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 directions came in the matter of a Trust wanting to start its medical college. Despite being issued an essentiality certificate a few years back, the trust was not given clearance by the state and the university to establish the college for the year 2020-2021. The questions raised by the trust included whether issuance of an Essentiality Certificate is only a Ministerial Act and whether Essentiality Certificate once issued can be withdrawn.
Hearing the petition, the court stated that in order to receive permission for establishing a medical college, securing an Essentiality Certificate from the concerned authorities is necessary. The court while dismissing the plea, asserted that the state government has the power to withdraw the Essentiality Certificate if they deem it fit as per the norms.
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.
On 10.06.2014, the State Government issued a renewed EC which contained a clerical error which was corrected belatedly on 11.12.2015 much after the date for submission of the application to the Central Government for the establishment of Medical College. As a consequence, the MCI rejected the application for the Academic Year 2014-2015. Application made by the appellant for the establishment of the Medical College for the year 2015-2016 was returned by the Government of India, on the ground that CoA submitted along with the proposal was not valid for the Academic Year 2015-2016 leaving it open to the trust to submit a fresh application for the Academic Year 2016-2017.
The issue arising for consideration before the bench was whether Essentiality Certificate (hereinafter referred to as 'EC') and Consent of Affiliation (hereinafter referred to as 'CoA') should be granted for the year 2020-2021 to the appellant. The other issues which need to be addressed were whether the grant of Essentiality Certificate by the State Government is only a Ministerial Act? and also whether Essentiality Certificate, once issued, can be withdrawn?
The trust approached Kerala High Court for securing EC and CoA after which the State Government's statement denying NOC and EC for starting a new Medical College, was set aside and quashed, and the State Government was directed to issue/renew the EC of the trust.
The learned Single Judge further gave an opportunity to apply for the Academic Year 2022-2023 instead of Academic Year 2020-2021 for which the dispute was being raised. However, in a revision petition, the court was informed that the time schedule prescribed for starting a medical college in the year 2020-2021 was already over. After this, the Kerala High Court refused to grant permission to the Trust to start the Medical College for the Academic Year 2020-2021 and gave time-bound directions to the State and the University to jointly carry out an inspection to see whether Essentiality Certificate could be issued and whether consent for Affiliation could be given for 2021-22.
Aggrieved by the refusal of relief for the Academic Year 2020-2021, the trust approached the apex court for redressal. The primary argument advanced by the learned Senior Counsel for the trust was that issue of the Essentiality Certificate is a ministerial job and the purpose of EC is limited to certify to the Central Government that it is essential to establish a Medical College.
It was further submitted that since the trust was issued EC by the State Government and also CoA by the University in the year 2015 itself, therefore, it was entitled to the same in 2020 as well. It was also submitted that at the time of issuance of EC, the State Government has to only consider the desirability and feasibility of the establishment of Medical College in the proposed location and certify as to the availability of infrastructure and other clinical material required to run a Medical College and the same cannot be withheld by the State Government on any policy consideration. It was further argued on behalf of the appellant that the State does not have the power to withdraw the EC once granted and once issued, the same shall remain valid.
The learned Senior Advocate appearing for the State-Respondent submitted that grant of EC/CoA is by no means a ministerial job. The State Government not only has to also to verify and certify that the norms of the Medical Council of India are satisfied by the appellant and that infrastructure and other clinical materials are sufficiently available for setting up a new Medical College. Respondent No.2-University also submitted that the contentions on behalf of the appellant that since it has been given CoA by the University in the year 2015 and, therefore, it should be entitled to the same in 2020 was without merits.
Before proceeding any further in the matter, the court referred to relevant provisions of the Medical Council of India Act, 1956 and Medical Council of India Establishment of Medical College Regulations, 1999 and the KUHS Act. The court noted:
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.
Confirming that the power to permit the establishment of a Medical College is thus conferred on the Central Government by the MCI Act, the apex court observed:
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.
Commenting on the contention of whether issuance of an Essentiality Certificate is only a Ministerial Act, the apex court stated that this Essentiality Certificate in the prescribed form is crucial for avoiding cases where the colleges despite grant of initial permission could not provide the infrastructure, teaching, and other facilities as a result whereof the students who had already been admitted suffered serious prejudice. "Medical Council of India Regulations, as well as Kerala University Health Sciences Statutes, very emphatically mandate that the consent of affiliation can only be given after the Institution fulfills the essential requirements", added the court.
On the contention of the trust that the absence of Essentiality Certificate is not one of the factors for consideration and is extraneous to the decision-making process cannot be accepted, the court added,
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.
As far as the question of whether Essentiality Certificate once issued can be withdrawn is concerned, the court placed reliance was placed on some observations made in the decision in Chintpurni Medical College & Hospital & Anr. Vs. State of Punjab & Ors. Referring to a subsequent decision in Sukh Sagar Medical College and Hospital Vs. State of Madhya Pradesh, the bench observed:
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.
The court further observed, " time schedule either for the establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant."
While dismissing the plea, the apex court allowed the appellant trust to make an appropriate application for grant of EC and CoA for the next Academic Year before the concerned Authority.
To view the order, click on the link below:
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