again the right to life itself in case unequipped medical colleges are permitted to impart substandard medical education without proper facilities and infrastructure.16. Thus, an EC is mandatorily required by a person before he receives permission for establishment of a Medical College. The Legislative scheme that imposes the requirement of the EC is prescribed in Section 10(A) of the Medical Council of India Act, which requires the previous permission of the Central Government for establishing a Medical College or opening a new course of study or training. Every person or Medical College must submit to the Central Government a scheme as prescribed. The Central Government then refers the scheme to the MCI for its recommendations. The Medical Council is required to consider the same and satisfy itself by obtaining any particulars as are necessary and after having the defects if any removed, make its recommendations to the Central Government. The Central Government, may on receipt of the scheme, approve it conditionally or disapprove the same.17. The power to permit the establishment of a Medical College is thus conferred on the Central Government by the MCI Act. The Regulations referred above, were framed in exercise of powers conferred under Section 10(A) read with Section 33 of the MCI Act prescribed the qualifying criteria. These criteria lay down the eligibility to apply for permission to establish a Medical College. One of the criteria is that the person who is desirous of establishing a Medical College should obtain an Essentiality Certificate as prescribed in Form 2 of the Regulations, certifying that the State Government/Union Territory Administration has no objection for the establishment of the proposed Medical College at the proposed site and availability of adequate clinical material. Thus, the State Government is required to certify that it has decided to issue an Essentiality Certificate for the establishment of a Medical College with a specified number of seats in public interest and further such establishment is feasible.This Essentiality Certificate in the prescribed form is crucial for avoiding cases where the colleges despite grant of initial permission could not provide the infrastructure, teaching and other facilities as a result whereof the students who had already been admitted suffered serious prejudice.Medical Council of India Regulations as well as Kerala University Health Sciences Statutes very emphatically mandate that the consent of affiliation can only be given after the Institution fulfills the essential requirements. The contention of the Appellant that the absence of Essentiality Certificate is not one of the factors for consideration and is extraneous to the decision-making process cannot be accepted. Whilst granting the Essentiality Certificate, the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. Such an undertaking on the part of the State Government is unequivocal and unambiguous. An Essentiality Certificate by the State Government legitimizes a medical college declaring it fit to impart medical education and gives accouchement to the expectation amongst the stakeholders that the Applicant College shall fulfill basic norms specified by the MCI to start and operate a medical college. Bearing in mind that the question of justified existence of a college and irregular/illegal functioning of an existing college belong to a different order of things and cannot be mixed up. We come to the conclusion that the issuance/re-issuances of an essentiality certificate is not in any way a ministerial job and while dealing with a case of maintaining standards in a professional college, strict approach must be adopted as these colleges are responsible for ensuring that medical graduate has the required skill set to work as a doctor in the country. Poor assessment system; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in private institutions; increasing capitation fees; a debilitated assessment and accreditation system, are problems plaguing our Medical Education system. Allowing such deficient colleges to continue to function jeopardizes the future of the student community and leading to incompetent doctors to graduate from such colleges and ultimately pose a bigger risk to the society at large defeating the very purpose of the Essentiality Certificate issued by the State. The State would be deterring from its duty if it did not conduct an inspection from time to time to ensure that the requisite standards as set by the MCI are met before issuing/renewing the Essentiality certificate. That is by no stretch of imagination merely a ministerial job. Considering especially that while issuing the Essentiality Certificate the State Govt undertakes that should the Medical College fail to provide the requisite infrastructure and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College.Same is the position with respect of CoA by the University. The First Statute of KUHS prescribes that University may appoint a Commission to inspect the proposed site to make a physical verification of the existing facilities and suitability of proposed site. The grant of affiliation is dependent upon fulfillment of all the conditions that are specified in Clause X(I) of First Statues or that may be specified which includes staff, infrastructure facility, hospital, internet, library, playground, hostel, etc. Thus, even grant of CoA by the University also cannot be said to be merely a ministerial act.In view of above, we are of the considered opinion that grant of EC by the State Government and CoA by the University is not simply a ministerial act and we do not find any merit in the argument of the appellant in this regard.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. (2020) SCC Online SC 851 In paragraph 13 of the reports, the three-Judge Bench though agreed with the dictum in Chintpurni Medical College (Supra) that the act of the State in issuing EC is a quasi-judicial function. It further went on to note the exception carved out in the case of Chintpurni Medical College (Supra), wherein the State Government can cancel/revoke/withdraw the EC in paragraph 36. It was finally observed in paragraph 25 of the reports in Sukh Sagar Medical College and Hospital (Supra) as under:-25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (Supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.08.2014 has remained unfulfilled by the appellant-college for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate has completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the appellant-college is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (Supra).Let us make it clear that there can be no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents.23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature.24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception.25. In view of above, this issue is also answered against the appellant and in favour of the respondents.27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020.28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI.29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:-It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners.30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India.32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant.