Kerala High Court
The Principal vs Kerala University Of Health Sciences on 7 June, 2021
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 7TH DAY OF JUNE 2021 / 17TH JYAISHTA, 1943
WP(C) NO. 27547 OF 2020
PETITIONER:
THE PRINCIPAL,
AZEEZIA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH,
MEYYANNOOR, KOLLAM 691 537
BY ADVS.
SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.TONY GEORGE KANNANTHANAM
SRI.THOMAS GEORGE
RESPONDENTS:
1 THE KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE P.O, THRISSUR 630 596
REPRESENTED BY ITS REGISTRAR
2 THE VICE CHANCELLOR,
KEERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE P.O, THRISSUR 630 596
3 THE NATIONAL MEDICAL COMMISSION,
REPRESENTED BY ITS SECRETARY, POCKET 14, SECTOR 8,
DWARAKA, PHASE 1, NEW DELHI 110 077
BY ADVS.
SHRI.P.SREEKUMAR
SHRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF
INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2021, ALONG WITH WP(C)NO.2294/2021, THE COURT ON
07.06.2021 DELIVERED THE FOLLOWING:
-2-
W.P(C).Nos.27547 of 2020
and 2294 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 7TH DAY OF JUNE 2021 / 17TH JYAISHTA, 1943
WP(C) NO. 2294 OF 2021
PETITIONER:
THE PRINCIPAL,
AZEEZIA INSTITUTE OF MEDICAL SCIENCE AND
RESEARCH, MEYYANNOOR, KOLLAM-691537.
BY ADVS.
SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.TONY GEORGE KANNANTHANAM
SRI.THOMAS GEORGE
SHRI.EBEE ANTONY
RESPONDENTS:
1 THE KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE P.O., THRISSUR - 630596.
2 THE VICE CHANCELLOR,
KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE P.O., THRISSUR - 630596.
3 THE NATIONAL MEDICAL COMMISSION,
REPRESENTED BY ITS SECRETARY, POCKET 14,
SECTOR 8, DWARAKA, PHASE I, NEW DELHI-110077.
BY ADVS.
SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH
SCIENCES
SRI.TITUS MANI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2021, ALONG WITH WP(C)NO.27547/2020, THE COURT ON
07.06.2021 DELIVERED THE FOLLOWING:
-3-
W.P(C).Nos.27547 of 2020
and 2294 of 2021
JUDGMENT
Since common issue is raised in both the writ petitions, they were heard together and are being disposed of by this common judgment.
2. W.P.(C)No.27547 of 2020:- This writ petition is one filed by the Principal of Azeezia Institute of Medical Science and Research, Meyyannoor, under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1 st respondent Kerala University of Health Sciences to grant consent of affiliation to the college for applying to the 3 rd respondent National Medical Commission for enhancement of intake in MBBS course from 100 to 200, for the academic year 2021-22. The petitioner has also sought for a writ of mandamus commanding the 3rd respondent not to reject the petitioner's application for enhancement of seats in MBBS course from 100 to 200, for the academic year 2020-21, for non-production of consent of affiliation at this stage; and a declaration that the petitioner is entitled to get consent of affiliation of the 1st respondent -4- W.P(C).Nos.27547 of 2020 and 2294 of 2021 University for enhancement of intake in MBBS course from 100 to 200, for the academic year 2021-22 itself.
2.1. Going by the averments in the writ petition the petitioner's college was established in the year 2008, with an intake of 100 seats for MBBS course, with the Letter of Permission granted by the Central Government, based on the recommendation of the erstwhile Medical Council of India and provisional affiliation granted by the Kerala University. On the formation of the 1st respondent University, the college obtained provisional affiliation from that University. In the year 2013, the college obtained recognition for a period of 5 years, when the first batch of MBBS students appeared for the final examination and completed their course. In the year 2019, the recognition was renewed, which is now valid up to 2024.
2.2. In September, 2020 the Medical Council of India was replaced by the 3rd respondent National Medical Commission. The petitioner submitted an application dated 17.09.2019 before the 1st respondent University for continuation of provisional affiliation for MBBS course with an intake of 100, for the academic year -5- W.P(C).Nos.27547 of 2020 and 2294 of 2021 2020-21, and also for various postgraduate courses. By Ext.P7 order dated 07.08.2020 the 1st respondent University granted continuation of provisional affiliation, based on the report of the Inspection Commission dated 09.01.2020 and the decision of the Scrutiny Committee in its meeting held on 04.02.2020. In Ext.P1 order the 1st respondent University noticed that the college has obtained renewal of recognition from the Ministry of Health and Family Welfare, Government of India, vide communication dated 14.10.2019, for conducting MBBS course with an intake of 100, which is valid up to 2024.
2.3. In order to seek enhancement of intake in MBBS course from 100 to 200, for the academic year 2021-22, the petitioner approached the Registrar of the 1 st respondent University by submitting Ext.P3 representation dated 16.11.2020, seeking consent of affiliation. In the said representation it was pointed out that the last date for applying enhancement of seats in MBBS course before the 3 rd respondent National Medical Commission, for the academic year 2021-22, is 30.11.2020. The document marked as Ext.P2 is a notice dated -6- W.P(C).Nos.27547 of 2020 and 2294 of 2021 27.11.2020 issued by the 3rd respondent National Medical Commission, extending the last date for online submission of applications for establishing new Medical colleges and for increase of seats in MBBS course, for the academic year 2021- 22, from 30.11.2020 up to 15.12.2020.
2.4. The Inspection Commission deputed by the 1 st respondent University conducted inspection in the college and submitted its report dated 13.11.2020, on the application made by the petitioner for consent of affiliation for enhancement of intake in MBBS course from 100 to 200. That report was placed before the Scrutiny Committee in its meeting held on 27.11.2020. By Ext.P4 communication dated 30.11.2020 the petitioner was informed that the report of the Inspection Commission was scrutinised by the Scrutiny Committee. As per the inspection report and scrutiny report there are gross deficiencies in terms of clinical materials including bed occupancy and faculty. In terms of faculty, the deficiency is 36.6% and in terms of resident, the deficiency is 48%. The deficiencies noted in Ext.P4 read thus:
-7-W.P(C).Nos.27547 of 2020
and 2294 of 2021 "Faculty Deficiencies.
Professor - 3 (Biochemistry, ENT and Respiratory Medicine). Associate Professor - 19 (Biochemistry - 2, Forensic Medicine - 1, Community Medicine -1, General Medicine - 6, Paediatrics - 2, General Surgery - 2, Ophthalmology - 1, OBG - 2, Anaesthesiology - 1, Radiodiagnosis - 1). Assistant Professor - 29 (Physiology - 1, Biochemistry - 1, Pharmacology - 1, Pathology - 2, Forensic Medicine - 1, Community Medicine - 1, General Medicine - 5, Paediatrics - 3, Respiratory Medicine - 1, Psychiatry - 1, Orthopaedics - 3, Ophthalmology - 1, OBG - 2, Anaesthesiology - 4, Radiodiagnosis - 2).
Tutor/Demonstrator/SR Biochemistry - 4, Pharmacology - 5, Pathology - 6, Forensic Medicine - 4, Microbiology - 1, General Medicine - 3, Paediatrics - 2, DVL - 1, Respiratory Medicine -1, General Surgery - 3, ENT - 2, Ophthalmology - 1, OBG - 3, Radiodiagnosis - 1.
Bed Occupancy 12% only. OPD is 200 only. Surgical procedures and laboratory investigations grossly insufficient." 2.5. On receipt of Ext.P4 communication, the petitioner submitted Ext.P5 reply dated 30.11.2020, stating that, insofar as infrastructure facilities for 200 seats are concerned, the requisite criteria as per the norms fixed by the 3 rd respondent National Medical Commission has been fully met with. Equipments, functional library, lecture hall, class rooms, students laboratories, -8- W.P(C).Nos.27547 of 2020 and 2294 of 2021 dissection hall, examination hall and hostel facility for 200 students, as per the norms of the National Medical Commission, have been fulfilled in all respects. The college had done staff recruitment including faculties as per the new norms of the 3 rd respondent. During the assessment some of the faculties and senior residents were not able to present themselves physically before the Assessors due to the following reasons;
1. Some of our senior residents were posted for Covid duty as we have dedicated a portion of our hospital as an exclusive Covid treatment facility.
2. In our Covid treatment facility the doctors posted are on duty for 7 continuous days and are given 'off' for the next 7 days as a quarantine period.
3. Some of our faculty were on mandatory quarantine owing to direct exposure to Covid positive patients.
4. Few of our faculty have tested positive for Covid antigen and were in isolation.
5. Some of our senior level faculty are above the age of 60 years and could not attend the inspection due to health risks involved.
2.6. In Ext.P5 reply it was pointed out that the patient statistics were low compared to the usual statistics due to the fact that the patient input was low due to Covid related issues.-9- W.P(C).Nos.27547 of 2020
and 2294 of 2021 Secondly, the nearby areas have been declared as containment zones and the patient inflow has reduced further. Because of these circumstances the inpatient admissions in the hospital will be relatively low and the number of faculties who would be physically present on any particular day will also not be in full strength because of Covid duties and mandatory quarantine period. The college have the required number of faculties, which could be provided by way of declaration with necessary details to the effect that the regulations of the National Medical Commission will be followed in letter and spirit. Since the last date of applying for enhancement of seats from 100 to 200, for the academic year 2021-22, is 15.12.2020, the petitioner requested the 1st respondent University to provide consent of affiliation.
2.7. On 09.12.2020, when this writ petition came up for admission, the learned Standing Counsel for the 1 st respondent University and also the learned Standing Counsel for the 3 rd respondent National Medical Commission sought time to get instructions.
-10-W.P(C).Nos.27547 of 2020 and 2294 of 2021 2.8. On 15.12.2020, the learned Standing Counsel for the University has filed a statement, opposing the reliefs sought for in this writ petition, stating that, the University conducted inspection in the college through its Inspectors, on the application made by the petitioner seeking consent of affiliation for enhancement of intake in MBBS course from 100 to 200, for the academic year 2021-22. Based on the report of the Inspectors, the Scrutiny Committee gave its recommendations, which were not favourable to the petitioner. By Ext.P4 communication dated 30.11.2020, the petitioner has pointed out lack of facilities in the college, which include faculty deficiency as well as clinical deficiency. The deficiencies noted by the Inspectors are not of a curable nature, within the short time available. The University grants consent of affiliation after verifying the eligibility of the applicant and the same has to be issued in the format prescribed. The eligibility includes availability of infrastructural facilities as well. In terms of the format, the University agrees in principle to affiliate the institution. Considering the said aspect, consent of affiliation -11- W.P(C).Nos.27547 of 2020 and 2294 of 2021 could not be issued for an ineligible applicant. In the statement, it is pointed out that, in Ext.P5 reply the petitioner has not disputed the findings of the inspection, as contained in Ext.P4, communication, and the explanation offered by the petitioner shows that the deficiencies are admitted. Recognition and affiliation are distinct and different and the examining body is competent to grant affiliation.
2.9. On 18.12.2020, during the course of arguments, the learned Standing Counsel for the 1st respondent University submitted that the application made by the institution seeking consent of affiliation for enhancing seats for MBBS course is valid for a period of 3 years. By Ext.P4 communication dated 30.11.2020, the University has informed the petitioner about the deficiencies noted by the Inspection Commission, after that request was placed before the Scrutiny Committee. The learned Standing Counsel submitted further that, the petitioner has already submitted Ext.P5 reply/compliance report and that, the University shall take an appropriate decision on the application for consent of affiliation, after conducting inspection, within a -12- W.P(C).Nos.27547 of 2020 and 2294 of 2021 period of 3 weeks. Recording the above submissions made by the learned Standing Counsel, the matter was ordered to be listed on 14.01.2021.
2.10. On 14.01.2021, when this writ petition came up for consideration, the learned Standing Counsel for the University submitted that a decision has already been taken to reject the application made by the petitioner seeking consent of affiliation for enhancement of intake in MBBS course from 100 to 200, and a copy of that decision shall be placed on record by 15.01.2021.
2.11. On 15.01.2021, along with the statement filed by the learned Standing Counsel for the University, Annexure R1(a) order dated 14.01.2021 was placed on record, wherein it is stated that the Scrutiny Committee in its meeting held on 07.12.2020 scrutinised the compliance report and since no proof was submitted by the college for substantiating the claim that grave faculty deficiency was due to quarantine, decided not to grant consent of affiliation for enhancement of intake in MBBS course from 100 to 200, for the academic year 2021-22. In such circumstances, the Vice Chancellor accorded sanction to reject -13- W.P(C).Nos.27547 of 2020 and 2294 of 2021 the application made by the petitioner for consent of affiliation for enhancement of intake in MBBS course from 100 to 150, for the academic year 2021-22.
3. W.P.(C)No.2294 of 2021:- The petitioner has filed this writ petition, on 28.01.2021, seeking a writ of certiorari to quash Ext.P7 order dated 14.01.2021 of the 1 st respondent University, whereby the application made by the petitioner for grant of consent of affiliation for enhancement of intake in MBBS course from 100 to 200, for the academic year 2021-22, was rejected for the reasons stated therein. In that writ petition, the petitioner has also sought for a writ of mandamus commanding the 1 st respondent University to reconsider the matter and issue consent of affiliation, for enhancement of seats in MBBS course, for the academic year 2021-22, without any delay.
3.1. In the writ petition it is stated that, based on the application made by the petitioner seeking extension of affiliation, for the academic year 2020-21, for an intake of 100 seats in MBBS course, the University appointed an Inspection Commission, which conducted a thorough inspection. After being -14- W.P(C).Nos.27547 of 2020 and 2294 of 2021 satisfied that the college has all the infrastructural and instructional facilities, the University granted extension of affiliation, vide Ext.P1 order dated 07.08.2020. There is no provision in the new Regulations of the 3 rd respondent National Medical Commission, which insists on consent of affiliation by the University for considering an application for enhancement of intake. But in the proforma of the application, 'consent of affiliation' is one among the documents to be produced along with the application. There is no provision in the University Act or the Statutes made thereunder for consent of affiliation. After the inspection conducted on 13.11.2020, the petitioner was orally informed by the Inspectors that there is shortage of faculty and also patient strength, both in OP and IP. In fact, there was no shortage at all. One block of the Medical College hospital was taken over by the District Administration as a Covid treatment centre. That has a negative impact on the overall patient flow into the hospital. There were no faculty shortage, worth mentioning, and the Inspectors noted that some of the faculties were not physically present. After the inspection, petitioner -15- W.P(C).Nos.27547 of 2020 and 2294 of 2021 submitted Ext.P3 representation dated 16.11.2020 before the Registrar of the 1st respondent University pointing out the above facts. Since the matter was getting delayed, petitioner submitted an application in the prescribed format, for enhancement of intake in MBBS course, for the academic year 2021-22, before the 3rd respondent National Medical Commission, and the required fee also was paid. This was done on 23.11.2020, without appending consent of affiliation. By Ext.P4 communication dated 30.11.2020, the University has informed the petitioner about the deficiencies, as per which, there is 36.6% faculty deficiency and 48% resident deficiency. It is not clear from Ext.P4, as to whether the alleged deficiencies were in respect of the intake of 100 or in respect of the intake of 200. Faculty requirement for the intake of 200 need be considered only at the time of grant of actual affiliation by June 2021. On receipt of Ext.P4, the petitioner submitted Ext.P5 reply dated 30.11.2020. Thereafter, the petitioner approached this Court in W.P(C)No.27547 of 2020. In that writ petition, this Court by Ext.P6 order dated 18.12.2020, ordered the University to -16- W.P(C).Nos.27547 of 2020 and 2294 of 2021 consider Ext.P5 reply dated 30.11.2020 and to pass necessary orders, within 3 weeks, after conducting necessary inspection. But, the University by Ext.P7 order dated 14.01.2021 rejected the application made by the petitioner for enhancement of intake, for the reasons stated therein. Paragraphs 3 to 5 of that order read thus;
"3. Vide read (6) above University intimated the above mentioned deficiencies to the college. Accordingly, the college has submitted a compliance report vide read (7) above.
4. The scrutiny committee meeting held on 7.12.2020 vide paper read (8) above scrutinized the compliance report and and since no proof was submitted by the college substantiating the claim that the grave faculty deficiency was due to quarantine, decided not to grant consent of affiliation to Azeezia Institute of Medical Sciences and Research, Kollam for enhancement of MBBS seats from 100 to 200 for the Academic year 2021-22.
5. In the circumstances, sanction is accorded by the Hon'ble Vice Chancellor to reject the application submitted by the Principal, Azeezia Institute of Medical Sciences and Research, Kollam for consent of affiliation for the enhancement of seats in MBBS course from 100 to 150 for the academic year 2021-22."-17- W.P(C).Nos.27547 of 2020
and 2294 of 2021 In the writ petition it is contended that, Ext.P7 order is contrary to Ext.P6 interim order of this Court. No inspection was conducted by the University, as directed by this Court. Moreover, the University did not afford an opportunity to substantiate the claims of the petitioner.
3.2. On 29.01.2021, when this writ petition came up for admission, the learned Standing Counsel for the 1 st respondent University and also the learned Standing Counsel for the 3 rd respondent National Medical Commission sought time to get instructions and the writ petition was ordered to be listed on 03.02.2021. On that day, this writ petition was ordered to be listed on 12.02.2021, along with the connected case and the learned Standing Counsel for the University was directed to file statement before the next posting date.
3.3. On 17.02.2021, the learned Standing Counsel for the University has filed a statement on behalf of respondents 1 and 2, wherein it is stated that, vide Ext.P1 order dated 07.08.2020, continuation of affiliation was granted only for the original intake of 100. The minimum requirements for admitting 100 students -18- W.P(C).Nos.27547 of 2020 and 2294 of 2021 and 200 students are different. The contention that the University Statute does not contemplate 'consent of affiliation' is not correct. As per Statute 10(7) Chapter XXI of the Kerala University of Health Sciences First Statutes, 2013, after considering the Inspection Commission report, if the University is satisfied, it may issue consent of affiliation for starting a new college or starting additional courses or enhancement of seats in existing courses subject to obtaining the essentiality certificate from Government. The said chapter has been amended, after obtaining permission from the Government, and the same has been assented to by the Chancellor, on 2.12.2019. The amended statute has come into force from the date of assent. In the said statute it is provided as follows;
"ix. Grant of Affiliation:-
9) In the case of courses having apex statutory councils, the University, after considering the scrutiny committee's report, if satisfied of the requirements, may issue consent of affiliation for starting a new college or starting additional courses or enhancement of seats in existing courses, provided, application is filed in Form 1-D of the Appendix.
In the case of deficiencies pointed out by the scrutiny -19- W.P(C).Nos.27547 of 2020 and 2294 of 2021 committee, the applicant shall be provided a reasonable opportunity to make up the deficiency. In case the deficiency is made up within the allowed time, the application will be processed further and consent of affiliation may be given. In case of failure to do so, the processing of the application will be closed for that academic year. Based on consent of affiliation given by the University as above, the applicant may move the apex statutory council for approval/Letter of Permission as the case may be."
Therefore, the contention of the petitioner that no statutes prescribe for a consent of affiliation for enhancement of intake is to be rejected.
3.4. In the statement on behalf of respondents 1 and 2, it is stated that, the University caused an inspection to be conducted in the college and the Inspectors reported the deficiencies noted in Ext.P4. There is no reason to assume ambiguity in Ext.P4, since the same was issued following an inspection conducted for the grant of consent of affiliation, for enhancement of intake to 200. The stand taken in the writ petition that the requirements for the intake of 200 need be assessed only in June 2021 is not correct. While issuing the -20- W.P(C).Nos.27547 of 2020 and 2294 of 2021 consent of affiliation, the University verifies the facilities and issues the consent. If the facilities are not to be verified, there remains no reason for the insistence of a local inspection, even in the format provided by the 3rd respondent National Medical Commission, for granting consent of affiliation. Consent of affiliation from the University is contemplated to ensure that the institution satisfies all the norms fixed by the university, which could even be higher than those fixed by the 3 rd respondent, before the institution is permitted to submit an application seeking permission from the 3rd respondent. Consent of affiliation is an additional norm insisted by the 3 rd respondent. The process of grant of letter of permission to the medical courses is a time bound process. The initial step is the verification of the facilities by the University and then grant of consent of affiliation. By the grant of consent of affiliation the University is certifying the facilities on the basis of the local inspection. The University further undertakes to consider the issue of affiliation at a later point of time. Therefore, the University is justified in insisting for -21- W.P(C).Nos.27547 of 2020 and 2294 of 2021 the availability of the facilities required to permit the enhanced intake, before issuing consent of affiliation 3.5. In the statement on behalf of respondents 1 and 2, it is stated further that, the University issued Ext.P4 communication, whereby the petitioner was informed the deficiencies noted by the Inspectors in their inspection. The University issues such communications since the application submitted by the institutions could be kept valid for 3 years. On receipt of the deficiencies noted, the college could rectify the same and request for reconsideration immediately or for the next year, as the case may be. On the other hand, if the application is rejected the institution has to submit a fresh application for the next year. So there is no illegality in issuing Ext.P4 communication, rather than a rejection order in respect of the application made by the institution. The deficiencies noted Ext.P4 were serious and the same were not able to be rectified in the short time available. In terms of the time schedule fixed, the 3rd respondent had to receive the application, complete in all respect, on or before 15.12.2020. The petitioner in response to -22- W.P(C).Nos.27547 of 2020 and 2294 of 2021 the deficiencies intimated vide Ext.P4, submitted Ext.P5 reply, which was directed to be considered by the University. The direction contained in Ext.P6 order was that the University has to take a decision after considering Ext.P5 reply/compliance report. In Ext.P5, the stand adopted by the college was that the faculty for the enhanced intake of 200 was available in the college, but their absence was due to Covid 19 duties, quarantine, etc. It was not the stand of the college that there were deficiencies and those deficiencies were rectified by appointing personnel. If that was the stand of the college, then a verification was necessary which could have been done only through inspection. But in the present case the college has to substantiate the stand in Ext.P5, through necessary documents showing Covid 19 duty details, quarantine duty details, etc. But the college did not even submit specific details of personnel and the reason for their absence. No supporting documents were produced to substantiate the stand taken in Ext.P5 reply. Ext.P5 reply was placed before the Scrutiny Committee on 07.12.2020 and the Committee refused to accept the same for the reason that no supporting documents were -23- W.P(C).Nos.27547 of 2020 and 2294 of 2021 furnished by the college. Considering the nature of the explanation given by the college, there remained no need for a further inspection in the college. Hence the lack of reinspection cannot be sighted as a reason for challenging Ext.P7 decision of the University. Apart from the faculty deficiency noted, the hospital was not having sufficient bed occupancy, surgical procedures and laboratory investigations. Considering all the above facts, the University rejected the application made by the petitioner for consent of affiliation for additional intake. Since the petitioner's application for additional intake stands rejected, he is free to submit another application as and when the University invites application for additional intake. The facilities available in the college is grossly inadequate to train 200 students per batch, for MBBS course. The University cannot permit ill equipped colleges to function. The colleges without proper infrastructure will fail in performing the duty of properly training the students, who are expected to come out as qualified and well trained doctors. Respondents 1 and 2 would point out that, the petitioner's stand in Exts.P3 and P4 are contrary to the stand -24- W.P(C).Nos.27547 of 2020 and 2294 of 2021 adopted in the writ petition. In those documents, the petitioner maintains the stand that the facilities required for 200 students are available in the institution, whereas in the writ petition the stand taken is that, the petitioner is not bound to ensure the availability of the facilities at this point of time.
4. Heard the learned Senior Counsel for the petitioner, the learned Standing Counsel for the 1 st respondent University representing respondents 1 and 2 and also the learned Standing Counsel for the 3rd respondent National Medical Commission.
5. The learned Senior Counsel for the petitioner would contend that there is no provision in the regulations made by the 3rd respondent National Medical Commission, which insist on consent of affiliation by the University for considering an application for enhancement of intake in MBBS course, though in the proforma of the application consent of affiliation is one among the documents to be produced along with the application. The learned Senior Counsel would also contend that there is no provision under the Kerala University of Health Sciences Act or the Statutes made thereunder for consent of affiliation. -25- W.P(C).Nos.27547 of 2020 and 2294 of 2021 5.1. Per contra, the learned Standing Counsel for the 1st respondent University would contend that consent of affiliation issued by the University under Statute 10(7), Chapter XXI of the Kerala University of Health Sciences First Statutes, 2013 as amended by Clause (ix) is a mandatory document which has to accompany the application filed by the petitioner college before 3rd respondent National Medical Commission seeking permission for increase of intake in MBBS course. The learned Standing Counsel for the University and also the learned Standing Counsel for the National Medical Commission would point out the provisions under the Opening of a New or Higher Course of Study or Training (including Postgraduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000. In order to contend that consent of affiliation from the affiliating University is a qualifying criteria to approach the National Medical Commission with an application seeking permission to increase admission capacity and such a document -26- W.P(C).Nos.27547 of 2020 and 2294 of 2021 has to be submitted along with the application, before the cut off date.
6. The Indian Medical Council Act, 1959 was repealed by the National Medical Commission Act, 2019 and the new Act came into force on 25.09.2020. Section 16 of the Act deals with Constitution of Autonomous Boards. As per sub-section (1) of Section 16, the Central Government shall, by notification, constitute the following Autonomous Boards, under the overall supervision of the Commission, to perform the functions assigned to such Boards under the Act, namely, (a) the Undergraduate Medical Education Board; (b) the Postgraduate Medical Education Board; (c) the Medical Assessment and Rating Board; and (d) the Ethics and Medical Registration Board. As per sub-section (2) of Section 16, each Board referred to in sub-section (1) shall be an autonomous body which shall carry out its functions under the Act subject to the regulations made by the Commission.
6.1. Section 24 of the Act deals with powers and functions of Undergraduate Medical Education Board. As per sub-section (1) of Section 24, the Undergraduate Medical Education Board -27- W.P(C).Nos.27547 of 2020 and 2294 of 2021 shall perform the functions enumerated in clauses (a) to (j) thereof. As per clause (d) of sub-section (1) of Section 24 of the Act, the Undergraduate Medical Education Board shall frame guidelines for setting up of medical institutions for imparting undergraduate courses, having regard to the needs of the country and the global norms, in accordance with the provisions of the regulations made under this Act. As per clause (e) of sub- section (1) of Section 24 of the Act, the Undergraduate Medical Education Board shall determine the minimum requirements and standards for conducting courses and examinations for undergraduates in medical institutions, having regard to the needs of creativity at local levels, including designing of some courses by individual institutions, in accordance with the provisions of the regulations made under the Act. As per clause
(f) of sub-section (1) of Section 24 of the Act, the Undergraduate Medical Education Board shall determine standards and norms for infrastructure, faculty and quality of education in medical institutions providing undergraduate medical education in -28- W.P(C).Nos.27547 of 2020 and 2294 of 2021 accordance with the provisions of the regulations made under the Act.
6.2. Section 26 of the Act deals with powers and functions of Medical Assessment and Rating Board. As per sub-section (1) of Section 26, the Medical Assessment and Rating Board shall perform the functions enumerated in clauses (a) to (f) thereof. As per clause (a) of sub-section (1) of Section 26 of the Act, the Medical Assessment and Rating Board shall determine the procedure for assessing and rating the medical institutions for their compliance with the standards laid down by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, in accordance with the regulations made under the Act. As per clause (b) of sub- section (1) of Section 26 of the Act, the Medical Assessment and Rating Board shall grant permission for establishment of a new medical institution, or to start any postgraduate course or to increase number of seats, in accordance with the provisions of Section 28.
-29-W.P(C).Nos.27547 of 2020 and 2294 of 2021 6.3. Section 28 of the Act deals with permission for establishment of new medical college. As per sub-section (1) of Section 28, no person shall establish a new medical college or start any postgraduate course or increase number of seats without obtaining prior permission of the Medical Assessment and Rating Board. As per sub-section (2) of Section 28, for the purposes of obtaining permission under sub-section (1), a person may submit a scheme to the Medical Assessment and Rating Board in such form, containing such particulars, accompanied by such fee, and in such manner, as may be specified by the regulations. As per sub-section (3) of Section 28, the Medical Assessment and Rating Board shall, having due regard to the criteria specified in Section 29, consider the scheme received under sub-section (2) and either approve or disapprove such scheme within a period of six months from the date of such receipt. As per the proviso to sub-section (3), before disapproving such scheme, an opportunity to rectify the defects, if any, shall be given to the person concerned. As per sub-section (4) of Section 28, where a scheme is approved under sub-section -30- W.P(C).Nos.27547 of 2020 and 2294 of 2021 (3), such approval shall be the permission under sub-section (1) to establish new medical college. As per sub-section (7) of Section 28, the Medical Assessment and Rating Board may conduct evaluation and assessment of any medical institution at any time, either directly or through any other expert having integrity and experience of medical profession and without any prior notice and assess and evaluate the performance, standards and benchmarks of such medical institution.
6.4. Section 29 of the Act deals with criteria for approving or disapproving scheme. As per Section 29, while approving or disapproving a scheme under Section 28, the Medical Assessment and Rating Board, or the Commission, as the case may be, shall take into consideration the following criteria, namely, (a) adequacy of financial resources; (b) whether adequate academic faculty and other necessary facilities have been provided to ensure proper functioning of medical college or would be provided within the time-limit specified in the scheme;
(c) whether adequate hospital facilities have been provided or would be provided within the time-limit specified in the scheme; -31- W.P(C).Nos.27547 of 2020 and 2294 of 2021 and (d) such other factors as may be prescribed. As per the proviso to Section 29, subject to the previous approval of the Central Government, the criteria may be relaxed for the medical colleges which are set up in such areas as may be specified by the regulations.
6.5. Section 35 of the Act deals with recognition of medical qualifications granted by Universities or medical institutions in India. As per sub-section (1) of Section 35, the medical qualification granted by any University or medical institution in India shall be listed and maintained by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, in such manner as may be specified by the regulations and such medical qualification shall be a recognised medical qualification for the purposes of the Act. As per sub-section (2) of Section 35, any University or medical institution in India which grants an undergraduate or postgraduate or super-speciality medical qualification not included in the list maintained by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as -32- W.P(C).Nos.27547 of 2020 and 2294 of 2021 the case may be, may apply to that Board for granting recognition to such qualification. As per subsection (3) of Section 35, the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, shall examine the application for grant of recognition to a medical qualification within a period of six months in such manner as may be specified by the regulations. As per sub-section (4) of Section 35, where the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, decides to grant recognition to a medical qualification, it shall include such medical qualification in the list maintained by it and also specify the date of effect of such recognition. As per subsection (8) of Section 35, all medical qualifications which have been recognised before the date of commencement of this Act and are included in the First Schedule and Part I of the Third Schedule to the Indian Medical Council Act, 1956, shall also be recognised medical qualifications for the purposes of this Act, and shall be listed and maintained by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as -33- W.P(C).Nos.27547 of 2020 and 2294 of 2021 the case may be, in such manner as may be specified by the regulations.
6.6. Section 49 of the Act deals with completion of courses of studies in medical institutions. As per sub-section (1) of Section 49, notwithstanding anything contained in this Act, any student who was studying for a degree, diploma or certificate in any medical institution immediately before the commencement of this Act shall continue to so study and complete his course for such degree, diploma or certificate, and such institution shall continue to provide instructions and examination for such student in accordance with the syllabus and studies as existed before such commencement, and such student shall be deemed to have completed his course of study under this Act and shall be awarded degree, diploma or certificate under this Act. As per sub-section (2) of Section 49, notwithstanding anything contained in this Act, where recognition granted to a medical institution has lapsed, whether by efflux of time or by its voluntary surrender or for any other reason whatsoever, such medical institution shall continue to maintain and provide the -34- W.P(C).Nos.27547 of 2020 and 2294 of 2021 minimum standards required to be provided under this Act till such time as all candidates who are admitted in that medical institution complete their study.
6.7. Section 56 of the Act deals with power to make rules. As per sub-section (1) of Section 56, the Central Government may, by notification, make rules to carry out the purposes of this Act. As per sub-section (2) of Section 56, in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in clauses (a) to (q) thereof. As per clause (l) of sub-section (2) of Section 56, the rules made by the Central Government shall provide for the other factors under clause (d) of Section 29 (i.e., criteria for approving or disapproving scheme).
6.8. Section 57 of the Act deals with power to make regulations. As per sub-section (1) of Section 57, the Commission may, after previous publication, by notification, make regulations consistent with the Act and the rules made thereunder to carry out the provisions of this Act. As per sub- section (2) of Section 57, in particular, and without prejudice to -35- W.P(C).Nos.27547 of 2020 and 2294 of 2021 the generality of the foregoing power, such regulations may provide for all or any of the matters enumerated in clauses (a) to (zt) thereof. The regulations made may provide for : - as per clause (o) - the curriculum at undergraduate level under clause
(b) of sub-section (1) of Section 24; as per clause (p) - the curriculum for primary medicine, community medicine and family medicine under clause (c) of subsection (1) of Section 24; as per clause (q) - the manner of imparting undergraduate courses by medical institutions under clause (d) of sub-section (1) of Section 24; as per clause (r) - the minimum requirements and standards for conducting courses and examinations for undergraduates in medical institutions under clause (e) of sub-section (1) of Section 24; and as per clause (s) - the standards and norms for infrastructure, faculty and quality of education at undergraduate level in medical institutions under clause (f) of sub-section (1) of Section 24.
6.9. Section 60 of the Act deals with repeal and saving. As per sub-section (1) of Section 60, with effect from such date as the Central Government may appoint in this behalf, the Indian -36- W.P(C).Nos.27547 of 2020 and 2294 of 2021 Medical Council Act, 1956 shall stand repealed and the Medical Council of India constituted under sub-section (1) of Section 3 of the said Act shall stand dissolved. As per sub-section (2) of Section 60, notwithstanding the repeal of the Act referred to in sub-section (1), it shall not affect, (a) the previous operation of the Act so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or (c) any penalty incurred in respect of any contravention under the Act so repealed; or (d) any proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty may be imposed as if that Act had not been repealed. As per sub-section (3) of Section 60, on the dissolution of the Medical Council of India, the person appointed as the Chairman of the Medical Council of India and every other person appointed as the Member and any officer and other employee of that Council and holding office as such immediately before such dissolution shall vacate their respective -37- W.P(C).Nos.27547 of 2020 and 2294 of 2021 offices and such Chairman and other Members shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of term of their office or of any contract of service. As per sub-section (4) of Section 60, notwithstanding the repeal of the aforesaid enactment, any order made, any licence to practice issued, any registration made, any permission to start new medical college or to start higher course of studies or for increase in the admission capacity granted, any recognition of medical qualifications granted, under the Indian Medical Council Act, 1956, which are in force as on the date of commencement of this Act, shall continue to be in force till the date of their expiry for all purposes, as if they had been issued or granted under the provisions of this Act or the rules or regulations made thereunder.
6.10. In pursuance of the provisions of sub-section (1) of the Section 60 of the National Medical Commission Act, 2019, the Central Government vide Notification S.O. 3263(E), dated 24.09.2020 published in the Gazette of India, dated 24.09.2020 repealed the Indian Medical Council Act, 1956 with effect from -38- W.P(C).Nos.27547 of 2020 and 2294 of 2021 25.09.2020. By the said notification, the Board of Governors appointed under Section 3A of the Indian Medical Council Act, 1956 in supersession of the Medical Council of India constituted under sub-section (1) of Section 3 of the said Act stands dissolved.
6.11. Section 61 of the Act deals with transitory provisions. As per sub-section (1) of Section 61, the Commission shall be the successor in interest to the Medical Council of India including its subsidiaries or owned trusts and all the assets and liabilities of the Medical Council of India shall be deemed to have been transferred to the Commission. As per sub-section (2) of Section 61, notwithstanding the repeal of the Indian Medical Council Act, 1956, the educational standards, requirements and other provisions of the Indian Medical Council Act, 1956 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder. As per the proviso to sub-section (2) of Section 61, anything done or any action taken as regards the educational standards and -39- W.P(C).Nos.27547 of 2020 and 2294 of 2021 requirements under the enactment under repeal and the rules and regulations made thereunder shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue in force accordingly unless and until superseded by anything done or by any action taken under this Act.
7. In exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956, the Medical Council of India with the previous sanction of the Central Government, made the Minimum requirements for 50 MBBS Admissions annually Regulations, 1999, which was published in the Gazette of India dated 24.09.1999. As per Para.2, the objective of the Regulations is to prescribe for a medical college and medical institution approved for 50 admissions of MBBS students annually, the minimum requirements of accommodation in the college and its associated teaching hospitals, staff (teaching and technical both) and equipment in the college departments and hospitals. As per Para.3, every medical college and medical institution for 50 MBBS admissions annually shall have the departments enumerated in clauses (1) to (23). The Medical Council of India made similar -40- W.P(C).Nos.27547 of 2020 and 2294 of 2021 regulations prescribing the minimum requirements for 100, 150, 200 and 250 MBBS admissions annually, namely, Minimum Requirements for 100 MBBS Admissions annually Regulations, 1999, Minimum Requirements for 150 MBBS Admissions annually Regulations, 1999, Minimum Requirements for 200 MBBS Admissions annually Regulations, 1999 and Minimum Requirements for 250 MBBS Admissions annually Regulations, 1999.
8. In exercise of the powers conferred by Section 57 of the National Medical Commission Act, 2019 the National Medical Commission made the Minimum Requirements for Annual MBBS Admissions Regulations, 2020, which was published in the Gazette of India dated 29.10.2020. As per clause (i) of Para.2, the Regulations shall be applicable for medical colleges being established from the academic session 2021-22 onwards. As per clause (ii) of Para.2, the relevant minimum standard requirements for the medical college for 50/100/150/200/250 regulations and the requirements to be fulfilled by the applicant colleges for obtaining Letter of Intent and Letter of Permission for -41- W.P(C).Nos.27547 of 2020 and 2294 of 2021 establishment of the new medical colleges and yearly renewals under Section 10A of the Indian Medical Council Act, 1956 read with sub-section (2) of Section 61 of the National Medical Commission Act, 2019 shall be the governing regulations for medical colleges established prior to last date of grant of letter of permission for establishing new medical college/renewal of permission/increase of intake capacity for the academic session 2020-21. As per Para.4, the objective of the Regulations is to prescribe for a medical college and medical institution approved for admissions of MBBS students annually, the minimum requirements of accommodation in the college and its associated teaching hospitals, staff (teaching and technical) and equipment in the college departments and hospitals. As per Para.5, every medical college and medical institution approved for MBBS admissions annually shall have the departments enumerated in clauses (i) to (xxiv).
9. In exercise of the powers conferred by Section 10A read with Section 33 of the Indian Medical Council Act, 1956, the Medical Council of India, with the previous sanction of the Central -42- W.P(C).Nos.27547 of 2020 and 2294 of 2021 Government made the Establishment of Medical College Regulations, 1999. As per Clause 3 of the Regulations, which deals with the establishment of a medical college, no person shall establish a medical college except after obtaining prior permission from the Central Government by submitting a Scheme annexed with the said Regulations. Clause 1 of the Scheme deals with eligibility criteria and Clause 2 deals with qualifying criteria. As per Clause 2 of the Scheme, the eligible persons shall qualify to apply for permission to establish a medical college if the conditions enumerated in sub-clauses (1) to (8) are fulfilled. As per sub-clause (2) of Clause 2 of the Scheme, the medical college or medical institution shall be housed in a unitary campus of not less than 20 acres of land except in mega cities (Mumbai, Kolkata, New Delhi and Chennai) and 'A' class cities (Ahmedabad, Hyderabad, Pune, Bangalore and Kanpur). However, this may be relaxed in a place especially in Urban areas where the population is more than 25 lakhs, other than the nine cities mentioned in the clause, hilly areas, notified tribal areas, North Eastern States, Hill States and Union Territories of Andaman and Nicobar Islands, -43- W.P(C).Nos.27547 of 2020 and 2294 of 2021 Daman and Diu, Dadra and Nagar Havel and Lakshadweep, where the land shall not be in more than two pieces and the distance between the two pieces shall not be more than 10 kms. The hospital, college building including library and hostels for the students, interns, PGs/Residents and Nurses shall be in one piece of land which shall not be less than 10 Acres. Other facilities may be housed in the other piece of land, proper landscaping should be done. As per sub-clause (3) of Clause 2, the applicant has to obtain essentiality certificate in Form 2 regarding no-objection of the State Government/Union Territory Administration for the establishment of the proposed medical college at the proposed site and availability of adequate clinical material as per the Council regulations, from the concerned State Government/Union Territory Administration. As per sub-clause (4) of Clause 2, the applicant has to obtain consent of affiliation in Form 3 for the proposed medical college from a University. As per sub-clause (5) of Clause 2 the applicant should own and manage a hospital with the required bed strength and necessary infrastructural facilities -44- W.P(C).Nos.27547 of 2020 and 2294 of 2021 capable of being developed into teaching institution in the campus of the proposed medical college.
10. After enactment of the National Medical Commission Act, 2019, the National Medical Commission notified the Establishment of Medical College (Amendments) Regulations, 2020, vide the notification published in the Gazette of India dated 29.10.2020, in exercise of the powers conferred by Section 10A read with Section 33 of the Indian Medical Council Act, 1956 and sub-section (2) of Section 61 of the National Medical Commission Act, 2019 to further amend the Establishment of Medical College Regulations, 1999. As per the said notification, in Clause 2 of the Scheme under the heading 'qualifying criteria', sub-clause (2A) is added after sub-clause (2); in Clause 2 of the Scheme under the heading 'eligibility criteria', sub-clause (5A) is added after sub-clause (5); and in clause 8 of the Scheme under the heading 'grant of permission', sub-clause (3)(1A) is added after sub-clause (3)(1). The amended provisions are applicable for medical colleges being established from the academic session 2021-22.
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11. In exercise of the powers conferred by Section 10A read with Section 33 of the Indian Medical Council Act, 1956, in supersession of the Establishment of new Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulations, 1993, in so far as it relates to application for permission of the Central Government for starting new or higher courses (including PG degree/diploma and higher specialities) in a medical college/institution and application for permission of the Central Government to increase the admission capacity in MBBS/Higher courses (including Diploma/Degree/Higher specialities) in the existing medical colleges/institutions, the Medical Council of India, with the previous sanction of the Central Government, made the Opening of a New or Higher Course of Study or Training (including Postgraduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000, which came into force on 07.10.2000.
-46-W.P(C).Nos.27547 of 2020 and 2294 of 2021
12. In Chairman, Quilon Medical Trust, Kollam v. Kerala University of Health and Sciences, Thrissur and others [2021 (1) KHC 615] this Court held that, in view of the transitory provisions under sub-section (2) of Section 61 of the National Medical Commission Act, 2019, the Establishment of Medical College Regulations, 1999, as amended by the Establishment of Medical College (Amendments) Regulations, 2020, and also the Opening of a New or Higher Course of Study or Training (including Postgraduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000 issued under the provisions of the Indian Medical Council Act, 1956 shall continue to be in force and operate till new regulations are made by the National Medical Commission under the provisions of the National Medical Commission Act, 2019.
13. As per Clause 3 of the Regulations, 2000, which deals with the permission for establishment of a new or higher course of study, etc., no medical college shall, (a) open a new or higher -47- W.P(C).Nos.27547 of 2020 and 2294 of 2021 course of study or training (including a post graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (b) increase admission capacity in any course of study or training (including a post-graduate course of study or training); except after obtaining the previous permission of the Central Government by submitting Scheme annexed to the Regulations.
14. Part II of the Regulations deals with 'Scheme for Permission of the Central Government to Increase the Admission Capacity in any Course of Study or Training (Including Postgraduate Course of Study or Training) in the Existing Medical Colleges/Institutions'. As per Clause 3 of the Scheme, which deals with qualifying criteria, the medical college/institution shall qualify to apply for increasing the number of admission in MBBS/PG Diploma/Degree/Higher Specialty Course in the existing medical college/institution if the conditions enumerated in sub-clauses (1) to (7) are fulfilled.
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15. As per sub-clause (1) of Clause 3 of the said Scheme, substituted by the notification published in the Gazette of India dated 02.05.2016, for any increase in the annual intake capacity for admission to MBBS course, only those medical college/institution are eligible to apply whose medical degree is a recognised medical qualification under sub-section (2) of Section 11 of the Indian Medical Council Act, 1956 for that particular intake capacity/increased intake capacity for which Letter of Permission was granted by the Central Government; however, the medical college/institute which is not yet recognised under sub- section (2) of Section 11 of the Indian Medical Council Act, for the award of MBBS degree may apply for increase of intake in Postgraduate courses in pre-clinical and para-clinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine & Community Medicine at the time of 4th renewal, i.e. along with the admission of 5 th batch for the MBBS course. As per sub-clause (1) of Clause 3, substituted further by the notification published in the Gazette of India dated 08.06.2018, a Medical College/Medical Institution shall be -49- W.P(C).Nos.27547 of 2020 and 2294 of 2021 entitled to make an application to increase the admission capacity for MBBS/PG Diploma/PG Degree/Higher Specialty Courses, once the concerned qualification against the sanctioned intake has been granted recognition under sub-section (2) of Section 11 of the Act and included in the First Schedule of the Act.
16. The qualifying criteria, as per sub-clause (3) of Clause 3 of the said Scheme, is that consent of affiliation in the prescribed format with respect to opening of new or higher course of study or training (including postgraduate course of study or training) and increase of admission capacity in any course of study or training (including a postgraduate course of study or training) has been obtained by the medical college/institution from the University to which it is affiliated.
17. As held by this Court in Quilon Medical Trust [2021 (1) KHC 615], in view of the transitory provisions under sub- section (2) of Section 61 of the National Medical Commission Act, 2019, the Establishment of Medical College Regulations, 1999, as amended by the Establishment of Medical College (Amendments) -50- W.P(C).Nos.27547 of 2020 and 2294 of 2021 Regulations, 2020, and also the Opening of a New or Higher Course of Study or Training (including Postgraduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000 issued under the provisions of the Indian Medical Council Act, 1956 shall continue to be in force and operate till new regulations are made by the National Medical Commission under the provisions of the National Medical Commission Act, 2019. Moreover, the provisions under the Kerala University of Health Sciences Statutes, 2013, referred to hereinbefore, i.e., Statute 10(7) of Chapter XXI as amended on 02.12.2019, consent of affiliation issued by the 1 st respondent University for enhancement of intake in existing courses is essential for approaching the Apex Council like the National Medical Commission seeking permission for increase of intake. The contentions to the contra raised by the petitioner can only be repelled as untenable and I do so.
18. As per Clause 5 of the said Scheme, the ratio of teaching staff and students shall be as laid down in the Medical -51- W.P(C).Nos.27547 of 2020 and 2294 of 2021 Council of India Regulations on Minimum Standard Requirements for the Medical College for 50/100/150 Admissions in a medical college for MBBS and the Postgraduate Medical Education Regulations for postgraduate admissions.
19. As per Clause 6 of the said Scheme, the maximum number of admission in MBBS course shall not exceed 250 annually provided that the eligibility criteria fixing the upper ceiling of annual intake to 200/250 admissions annually shall be as under -
A. For Annual intake capacity of 200
(i) Number of teaching beds not less than 900 with the standing of not less than 10 years [the period of ten years shall be reckoned from the date of submission of application to the Central Government of the year in which Letter of Permission has been granted].
(ii) OPD strength per day not less than 2000.
(iii) Bed occupancy average not less than 75%.
(iv) The hospital must be unitary.
B. For Annual intake capacity of 250
(i) Number of teaching beds not less than 1100 with the standing of not less than 10 years [the period of ten years shall be reckoned from the date of submission of -52- W.P(C).Nos.27547 of 2020 and 2294 of 2021 application to the Central Government of the year in which Letter of Permission has been granted].
(ii) OPD strength per day not less than 3000.
(iii) Bed occupancy average not less than 75%.
(iv) The hospital must be unitary.
20. In the instant case, the 1st respondent University issued Ext.P4 communication dated 30.11.2020 whereby the petitioner was informed about gross deficiencies in terms of clinical materials, bed occupancy and faculty. On receipt of Ext.P4 the petitioner submitted Ext.P5 reply, wherein it has been stated that the college had done staff recruitment including faculties as per the norms of the National Medical Commission. The college have the required number of faculties which would be provided by way of declaration with necessary details to the effect that the regulations of the National Medical Council will be followed in letter and spirit.
21. As rightly contended by the 1st respondent University, in Ext.P5 reply the petitioner has not disputed the findings of the inspection, as contained in Ext.P4, and the explanation offered by the petitioner shows that the deficiencies are admitted. On -53- W.P(C).Nos.27547 of 2020 and 2294 of 2021 07.12.2020, the Scrutiny Committee scrutinised Ext.P5 compliance report and decided not to grant consent of affiliation for enhancement of intake in MBBS course from 100 to 200, for the academic year 2021-22, since no proof was submitted by the college for substantiating the claim that grave faculty deficiency was due to quarantine. The stand taken in the statement filed by the 1st respondent University is that, in Ext.P5, it was not the stand of the college that there were deficiencies and those deficiencies were rectified by appointing personnel. If that was the stand of the college, then a verification was necessary which would have been done only through inspection. The petitioner college did not even submit specific details of the personnel and the reasons for their absence. No supporting documents were produced to substantiate the stand taken in Ext.P5. Therefore, as rightly contended by the University, considering the nature of explanation given by the college there remained no need for a further inspection. Apart from the faculty deficiency, the hospital was not having the sufficient bed occupancy, surgical procedures and laboratory investigations. Considering all the above facts, the -54- W.P(C).Nos.27547 of 2020 and 2294 of 2021 University rejected the application made by the petitioner for consent of affiliation for additional intake.
22. In Medical Council of India v. The Principal, KMCT Medical College [(2018) 9 SCC 766] it was contended before the Apex Court that the inspection was not properly conducted. Repelling the said contention, the Apex Court held as follows;
"15. We do not deem it necessary to deal with the submission made on behalf of the College regarding the inspection not being properly conducted. This Court has repeatedly said that a decision taken by the Union of India on the basis of a recommendation of an expert body regarding the inadequacy of facilities in medical colleges cannot be interfered with lightly. Interference is permissible only when the colleges demonstrate jurisdictional errors, ex facie perversity or mala fide. [See: Manohar Lal Sharma v. Medical Council of India (2013) 10 SCC 60 and Medical Council of India v. Kalinga Institute of Medical Sciences (2016) 11 SCC 530]. As no case is made out by the College for interference with the inspection report, we decline the request of Mr. Sibal for remand of the matter to the High Court." (underline supplied)
23. In V.N. Public Health and Educational Trust, Kozhikode v. Kerala University of Health Sciences and -55- W.P(C).Nos.27547 of 2020 and 2294 of 2021 others [2021 (2) KHC SN 2 : 2020 SCC OnLine Ker 8406] this Court held that, any interference on the findings of the State/University regarding inadequacy in infrastructure, equipment, clinical materials and faculties in the proposed medical college, which are based on the inspection report of the experts in the field, is legally permissible under Article 226 of the Constitution of India, only when the petitioner demonstrates jurisdictional errors, ex facie perversity or mala fide. Paras.18 to 20 of the said decision read thus;
"18. The remarks submitted by the petitioner to the deficiencies pointed out in Ext.P7 communication dated 20.11.2020 in W.P(C) No. 26397 of 2020 is extracted hereinbefore at paragraph 2.3 The clarifications/compliance furnished in Ext.P8 remarks would show that the petitioner's institution, which proposes to establish a medical college, with an annual intake of 150 seats for MBBS, is lacking necessary infrastructure, equipment, clinical materials and faculties. As noticed in Ext.P9 order dated 23.11.2020 in W.P.(C)No.26397 of 2020, in Ext.P8 remarks submitted to the deficiencies pointed out in Ext.P7, the petitioner has not raised any objection regarding the inspection conducted by the University. The deficiencies in the number of practical laboratories, mobile X-ray unit, available beds in ICU, etc., -56- W.P(C).Nos.27547 of 2020 and 2294 of 2021 are not disputed in Ext.P8 remarks. Admittedly the petitioner is yet to purchase any journal for the proposed medical college. The bed occupancy was only 30% on the day of inspection and the number of out patients was less than 200, as against the requirement of 600. The total faculty deficiency noted in Ext.P9 is 32% and Tutor/Demonstrator/SR deficiency is 78%. Such deficiencies in clinical materials, faculties, etc., are also noted in Annexure I inspection report prepared by the inspection team deputed by the Director of Medical Education, on the request made by the petitioner for essentiality certificate.
19. As per Annexure I inspection report prepared by the inspection team deputed by the Director of Medical Education, bed occupancy in the hospital was only 30%, out of which patients with genuine problems seems to be only 20% in Surgery, Pediatrics and Obstetrics and Gynaecology (OBG). Bed occupancy in ICU was only 3 and that in casualty was only 1. The average number of cases operated is 2 major and 2 minor surgeries per month, as per the records submitted by the Dean. As per hospital records there are 34 child births from 12.03.2020 to 06.11.2020, out of which birth certificate issued by the Panchayat is available only for 9 child births. The hospital is having no blood bank and it is outsourced from external blood bank.
On account of various deficiencies noted in Annexure I, the respondent State by Ext.P10 order dated 21.11.2020 in W.P. (C)No.26777 of 2020 rejected the request made by the -57- W.P(C).Nos.27547 of 2020 and 2294 of 2021 petitioner for essentiality certificate for starting a new medical college.
20. The deficiencies noted in Annexure I report of the inspection team constituted by the Director of Medical Education, on the request made by the petitioner for essentiality certificate, and that noted by the Scrutiny Committee of the University (based on the report of the inspection commission), on the request made by the petitioner for consent of affiliation, cannot be interfered with lightly. Any interference on the findings of the respondent State/University regarding inadequacy in infrastructure, equipment, clinical materials and faculties in the proposed medical college, which are based on the inspection report of the experts in the field, is legally permissible under Article 226 of the Constitution of India, only when the petitioner demonstrates jurisdictional errors, ex facie perversity or mala fide. In the instant case, in the absence of any vitiating circumstances, no interference is warranted on the findings in the orders impugned in the respective writ petitions as to inadequacy in infrastructure, equipment, clinical materials and faculties in the proposed medical college."
24. In the instant case, any interference on the findings of the respondent State/University in Exts.P4 or P7 regarding inadequacy of faculties, clinical materials, etc., in the petitioner's Medical College, which are based on the inspection report of the -58- W.P(C).Nos.27547 of 2020 and 2294 of 2021 experts in the field, is legally permissible under Article 226 of the Constitution of India, only when the petitioner demonstrates jurisdictional errors, ex facie perverse or mala fide. In Ext.P3 and Ext.P5, the consistent stand taken by the petitioner is that the college had done staff recruitment including faculties as per the norms of the National Medical Commission. But, their absence on 13.11.2020 was due to Covid 19 duties, quarantine, etc. Either in Ext.P3 or in Ext.P5 the college did not submit specific details of personnel and the reason for their absence. No supporting documents were produced to substantiate the stand taken in Ext.P5 reply. In the absence of any vitiating circumstances, no interference is warranted on the findings in Exts.P4 and P7 as to inadequacy of faculties, clinical materials, etc., in the petitioner's college.
25. In Medical Council of India v. State of Karnataka [(1998) 6 SCC 131], while dealing with the admission made in excess of intake capacity fixed by the Council, the Apex Court held that, a medical student requires gruelling study and that can be done only if proper facilities are available in a medical college -59- W.P(C).Nos.27547 of 2020 and 2294 of 2021 and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they do not have full facilities of teaching and were not exposed to patients and their ailments during the course of their study.
26. In K.S Bhoir v. State of Maharashtra [(2001) 10 SCC 264] the Apex Court held that sub-section (1) of Section 10A of the Indian Medical Council Act, 1956 is a substantive provision in itself and begins with non obstante clause 'notwithstanding anything contained in the Act', it means there is a prohibition in the matter of an increase in the admission capacity in a medical college unless previous permission of the Central Government is obtained in accordance with the recommendation of the Medical Council of India. The entire scheme of Section 10A of the Act has to be read in consonance with other sub-sections to further the object behind the -60- W.P(C).Nos.27547 of 2020 and 2294 of 2021 amending Act. The object being to achieve the highest standard of medical education. The said objective can be achieved only by ensuring that a medical college has the requisite infrastructure to impart medical education. The object of amending Sections 10A, 10B and 10C was for a specific purpose of controlling and restricting unchecked and unregulated mushroom growth of medical colleges without requisite infrastructure resulting in decline in the maintenance of highest standard of education. The highest standard of medical education is only possible when the requirement of provisions of Section 10A and the Regulations are complied with. It has been experienced that, unless there is required infrastructure available in the medical college, the standard of medical education has declined. Unless an institution can provide complete and full facilities for training to each student who is admitted in various disciplines, the medical education would remain incomplete and the medical college would be turning out half-baked doctors which, in turn, would adversely affect the health of the public in general. -61- W.P(C).Nos.27547 of 2020 and 2294 of 2021
27. In Medical Council of India v. Chairman, S.R Educational and Charitable Trust [2018 SCC OnLune SC 2276 : (2018) 4 KLT (SN) 70] the Apex Court held that, considering the deficiencies [i.e., lack of patients, teaching faculty, sufficient number of surgical procedures, etc.], permitting an unequipped medical college to impart medical education without proper infrastructure and faculty would be against the efficacious medical education. Patients serve as the object of teaching. By such an approach ultimately the interest of the society would suffer. Half-baked doctors cannot be left loose on society like drones and parasites to deal with the life of patients in the absence of proper educational training. It would be dangerous and against the right to life itself, in case unequipped medical colleges are permitted to impart substandard medical education without proper facilities and infrastructure. In the said decision, the Apex Court noticed that, as per clause (a) of the proviso to Regulation 8(1) of the Medical Council of India Establishment of Medical College Regulations, 1999, as amended by the Medical Council of India Establishment of Medical College -62- W.P(C).Nos.27547 of 2020 and 2294 of 2021 (Amendment) Regulations, 2010, in respect of colleges in the stage upto II renewal (i.e, admission of third batch) if it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is less than 60%, such an institute will not be considered for renewal of permission in that academic year.
28. In Mar Gregorious Memorial Muthoot Medical Centre v. Kerala University of Health and Allied Sciences [2011 (4) KHC 333], the question that came up for consideration before a learned Judge of this Court in W.P.(C)Nos. 24933 of 2011 and 26443 of 2011 was as to whether Kerala University of Health Sciences is supposed to act just as a 'rubber stamp' in the matter of granting affiliation to institutions invoking the power under Section 50 or 53 of the Kerala University of Health Sciences Act, 2010, once approval is granted in respect of the courses and infrastructure by Indian Nursing Council and Kerala Nurses and Midwives Council. Relying on two Full Bench decisions of this Court in Vikram Sarabhai Educational Trust & B.Ed College v. University of Calicut [2008 (2) KHC 647] -63- W.P(C).Nos.27547 of 2020 and 2294 of 2021 and K. Velayudhan Memorial Trust v. State of Kerala and others [2010 (3) KHC 23] it was contended that the University does not have any power or authority to decline affiliation in respect of B.Sc Nursing course or Post Basic B.Sc Nursing course sanctioned by Nursing Council or reduce the intake by stipulating some or other norms of their choice.
29. In Mar Gregorious Memorial Muthoot Medical Centre this Court found considerable force in the submission made by the learned Standing Counsel for the University that the decision rendered by the Full Bench is not an authority to hold that affiliation to be given by the University is only an empty formality or that once sanction is given by the State Council as aforesaid, affiliation to be given by the University is automatic. There is no such declaration of law in the decision rendered by the Full Bench referring to the relevant provisions of the University Act/Statute or as to the relative rights and liberties of the University in relation to the powers and authority of the Indian Nursing Council/Kerala Nurses and Midwives Council. In Upasana College of Nursing v. Kerala University for Health -64- W.P(C).Nos.27547 of 2020 and 2294 of 2021 and Allied Sciences [2010 (4) KHC 224] it was held that, granting of affiliation by the University is not an automatic exercise once sanction/permission is obtained from Indian Nursing Council/Kerala Nurses & Midwives Council. Interference was declined and the writ petitions preferred by the concerned institutions were dismissed as devoid of any merit. The matter was taken up in appeal by the aggrieved institutions. After detailed hearing, the Division Bench, vide judgment dated 13.10.2010 in W.A.No.1715 of 2010 and connected cases, held that the process of affiliation was never automatic. The grant of affiliation is not an empty formality by the University. The University which awards the degree certificates can always ensure that students undergo the proper course study in an eligible institution in accordance with the curriculum prescribed by the University. Further, referring to the relevant provisions under the Calicut University Act and the Calicut University First Statutes, 1977, it has been held by a Division Bench of this Court in University of Calicut v. Amala Institute of Medical Sciences [2009 (2) KHC 71] that the University is having -65- W.P(C).Nos.27547 of 2020 and 2294 of 2021 ample power to inspect the college seeking affiliation and that the institution is bound to furnish any information called for in this regard. It has also been held that, if there is any serious deficiency in the manner of running the college, the University can definitely take action against the college and 'dis-affiliate' it; the power to dis-affiliate being corollary to the power to affiliate and that the University is vested with the power to conduct necessary inspection and to satisfy itself as to the availability of infrastructure and such other aspects. As the primary function of the University is to guarantee quality education, maintaining/regulating academic standards of the affiliated institutions, it is open for the University to prescribe conditions for recognition of the institutions, which is not in conflict with the norms prescribed by the INC under the Central Act. As such, the contention of the petitioners that the respondent University is bound to 'sign on the dotted lines' for granting affiliation, the petitioners having obtained sanction/approval from the Central/State Council, is wrong and unfounded. -66- W.P(C).Nos.27547 of 2020 and 2294 of 2021
30. In K.V.M. Trust v. Kerala University of Health & Allied Sciences [2011 (4) KHC 948] [W.A No. 1528 of 2011 arising out of W.P(C) No. 26443 of 2011] the appellant contended, inter alia, that once the Indian Nursing Council and the State Nurses and Midwives Council accorded permission for the intake of 50 students, the respondent University has no authority to restrict the intake to a lesser number. The Division Bench, relying on the decisions in Amala Institute of Medical Sciences [2009 (2) KHC 71] and Upasana College of Nursing [2010 (4) KHC 224] and also the Regulations of the Indian Nursing Council held that the permission accorded by the Indian Nursing Council is basing upon a prima facie satisfaction of the availability of the infrastructure facilities and it is for the State Council to accord its permission as well as the respondent University to conduct inspection and satisfy the availability of the infrastructure facilities for running the course before granting affiliation. Therefore, the Division Bench upheld the finding of the learned Single Judge that granting affiliation is not an empty formality.
-67-W.P(C).Nos.27547 of 2020 and 2294 of 2021
31. In V.N. Public Health and Educational Trust, Kozhikode v. Kerala University of Health Sciences and others [2021 (2) KHC SN 2 : 2020 SCC OnLine Ker 8406] this Court held that, in view of the provisions under the Medical Council of India Establishment of Medical College Regulations, 1999 one of the qualifying criteria to apply in Form 1, for permission to set up a medical college, is that consent of affiliation in Form 3 for the proposed medical college has been obtained by the applicant from a University. In the consent of affiliation issued in Form 3, the University has to certify that, on the basis of the report of the Local Inquiry Committee the University has agreed, in principle, to affiliate the proposed medical college to be established at the proposed site by the applicant subject to grant of permission by the Government of India, Ministry of Health and Family Welfare, New Delhi under Section 10A of the Indian Medical Council Act, 1956. One of the qualifying criteria to apply in Form 1, for permission to set up a medical college, is that the applicant owns and manages a hospital of not less than 300 beds with necessary infrastructural -68- W.P(C).Nos.27547 of 2020 and 2294 of 2021 facilities capable of being developed into teaching institution in the campus of the proposed medical college.
32. In State of Kerala v. V.N. Public Health and Education Trust [2020 SCC OnLine SC 1142] [Civil Appeal Nos. 2920 of 2020 and 2921 of 2020 - Order dated 07.08.2020] a Three-Judge Bench of the Apex Court was considering a case in which the 1st respondent Trust filed W.P.(C)No.27266 of 2019 questioning Ext.P6 communication by which the State Government expressed its inability to consider the request made to issue essentiality certificate to establish medical colleges in the private sector in Palakkad district. A learned Single Judge, vide judgment dated 19.11.2019, quashed Ext.P6 communication and directed the Government to issue an essentiality certificate in the proforma on or before 30.11.2019 It was also directed that the Medical Council of India shall accept the essentiality certificate issued by the State Government, in terms of the judgment, as one received on time. That judgment was affirmed by the Division Bench in W.A No. 2443 of 2020. Civil Appeal No. 2920 of 2020 arises out of those judgments. The 1st respondent Trust filed -69- W.P(C).Nos.27547 of 2020 and 2294 of 2021 another writ petition, i.e., W.P.(C)No.29098 of 2019 challenging the decision taken by the Kerala University of Health Sciences, rejecting the request to grant consent of affiliation. In that writ petition the prayer for interim relief against refusal to grant consent of affiliation was rejected by the learned Single Judge, as per the order dated 31.10.2019 The 1 st respondent Trust filed yet another writ petition, i.e., W.P.(C)No.34275 of 2019 with a prayer to direct the Medical Council of India and the Government of India to process the application filed by the Trust without insisting for the essentiality certificate or the consent of affiliation. By the order dated 13.12.2019, the learned Single Judge allowed that interim relief. Civil Appeal No. 2921 of 2020 arises out of that order. After considering the the rival contentions, the Apex Court held that the order dated 13.12.2019 of the High Court in W.P.(C) No. 34275 of 2019 is palpably illegal and could not have been passed, in view of the fact that, in case any order was to be solicited, it was to be passed by the Apex Court in the pending SLP, out of which C.A.No.2920 of 2020 arises. It was absolutely improper for the -70- W.P(C).Nos.27547 of 2020 and 2294 of 2021 High Court to pass such an order directing the Medical Council of India to process the application without consent of affiliation granted by the University and essentiality certificate granted by the State Government. Both directions were illegal. It is pre- requisite for the Medical Council of India to process any application that the essentiality certificate and consent of affiliation are produced. Apart from that, pursuant to the refusal to grant consent of affiliation, W.P.(C)No.29098 of 2019 was filed. That was pending consideration. The High Court declined the interim order. The filing of the third writ petition was uncalled for. The High Court ought to have decided the issue of essentiality certificate for which W.P.(C)No.27266 of 2019 was filed with W.P. (C)No.29098 of 2019 regarding grant of consent of affiliation. The matter of permission to establish and/or recognition could not have been processed by the Medical Council of India/Government of India without essentiality as well as consent of affiliation. The Apex Court allowed the Civil Appeals filed by the State, by quashing the interim order passed in W.P. (C)No.34275 of 2019 on 13.12.2019 and the judgment passed by -71- W.P(C).Nos.27547 of 2020 and 2294 of 2021 the Division Bench in W.A.No.2443 of 2019 dated 05.12.2019, thereby affirming the order dated 19.11.2019 of the learned Single Judge in W.P.(C)No.27266 of 2019. The Apex Court ordered that let the writ petitions, i.e., W.P.(C)Nos.27266 of 2019 and 29098 of 2019, be decided analogous to avoid any conflicting decision as they are intertwined issues. As several considerations may be common, the grant of consent of affiliation and essentiality certificate may depend upon several factors. As per the guidelines of Government and of the University, various aspects are to be examined. By merely quashing of order based on policy, the grant of essentiality or consent of affiliation does not follow automatically. They have to be considered as per prevailing norms.
33. In Royal Medical Trust v. Union of India [(2015) 10 SCC 19] the Apex Court noticed that, Section 10A of the Indian Medical Council Act, 1956 contemplates submission of a scheme to the Central Government in prescribed form, which scheme is then to be referred by the Central Government to the Medical Council of India for its appropriate recommendations. -72- W.P(C).Nos.27547 of 2020 and 2294 of 2021 The scheme is to be considered having regard to the features referred to in sub-section (7) and is then placed before the Central Government along with the recommendations of the Council. In exercise of powers conferred by Section 10A read with Section 33 of the Act, the Medical Council of India with the previous sanction of the Central Government has made the Establishment of the Medical College Regulations, 1999 which were published in the Gazette of India on 28.08.1999 Para.3 lays down that no person shall establish a medical college except after obtaining prior permission of the Central Government by submitting a scheme. The Regulations then deal with the scheme in extenso. Clauses 1 and 2 of the scheme deal with 'eligibility criteria' and 'qualifying criteria' respectively. Clause 3 then sets out certain requirement in parts (i), (ii) and (iii) concerning various details about the status of the applicant in terms of the eligibility criteria, name and address of the medical college including various facets of the infrastructure and planning and the details of the existing hospital including availability of various facilities and capacities as also upgradation and expansion -73- W.P(C).Nos.27547 of 2020 and 2294 of 2021 programme. Para.7 of the Regulations deals with report of the Medical Council of India, while Para.8 deals with grant of permission by the Central Government. The Schedule to the Regulations sets out various stages dealing with processing of applications preferred by the medical colleges and how the matter is to be dealt with at various stages, which has undergone changes over a period of time. The Regulations were further amended by Amendment Notification dated 21.09.2012, which was published in the Gazette of India on 01.10.2012 It substituted the Schedule and added a Note. As per the Note, the time schedule indicated Schedule may be modified by the Central Government, for reasons to be recorded in writing, in respect of any class or category of applications.
34. In Royal Medical Trust the Apex Court held that, the Medical Council of India and the Central Government have been vested with monitoring powers under Section 10A of the Indian Medical Council Act, 1956 and the Establishment of the Medical College Regulations, 1999. It is expected of these authorities to discharge their functions well within the statutory confines as -74- W.P(C).Nos.27547 of 2020 and 2294 of 2021 well as in conformity with the Schedule to the Regulations. The Medical Council of India and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various stages and time limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. The Schedule must ideally take care of:
(A) 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 fulfill these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfill the basic requirements would be considered at the next stage.
(B) Inspection should then be conducted by the Inspectors of the Medical Council of India. By very nature such inspection must have an element of surprise. Therefore sufficient time of about three to four months ought to be given to the Medical Council -75- W.P(C).Nos.27547 of 2020 and 2294 of 2021 of India to cause inspection at any time and such inspection should normally be undertaken latest by January. Surprise Inspection would ensure that the required facilities and infrastructure are always in place and not borrowed or put in temporarily. (C) Intimation of the result or outcome of the inspection would then be communicated. If the infrastructure and facilities are in order, the concerned Medical College should be given requisite permission/renewal. However if there are any deficiencies or shortcomings, the Medical Council of India must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.
(D) If compliance is reported and the applicant states that the deficiencies stand removed, the Medical Council of India must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of the Medical Council of India and the Central Government.
In cases where actual physical verification is required, the Medical Council of India and the Central Government must cause such verification before the deadline.
-76-W.P(C).Nos.27547 of 2020 and 2294 of 2021 (E) The result of such verification if positive in favour of the Medical College concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned.
35. In Ashish Ranjan v. Union of India [(2016) 11 SCC 225] the Apex Court accepted and approved the time schedule, including time schedule for receipt of applications for opening of new courses, increase of admission capacity, etc.
36. In the absence of a consent of affiliation obtained from the 1st respondent University, before the extended cut off date of 15.12.2020, the petitioner's college is not having the qualifying criteria for submitting an application before the 3rd respondent National Medical Commission, for increase of annual intake in MBBS course from 100 to 200, for the academic year 2021-22. In the consent of affiliation issued in the prescribed format, the 1st respondent University has to certify, on the basis of the report of the local inquiry committee, that the University -77- W.P(C).Nos.27547 of 2020 and 2294 of 2021 has agreed in principle to affiliate the proposed additional intake, for the academic year 2021-22.
37. As held by the Apex Court in the decisions referred to supra, a medical student requires gruelling study and that can be achieved only if proper facilities are available in the medical college. The hospital attached to the medical college has to be well equipped with competent teaching faculties and sufficient infrastructure and clinical materials. The country does not want half-baked medical professionals coming out of medical colleges, when they do not have full facilities of teaching and were not exposed to patients and their ailments during the course of their study. Therefore, before granting consent of affiliation for increase of intake in MBBS course from 100 to 200, for the academic year 2021-22, the 1 st respondent University has to satisfy, on the basis of the report of the local inquiry committee, that the petitioner's college is equipped with competent teaching faculties and also sufficient infrastructure and clinical materials, for the additional intake sought for. Therefore, there is no merit in the contention that the petitioner's college needs to satisfy the -78- W.P(C).Nos.27547 of 2020 and 2294 of 2021 additional requirements for an annual intake of 200 in MBBS course only by June, 2021, at the time of grant of actual affiliation.
38. The aforesaid contention taken in W.P.(C)No.2294 of 2021 is even contrary to the consistent stand taken by the petitioner in Exts.P3 and P5 that the college had done staff recruitment including faculties as per the norms of the National Medical Commission; but their absence on 13.11.2020 was due to Covid 19 duties, quarantine, etc. Either in Ext.P3 or in Ext.P5 the college did not submit specific details of personnel and the reason for their absence. No supporting documents were produced to substantiate the stand taken in Ext.P5 reply. No such materials are produced before this Court, along with these writ petitions. As rightly contended by the 1 st respondent University, in Ext.P5 reply the petitioner has not disputed the findings of the inspection, as contained in Ext.P4, and the explanation offered by the petitioner shows that the deficiencies are admitted. Therefore, on 07.12.2020, the Scrutiny Committee scrutinised Ext.P5 compliance report and decided not to grant consent of -79- W.P(C).Nos.27547 of 2020 and 2294 of 2021 affiliation for enhancement of intake in MBBS course from 100 to 200, for the academic year 2021-22, since no proof was submitted by the college for substantiating the claim that grave faculty deficiency was due to quarantine. Apart from the faculty deficiency, the hospital was not having the sufficient bed occupancy, surgical procedures and laboratory investigations. As rightly contended by the University, considering the nature of explanation given by the college there remained no need for a further inspection. Considering all the above aspects, the 1st respondent University vide Ext.P7 rejected the application made by the petitioner for consent of affiliation for additional intake in MBBS course from 100 to 200, for the academic year 2021-22.
In the above circumstances, the petitioner is not entitled for the reliefs sought for in these writ petitions. The writ petitions fail and they are accordingly dismissed. No order as to costs.
Sd/-
ANIL K. NARENDRAN, JUDGE bkn/-
-80-W.P(C).Nos.27547 of 2020 and 2294 of 2021 APPENDIX OF WP(C) 27547/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE ORDER DATED 7-08-2020 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 27-11-2020 BY THE 3RD RESPONDENT EXHIBIT P3 COPY OF THE REPRESENTATIOND ATED 16-11- 2020 FROM THE PETITIONER TO THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE LETTER DATED 30-11-2020 FROM THE 1ST RESPONDENT EXHIBIT P5 COPY OF THE REPRESENTATION DATED 30-11- 2020 FROM THE PETITIOENR TO THE 1ST RESPONDENT.
1ST RESPONDENT'S ANNEXURE:
ANNEXURE R1(A) A TRUE COPY OF THE ORDER DATED
14.01.2021 ISSUED BY THE UNIVERSITY.
-81-
W.P(C).Nos.27547 of 2020
and 2294 of 2021
APPENDIX OF WP(C) 2294/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE ORDER DATED 07.08.2020
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 27.11.2020
BY THE 3RD RESPONDENT.
EXHIBIT P3 COPY OF THE REPRESENTATION DATED
16.11.2020 FROM THE PETITIONER TO THE
1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 30.11.2020
FROM THE 1ST RESPONDENT.
EXHIBIT P5 COPY OF THE REPRESENTATION DATED
30.11.2020 FROM THE PETITIONER TO THE
1ST RESPONDENT.
EXHIBIT P6 COPY OF THE INTERIM ORDER DATED
18.12.2020 IN W.P(C)NO.27457/2020 OF
THIS HON'BLE COURT.
EXHIBIT P7 COPY OF THE ORDER DATED 14.1.2021 ISSUED
BY THE 1ST RESPONDENT.
RESPONDENTS' EXHIBITS: NIL