Malabar Medical College Hospital & ... vs Kerala University Of Health Sciences on 29 October, 2025

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Kerala High Court

Malabar Medical College Hospital & ... vs Kerala University Of Health Sciences on 29 October, 2025

The appellants-petitioners, namely, Malabar Medical College Hospital and Research Centre and the Chairman of Sree Anjaneya Medical Trust, filed W.P.(C)No.25194 of 2025, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent Kerala University of Health Sciences to allow Ext.P3 application dated 30.10.2024 made by the petitioners and Ext.P6 representation dated 10.01.2025 and Ext.P12 representation dated 06.06.2025 and issue consent of affiliation/provisional affiliation for three seats to DM Critical Care, for the academic year 2025-26, expeditiously, within a time limit to be fixed by this Court.

2. In W.P.(C)No.25194 of 2025, the learned Standing Counsel for the 1st respondent University filed a statement dated 18.08.2025, opposing the relief sought for. The petitioner filed a reply affidavit dated 22.07.2025, producing therewith Ext.P14 show cause notice dated 13.08.2025 issued by the 3rd respondent National Medical Commission and Ext.P15 letter dated 21.08.2025 W.A.No.2463 of 2025 4 2025:KER:81119 addressed to the Registrar of the 1st respondent University. After considering the rival contentions, the learned Single Judge by the impugned judgment dated 09.09.2025, dismissed the writ petition. Paragraphs 9 to 11 and also the last paragraph of that judgment read thus;

"9. On 31.12.2024, the 1st respondent had issued notification inviting fresh application for DM Critical Care for the academic year 2025-2026. The said notification contained error inasmuch as the notification was intended to be issued for the academic year 2026-2027. Hence, Ext.P7 Erratum Notification was issued. The contention of the petitioners is that in spite of the Erratum Notification, their application should be considered for the year 2025-2026.

10. The petitioner had the opportunity to apply for Consent of Affiliation for the academic year 2025-2026. The last date for submission of applications was 31.01.2024. The petitioners did not apply for the said course then. The University has conducted inspections and scrutiny for granting Consent of Affiliation for the petitioners for starting of DM Critical Care course for the academic year 2026-2027.

11. The petitioners did not submit application for the academic year 2025-2026 in the concerned subject within the stipulated time. The petitioners have submitted application based on a subsequent notification in which the academic year was erroneously shown as 2025-206, and in respect of which an Erratum Notification was subsequently issued. In the circumstances, I find the writ petition is without any merit and the writ petition is hence dismissed."

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3. Challenging the judgment dated 09.09.2025 of the learned Single Judge in W.P.(C)No.25194 of 2025, the appellants- petitioners are before this Court in this writ appeal, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958. Along with this writ appeal, the appellants have placed on record Annexure A1 statement dated 24.03.2025 filed by the 1st respondent University in another writ petition, i.e., W.P.(C)No.10989 of 2025; Annexure A2 relevant extract of notification dated 12.09.2025 issued by the 1st respondent University; and Annexure A3 letter dated 29.09.2025 of the 2 nd appellant addressed to the Registrar of the 1st respondent University.

4. We heard arguments of the learned counsel for the appellants-petitioners, the learned Senior Counsel for the 1st respondent Kerala University of Health Sciences and the learned Standing Counsel for National Medical Commission for respondents 2 and 3.

5. The issue that requires consideration is as to whether any interference is warranted in the impugned judgment dated 09.09.2025 of the learned Single Judge in W.P.(C)No.25194 of W.A.No.2463 of 2025 6 2025:KER:81119 2025, whereby the writ petition stands dismissed for the reasons stated therein.

6. As noticed by the learned Single Judge in the impugned judgment, the appellant-petitioner submitted an application seeking provisional affiliation for DM Critical Care with three seats in Malabar Medical College Hospital and Research Centre, pursuant to a notification issued by the 1st respondent University, inviting applications from institutions which are having affiliated courses of the University for provisional affiliation to start new under graduate/post graduate/superspeciality courses mentioned in the appendix to the said notification. In the notification dated 31.12.2024, the academic year was erroneously mentioned as '2025-26' against all medical postgraduate/superspeciality courses, instead of '2026-27'. Therefore, the 1st respondent University issued Ext.P7 erratum notification dated 15.01.2025, whereby the academic year in the notification dated 31.12.2024 was corrected as '2026-27', instead of '2025-26'. In view of Ext.P7 erratum notification dated 15.01.2025 issued by the 1st respondent University, the application made by the appellants- petitioners for provisional affiliation for DM Critical Care with three W.A.No.2463 of 2025 7 2025:KER:81119 seats in Malabar Medical College Hospital and Research Centre can be considered only for the academic year 2026-27. Therefore, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, the appellants-petitioners cannot seek a writ of mandamus, as sought for in W.P.(C)No.25194 of 2025, commanding the 1st respondent University to consider the said application for provisional affiliation for the academic year 2025- 26, since no mandamus can be issued directing the statutory authorities to do something contrary to the statute. See: Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259].

7. The appellants-petitioners had earlier approached this Court in W.P.(C)No.10989 of 2025 seeking provisional affiliation for DM Critical Care with three seats in Malabar Medical College Hospital and Research Centre, for the academic year 2025-26, as a special case. The said writ petition ended in dismissal by Ext.P10 judgment dated 26.03.2025. In paragraph 19 of the said judgment, the learned Single Judge declined the reliefs sought for in that writ petition, considering the fact that the original application submitted by the petitioners are for the academic year 2026-27 and that the deadline for making applications and for W.A.No.2463 of 2025 8 2025:KER:81119 allotment of seats for the academic year 2025-26 had long expired. It is after the dismissal of W.P.(C)No.10989 of 2025, the appellants-petitioners have chosen to file another writ petition before this Court, i.e., W.P.(C)No.25194 of 2025 seeking the very same relief, i.e., provisional affiliation for DM Critical Care with three seats in Malabar Medical College Hospital and Research Centre, for the academic year 2025-26, which is legally impermissible.

8. From the pleadings and materials on record, we notice that even without obtaining consent of affiliation/provisional affiliation from the 1st respondent University for starting DM Critical Care with three seats in Malabar Medical College Hospital and Research Centre, for the academic year 2025-26, the appellants-petitioners have chosen to submit an application before the 2nd respondent Medical Assessment and Rating Board (MARB) of the 3rd respondent National Medical Commission, pursuant to Ext.P4 public notice dated 18.09.2024. The document marked as Ext.P5 is an application made by the appellants pursuant to Ext.P4 notification. The said application made through web portal is extracted hereunder;

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9. As evident from Ext.P5 application made by the appellants through web portal, instead of the consent of affiliation W.A.No.2463 of 2025 10 2025:KER:81119 or provisional affiliation obtained from the 1st respondent University, the appellants have attached Ext.P2 essentiality certificate dated 22.12.2022 issued by the State Government in PDF format, against the column 'Consent of Affiliation' which has already been attached in Ext.P5 application, against the column 'Essentiality Certificate'. It is pertinent to note at this juncture, condition No.5 stipulated in Ext.P4 public notice dated 18.09.2024 issued by the 2nd respondent Medical Assessment and Rating Board (MARB) inviting applications for the academic year 2025- 26, which reads thus;

"5. The medical college/institution are instructed to upload the following three documents in PDF format in the online application form-

• Valid Essentiality Certificate (EC) in the prescribed Proforma for starting of new Post-Graduate medical courses in an established medical institution, establishing a new Post-Graduate Medical Institution (standalone PG institute) under the heading/column "Essentiality Certificate". (As per Annexure 1) • Valid Consent of Affiliation (CoA) in the prescribed Proforma. (As per Annexure 2) and • Justification for the number of requested seats (as per Annexure 3)"

10. In exercise of the powers conferred vide sub-section (2) of Section 57 read with Sections 26, 28 and 29 of the National W.A.No.2463 of 2025 11 2025:KER:81119 Medical Commission Act, 2019, the National Medical Commission made the Establishment of New Medical Institutions, Starting of New Medical Courses, Increase of Seats for Existing Courses and Assessment and Rating Regulations, 2023, in short the Establishment of Medical institutions, Assessment and Rating Regulations, 2023 (EMAR 2023). The said Regulations came into force with effect from 02.06.2023, the date of publication in the official gazette. Section 2(e) of EMAR 2023 defines 'Consent of Affiliation' (in its abbreviated form CoA) to mean a letter in writing obtained from a recognised University, issued in the name of the applicant, agreeing to affiliate the medical institution for the award of the necessary qualifications by the University. Section 2(f) defines 'Essentiality Certificate' (in its abbreviated form EC) to mean written permission from the Central or concerned State Government or the Union Territory administration, as the case may be, for the establishment of a new medical institution.

11. As per Section 4 of EMAR 2023, no medical college or medical institution can be established, or new medical course or courses can be started, unless it is granted permission by the MARB in writing, in response to an application submitted in this W.A.No.2463 of 2025 12 2025:KER:81119 regard. As per the proviso to Section 4, any such permission by the MARB may be issued subject to such conditions as it may think fit to impose.

12. In view of the provisions contained in Section 9 of EMAR 2023, no application submitted by the eligible entity shall be entertained unless it is accompanied by the Essentiality Certificate (EC) issued by the concerned State Government or Union Territory administration or the appropriate authority, as the case may be, unless otherwise specified, which shall be valid at the time of application, and a Consent of Affiliation (CoA) letter obtained from a recognised university, issued in the name of the applicant entity in writing, which shall also be valid at the time of application. Section 9 of EMAR 2023 reads thus;

"9. No application submitted by the eligible entity shall be entertained unless it is accompanied with a. Essentiality Certificate (EC) issued by the concerned State Government or Union Territory administration or the appropriate authority as the case may be unless otherwise specified. The EC shall be valid at the time of application; and b. A Consent of Affiliation (CoA) letter obtained from a recognized university, issued in the name of the applicant entity in writing. The CoA shall be valid at the time of application, and c. Documentary proof indicating the establishment of a corpus W.A.No.2463 of 2025 13 2025:KER:81119 fund by the entity dedicatedly applicable to functioning of the new medical institution year after year, and d. A solvency certificate issued by a Chartered Accountant within ninety days prior to the last date of submission of the application as mandated by the Notification issued by the MARB, and e. Documents by way of proof that such reasonable area of land is either owned or arranged under lease or such other arrangement by the eligible entity, and f. Capabilities with regard to the provision of required basic infrastructure, administrative and financial support of the applicant, if the eligible entity is other than Central in a State Government or Territory administration, and g. Documentary proof of owning or naming a hospital of required capacity as indicated in the MSRs. h. Proof indicating remittance of prescribed application fee and bank guarantee; and i. Any such other documents are to be notified from time to time by the MARB Explanation 1 - the period of validity of the EC indicated in (a) above shall be in accordance with that mentioned by the issuing authority for a period of three years from the date of issue or an earlier date if the issuing authority has specified. Explanation 2 - the CoA obtained from a recognized university issued in the name of the eligible entity shall lose its validity after the application for which it was used. The eligible entity shall obtain a new CoA if the application is rejected. Provided the CoA shall have a total life of three years from the date of its issuance or an earlier date if the issuing authority has specified.

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2025:KER:81119 Explanation 3 - Established medical institutions applying for seats for new medical courses, may be exempted from some of these documents as will be specified, while calling the applications Provided any incomplete applications received, meaning applications without the mandated documents specified in the present Regulation, shall be rejected by the MARB Provided further that once rejected the eligible entity shall lose the chance of reapplying till the next window of opportunity in calling for the applications."

13. In Medical Council of India v. V.N. Public Health and Educational Trust [(2016) 11 SCC 216], a decision relied on by the learned Senior Counsel for the 1st respondent University, the Apex Court reiterated the law laid down by a Three-Judge Bench in Royal Medical Trust v. Union of India [(2015) 10 SCC 19] that the initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfil these requirements, the application on the face of it would be incomplete and be rejected. Those who fulfil the basic requirements would be considered at the next stage.

14. In V.N. Public Health and Educational Trust [(2016) 11 SCC 216] the Apex Court has referred to the decision W.A.No.2463 of 2025 15 2025:KER:81119 in D.Y. Patil Medical College v. Medical Council of India [(2015) 10 SCC 51], wherein the controversy had arisen due to rejection of the application of the institution on the ground that Essentiality Certificate was not filed along with the application form. The Apex Court dwelled upon the principles stated in Educare Charitable Trust v. Union of India [(2013) 16 SCC 474], Royal Medical Trust [(2015) 10 SCC 19] and various other decisions and, after anaylsing the scheme of the Indian Medical Council Act, 1956, held that as it is apparent from the aforesaid decisions and the regulations that the application at the first instance is required to be complete and incomplete applications are liable to be rejected. Thereafter, there has to be an inspection and other stages of decision-making process.

15. As already noticed hereinbefore, the mandate of Section 9 of EMAR 2023 is that, no application submitted by the eligible entity shall be entertained unless it is accompanied by the Essentiality Certificate issued by the concerned State Government or Union Territory administration or the appropriate authority, as the case may be, unless otherwise specified, which shall be valid at the time of application, and a Consent of Affiliation letter W.A.No.2463 of 2025 16 2025:KER:81119 obtained from a recognised university, issued in the name of the applicant entity in writing, which shall also be valid at the time of application. When the application is not supported by an Essentiality Certificate issued by the concerned State Government or Union Territory Administration or the appropriate authority, as the case may be, and the Consent of Affiliation/provisional affiliation letter obtained from a recognised University, both valid at the time of application, the application on the face of it would be incomplete and liable to the rejected. Such an application, which does not fulfill the basic requirements, is not required to be considered at the next stage.

16. In the case at hand, admittedly, Ext.P5 application made by the appellants-petitioners before the Medical Assessment and Rating Board of the National Medical Commission for starting DM Critical Care with three seats in Malabar Medical College Hospital and Research Centre, for the academic year 2025-26, was not supported by a consent of affiliation/provisional affiliation letter issued by the 1st respondent University, valid at the time of that application. Such an application on the face of it is incomplete, which can only be rejected by the Medical Assessment and Rating W.A.No.2463 of 2025 17 2025:KER:81119 Board. Therefore, instead of issuing Ext.P14 show cause notice dated 13.08.2025, the Medical Assessment and Rating Board should have rejected Ext.P5 application made by the appellants- petitioners. When the aforesaid application made by the appellants-petitioners was incomplete, in view of the mandatory requirements of Section 9 of EMAR 2023, placing reliance on Ext.P14 show cause notice, the appellants-petitioners cannot seek a writ of mandamus for consideration of Ext.P3 application for consent of affiliation by the 1st respondent University, for the academic year 2025-26.

In the result, no interference is warranted in the impugned judgment dated 09.09.2025 of the learned Single Judge in W.P(C)No.25194 of 2025. This writ appeal fails and the same is accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE MSA W.A.No.2463 of 2025 18 2025:KER:81119 APPENDIX OF WA 2463 OF 2025 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE STATEMENT OF THE 1ST RESPONDENT IN W.P.(C)NO.10989/2025 DATED 24- 03-2025 Annexure A2 TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION DATED 12-09-2025 ISSUED BY THE 1ST RESPONDENT Annexure A3 TRUE COPY OF LETTER DATED 29-09-2025 WRITTEN BY THE 1ST/ 2ND APPELLANT TO THE 1ST RESPONDENT

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