Issuance of Essentiality Certificate by State Government not merely a ministerial act; SC

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. Poor assessment system; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in private institutions; increasing capitation fees; a debilitated assessment and accreditation system, are problems plaguing our Medical Education system. Allowing such deficient colleges to continue to function jeopardizes the future of the student community and leading to incompetent doctors to graduate from such colleges and ultimately pose a bigger risk to the society at large defeating the very purpose of the Essentiality Certificate issued by the State. The State would be deterring from its duty if it did not conduct an inspection from time to time to ensure that the requisite standards as set by the MCI are met before issuing/renewing the Essentiality certificate. That is by no stretch of imagination ‘merely a ministerial job’. Considering especially that while issuing the Essentiality Certificate the State Govt undertakes that should the Medical College fail to provide the requisite infrastructure 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. (Para 19)

V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. V. STATE OF KERALA & ORS. ETC.

Civil Appeal Nos.703-704 of 2021 (Arising out of Special Leave Petition (C) Nos. 14219-14220 of 2020)

Decide on 24 February, 2021

Counsel for appellant: Shri Shyam Divan

Counsel for respondent: Shri Jaideep Gupta

The Supreme Court bench consisting of Justice A.M. Khanwilkar, Justice B.R. Gavai and Justice Krishna Murari addressed the appeal arising out of judgment dated 03.11.2020 passed by the Kerala High Court, where the guidelines for the establishment of Medical College in the year 2021-2022 given by a previous single judge bench was modified by the Division bench of the HC. The issue manifested due to multiple delays in the issuing of the Essentiality Certificate (hereinafter EC) and Consent of Affiliation (hereinafter CoA).

The appellant is a trust seeking to establish a Medical college; the appellant claimed to have set up a 300 bedded hospital in Walayar, Palakkad District in 2006. The appellant claimed that all infrastructural requirements were met and an active attempt was made to set up a medical college since 2006, but the attempt was unsuccessful due to the arbitrary and discriminatory actions of the State Government and the Kerala University of Health Sciences (KUHS) by denying the issuing of the EC and CoA.

EC was issued for the first time to the appellant on 24.01.2004 for 100 seats, however it was denied by the Medical Council of India (MCI) on the grounds of not adhering to prescribed format of application. The second time the EC was issued on 18.06.2009, was rejected by MCI as it was beyond prescribed time limit .The EC issued on 12.02.2011 proved to be purposeless as the KUHS issued the CoA belatedly and hence the appellant could not establish the medical college in 2011-12, as the EC was valid for one year the appellant was unable to succeed in the year 2012-13 too. The EC issued in 2014 was invalidated due to 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 establishment of Medical College. The attempt to establish was again invalidated in the year 2015-16 as the CoA submitted along with the proposal was held unacceptable.

The appellant had initially moved the High Court for seeking redressal and thereafter, many writ petitions were filed, applications made for issuance of EC and CoA or not insisting upon it. Finally, aggrieved by the refusal of relief for the Academic Year 2020-2021, the appellant had moved before the SC.

The issue arising for consideration before us is 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 are:-

(i)Whether grant of Essentiality Certificate by the State Government is only a Ministerial Act?

(ii)Whether Essentiality Certificate, once issued, can be withdrawn? (Para 3)

Shri Shyam Divan, appearing on behalf of the Appellant submitted that the time of issuance for EC was to ensure feasibility of the proposed location and to ensure infrastructure is available; hence the issue cannot be withheld by the State Government on policy considerations. The learned counsel also submitted that the State Government cannot withdraw an EC once by placing reliance on the decision in Chintpurni Medical College & Hospital & Anr. Vs. State of Punjab & Ors, (2018) 15 SCC 1.

Shri Jaideep Gupta, learned Senior Advocate appearing for the State-Respondent, submitted that grants of EC/CoA are by no means a ministerial job; the State Government’s role is not just limited to verify and certify norms that are prescribed by the MCI, but it has to place students under alternative colleges if the current college does not have the necessary infrastructure. The Counsel contended that after giving provisional affiliation, the appellant institution was inspected in the year 2015 and it was found that it is neither having infrastructure nor fulfills the other essential requirements for starting the Medical College; CoA could only be issued after the essential requirements were present.

With respect to whether issuance of an Essentiality Certificate is only a Ministerial Act, the Court stated:

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. Poor assessment system; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in private institutions; increasing capitation fees; a debilitated assessment and accreditation system, are problems plaguing our Medical Education system. Allowing such deficient colleges to continue to function jeopardizes the future of the student community and leading to incompetent doctors to graduate from such colleges and ultimately pose a bigger risk to the society at large defeating the very purpose of the Essentiality Certificate issued by the State. The State would be deterring from its duty if it did not conduct an inspection from time to time to ensure that the requisite standards as set by the MCI are met before issuing/renewing the Essentiality certificate. That is by no stretch of imagination ‘merely a ministerial job’. Considering especially that while issuing the Essentiality Certificate the State Govt undertakes that should the Medical College fail to provide the requisite infrastructure 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. (Para 19)

The Court stated that even grant of CoA by the University also cannot be said to be merely a ministerial act.

With respect to whether Essentiality Certificate once issued, can be withdrawn, the Court noted:

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. Reference maybe made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception. (Para 24)

It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. 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. (Para 28)

The appeal failed and stood dismissed.

View/Download Judgment: V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC. V. STATE OF KERALA & ORS. ETC.

Shreya Shetty GR