NO Relief to SR Medical College: Kerala HC upholds cancellation of Essentiality Certificate
Thiruvananthapuram: Issuing an order bringing major setback to SR Medical College authorities, the Kerala High Court has dismissed the institute's plea seeking redemption of its essentiality certificate to continue with the MBBS course.
Medical Dialogues had earlier reported that after deliberating on the report submitted by the Medical Council of India (MCI), the Medical Education wing of the Union Health Ministry directed the state government to cancel the Essentiality Certificate of the medical college and to send a proposal to transfer the students to other institutes in the state. The orders were subsequently followed by the state after which the medical college moved the HC submitting that this decision as "arbitrary and illegal."
SR Medical College is a self-financing medical college in the state of Kerala. The institution had received the MCI nod for the MBBS course first in 2016, hence got the essentiality certificate, after that, it did not receive the recognition in the coming years due to inadequate infrastructure.
According to MCI, post-2016, on the assessment of the infrastructural and teaching facilities available carried out by the Council for the grant of Letter of Permission (LoP) for the academic year 2016-17, the severe shortfall was noticed and the executive committee decided to recommend to the Central Government not to issue a letter of permission. Then the college submitted a compliance report which was again subjected to compliance verification and subsisting deficiencies were found in the compliance verification also.
Accepting the recommendations of the MCI, the Centre refused to issue LoP for the academic year 2016-17. Thereafter, on the basis of the approval of the Supreme Court the mandated oversight committee, LoP dated 20.8.2016 was issued subject to condition that all subsisting deficiencies would be rectified. After such conditional approval, affidavits were submitted by the college affirming rectification of deficiencies reported on 10.2.2016 and an assessment was carried out in December 2016. Subsisting deficiencies were found in such assessment. The Council, therefore, recommended to the Central Government to debar the SR Medical College from admitting students for two academic years, that is, 2017-18 and 2018-19.
The matter was taken up before the Supreme Court and by order dated 3.10.2017, a set of directions were issued including that the MCI would have to carry out an inspection as per its Regulations, and after that, if any deficiencies are found the same would be intimated to the institution so that it can rectify the same. It was also directed that the bank guarantee furnished by the medical college shall not be encashed.
Though inspections were carried out again in November 2017, serious deficiencies were again found and the MCI recommended to the Central Government to invoke Regulation 8(3) and to disapprove the application for renewal of permission for the academic year 2018-19. A show-cause notice dated 5.2.2019 was also issued. Thereafter compliance verification assessment on deficiencies was conducted in April 2019. The college was heard a month later and to its grief, it was recommended not to grant renewal of permission for the year 2019-20.
The students had further moved the court with their grievances; afterwards; the HC bench had asked the MCI to find out whether the medical college had improved its facilities and infrastructure. In compliance with the HC orders, the MCI inspection was conducted where the assessors noted severe deficiencies and misconduct during assessment rounds.
The MCI assessors observed the medical college had made deliberate attempts to delay assessment and they faced intimidation and threats during inspection rounds. They were even pressurised to give a favourable report. Attempts were also made to prevent them from meeting medical students. The team could not find certified documents of land, building, occupancy and fire.
Thereafter, on the recommendations of the apex medical council, the Union Health Ministry ordered the state to annul the essentiality certificate of the medical college and send a proposal regarding the transfer of the students. the same was done; aggrieved by which the colleges reached the doors of the HC.
The medical college pleaded the HC to issue a writ in the nature of certiorari or any other appropriate order quashing the orders leading to the cancellation of its essentiality certificate. It also urged the bench to declare that the medical college is entitled to proceed with the MBBS Course, for the students already admitted in its college.
The counsel appearing on behalf of the medical college submitted that the respondents in the case, Centre, Kerala Government, Board of Governors in supersession of MCI (MCI BoG), Kerala Directorate of Medical Education (DME) and Kerala University of Health Sciences (KUHS) have no power to direct cancellation of an Essentiality Certificate without considering the consequences of such an action and without providing for remedies for the same.
It was specifically contended there is no situation prevalent which would justify the drastic action of cancellation of an Essentiality Certificate since the grant of an Essentiality Certificate is a one-time exercise. The counsel added that there is no power in the State to withdraw an Essentiality Certificate once granted. The said decision was authority on the point that once the State Government had certified that the establishment of a medical college was justified, it cannot, at a later stage, say that there was no need for the establishment of a college. The power to issue an Essentiality Certificate is exhausted once it is exercised and that except in cases of fraud, there can be no withdrawal of the same.
In response to all the submissions, the MCI submitted its stance and affirmed that in all the repeated inspections conducted by the MCI and particularly in the inspection conducted on 18th and 19th of September, 2019, the MCI had considered the specific requirements and the facilities available in the medical college for the continuance of the lone batch of 100 students available and had found that the infrastructure, faculty and clinical material were pathetically lacking for the said specific purpose.
The substratum for the grant of essentiality certificate has undoubtedly been eroded and that as such, the action is perfectly legal and warranted, the MCI stressed.
The State Health Department reiterated the submission of the MCI and continued to add that the proposal for shifting of the students is being formulated and appropriate steps have been taken in that regard.
The department stated that along with several complaints about the pathetic situation prevailing in the college and highlighting the plight of the students; allegations had also surfaced stating that the college had fraudulently created building permits in the name of the local body, using the forged seal and signature of the local body and the Secretary and that the persons shown as faculty including the principal are clearly employed elsewhere. The Vigilance Department had also conducted an enquiry and on the basis of the documentary evidence collected had reported to the Government that a crime is liable to be registered against the persons responsible for the criminal acts alleged.
Likewise, in its statement, KUHS submitted that it was no longer in public interest to allow an institution in the nature of the SR medical college to function and therefore, the entire substratum for grant of the Essentiality Certificate has been completely eroded.
After perusing all the various contentions, records and evidence presented before the court, the bench of Justices Anu Sivaraman noted the MCI's rules and regulations for issuing an essentiality certificate to a medical college and observed:
"…. apart from the question of educational need, the State Government has to satisfy itself that the applicant owns and manages a 300 bedded hospital, that it is desirable to establish a medical college in public interest, that the establishment of a medical college at the proposed location by the applicant is feasible and that adequate clinical material as per MCI norms is available. The Government has to further certify that in case the applicant fails to create the infrastructure for the college as per MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the college with the permission of the Central Government. The contention of the petitioner that the grant of Essentiality Certificate is a one time exercise and that such certificate cannot be cancelled by the State Government therefore cannot be accepted."
The bench then made its observation based on the SC's judgment in the similar case of Chintpurni Medical College wherein it was held that an Essentiality Certificate which is once issued as a one time exercise cannot normally be cancelled or withdrawn by the State Government.
"However, paragraph 35 specifies that the State Government would be entitled to withdraw the certificate where it is obtained by fraud or where the very substratum on which the certificate was granted disappears or for any other reason of like nature."
Expressing anguish over the medical college's acts, the bench went on to observe:
".. The contention is that the medical college was found to be woefully lacking in all facilities and infrastructure required for the continuance of study of the 100 students admitted therein. The availability of clinical material is also seriously compromised going by the reports of the MCI. In spite of repeated notices being given to the medical college with regard to the alleged deficiencies and the repeated inspections having been carried out, it appears that the medical college has been unable to rectify the deficiencies noted by the MCI. As rightly pointed out by the learned Senior Counsel appearing for the petitioner, the specific deficiencies and their rectification are not matters which this Court would be justified in considering since those are matters for the MCI to inspect and report on."
Having considered the contentions advanced on all sides, the bench was of the considered opinion that in the given case where the certification given in the form of Essentiality Certificate has been rendered ineffective by subsequent events or as stated by the Apex Court in the Chintpurni Medical College's case, where the substratum on which the Essentiality Certificate was granted has disappeared, the action of the Central Government on being satisfied that such a situation exists in requiring the State Government to withdraw the Essentiality Certificate already granted and the consequent action of the State Government in withdrawing such certificate cannot be held to be illegal or unsustainable.
"The starting of a medical college entails an element of public interest. Indeed one of the certifications in the form of Essentiality Certificate is that it is desirable to establish a medical college in public interest. Therefore, if it is found that it is no longer in public interest and such fact is reported by the competent body, that is, the Board of Governors of the MCI and where it is specifically alleged that there is serious dearth of clinical material and deficiencies in the required patient availability in the hospital, that would amount to the eroding of the substratum for the issuance of the certificate. The non-mentioning of separate decisions on each of the deficiencies mentioned would, in a case like the present one, be not fatal to a decision taken after consideration of the factual aspects."
Concluding on the case, the bench dismissed the petition of the medical college and held:
"… the impugned orders cannot be held to be illegal and unsustainable in the facts and circumstances of the case"