Essentiality Certificate mandatory before receiving permission for medical college establishment: Supreme Court
Delhi: The Supreme Court recently refused to give direction to the Kerala University of Health Sciences (KUHS) and the State to issue Essentiality Certificate and Consent of Affiliation (CoA) for the year 2020-2021 to a trust for the establishment of a medical college. In doingn so, the apex court has stated that granting the Essentiality Certificate by the State Government and Consent of Affiliation by the University cannot be treated simply as a ministerial act and holding that essentiality Certificate is mandatorily required by a person before he receives permission for establishment of a Medical College.
The appellant is a trust set up with the object of promoting education in Health and Medicine. The trust submitted that in order to start a Medical College, it had set up a 300 bedded hospital in Walayar in 2006. According to the trust, the requisite infrastructure was put in place and it had been trying to establish a Medical College from the year 2006 onwards but due to the arbitrary and discriminatory action of the State Government and the Kerala University of Health Sciences by denying the EC and CoA, it had miserably failed in its attempt.
The EC was granted for the first time to the appellant on 24.01.2004 for 100 seats. However, since the same was not in the prescribed format, therefore, the erstwhile Medical Council of India ('MCI') refused to accept the application of the appellant and the institution failed to establish the college during the Academic Year 2011-2012 and 2012-2013 for which the EC was valid.
Thus, an EC is mandatorily required by a person before he receives permission for establishment of a Medical College. The Legislative scheme that imposes the requirement of the EC is prescribed in Section 10(A) of the Medical Council of India Act, which requires the previous permission of the Central Government for establishing a Medical College or opening a new course of study or training. Every person or Medical College must submit to the Central Government a scheme as prescribed. The Central Government then refers the scheme to the MCI for its recommendations. Medical Council is required to consider the same and satisfy itself by obtaining any particulars as are necessary and after having the defects if any removed, make its recommendations to the Central Government. The Central Government, may on receipt of the scheme, approve it conditionally or disapprove the same.
The power to permit the establishment of a Medical College is thus conferred on the Central Government by the MCI Act. The Regulations referred above, were framed in exercise of powers conferred under Section 10(A) read with Section 33 of the MCI Act prescribed the qualifying criteria. These criteria lay down the eligibility to apply for permission to establish a Medical College. One of the criteria is that the person who is desirous of establishing a Medical College should obtain an Essentiality Certificate as prescribed in Form 2 of the Regulations, certifying that the State Government/Union Territory Administration has no objection for the establishment of the proposed Medical College at the proposed site and availability of adequate clinical material. Thus, the State Government is required to certify that it has decided to issue an Essentiality Certificate for the establishment of a Medical College with a specified number of seats in the public interest and further such establishment is feasible.
We come to the conclusion that the issuance/re-issuances of an essentiality certificate is not in any way a ministerial job and while dealing with a case of maintaining standards in a professional college, strict approach must be adopted as these colleges are responsible for ensuring that medical graduate has the required skill set to work as a doctor in the country......Same is the position with respect of CoA by the University. The First Statute of KUHS prescribes that University may appoint a Commission to inspect the proposed site to make a physical verification of the existing facilities and suitability of the proposed site. The grant of affiliation is dependent upon fulfillment of all the conditions that are specified in Clause X(I) of First Statues or that may be specified which includes staff, infrastructure facility, hospital, internet, library, playground, hostel, etc. Thus, even the grant of CoA by the University also cannot be said to be merely a ministerial act.
In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI.
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