The Chairman, SR Educational and Charitable Trust v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WP(C).No.236 OF 2020(D)** ## **- PETITIONER :** ## **THE CHAIRMAN,** **SR EDUCATIONAL AND CHARITABLE TRUST, VENNICODE P.O, AKATHUMURI, VARKALA, TRIVANDRUM DISTRICT - 695 318.** **BY ADVS.** **SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SRI.THOMAS GEORGE SRI.P.M.SANEER SRI.ALEX GEORGE (CHAMAPPARAYIL)** ## **RESPONDENTS :-** - **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE DEPARTMENT, NIRMAN BHAVAN, NEW DELHI - 110 011** - **2 THE BOARD OF GOVERNORS, MEDICAL COUNCIL OF INDIA, POCKET-14, SECTOR 8, DWARAKA PHASE 1, NEW DELHI - 110 077 (REPRESENTED BY ITS SECRETARY)** - **3 STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM - 695 001.** - **4 THE DIRECTOR OF MEDICAL EDUCATION, TRIVANDRUM - 695 001.** - **5 THE KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY THE REGISTRAR, MEDICAL COLLEGE P.O, THRISSUR 680 596** - **ADDL. 6 MIDHUN BABU.S., AGED 25 YEARS, S/O. BABU S., KAVUVILA VEEDU, VELLAYANI, OOKKODE P.O., THIRUVANANTHAPURAM - 695 020.** WP(C).No.236 OF 2020(D) -: 2 :- |**ADDL.**|**7**|**GOVIND JAYAN, AGED 22 YEARS,**| |---|---|---| |||**S/O.V.JAYADHARA KUMAR, PARVATHY SADANAM,**| |||**EDACODE, NEMOM - 695 020.**| |**ADDL.**|**8**|**KAMAL J. MANJESH, AGED 23 YEARS, S/O.MANJESH,**| |||**MANJESH BHAVAN, KALLUVATHUKKAL P.O.,**| |||**KOLLAM - 691 578.**| |**ADDL.**|**9**|**SHIJIN K., AGED 23 YEARS, S/O.KRISHNAN V.,**| |||**SREEVIHAR, SURYA NAGAR, KAKKANNI,**| |||**NSS ENGINEERING COLLEGE P.O.,**| |||**PALAKKAD - 678 008.**| |**ADDL.**|**10**|**AJIN S. ASHARAF, AGED 22, S/O.ASHARAFUDEEN M.,**| |||**KADAYIL VEEDU, PUTHAYAM, KARUKONE P.O.,**| |||**ANCHAL - 691 306.**| |**ADDL.**|**11**|**AKSHAY PRADEEP, 21 YEARS, S/O. PRADEEP T.,**| |||**ARUN NIVAS, KAROOR, AMBALAPUZHA P.O.,**| |||**ALAPPUZHA.**| |**ADDL.**|**12**|**AJAYDAS P.G., AGED 22 YEARS, S/O.GOPUDAS P.A.,**| |||**PUTHUKATTUPARAMBIL, PANDIKAVU, CHEROOR P.O.,**| |||**THRISSUR.**| |**ADDL.**|**13**|**JINCY MOL, AGED 22 YEARS, D/O.SHAJI,**| |||**KONNAKATTUVILAI, NEDIYASALAI, ARUMANAI P.O.,**| |||**KANYAKUMARI DISTRICT, TAMIL NADU - 629 151.**| |**ADDL.**|**14**|**ADHEENA JOY, AGED 22 YEARS, D/O. T.M. JOY,**| |||**THAIPPADATH HOUSE, KOLARIKKAL ROAD, SOUTH CHITTOOR**| |||**P.O., ERNAKULAM, KOCHI - 682 027.**| |**ADDL.**|**15**|**ATHIRA PRASANNAKUMAR, AGED 22 YEARS,**| |||**D/O.P.PRASANNAKUMAR, UTHRAM, CKRA 155, KARIYAM,**| |||**SREEKARYAM P.O., THIRUVANANTHAPURAM - 695 017.**| |**ADDL.**|**16**|**AISWARYA S.S., AGED 22 YEARS, D/O.SAJI G., CHOTHI,**| |||**T.C. 64/2075, NEAR BNV HSS,**| |||**THIRUVALLAM P.O., THIRUVANANTHAPURAM - 695 027.**| |**ADDL.**|**17**|**GOPIKA, AGED 22 YEARS, D/O. GOPI K.M.**| |||**KALATHUNGAL HOUSE, VADAKKUMPURAM P.O.,**| |||**N. PARAVUR, ERNAKULAM - 683 521.**| |**ADDL.**|**18**|**SANGEETHA N. SATHEESH, AGED 23 YEARS,**| |||**D/O. SATHEESH KUMAR, SAJUSH NIVAS, KOLLAMKONAM,**| |||**VILAPPILSALA P.O., THIRUVANANTHAPURAM - 695 573.**| WP(C).No.236 OF 2020(D) -: 3 :- **ADDL. 19 ANCY ELIZABETH PHILIP, AGED 22, D/O.PHILIP JOSEPH, KADAVOOR HOUSE, THAZHTHANGADY P.O., KOTTAYAM, KERALA - 686 005. ADDL. 20 SHEHAN SUNIL JINNA, AGED 22 YEARS, S/O.SUNIL JINNA, ARCHANA, KRISHNAPURAM P.O., KAYAMKULAM - 690 533. ADDL. 21 HASNA, AGED 22 YEARS, D/O.UMMER A.K., APPAMKANDATHIL HOUSE, CHERUKODE P.O., VALLAPUZHA, PALAKKAD - 679 336.** - **ADDL. 22 KEERTHI R NATH, AGED 22 YEARS, D/O.ANITHAKUMARI, SARASASADANAM, PUNUKKANNOOR, PERUMPUZHA P.O., KERALAPURAM - 691 504.** - **ADDL. 23 AISHWARYA SANTHOSH, AGED 22 YEARS, D/O.RANJITHA SANTHOSH, SFS FAIR MOUNT IOC, M.P.APPAN ROAD, VAZHUTHACAUD, TRIVANDRUM - 695 014.** - **ADDL. 24 VEENA T., AGED 22 YEARS, D/O. JAYASREE, VISHNU BHAVAN, KOILVILLA, GRAMOM, PARASSALA P.O., PIN - 695 502.** - **ADDL. 25 VINDUJA NANDAKUMAR, AGED 22 YEARS, D/O.VALSALA NANDAKUMAR, THEVARNILATHIL HOUSE, IRIMPANAM P.O., PIN - 682 309.** - **ADDL. 26 ASHITHA MOHAN M.B., AGED 22 YEARS, D/O.S.MOHANLAL, THAZHAVILA VEEDU, VAYYETTU, VENJARAMOOD, THIRUVANANTHAPURAM - 695 607.** - **ADDL. 27 ARUNDATHY T.A., AGED 23 YEARS, D/O.ANILKUMAR T.R., DEVIKA RANI K.T., THAIPPARAMBIL HOUSE, KALAPPURA WARD, ALAPPUZHA - 688 007.** - **ADDL. 28 RESHMA RAVEENDRAN, AGED 23 YEARS, D/O.N.K. RAVEENDRAN, KAMALALAYAM (KAMALANKAVU), PONNAD P.O., ALAPPUZHA - 688 538.** - **ADDL. 29 AMINA SULAIMAN, AGED 23 YEARS, D/O.SULAIMAN A., OUDH MANSON, PLAVINMOODU, ELAMPA P.O., ATTINGAL - 659 103.** WP(C).No.236 OF 2020(D) -: 4 :- **ADDL. 30 REVATHY S., AGED 22 YEARS, D/O. MANI K., SINDHU MANDIRAM, KUZHIYAM, CHANDANATHOPE P.O., KOLLAM - 691 014.** **(ADDITIONAL R6 TO R30 ARE IMPLEADED AS PER ORDER DATED 27/02/2020 IN I.A.No.3/2020)** - **ADDL. 31 SIDHARTH SREEKUMAR, AGED 23 YEARS, S/O.SREEKUMAR, RESIDING AT SREE BHAVAN, PATTANAKKAD P.O., CHERTHALA, ALAPPUZHA - 688 531.** - **ADDL. 32 ARYA ABHEDANANDAN, AGED 23 YEARS, D/O.ABHEDANANDAN K.P., RESIDING AT ANANDA VILASOM, ELIKKATTOOR P.O., PIRRAVANTHOOR, KOLLAM - 689 696.** - **ADDL. 33 RADHIKA SANKAR, AGED 22 YEARS, D/O.C.R.RAVISANKAR, RESIDING AT SANTHRA, MULLOTHU LANE, PAHZAVEEDU P.O., ALAPPUZHA - 688 009.** - **ADDL. 34 ARJUN A., AGED 22 YEARS, S/O. MOHANDAS M., RESIDING AT .G.G. COTTAGE, PALAMEDU STREET, SEKHARIPURAM, PALAKKAD - 678 010.** - **ADDL. 35 CHARUSOORYAN, AGED 22 YEARS, S/O.SHANMUKHAN K., RESIDING AT PUTHUVAL VANDANAM P.O., AMBALAPPUZHA, ALAPPUZHA - 688 005.** - **ADDL. 36 SWATHIKRISHNAN, AGED 22 YEARS, D/O.DR.PADMAKUMAR S.K., RESIDING AT AISWARYA, TC 14/984, CHENNILODE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011.** - **(ADDITIONAL R31 TO R36 ARE IMPLEADED AS PER ORDER DATED 27/02/2020 IN I.A.No.4/2020)** - **ADDL. 37 G. HARISHANKAR, AGED 21 YEARS, S/O.GOPAKUMAR G., MANIMURALI, KOLLAKONAM, PAYATTUVILA P.O., THIRUVANANTHAPURAM - 695 014.** - **ADDL. 38 DEEPAK V.S., AGED 22 YEARS, S/O. SUDEVAN K., VILAYIL HOUSE, KALAKKOD P.O., PARAVUR, KOLLAM - 691 302.** - **ADDL. 39 NIKHIL R., AGED 22 YEARS, S/O. RAMESH NANADANAM, PERUNGALA, KAYAMAKULAM - 690 559.** WP(C).No.236 OF 2020(D) -: 5 :- **ADDL. 40 LAKSHMI GOPINATH, AGED 22 YEARS, D/O.GOPINATHAN PILLAI, MALAMPARA HOUSE, KAITHAKODI, AYROOR, PATHANAMTHITTA - 689 614. ADDL. 41 DINYAMOL REGI, AGED 23 YEARS, D/O.REJI MATHEW, NJAVALLIKUNNEL HOUSE, CHELLAROVIL P.O., ANAKKARA, IDUKKI - 685 512. ADDL. 42 NAMITHA JAYAPRAKASH, AGED 22 YEARS, D/O.JAYARAKASH C.B., CHEMPANKULAM HOUSE, AYYAPPANCOIL P.O., MARYKULAM, IDUKKI - 685 507. ADDL. 43 KADEEJATHU NOORBINA, AGED 22 YEARS, D/O.AGC BASHEER, KALAM VILLA, AYITTY, TRIKARIPUR P.O., KASARAGOD - 671 310. ADDL. 44 ARYA V.M., AGED 22 YEARS, D/O.MANIKANTAN V.V., V.V. MANA, SOUTH NIDUVAPPURAM, KARIVELLUR P.O., KANNUR - 670 521. ADDL. 45 AFITHA E.A., AGED 22 YEARS, D/O.ABU E.A. ENGIKKALAYIL HOUSE, CHIRAKKAL, KATTAMKAPAL POST, THRISSUR - 680 544. ADDL. 46 ABHIRAMI, AGED 22 YEARS, D/O.SANTHOSH BABU A.T., AVANIKOODU, PUZHATHI P.O., CHIRAKKAL, KANNUR - 670 011. ADDL. 47 MALAVIKA V. NAIR, AGED 22 YEARS, D/O.VINOD, PUTHENVEEDU, CHAVARA P.O., KOLLAM - 691 583. ADDL. 48 AYANA EDWIN, AGED 22 YEARS, D/O.EDWIN, CHURCH VIEW, AMBALATHINKARA, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM - 695 582.** |**ADDL.**|**49**|**A.U. JAYALAKSHMI, AGED 22 YEARS, D/O.AJITH K.S.,**| |---|---|---| |||**USHUS, VAZHAVILAKOM, BALARAMAPURAM P.O.,**| |||**THIRUVANANTHAPURAM - 695 501.**| |**ADDL.**|**50**|**JOHN NELSON, AGED 22 YEARS, S/O.NELSON JOHN,**| |||**KINATHINKARA, KIZHAKKETHIL JO BHAVAN,**| |||**PUTHOOR P.O., KOLLAM - 691 507.**| |**ADDL.**|**51**|**RESHMA G.S., AGED 22 YEARS, D/O.P. GURULAL,**| |||**VRINDAVANAM, UMMANNOOR P.O., KOTTARAKKARA,**| |||**KOLLAM - 691 520.**| WP(C).No.236 OF 2020(D) -: 6 :- **ADDL. 52 BENSEN THOMAS, AGED 23, S/O.P.K. THOMAS, POTHUMURIYIL HOUSE, PATTUMANOOR, PUTHENCRUZE P.O., ERNAKULAM - 682 308. ADDL. 53 BHARATH GOPAN T.G., AGED 22, S/O.GOPAN PILLAI V.T., ADARSH NAGAR, HOUSE NO.156, SHAINA MANSIL, PLAMOODU, THIRUVANANTHAPURAM - 695 004. ADDL. 54 ABY SURESH, AGED 22 YEARS, S/O.G.K. SURESH KUMAR, 8/997, BUTTERFLIES, THAVARAVILA, CHAIKKOTTUKONAM P.O., THIRUVANANTHAPURAM - 685 122. ADDL. 55 JOHN MATHEW, AGED 22 YEARS, S/O.JOY K.U., KANNIVATTUKUNNEL HOUSE, VALAVOOR P.O., PALA, KOTTAYAM - 686 635. ADDL. 56 AMAL GOVIND K.G., AGED 22 YEARS, S/O. GOVINDAN K.C., KARIYATHANKUZHIYIL HOUSE, EDIVANNA P.O., PERUVAMPADAM, NILAMBUR, MALAPPURAM - 679 329. ADDL. 57 RIYAS JOY, AGED 23 YEARS, S/O.JOY KUMAR D.R., KIZHAKKEVILA VEEDU, MERA-89, MANNANTHALA P.O., THIRUVANANTHAPURAM - 695 015. ADDL. 58 PARVATHY AJAYAN, AGED 22 YEARS, D/O.S. AJAYAKUMAR, NAGIN, K.G.R.A.-76, KALLUMOODU GARDENS, ANAYARA P.O., THIRUVANANTHAPURAM - 695 029. ADDL. 59 ANANTHAKRISHNAN P., AGED 22 YEARS, S/O.C.K. PADMAKARAN, CHARUSILA, TC 49/573, NEMOM P.O., THIRUVANANTHAPURAM - 695 020. ADDL. 60 NISANTH A.S., AGED 22, S/O. AJAYAKUMAR G., DEEPARADHANA, THALAVOOR, NADUTHERI, KOLLAM - 690 523. (ADDITIONAL R37 TO R60 ARE IMPLEADED AS PER ORDER DATED 27/02/2020 IN IA 6/2020) ADDL. 61 DRISHYA DILIP B., AGED 21 YEARS, D/O.DILIP C.D., T.C. NO.31/944, PRRAP 75, PUTHEN ROAD, PALKULANGARA P.O., PETTAH, THIRUVANANTHAPURAM - 695 024.** WP(C).No.236 OF 2020(D) -: 7 :- **ADDL. 62 A.R. ARYA, AGED 21 YEARS, D/O.P.J. AJAYA KUMAR, RAGHAVA BHAVAN, PUTHENCHANDA P.O., VARKALA, THIRUVANANTHAPURAM - 695 141. ADDL. 63 HRIDYA DOMINIC, AGED 21 YEARS, D/O.DOMINIC P., SMRITHY, MOONNAMOODU, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM - 695 013. ADDL. 64 S.H. ANN ATHEENA, AGED 21 YEARS, D/O.HUBERT JOE, BETHZAK, TC NO.20/1644(1), SASTHRI NAGAR WEST-15, KARAMANA, THIRUVANANTHAPURAM - 695 002.** **(ADDITIONAL R61 TO R64 ARE IMPLEADED AS PER ORDER DATED 27/02/2020 IN IA 7/2020)** **BY SRI.JAGADEESH LAKSHMAN, CGC BY ADV. SRI.TITUS MANI BY SRI.M.A.ASIF, SR.GOVERNMENT PLEADER BY SRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES BY ADV. C.UNNIKRISHNAN (KOLLAM) BY ADV. G.SIVASANKAR BY ADV. T.B.HOOD BY ADV. SMT.M.ISHA BY ADV. SRI.AMAL KASHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2702-2020, THE COURT ON 05-03-2020 DELIVERED THE FOLLOWING:** WP(C).No.236 OF 2020(D) -: 8 :- ## **JUDGMENT** ## **Dated this the 5th day of March 2020** This writ petition is filed seeking the following prayers :- - “(i) Issue a writ in the nature of certiorari or any other appropriate order quashing Ext.P20. - (ii) Declare that the petitioner is entitled to proceed with the MBBS Course in petitioner's College, for the students already admitted in petitioner's college. - (ii(a) Issue a writ of certiorari or other appropriate order or direction to quash Ext.P21(a).” 2. Heard Sri.Kurian George Kannanthanam, the learned Senior Counsel appearing for the petitioner, Sri.Jagadeesh Lakshman, the learned Central Government Counsel appearing for the Union of India, Sri.Titus Mani, the learned Standing Counsel appearing for the 2[nd] respondent, Sri.M.A.Asif, the learned Senior Government Pleader and Sri.P.Sreekumar, the learned Standing Counsel appearing for the 5[th] respondent University. 3. The learned Senior Counsel appearing for the petitioner submits that the decision taken by the Union of India at Ext.P20 to request the Government of Kerala to withdraw/cancel the Essentiality Certificate issued to the petitioner and to send proposal for shifting of students to other medical colleges is arbitrary and illegal in as much as it does not consider the specific WP(C).No.236 OF 2020(D) -: 9 :- contentions raised by the petitioner as had been directed in Ext.P16 judgment. It is stated that since the decision was taken on the basis of Ext.P17 report submitted by the Medical Council of India ('MCI' for short) dated 30.10.2019 to which specific replies had been given by the petitioner, the decision taken in Ext.P20 and the resultant decision of the Government of Kerala at Ext.P21(a) which do not consider any of the explanations offered by the petitioner are bad in law. 4. Relying on the decisions of the Apex Court in **Glocal Medical College and Super Speciality Hospital and Research Centre** v. **Union of India and another** [(2017) 15 SCC 690] and in **Kanachur Islamic Education Trust (R)** v. **Union of India and another** [(2017) 15 SCC 702], it is contended that the decisions in the nature of Exts.P20 and 21(a) have to be informed by reasons and should be passed after the affected parties are given a proper opportunity to meet the allegations against them and after following a due procedure. It is stated that the respondents 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 is specifically contended that there is no finding rendered either in the impugned order or in the minutes of the meeting which preceded the same WP(C).No.236 OF 2020(D) -: 10 :- with regard to any of the objections raised by the petitioner to the report of the MCI. It is stated that the situation has been considered taking note of the requirements of infrastructure and staff as if there was a full contingent of students available and the actual fact that only 100 students are studying in the college had not been considered by any of the respondents. It is further submitted that 53 of the students who appeared for the examination had passed and many of them had passed with first classes and distinctions which could not have been possible if the infrastructure and staff were as deficient as pointed out in the reports. It is further contended that 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. 5. Relying on the decision of the Apex Court in **Chintpurni Medical College and Hospital and another** v. **State of Punjab and others** [(2018) 15 SCC 1], it is contended that there is no power in the State to withdraw an Essentiality Certificate once granted. It is stated that the said decision is authority on the point that once the State Government had certified that the establishment of a medical college is justified, it cannot, at a later stage, say that there was no need for the establishment of a WP(C).No.236 OF 2020(D) -: 11 :- college. It is stated that 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. 6. A statement has been placed on record by the 2[nd] respondent. It is contended that the Essentiality Certificate is issued under the Medical Council of India Establishment of Medical College Regulations, 1999 which are statutory in nature. The Regulations provided that eligible person shall qualify to apply for permission to establish a medical college if the conditions provided therein are fulfilled. The conditions provided are; (1) that medical education is one of the objectives of the applicant, (2) that a suitable single plot of land measuring not less than 25 acres is owned and possessed by the person (subject to further amendments with regard to the extent), and (3) that 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, have been obtained by the person from the concerned State Government/Union Territory Administration. Form 2 inter alia contains a certification that, (a) the applicant owns and manages a 300 bedded hospital (b) that it is desirable to establish a WP(C).No.236 OF 2020(D) -: 12 :- medical college in public interest (c) that the establishment of a medical college at the given location is feasible and, (d) that adequate clinical material as per the Medical Council of India norms is available. It is further certified that in case the applicant fails to create infrastructure for the medical college as per the 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. 7. It is stated that Ext.P1 Essentiality Certificate was initially issued by the State of Kerala on 7.7.2016. It is stated that thereafter on the assessment of the infrastructural and teaching facilities available carried out by the Council for the grant of letter of permission for the academic year 2016-'17, severe shortfall was noticed and the executive committee decided to recommend to the Central Government not to issue letter of permission. It is stated that the college submitted compliance report which was again subjected to compliance verification and subsisting deficiencies were found in the compliance verification also. It is stated that accepting the recommendations of the MCI, the Central Government refused to issue letter of permission for the academic year 2016-'17. Thereafter, on the basis of the approval of the WP(C).No.236 OF 2020(D) -: 13 :- Supreme Court mandated oversight committee, Ext.P2 letter of permission dated 20.8.2016 was issued subject to condition that all subsisting deficiencies would be rectified. It is stated that the college as well as the Chairman of the Trust had submitted affidavits affirming the rectification of all deficiencies. It is submitted that 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 college from admitting students for two academic years, that is, 2017-'18 and 2018-'19. 8. It is stated that the matter was taken up before the Apex Court and by order dated 3.10.2017, the following directions were issued :- - “a) The application filed by the petitioner for 2017-18 shall be treated as the application for 2018-19. - b) The Medical Council of India shall carry out inspection as per its Regulations. - c) The bank guarantee furnished by the petitioner shall not be encashed and the petitioner shall keep it alive. - d) After the inspection is carried out, if any deficiencies are found the same shall be intimated to the petitioner institution so that it can rectify the same. WP(C).No.236 OF 2020(D) -: 14 :- - e) If the matter eventually travels to the Central Government it shall afford an opportunity of hearing to the petitioner's representative and thereafter the Central Government shall take a decision which shall indicate reasons for the said decision. It shall take assistance of the Oversight Committee constituted by order dated 18[th] July, 2017 by the Constitution Bench in Amma Chandravati Educational and Charitable Trust and Others vs. Union of India and Another. The students admitted for 2016-17 shall be allowed to prosecute their courses.” 9. It is stated that 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 by Annexure R2(a). A show cause notice dated 5.2.2019 was also issued as Annexure R2(b). Thereafter compliance verification assessment on deficiencies noted in Annexure R2(b) was conducted on 9.4.2019 and Annexure R2(c) report was generated showing subsisting serious deficiencies. Thereafter, the college was heard on 17.5.2019 and it was recommended not to grant renewal of permission for the year 2019-'20. 10. It is stated that W.P.(C) No.38089/2018 was filed in November, 2018 by a group of students stating that there are gross WP(C).No.236 OF 2020(D) -: 15 :- deficiencies in faculty and clinical material and a prayer was sought to the State to take over the management of the college. Annexure R2(d) interim order was passed directing the Central Government to convene a meeting of the State Government, Medical Council and the University to take a decision as to the continuance of the study of the students. It is stated that Annexure R2(e) minutes were generated in the meeting so held on 29.5.2019. It is stated that the Central Government requested the MCI to conduct an assessment of the college on any day before 30.6.2019 to determine whether the college fulfils the requirements for continuation of the study of the existing batch. It is stated that though the assessment was scheduled to be conducted on 4[th] and 5[th] of July, 2019, the same could not take place because of the infighting and tension between the students and staff as well as the management of the college. It is stated that the inspection was ultimately conducted on 18[th] and 19[th] of September, 2019 and a report dated 30.10.2019 was generated. It is stated that the copy of the report was also communicated to the college and handed over to the learned counsel for the petitioner and the explanations to the same were also placed before the Central Government. 11. It is stated that the purpose of the Essentiality Certificate is to enable the Central Government under Section 10A WP(C).No.236 OF 2020(D) -: 16 :- of the Medical Council Act to take an informed decision with regard to permission for establishment of a college. It is stated that the Apex Court in **Chintpurni Medical College's case** at paragraph 36 has held that the State Government would be entitled to withdraw an Essentiality Certificate where it is obtained by playing fraud on it or any circumstances where the very substratum on which the Essentiality Certificate was granted disappears or for any other reason of like nature. It is stated that a Division Bench of the Madhya Pradesh High Court in **Sukhsagar Medical College and Hospital** v. **The State of Madhya Pradesh and others** in W.P.No.17946/2019 by judgment dated 6.1.2020 held as follows :- “9. When paragraph-36 is read in conjunction with paragraph-14 of the case, the substratum spoken of by the Hon'ble Supreme Court is nothing but public interest and feasibility. And where the MCI vide order dated 30.05.2019 has refused permission to the petitioner to admit students for the year 2019-2020 on account of the 18 deficiencies which remained unaddressed by the petitioner on 07.08.2019 when the show cause notice was issued and later on 05.09.2019 when the Essentiality Certificate was revoked by the State and continues till date, there is sufficient cause for the State to believe that the substratum of issuing the Essentiality Certificate which is public interest and feasibility, no longer exists. On account of the deficiency pointed out by the MCI at serial nos.6, 7, 9 and 13. Thus as the public interest is no WP(C).No.236 OF 2020(D) -: 17 :- longer visible which also questions the very feasibility of running the medical college, the State Government was completely justified in passing the order dated 05.09.2019 revoking the Essentiality Certificate.” 12. It is submitted that in all the repeated inspections conducted by the MCI and particularly in the inspection conducted on 18[th] and 19[th] of September, 2019, the MCI had considered the specific requirements and the facilities available in the 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. It is submitted that it was after considering all the relevant aspects of the matter and the objections preferred by the petitioner that the Central Government decided to require the State Government to cancel the Essentiality Certificate which had been granted to the petitioner. It is submitted that the substratum for the grant of essentialty certificate has undoubtedly been eroded and that as such, the action is perfectly legal and warranted. 13. A counter affidavit has been filed on behalf of the 3[rd] respondent as well. The factual aspects as stated in the statement of the 2[nd] respondent are reiterated therein. It is stated that the inspection conducted on 18[th] and 19[th] of September 2019 was evidently to ascertain whether there were infrastructural facilities, WP(C).No.236 OF 2020(D) -: 18 :- staff and clinical material available for the continuance of the 100 students admitted to the college in 2016-'17 and that the inspection report of the MCI revealed various deficiencies which could not be adequately explained or controverted by the petitioner. It is submitted that it was after hearing all the parties and considering all the contentions raised that Ext.P20 proceedings were issued by the Central Government. It is stated that the proposal for shifting of the students is being formulated and appropriate steps have been taken in that regard. It is stated that several complaints about the pathetic situation prevailing in the college and highlighting the plight of the students was received by the State Government as well and that there is even an allegation 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. It is stated that 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. WP(C).No.236 OF 2020(D) -: 19 :- 14. It is further stated that the Essentiality Certificate is a No objection certificate issued by the State Government and it certifies the educational need, the existence of a 300 bedded hospital and the existence of clinical material essential for a medical college. It is stated that the certificate also records an undertaking of the State Government that the responsibility of the students admitted will be taken over by that Government in the event of the college being closed on. It is stated that though Exhibit R3(b) notice was issued to the petitioner forwarding a copy of R3(a) vigilance report, no reply has so far been received. It is stated at paragraph 13 as follows :- “13. It is submitted that based on the Essentiality Certificate issued by the Government of Kerala and on the basis of the recommendations of the oversight committee, a batch of hundred students was admitted to the petitioner college during 2016-17. Except the admission of 100 students during 2016-17, no admissions are permitted to the petitioner college thereafter. Now the entire students who were admitted as above are being distributed to other Medical Colleges in the State. The letter of permission granted by the Central Government to admit 100 students in the petitioner college during 2016-17 ceases to exist in the eye of law on distributing the students admitted in the petitioner college to other colleges and on the Government of India cancelling the letter of permission granted to the petitioner. Therefore by transfer of students to other colleges, the purpose of the Essentiality Certificate ceases to be in effect and the Government of Kerala WP(C).No.236 OF 2020(D) ## -: 20 :- had discharged the undertaking to take the responsibility of the students in the event of the closure of the petitioner college. It is submitted that once the obligation of the Government is satisfied by transferring the students to other colleges, the undertaking given by the Government does not exist any more. Therefore the consequence of the above is that the Essentiality Certificate does not subsist any more in the eye of law.” 15. It is stated that a new medical college was established by the Government at Paripilly in Kollam District with an intake of 100 students per year during the academic year 2017-'18 at a distance of hardly 12 kms from the petitioner's college. It is stated that in view of the complete inadequacy of the clinical material to justify an Essentiality Certificate and in view of the fact that the Essentiality Certificate granted has run its course and the substratum for the grant of such certificate has been eroded, the State Government had no option but to cancel the Essentiality Certificate. It is stated that Ext.P21(a) decision has been taken after taking note of all the factual and legal aspects of the matter and is perfectly legal and valid. 16. The 5[th] respondent has also filed a statement. Referring to Ext.P1 Essentiality Certificate, the learned Standing Counsel appearing for the 5[th] respondent submits that apart from public WP(C).No.236 OF 2020(D) -: 21 :- interest and feasibility, clauses (a) and (d) of Ext.P1 no longer exists. It is stated that the conditions stated in the form of the Essentiality Certificate constitute the substratum for the issuance of such a certificate and that in view of the fact that at least two of the clauses of the said substratum no longer exists, the Essentiality Certificate is liable to be cancelled. It is stated that in view of the facts stated, it is no longer in public interest to allow an institution in the nature of the petitioner's medical college to function and therefore, the entire substratum for grant of the Essentiality Certificate has been completely eroded. It is submitted that the college is not functioning and that the students themselves have raised serious complaints that there are no facilities available for the conduct of the classes. 17. Two groups of students have filed impleading petitions. The learned counsel appearing for the group of students, who have filed impleading petitions, submit that there are absolutely no facilities available and that the college is not functioning. Sri.T.B.Hood, the learned counsel appearing for some of the students submits that the contentions raised by the college as against the report of the MCI has not been considered by the Central Government while issuing Ext.P20. It is further submitted that though the contentions of the different groups of students has WP(C).No.236 OF 2020(D) -: 22 :- been recorded in the minutes, there is absolutely no consideration thereof. The learned Senior Government Pleader as well as the learned counsel appearing for the MCI submits that the students had been permitted to continue their studies in the college in question provisionally pursuant to an interim order of this Court in W.P.(C) No.196/2020 specifically recording the undertaking that they were not challenging the decision of the Government to cancel the Essentiality Certificate. 18. I have considered the contentions advanced. It is clear from the Medical Council of India Establishment of Medical College Regulations, 1999 that the Essentiality Certificate is to be provided in Form 2 appended to the Regulations. The certificate records the no objection of the State Government for the establishment of the college at the proposed site and the availability of adequate clinical material as per the Council Regulations. Form 2 is extracted below :- ## **FORM-2** ## **Subject:ESSENTIALITY CERTIFICATE** No. Government of_______________ Department of Health Dated, the....... To (Applicant), WP(C).No.236 OF 2020(D) ## -: 23 :- Sir, The desired certificate is as follows :- - (1) No. of institutions already existing in the State. - (2) No. of seats available or No. of doctors being produced annually. - (3) No. of doctors registered with the State Medical Council. - (4) No. of doctors in Government service. - (5) No. of Government posts vacant and those in rural/difficult areas. - (6) No. of doctors registered with Employment Exchange. - (7) Doctor population ratio in the State. - (8) How the establishment of the college would resolve the problem of deficiencies of qualified medical personnel in the State and improve the availability of such medical manpower in the State. - (9) The restrictions imposed by the State Government, if any, on students who are not domiciled in the State from obtaining admissions in the State, be specified. - (10) Full justification for opening of the proposed college. - (11) Doctor-patient ratio proposed to be achieved. - The (Name of the persons)_____________ has applied for - establishment of a medical college at ___________________ . On careful consideration of the proposal, the Government of _________ has decided to issue an Essentiality Certificate to the applicant for the establishment of a Medical College with _______ (no.) seats. It is certified that :- - (a) The applicant owns and manages a 300 bedded hospital which was established in …...... WP(C).No.236 OF 2020(D) -: 24 :- - (b) It is desirable to establish a medical college in the public interest. - (c) Establishment of a medical college at _______________ by (the name of Society/Trust) is feasible. - (d) Adequate clinical material as per the Medical Council of India norms is available. It is further certified that in case the applicant fails to create infrastructure for the medical 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 following shall be added in terms of Notification dated 31.01.2017 published in the Gazette of India:-** (e) The [Name of applicant___________] own and possesses _____ Acres of land in ___________ [Village/Tehsil/Taluka/District] on which non agricultural use of land is permitted and a Medical College/Hospital can be established on it. (f) The building plan of the Hospital and Medical College has been approved by the competent authority, namely,_____________, designated by the State Government for such purposes on ________. (Copy of the approval is enclosed) (g) The Hospital and Medical College have been granted Completion Certificate/Building Use Certificate by the competent authority, namely, _______________________, designated by the State Government for such purposes on _________. (Copy of the Certificate is enclosed) Conditions (e), (f) and (g) are applicable only for nongovernmental applicants. Yours faithfully, (SIGNATURE OF THE COMPETENT AUTHORITY) WP(C).No.236 OF 2020(D) -: 25 :- Therefore, 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 Apex Court in **Chintpurni Medical College's case** has 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. WP(C).No.236 OF 2020(D) -: 26 :- 19. In the instant case, 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. The basic contentions urged by the learned Senior Counsel appearing for the petitioner is to the effect that the point by point reply submitted by the college though adverted to in the minutes has apparently not been considered by the Central Government while Ext.P20 decision was taken. 20. The learned Central Government Counsel submits that a reading of the minutes would show that the submissions made by the college at the time of hearing had been specifically taken note of. It is stated that the point wise written submissions of the WP(C).No.236 OF 2020(D) -: 27 :- college was also available with the Central Government. It is stated that paragraph 9.2 of Ext.P19 would show that it was after considering the submissions of the college authorities and all the parties, who had attended the meeting, that a decision was taken by the Government. It is submitted that since the decision was taken after hearing all the parties and considering all their objections, the specific non-mentioning of the decision on each point on the basis of the written submissions made by the college was not required and that the order is one passed after considering all the factual aspects of the matter. 21. Having considered the contentions advanced on all sides, I am of the considered opinion that in a 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 paragraph 36 of 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 WP(C).No.236 OF 2020(D) -: 28 :- 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. In the above view of the matter, I am of the opinion that the impugned orders cannot be held to be illegal and unsustainable in the facts and circumstances of the case. The writ petition therefore fails and the same is accordingly dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/3.3.2020 WP(C).No.236 OF 2020(D) ## -: 29 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ESSENTIALITY CERTIFICATE DATED 7-7-2016 TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 20-08-2016 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 3-10-2017 OF THE HON. SUPREME COURT OF INDIA** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 14-12-2018 ISSUED TO THE INSPECTORS.** - **EXHIBIT P5 TRUE COPY OF THE COMPLIANCE REPORT DATED 5-32019 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 24-4-2019 IN WP(C) NO. 38089/20187 OF THIS HON. COURT.** - **EXHIBIT P7 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 29-05-2019 CONDUCTED BY THE CENTRAL GOVERNMENT.** - **EXHIBIT P8 TRUE COPY OF THE REPORT SUBMITTED BY THE ASSESSORS TO THE MCI** - **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 4-7-2019 ADDRESSED TO THE MCI** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATIOND ATED 4-7-2019 EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 4-7-2019 BY THE PRINCIPAL TO THE BOARD OF GOVERNORS OF THE MCI** - **EXHIBIT P12 TRUE COPY OF THE INTIMATION GIVEN TO THE ASSESSORS BY THE MCI** - **EXHIBIT P13 TRUE COPY OF THE ASSESSMENT FORM FOR 100 MBBS ADMISSIONS REPORT** - **EXHIBIT P14 TRUE COPY OF THE EXPLANATION DATED 20-09-2019 SUBMITTED BY THE PRINCIPAL TO THE BOARD OF GOVERNORS** - **EXHIBIT P15 TRUE COPY OF THE INSPECTION REPORT DATED 13-82019** WP(C).No.236 OF 2020(D) -: 30 :- - **EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 31-10-2019 IN W.P(C) NO. 38089/18 OF THIS HON'BLE COURT.** - **EXHIBIT P17 TRUE COPY OF THE REPORT DATED 30-10-2019 OF THE MEDICAL COUNCIL.** - **EXHIBIT P18 TRUE COPY OF THE OBJECTION DATED 13-11-2019 TO THE CENTRAL GOVERNMENT.** - **EXHIBIT P19 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 13-11-2019** - **EXHIBIT P20 TRUE COPY OF THE COMMUNICATION DATED 27-12-2019 ISSUED BY THE CENTRAL GOVERNMENT.** - **EXHIBIT P21 TRUE COPY OF THE CIRCULAR DATED 3-1-2020 OF THE DIRECTOR OF MEDICAL EDUCATION.** - **EXHIBIT P21(a) TRUE COPY OF THE ORDER DATED 5.1.2020 ISSUED BY THE GOVERNMENT OF KERALA.** - **EXHIBIT P22 TRUE COPY OF THE COLLEGE WISE REPORT DATED 6-52019 IN RESPECT OF THE PETITIONER'S COLLEGE** - **EXHIBIT P23 TRUE COPY OF THE ESSENTIALITY CERTIFICATE IN THE YEAR 2015 ISSUED BY THE RESPONDENT WITH COVERING NOTE.** - **EXHIBIT P24 TRUE COPY OF THE CHART SHOWING THE BUILDING NUMBER ALLOTTED TO THE PETITIONER BY THE CHERUNNIYOOR GRAMA PANCHAYAT.** - **EXHIBIT P25 TRUE COPY OF THE RECOVERY NOTICE NO.A5/5368/19 20.12.2019 ISSUED BY THE CHERUNNIYOOR GRAMA PANCHAYAT.** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R3(a) TRUE COPY OF THE LETTER DATED 28.09.2019 OF THE ADDITIONAL CHIEF SECRETARY, VIGILANCE DEPARTMENT, GOVT. OF KERALA FORWARDING THE REPORT.** **EXHIBIT R3(b) : TRUE COPY OF THE LETTER No.S3/15/2019 HEALTH DATED 21.01.2019.** **ANNEXURE R2(a) : TRUE COPY OF LETTER MCI-34(41)(R-81)/2018Med/106070 DATED 7.5.2018.** WP(C).No.236 OF 2020(D) -: 31 :- **ANNEXURE R2(b) : TRUE COPY OF THE LETTER MCI-34(41)(R64)/2018-MED/170327-328 DATED 5.2.2019.** **ANNEXURE R2(c) : TRUE COPY OF THE REPORT ALONG WITH THE LETTER DATED 9.4.2019 SUBMITTED BY THE PETITIONER TO THE SECRETARY GENERAL, MCI.** **ANNEXURE R2(d) : TRUE COPY OF THE INTERIM ORDER DATED 24.4.2019 IN W.P.(C) 38089/2018.** **ANNEXURE R2(e) : TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 29.5.2019.** **ANNEXURE R2(f) : TRUE COPY OF THE REPORT SUBMITTED BY THE TEAM OF ASSESSORS ALONG WITH THE REQUEST SUBMITTED BY THE COLLEGE TO DISCONTINUE THE INSPECTION.** **ANNEXURE R2(g) : TRUE COPY OF LETTER MCI-34(41)(R-64)/2019Med/16027576 DATED 30.10.2019 ADDRESSED TO THE CENTRAL GOVERNMENT.** **ANNEXURE R2(h) : TRUE COPY OF THE ASSESSMENT FORM PART A-II (2019-20) SUBMITTED BY THE ASSESSORS.** **ANNEXURE R2(i) : TRUE COPY OF THE CONFIDENTIAL REPORT DATED 15.10.2019 SUBMITTED BY Dr.SHEKHAR SAKHARAM RAJDERKAR, CHIEF CO-ORDINATOR OF THE ASSESSMENT TEAM.** //TRUE COPY// P.A. TO JUDGE