Kerala High Court
V.N.Public Health And Educational ... vs State Of Kerala Represented By on 12 October, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 12TH DAY OF OCTOBER 2020/20TH ASWINA, 1942
WP(C).No.27266 OF 2019(G)
PETITIONER:
V.N.PUBLIC HEALTH AND EDUCATIONAL TRUST,
A2, JAWAHAR NAGAR COLONY,
SALES TAX OFFICE ROAD, KOZHIKODE,
REPRESENTED BY ITS MANAGING TRUSTEE
V. ANIL KUMAR.
BY ADVS.
SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANNATHAPURAM 695 001.
2 MEDICAL COUNCIL OF INDIA,
DWARAKA, NEW DELHI 110 077,
REPRESENTED BY ITS SECRETARY.
ADDL.3 UNION OF INDIA, REPRESENTED BY
ITS SECRETARY TO GOVERNMENT,
MINISTRY OF HEALTH AND FAMILY WELFARE,
NIRMAN BHAVAN, NEAR UDYOG BHAVAN,
METRO STATION, MOULANA AZAD ROAD,
NEW DELHI - 110 011.
ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED
28.09.2020 IN I.A.NO.3 OF 2020.
WPC Nos.27266, 29098 & 34275 of 2019
: 25 :
ADDL.4. NATIONAL MEDICAL COMMISSION,
DWARAKA, NEW DELHI - 110 077
REPRESENTED BY ITS CHAIRMAN
ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED
05.10.2020 IN I.A.NO. 4 OF 2020.
R1 BY SPL.GOVERNMENT PLEADER SRI.M.A. ASIF
R2 & R4 BY SRI.TITUS MANI VETTOM, SC, MCI
R3 BY SRI.P.VIJAYAKUMAR, ASGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 12.10.2020, ALONG WITH WP(C).29098/2019(J),
WP(C).34275/2019(H), THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WPC Nos.27266, 29098 & 34275 of 2019
: 25 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY,THE 12TH DAY OF OCTOBER 2020/20TH ASWINA, 1942
WP(C).No.29098 OF 2019(J)
PETITIONER:
V.N.PUBLIC HEALTH AND EDUCATION TRUST,
SALES TAX OFFICE ROAD, CALICUT, PIN-673 006,
REPRESENTED BY ITS AUTHORISED SIGNATORY.
BY ADVS.
SRI.P.SANJAY
SMT.A.PARVATHI MENON
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
SECRETARY TO THE GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM,
PIN CODE-695 501.
2 THE KERALA UNIVERSITY OF HEALTH &
ALLIED SCIENCES (KUHAS),
REPRESENTED BY ITS REGISTRAR,
MEDICAL COLLEGE P.O.,
THRISSUR, PIN CODE-680 596.
3 THE MEDICAL COUNCIL OF INDIA,
REPRESENTED BY ITS SECRETARY,
POCKET-14, SECTOR-8, DWARAKA,
PHASE-I, NEW DELHI-110 077.
ADDL.4 NATIONAL MEDICAL COMMISSION
REPRESENTED BY ITS SECRETARY,
POCKET-14, SECTOR-8,DWARAKA,
PASE-I, NEW DELHI - 110 077.
WPC Nos.27266, 29098 & 34275 of 2019
: 25 :
ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED
28.09.2020 IN I.A.NO. 1 OF 2020.
R1 BY SPL.GOVERNMENT PLEADER SRI.M.A.ASIF
R2 BY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY
OF HEALTH SCIENCES
R3 & R4 BY SRI.TITUS MANI VETTOM, SC, MCI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 12.10.2020, ALONG WITH WP(C).27266/2019(G),
WP(C).34275/2019(H), THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WPC Nos.27266, 29098 & 34275 of 2019
: 25 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY,THE 12TH DAY OF OCTOBER 2020/20TH ASWINA, 1942
WP(C).No.34275 OF 2019(H)
PETITIONER:
V.N.PUBLIC HEALTH AND EDUCATIONAL TRUST,
A2, JAWAHAR NAGAR COLONY,
SALES TAX OFFICE ROAD, KOZHIKODE,
REPRESENTED BY ITS MANAGING TRUSTEE
V. ANIL KUMAR.
BY ADVS.
SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 MEDICAL COUNCIL OF INDIA,
DWARAKA, NEW DELHI - 110 077,
REPRESENTED BY ITS SECRETARY.
3 UNION OF INDIA,REPRESENTED BY
ITS SECRETARY TO GOVERNMENT,
MINISTRY OF HEALTH AND FAMILY WELFARE,
NIRMAN BHAVAN, NEAR UDYOG BHAVAN
METRO STATION, MOULANA AZAD ROAD,
NEW DELHI - 110 011.
ADDL 4 NATIONAL MEDICAL COMMISSION,
DWARAKA, NEW DELHI - 110 077
REPRESENTED BY ITS CHAIRMAN
WPC Nos.27266, 29098 & 34275 of 2019
: 25 :
ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED
05.10.2020 IN I.A. NO. 1 OF 2020.
R1 BY SPL.GOVERNMENT PLEADER SRI.M.A.ASIF
R2 & R4 BY SRI.TITUS MANI VETTOM, SC, MCI
R3 BY SRI.P.VIJAYAKUMAR, ASGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 12.10.2020, ALONG WITH WP(C).27266/2019(G),
WP(C).29098/2019(J), THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WPC Nos.27266, 29098 & 34275 of 2019
: 25 :
JUDGMENT
~~~~~~~~~ Dated this the 12th day of October, 2020 These writ petitions have been filed by an Educational Trust and relate to denial of Essentiality Certificate by the State and non-grant of Certificate of Consent by University.
2. W.P.(C) No.27266/2019 has been filed seeking to quash Ext.P6 order passed by the Government of Kerala denying NOC and Essentiality Certificate (EC) for starting new Medical College in private sector and to direct the Government to issue/renew the EC of the petitioner. The writ petition was allowed by a learned Single Judge of this Court on 19.11.2019 quashing Ext.P6 communication and directing the Government to issue EC on or before 30.11.2019. There was a further direction to the Medical Council of India (MCI) to accept the EC issued in terms of the WPC Nos.27266, 29098 & 34275 of 2019 : 25 : judgment as one received on time. In W.A. No.2443/2019 filed by the State of Kerala challenging the said judgment of the learned Single Judge, a Division Bench of this Court on 05.12.2019 affirmed the judgment dated 19.11.2019 in W.P. (C) No.27266/2019.
3. W.P.(C) No.29098/2019 was filed by the Education Trust seeking to quash Ext.P7 order rejecting the request for Consent of Affiliation (CoA) for starting new Medical College for the reasons that there is no valid application from the petitioner-Trust and there is no valid EC from the Government. On 31.10.2019, a learned Single Judge of this Court passed an order declining to grant any interim relief.
4. W.P.(C) No.34275/2019 was filed seeking to direct the MCI and Union of India to process Ext.P16 application for permission of the Central Government to establish Medical College without insisting on EC and without waiting for CoA. In the said writ petition, a learned Single Judge passed an interim order on 13.12.2019 deeming it appropriate to direct WPC Nos.27266, 29098 & 34275 of 2019 : 25 : the MCI and Union of India to process Ext.P16 application without insisting on EC and CoA subject to the outcome of the SLP pending before the Hon'ble Apex Court.
5. The State of Kerala preferred SLP(C) No.30008/2019 (CA No.2920/2020) against the judgment dated 05.12.2019 of this Court in W.A. No.2443/2019 and SLP(C) No.1749/2020 against the interim order dated 13.12.2019 in W.P.(C) No.34275/2019. The Hon'ble Apex Court quashed the impugned judgment and interim order and ordered that all the writ petitions be heard together and finally decided by this Court on an objective manner, in accordance with law.
6. The case of the petitioner-Educational Trust in brief is as follows:-
The petitioner is a Trust with the object of promoting education in Health and Medicine. To start a Medical College, the petitioner set up a 300 bedded hospital in Walayar, Palakkad District. The requisite infrastructure was put in place and the petitioner has been trying to run the WPC Nos.27266, 29098 & 34275 of 2019 : 25 : College from the year 2006 onwards. Each year, the petitioner tried to obtain EC from Government, CoA from Kerala University of Health Science (KUHS) and recommendation/report from the MCI. The petitioner approached this Court a number of times and this Court intervened several times and directions were given to take time bound action, but one of the three requisites has fallen behind the time schedule prescribed. The petitioner was issued Ext.P1 EC (in W.P.(C) No.34275/2019) in the year 2003. But, the MCI found the EC as defective. During the subsequent years also, due to inaction of the respondents, the recommendation could not be forwarded to the Central Government. Ext.P2 EC was issued on 10.06.2014. There were clerical mistakes therein and the Government issued Ext.P3 corrected EC. By Ext.P3, the Government certified that the petitioner owns a 300 bedded hospital and it is desirable to establish a Medical College in public interest. It was also certified that all clinical materials as per the norms of MCI are available. Ext.P3 EC was issued for the WPC Nos.27266, 29098 & 34275 of 2019 : 25 : academic year up to 2017-'18. But, the MCI found that date for submission of EC in proper form was over.
7. When the petitioner approached the Government again for EC, the request was rejected as per Ext.P4 dated 28.09.2017 stating that situation has changed, that new Medical Colleges have come up and hence there is no need to evaluate the necessity to start a new Medical College in the State. In W.P.(C) No.40290/2017 filed by the petitioner, this Court in Ext.P5 order observed that it cannot be presumed that such need ceased to exist within a couple of months. However, as the time schedule was over, the petitioner was forced to withdraw the said W.P.(C) No.40290/2017.
8. For the academic year 2020-'21, the petitioner again made application which was not acted upon. The petitioner hence filed W.P.(C) No.23460/2019. This Court disposed of the writ petition as per judgment dated 04.09.2019 directing the Government to pass orders on the application for renewal of EC. Thereupon, the petitioner was WPC Nos.27266, 29098 & 34275 of 2019 : 25 : served with an order dated 01.10.2019, wherein it was stated that the Government is not granting EC for starting Medical Colleges in private sector. The petitioner urged that non- issuance of EC is illegal, arbitrary and irrational and denial of CoA by the University is unjustified.
9. The State of Kerala did not file counter affidavit in these writ petitions. The University filed a statement in W.P. (C) No.29098/2019. In the statement, it is alleged that the University inspected the institution on an earlier occasion and could not find the existence of a properly run hospital. University did not invite applications for Consent of Affiliation to establish new Medical Colleges since the year 2018. The petitioner's request for CoA could not be considered for the reason that University did not invite applications and the Government has not issued EC.
10. I have heard Advocate P. Sanjay and Advocate Vinod Bhat appearing for the petitioner, Advocate Titus Mani Standing Counsel for the MCI, Advocate P. Sreekumar Standing Counsel for the KUHS, Advocate M.A. Asif Special WPC Nos.27266, 29098 & 34275 of 2019 : 25 : Government Pleader representing the State of Kerala and Advocate P. Vijayakumar learned Assistant Solicitor General of India representing Union of India.
11. Advocate Vinod Bhat, learned counsel for the petitioner in W.P.(C) No.27266/2019 and 34275/2019, relied on the judgment of the Hon'ble Apex Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust [(1996) 3 SCC 15] and pointed out that the Essentiality Certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of a new Medical College now rests with the Central Government alone. The order dated 01.10.2019 of the Government of Kerala by which petitioner's request for EC was refused to be considered, is solely based on a policy decision of the State Government, of not granting EC in the private sector. The said impugned order therefore goes against the judgment of the Hon'ble Apex Court in Thirumuruga Kirupananda Variyar (supra).
WPC Nos.27266, 29098 & 34275 of 2019 : 25 :
12. Relying on the judgment of the Apex Court in Government of Andhra Pradesh and another v. Medwin Educational Society and others [(2004) 1 SCC 86], learned counsel for the petitioner urged that in the said judgment, the Hon'ble Apex Court has held that while rejecting an application for EC, the State must comply with the principles of natural justice which would include assigning of sufficient and cogent reasons. The State cannot arbitrarily or capriciously act and its decision must be informed by reasons, based on relevant factors. The impugned order does not give any cogent reason for declining EC.
13. The learned counsel for the petitioner pointed out that the EC was given to the petitioner in the years 2004 as per Ext.P13, 2009-'11 as per Ext.P14, 2011-'13 as per Ext.P15, 2014-'16 as per Ext.P2 and 2016-'18 as per Ext.P32 (all Exhibits in W.P.(C) No.27266/2019). These orders would only show that the Government agreed upon the necessity to establish a Medical College and was satisfied that the petitioner is satisfying all the requirements. In the year 2004, WPC Nos.27266, 29098 & 34275 of 2019 : 25 : the Government proposed to achieve a Doctor-Patient ratio of 1:2000 as can be seen from Ext.P13 (W.P.(C) No.27266/2019). In the renewed EC issued to the petitioner as per Ext.P32, it has been stated that the Doctor-Patient ratio proposed to be achieved is 1:800. At present, the existing ratio is much lower than 1:2000. Therefore, the State cannot take a stand that there is no requirement of a Medical College in the State.
14. The learned counsel for the petitioner further pointed out that when Ext.P1 EC was issued, there were five Medical Colleges in private sector in Palakkad District and now there are only three Medical Colleges. The total number of private Medical Colleges in the State has come down from 19 to 17 in the year 2015. Therefore, under no logic or reasoning, the State can take the stand that there is no requirement of Medical Colleges in Kerala now. The learned counsel also submitted that the University cannot take a stand that it will give CoA only if the State Government issues EC. In view of the judgment of the Apex Court in P.A. WPC Nos.27266, 29098 & 34275 of 2019 : 25 : Inamdar and others v. State of Maharashtra and others [AIR 2005 SC 3226], the concern of the University should be confined to uniformity, efficiency and excellence in the field of Medical Education and any alleged policy of the State Government cannot be a reason for the University to reject an application for CoA.
15. Advocate P. Sanjay, learned counsel for the petitioner in W.P.(C) No.29098/2019, pointed out that for one or the other reason, the University has been frustrating the attempt of the petitioner to establish a Medical College. Ext.P1 CoA was issued on 02.08.2011 and the same was issued belatedly and therefore the petitioner could not make use of it. In the year 2015, this Court in W.P.(C) No.24021/2015 gave an interim direction to the University to conduct inspection in order to consider the application for CoA filed by the petitioner. The interim direction was not complied with. It was thereupon this Court passed interim order dated 31.08.2015 in W.P.(C) No.24021/2015 directing the University to issue a Provisional Consent of Affiliation for WPC Nos.27266, 29098 & 34275 of 2019 : 25 : the year 2016-'17. In order to frustrate the cause of the petitioner and to defeat the interim order of this Court, the University gave a provisional consent in a wrong format.
16. The petitioner again submitted an application for CoA on 26.06.2019 as per Ext.P4 in W.P.(C) No.29098/2019. As the same was not considered, the petitioner was forced to file W.P.(C) No.18238/2019. By the time the writ petition was ripe for hearing, the Standing Counsel for the University submitted that the last date for submission of application before the MCI is over and consequentially, the said writ petition was dismissed.
17. While the University has been frustrating the attempts of the petitioner to get a CoA by issuing CoA in the wrong format and by delaying inspection, in respect of other Colleges the University has been granting consents liberally.
18. Advocate M.A. Asif, learned Special Government Pleader, stated that the writ petition has been filed seeking EC for the year 2020-'21. The time schedule prescribed by the Hon'ble Apex Court in Ashish Ranjan and others v. WPC Nos.27266, 29098 & 34275 of 2019 : 25 : Union of India and others [(2016) 11 SCC 225] is already over and therefore, no EC can be granted to the petitioner now. The Hon'ble Apex Court has held that the time schedule prescribed in Ashish Ranjan (supra) is final and no deviation therefrom is permissible by any authority or Court, from the said time schedule. Therefore, the writ petition is liable to be dismissed.
19. The learned Government Pleader further urged that the application for EC submitted by the petitioner is not complete and hence there is no valid application to be considered, before the Government. The MCI has granted the petitioner time to produce documents/certificates. The MCI has no power to grant time beyond the schedule prescribed by the Apex Court. The MCI therefore should not have entertained the application of the petitioner. There is no scope for grant of EC to the petitioner to establish Medical College for the year 2020-'21 as the time schedule has already expired. The writ petition is therefore liable to be dismissed, asserted the learned Government Pleader. WPC Nos.27266, 29098 & 34275 of 2019 : 25 :
20. Advocate Titus Mani, representing the Medical Council of India and its present successor National Medical Commission, relying on the judgment of the Apex Court in Dr. Preeti Srivastava and another v. State of M.P. and others [1999 7 SCC 120], argued that the State has a right to control professional institutions including Medical Colleges and the only limitation is that the State cannot impeach the minimum standards prescribed by the MCI. As of now, when a State Government issues an EC, it also incurs a liability. Though the MCI has granted time to the petitioner to produce documents/certificates, the said action is not intended to violate the time schedule prescribed by the Hon'ble Apex Court, but is intended only to comply with the principles of natural justice, which the MCI has to follow statutorily.
21. Advocate P. Sreekumar, learned Standing Counsel appearing for KUHS, argued that the University is always at a liberty to prescribe standards for Medical Colleges, higher than the minimum standards prescribed by the MCI. A CoA is intended to ensure that the requirements WPC Nos.27266, 29098 & 34275 of 2019 : 25 : prescribed by the University are satisfied. The University Regulations mandate that such issuance of CoA should be based on enquiry. Therefore, inspection of proposed premises of the intending Medical Colleges is indispensable. The Hon'ble Apex Court has held that there should be an element of surprise in the matter of inspections of professional colleges. Therefore, the University would require three to four months time to conduct inspection.
22. The learned Standing Counsel for the KHUS further submitted that the multilevel scrutiny in the matter of establishment of new Medical Colleges by the State Governments, Universities, MCI/NMC and Government of India are intended to ensure professional and educational standards of Medical Colleges, the establishment of which has importance consequences in the public health system. Therefore, stringent scrutiny in the matter at various levels should not be taken as hurdles in the matter of establishment of educational institutions.
23. The Assistant Solicitor General of India Advocate WPC Nos.27266, 29098 & 34275 of 2019 : 25 : P. Vijayakumar representing the Union of India submitted the National Medical Commission Act, 2019 is intended to provide a Medical Education System that improves access to quality and affordable medical education, to ensure availability of adequate and high quality medical professionals in all part of the country. The intention of the Act and Regulations is to promote equitable and universal health care that encourages community health perspective and make services of medical professionals accessible to all the citizens. The Rules and Regulations prescribed by the Government of India and MCI/NMC shall therefore be followed scrupulously followed. The present writ petitions have been filed for obtaining EC and CoA, which are not within the realm of the Government of India.
24. The challenge in W.P.(C) No.27266/2019 is against Ext.P6 order therein which reads as follows:-
"I am directed to invite your attention to the reference cited and to inform you that, at present the State Government is not granting NOC and Essentiality Certificate for starting new medical colleges in the private sector. Hence, your request to WPC Nos.27266, 29098 & 34275 of 2019 : 25 : issue renewed Essentiality Certificate for establishment of a new medical college at Palakkad cannot be considered at present."
In short, the Government has rejected the application of the petitioner for EC on the ground that State Government is not granting EC for starting Medical Colleges in the private sector. Thus, EC has been declined on the basis of a policy decision. In Thirumuruga Kirupananda Variyar (supra), the Hon'ble Apex Court held that the Essentiality Certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new Medical College now rests with the Central Government alone.
25. The Apex Court in State of Maharashtra v. Indian Medical Association and others [AIR 2002 SC 302] held that excepting the desirability of location of the proposed Medical College and certificate that adequate clinical material is available as per the MCI requirements at the proposed Medical College, which are to be decided by the State Government, all other aspects regarding establishment WPC Nos.27266, 29098 & 34275 of 2019 : 25 : of a new Medical College and imparting of the education therein are covered by the Central Act and Regulations framed thereunder. The Apex Court held that the State Government's role to play is only in regard to decide the desirability of the location of the proposed Medical College and grant certificate that adequate clinical material is available.
26. In the judgment of the Apex Court in Medwin Educational Society (supra), it is held that although the State has a say in the matter as regards location for establishment of a Medical College or Dental College, it has to exercise such power in a reasonable manner. The factors which are relevant for determination of such issues would be local needs and public interest. In short, the State cannot act arbitrarily or capriciously and its decision must be informed by reasons and based on relevant factors.
27. The Apex Court in State of Kerala and others v.
KMCT Polytechnic College, Mampara [MANU/KE/1255/2017] held that the right to establish an WPC Nos.27266, 29098 & 34275 of 2019 : 25 : educational institution is no more the prerogative of the State, it comes within the expression "occupation" as contemplated under Article 19(1)(g) of the Constitution and it is a part of fundamental right. Thus, being a fundamental right, it is subject to reasonable restrictions under Article 19(6) of the Constitution, but by law and not by executive fiat.
28. In the present case, there is no law enacted by the Government of Kerala in respect of the subject matter. In the light of the law laid down by the Apex Court in the judgments referred to above, the impugned order dated 01.10.2019 of the Government of Kerala declining EC to the petitioner on a policy consideration, cannot stand the scrutiny of law. Ext.P6 order is therefore quashed.
29. In W.P.(C) No.29098/2019, the prayer of the petitioner is to set aside Ext.P7 communication of the KUHS rejecting the request of the petitioner for issuing CoA on the ground that there is no valid application from the petitioner for starting new Medical College for the year 2020-'21 and there is no EC from Government of Kerala for starting new WPC Nos.27266, 29098 & 34275 of 2019 : 25 : Medical College during the year 2020-'21. The Hon'ble Apex Court has approved a time schedule which has to be followed by all stakeholders. The KUHS is a University with autonomous powers. The considerations that weigh with the University for issuance of CoA are clearly demarcated by the Regulations of the MCI and various judgments of the Apex Court. Issuance of EC is the power to be exercised by the State Government. The University cannot take a stand that it will consider any application for CoA only after an EC is issued by the State Government. This is because of the time frame fixed in Ashish Ranjan (supra) and the time period required by the University for conducting inspections. If Universities take a stand that they will entertain applications for CoA only after State Government gives EC, it is a high possibility that the period of ECs issued by the State Government would expire due to the time taken by the Universities for issuing CoA after conducting inspection. This will be especially so because the Universities like KUHS do accept applications for CoA only when they invite WPC Nos.27266, 29098 & 34275 of 2019 : 25 : applications. In the present case, the KUHS has last invited applications for CoA in the year 2018. As the powers and areas of concern of State Governments, Universities, MCI and Central Government are clearly demarcated, the University cannot take a stand that they will entertain an application for CoA only after issuance of a valid EC by the State Government. Ext.P7 order dated 27.09.2019 is declared invalid to that extent.
30. However, even then the contention of the learned Standing Counsel for the University regarding the time frame fixed has to be considered.
31. In Ashish Ranjan (supra), the Hon'ble Apex Court approved the notification issued by the MCI with the previous sanction of the Central government prescribing 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 MCI. The Hon'ble Apex Court held that the order of the Apex Court giving stamp of approval to the time schedule should be WPC Nos.27266, 29098 & 34275 of 2019 : 25 : followed by all stakeholders in letter and spirit and not make any deviation whatsoever.
32. The Hon'ble Apex Court in Mridul Dhar (Minor) and another v. Union of India and others [(2005) 2 SCC 65] held that the time schedule for establishment for new Colleges or to increase intake in existing colleges shall be adhered to strictly by all concerned. The judgments of the Apex Court in Royal Medical Trust v. Union of India and others [(2014) 14 SCC 675] and in Priya Gupta v. State of Chattisgarh and others [(2012) 7 SCC 433] are also to the same effect. In Royal Medical Trust (Registered) and another v. Union of India and another [W.P.(C) No.705/2014], the Hon'ble Apex Court held that though the directions in Priya Gupta (supra) must be understood in the light of statutory empowerment and it is open to the Central Government to extend or modify the time limits in the schedule to the Regulations, the deadline namely 30 th of September for making admission to the first MBBS Course as laid down in Mridul Dhar (supra) must always be WPC Nos.27266, 29098 & 34275 of 2019 : 25 : followed. Since the time schedule prescribed in respect of starting Medical College for the year 2020-'21 is already over, no relief can be granted to the petitioner and no directions can be issued to the University at this stage to entertain an application for CoA for the year 2020-'21.
33. W.P.(C) No.34275/2019 has been filed by the petitioner seeking to direct the MCI and Central Government to process petitioner's application for establishment of Medical College without insisting on EC and without waiting for CoA. W.P.(C) No.34275/2019 was filed when the other two writ petitions were pending wherein it was sought to direct the Government of Kerala and the KUHS to issue EC and CoA respectively. The Hon'ble Apex Court in the order in Civil Appeal No.2920/2020 rightly held that W.P.(C) No.34275/2019 was uncalled for. For the said reason, W.P. (C) No.34275/2019 is liable to be dismissed.
34. However, the facts emanating from the pleadings in the writ petitions divulge certain acts of the authorities which should be viewed with concern. The petitioner has WPC Nos.27266, 29098 & 34275 of 2019 : 25 : been striving to establish a Medical College for the last more than a decade. The petitioner was issued EC as per Ext.P1 in W.P.(C) No.27266/2019 on 22.08.2003 finding that there is a need for an establishment of a new Medical College in Palakkad District. The Government of Kerala also found that the petitioner has established a 300 bedded hospital and that clinical materials are available in the hospital. The State Government issued EC to the petitioner's College in the years 2004 (Ext.P13), 2009-2011 (Ext.P14), 2011-2013 (Ext.P15), 2014-2016 (Ext.P2) and 2016-2018 (Ext.P13). The hospital for the proposed Medical College has been functioning all through these years. The petitioner could not commence medical course due to the fact that at times ECs were not issued in proper format and at some other times, CoA was not issued either in proper format or in time.
35. In spite of the judgment of the Apex Court in Thirumuruga Kirupananda Variyar (supra) and Medwin Educational Society (supra), the Government has rejected application for EC for the year 2020-'21 on patently WPC Nos.27266, 29098 & 34275 of 2019 : 25 : unsustainable ground. The Hon'ble Apex Court has held in Sukh Sagar Medical College and Hospital v. State of Madhya Pradesh and others [MANU/SC/0572/2020] that State has power to withdraw EC only in cases where (a) it is secured by playing fraud on the State Government, (b) the substratum for issuing the certificate has been lost or disappears and (c) such like ground, where no enquiry is called for on the part of the State Government.
36. The University would submit that the petitioner has not made applications for CoA in proper formats which is said to be one of the reasons for rejecting the application of the petitioner. It is the case of the University that application for CoA should be made through University's portal and only during the period when the University invites application for issuance of CoA. The University at the same time admits that they have not invited applications for CoA since the year 2018.
37. Yet another ground taken by the University for non-issuance or belated issuance of CoA is that the WPC Nos.27266, 29098 & 34275 of 2019 : 25 : University requires three to four months after receipt of application for CoA in order to make a site inspection adhering to "surprise element". But, at the same time, Ext.P8 in W.P.(C) No.29098/2019 would show that another private College in Kerala submitted a request for CoA which was received by the University on 05.07.2019, was given re-validated consent of affiliation on the very same date. Ext.P8 would further show that yet another Medical College submitted application for re-validation of letter of consent on 29.06.2019 and the consent was given by the University on 04.07.2019, within one week. A third College, which is a Government College, submitted application for CoA for new Medical College on 02.07.2019. The said College was given the requisite consent on 06.07.2019, within four days. The University did not take two to three months for conducting inspection etc. in these cases.
38. The Standing Counsel for the University would submit that such fast tracking of consent was necessitated due to the shutting down of another Medical College in WPC Nos.27266, 29098 & 34275 of 2019 : 25 : Kerala and the first two instances referred to above relate to enhancement of intake and not for starting new Medical Colleges. In Mridul Dhar (supra), the Hon'ble Apex Court in paragraph 35(14), held that time schedule for establishment of new College or to increase intake in existing College, shall be adhered to strictly by all concerned. The requirements of inspection and satisfaction of the University in the matter of availability of sufficient infrastructure, faculty and clinical materials should therefore be the same whether the CoA is for establishing a new College or for increasing intake. The norms should be same for Medical College in public sector or private sector. The materials produced in the writ petition would establish that different yardsticks have been adopted in dealing with different colleges and the petitioner was at the receiving end.
39. In the circumstances, this Court is of the considered opinion that these writ petitions have to be disposed of with appropriate orders/directions, in the facts of the case. The writ petitions are accordingly disposed of with WPC Nos.27266, 29098 & 34275 of 2019 : 25 : the following directions:-
(1) W.P.(C) No.27266/2019 is allowed to the extent of setting aside Ext.P6.
(2) W.P.(C) Nos.29098/2019 and 34275/2019 are dismissed.
(3) In the event of petitioner submitting application for EC for the year 2022-'23 for starting Medical College, the 1 st respondent-State of Kerala in W.P.(C) No.27266/2019 shall consider the said application on merits taking into consideration the findings and observations made hereinabove, and pass orders thereon within a period of one month from the date of receipt of the application.
(4) If the petitioner makes a request to the 2nd respondent-University in W.P.(C) No.29098/2019 for issuance of Consent of Affiliation, the 2nd respondent shall permit the WPC Nos.27266, 29098 & 34275 of 2019 : 25 : petitioner to make formal application by opening its portal for a period of five days with intimation to the petitioner, without insisting upon EC from the 1st respondent and shall take a decision thereon within three months.
Sd/-
N. NAGARESH, JUDGE aks/12/10/2020 WPC Nos.27266, 29098 & 34275 of 2019 : 25 : APPENDIX OF WP(C) 27266/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF ORDER NO. GO(RT) NO.
2474/2003/H&FWD DATED 22-08-2003
EXHIBIT P2 COPY OF THE ESSENTIALITY CERTIFICATE
DATED 10-06-2014
EXHIBIT P3 COPY OF THE ORDER NO. G.O(RT) NO.
2686/2017/H&FWD DATED 28-09-2017
EXHIBIT P4 COPY OF THE ORDER DATED 29-06-2018 IN
W.P(C) NO. 40290/2017 OF HIGH COURT OF
KERALA
EXHIBIT P5 COPY OF THE JUDGMENT DATED 04-09-2019 IN
W.P(C) NO. 23460/2019 OF HIGH COURT OF
KERALA
EXHIBIT P6 COPY OF THE LETTER NO. S3/272/2019-
HEALTH DATED 01-10-2019
EXHIBIT P7 COPY OF ORDER NO. G.O(RT) NO.
1652/2019/H & FWD DATED 06-07-2019
EXHIBIT P8 COPY OF THE ORDER NO. G.O(RT) NO.
1617/2019/H&FWD DATED 04-07-2019
EXHIBIT P9 COPY OF THE ORDER NO. G.O(RT) NO.
1538/2019/H & FWD DATED 28-06-2019
EXHIBIT P10 COPY OF LETTER DATED 09-08-2019 ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P11 COPY OF THE LETTER NO. VNPT/MCA/008/2019
DATED 28/08/2019 ISSUED BY THE
PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P12 COPY OF LETTER NO. MCI-34(41) [E-
20]/2019-MED./155723 DATED 18-10-2019
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
WPC Nos.27266, 29098 & 34275 of 2019
: 25 :
EXHIBIT P13 COPY OF ESSENTIALITY CERTIFICATE DATED
24-O1-2004
EXHIBIT P14 COPY OF RENEWED ESSENTIALITY CERTIFICATE
DATED 18-06-2OO9
EXHIBIT P15 EXT.P15-COPY OF ESSENTIALITY
CERTIIFICATE DATED 12-01-2011
EXHIBIT P16 EXT.P16-COPY OF LETTER CONSENT NO.
2772/!C 1.1/2010/KUHAS DATED 02-08-2011 EXHIBIT P17 EXT.P17-COPY OF JUDGMENT DATED 28-06- 2012 IN W.A.1356/2011 OF HIGH COURT OF KERALA EXHIBIT P18 EXT.P18-COPY OF LETTER NO.MCI-
34(41)/2012-MED/156303 DATED 28-01-2013 ISSUED BY MEDICAL COUNSEL OF INDIA EXHIBIT P19 EXT.P19-COPY OF THE JUDGMENT DATED 16- 06-2014 IN WP(C)13795/2014 OF HIFH COURT OF KERALA EXHIBIT P20 EXT.P20-COPY OF LETTER NO.MCI/34(41)(E-
96)/2013-MED/53449 DATED 25-01-2014 EXHIBIT P21 EXT.P21-COPY OF LETTER DATED 17-10- 2014OF GOVERNMENT OF INDIA, MINISTRY OF HEALTH & FAMILY WELFARE EXHIBIT P22 EXT.P22-COPY OF THE ORDER DATED 22-11- 2014 IN WP(C) 29462/2014 OF HIGH COURT OF KERALA EXHIBIT P23 EXT.P23-COPY OF THE JUDGMENT DATED 30- 06-2017 IN WP(C) 16461/2016 OF HIGH COURT OF KERALA EXHIBIT P24 EXT.P24-COPY OF THE JUDGMENT DATED 30- 06-2017 IN WP(C) 21581/2017 OF HIGH COURT OF KERALA WPC Nos.27266, 29098 & 34275 of 2019 : 25 : EXHIBIT P25 EXT.P25-COPY OF THE JUDGMENT DATE 04-07- 2017 IN WP(C) 22103/2017 of high court of kerala EXHIBIT P26 EXT.P26-COPY OF THE ORDER DATED 05-07-
2018 IN I.A.12036/2018 IN WP(C)40290/2017 OF HIGH COURT OF KERALA EXHIBIT P27 EXT.P27-COPY OF THE LETTER NO.MCI-34 (41)(E-20)/2019-MED/145688 DATED 09-09- 2019 OF MEDICAL COUNCIL OF INDIA EXHIBIT P28 EXT.P28-COPY OF ORDER DATED 13-12-2019 IN WP(C) 34275/2019 OF HIGH COURT OF KERALA EXHIBIT P29 EXT.P29-COPY OF THE ORDER DATED 07-08- 2020 IN CIVIL APPEAL 2921/2020 OF HON'BLE SUPREME COURT OF INDIA EXHIBIT P30 COPY OF CONSENT OF APPLICATION NO.GA1/D3/4167/2005 DATED 22/08/2006. EXHIBIT P31 COPY OF THE ORDER NO.MCI-34(41)/2011- MED/7920 DATED 05/05/2011.
EXHIBIT P32 COPY OF RENEWED ESSENTIALITY CERTIFICATE DATED 11/12/2015.
EXHIBIT P33 COPY OF APPLICATION DATED 20-06-2019 FOR ISSUANCE OF ESSENTIALITY CERTIFICATE.
RESPONDENTS' EXHIBITS ANNEXURE R2(a) TRUE COPY OF PUBLIC NOTICE NO.34(41)/2020- MED/104453 DATED 13.06.2020 ISSUED BY MCI ANNEXURE R2(b) TRUE COPY OF PUBLIC NOTICE NO.34(41)/2020- MED./10723 DATED 7.7.2020 ANNEXURE R2(c) TRUE COPY OF THE PUBLIC NOTICE NO.34(41)/ 2020/MED/119391 DATED 4-9-2020.
WPC Nos.27266, 29098 & 34275 of 2019 : 25 : APPENDIX OF WP(C) 29098/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CONSENT OF AFFILIATION NO.
2772/AC 1.1/2010/KUHAS ISSUED BY THE 2ND RESPONDENT UNIVERSITY DATED 02.08.2011. EXHIBIT P2 TRUE COPY OF THE ORDER IN WP NO. 24021/2015 DATED 31.08.2015.
EXHIBIT P3 TRUE COPY OF THE CONSENT OF AFFILIATION NO.
9427/AC.A/KUHS/214 ISSUED BY THE 2ND RESPONDENT UNIVERSITY DATED 31.08.2015. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 26.06.2019 MADE BY PETITIONER TO THE UNIVERSITY.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P.(C) 18238/2019 DATED 05.09.2019.
EXHIBIT P6 TRUE COPY OF THE LETTER NO. MCI-34(41) (E-
20)/2019-MED/145688 DATED 09.09.2019 ISSUED BY THE MEDICAL COUNCIL OF INDIA.
EXHIBIT P7 TRUE COPY OF THE ORDER NO.
9427/ACA/KUHS/2014 OF THE 2ND RESPONDENT DATED 27.09.2019.
EXHIBIT P8 TRUE COPY OF THE DOCUMENTS RECEIVED BY THE PETITIONER UNDER RTI APPLICATION NO.
DNO/ACADEMIC /UG/21/19/MESMC FROM THE 2ND RESPONDENT UNIVERSITY ARE TOGETHER DATED 05.07.2019.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION NO.
VNPT/KUHS/CONSENT AFFILIATION/10/2019 DATED 28.10.2019.
EXHIBIT P10 TRUE COPY OF THE LETTER NO. MCI-34(41) (E-
20)/2019-MED/155723 DATED 18.10.2019 ISSUED BY THE MCI.
WPC Nos.27266, 29098 & 34275 of 2019 : 25 : EXHIBIT P11 TRUE COPY OF THE RENEWED ESSENTIALITY CERTIFICATE DATED 11/12/2015 EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 19-11-2019 IN WP 27266/2019 WPC Nos.27266, 29098 & 34275 of 2019 : 25 : APPENDIX OF WP(C) 34275/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF ORDER NO. G.O (RT) NO.
2474/2003/H AND FWD DATED 22-08-2003.
EXHIBIT P2 COPY OF ESSENTIALITY CERTIFICATE
DATED 10-06-2014.
EXHIBIT P3 COPY OF THE RENEWED ESSENTIALITY
CERTIFICATE DATED 11-12-2015 ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT P4 COPY OF ORDER NO. G.O (RT) NO.
2686/2017/H AND FWD DATED 28-09-2017.
EXHIBIT P5 COPY OF ORDER DATED 29-06-2018 IN WPC
40290/2017 OF HIGH COURT OF KERALA.
EXHIBIT P6 COPY OF JUDGMENT DATED 04-09-2019 IN
WPC 23460/2019 OF HIGH COURT OF
KERALA.
EXHIBIT P7 COPY OF THE LETTER NO.S3/272/2019-
HEALTH DATED 01-10-2019.
EXHIBIT P8 COPY OF JUDGMENT DATED 19-11-2019 IN
WPC 27266/2019 OF HIGH COURT OF
KERALA.
EXHIBIT P9 COPY OF THE AFFIDAVIT FILED BY 1ST
RESPONDENT IN CONT. CASE (C) NO.
2527/2019 OF THE HIGH COURT OF
KERALA.
EXHIBIT P10 COPY OF JUDGMENT DATED 05-12-2019 IN
WA 2443/2019 OF HIGH COURT OF KERALA.
EXHIBIT P11 COPY OF PUBLIC NOTICE ISSUED BY THE
2ND RESPONDENT.
EXHIBIT P12 COPY OF LETTER DATED 09-08-2019
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
WPC Nos.27266, 29098 & 34275 of 2019
: 25 :
EXHIBIT P13 COPY OF THE LETTER NO. MCI-34(41)[E-
20]/2019-MED./155723 DATED 18-10-2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P14 COPY OF THE CONSENT OF AFFILIATION DATED 31-08-2015.
EXHIBIT P15 COPY OF LETTER DATED 12-12-2019 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P16 COPY OF THE APPLICATION DATED 05-07- 2019 SUBMITTED BY THE PETITIONER.