V.N. Public Health and Educational Trust v. State of Kerala and Others (WA Nos. 1436/2023, 1431/2023 & 1432/2023)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` WEDNESDAY, THE 23[RD] DAY OF AUGUST 2023 / 1ST BHADRA, 1945 ``` # **`WA NO. 1436 OF 2023`** ``` AGAINST THE JUDGMENT IN WP(C) 22754/2023 DATED 26.07.2023 OF HIGH ``` ## **`COURT OF KERALA`** ## **`APPELLANT/PETITIONER:`** ``` V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD, KOZHIKODE. REPRESENTED BY ITS MANAGING TRUSTEE- SECRETARY, V. ANILKUMAR, PIN - 673006 BY ADVS. S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `2 DIRECTORATE OF MEDICAL EDUCATION EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR., PIN - 695011` - `3 NATIONAL MEDICAL COMMISSION DWARAKA, NEW DELHI- REPRESENTED BY ITS CHAIRMAN., PIN - 110077` - `4 MEDICAL ASSESMENT & RATING BOARD (MARB) NATIONAL MEDICAL COMMISSION (NMC), POCKET-14, SECTOR-8, DWARKA PHASE-1 NEW DELHI-REPRESENTED BY ITS PRESIDENT., PIN - 110077` - `5 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEAR UDYOG BHAVAN METRO STATION, MOULANA AZAD ROAD, NEW DELHI., PIN - 110011` ``` BY ADVS. ``` ``` TITUS MANI VETTOM SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.08.2023, ``` ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -2- ``` ``` ALONG WITH WA.1431/2023, 1432/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -3- ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 23[RD] DAY OF AUGUST 2023 / 1ST BHADRA, 1945 WA NO. 1431 OF 2023 ``` ``` AGAINST THE JUDGMENT IN WP(C) 24363/2023 DATED 26.07.2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD, KOZHIKODE. REPRESENTED BY ITS MANAGING TRUSTEE- SECRETARY, V. ANILKUMAR, PIN - 673006 ``` ``` BY ADVS. S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R ``` ## **`RESPONDENT/S:`** - `1 KERALA UNIVERSITY OF HEALTH OF SCIENCES MEDICAL COLLEGE P.O., THRISSUR REPRESENTED BY ITS REGISTRAR, PIN - 680596` - `2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `3 DIRECTORATE OF MEDICAL EDUCATION MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR, PIN - 695011` - `4 NATIONAL MEDICAL COMMISSION DWARAKA, NEW DELHI, REPRESENTED BY ITS CHAIRMAN, PIN - 110077` - `5 MEDICAL ASSESSMENT & RATING BOARD (MARB)` ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -4- ``` ``` NATIONAL MEDICAL COMMISSION (NMC), POCKET-14, SECTOR-8, DWARAKA PHASE-1, NEW DELHI, REPRESENTED BY ITS PRESIDENT, PIN - 110077 6UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEWAR UDYOG BHAVAN METRO STATION, MOULANA AZAD ROAD, NEW DELHI, PIN - 110011 BY ADVS. P.SREEKUMAR TITUS MANI VETTOM SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.08.2023, ALONG WITH WA.1436/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -5- ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 23[RD] DAY OF AUGUST 2023 / 1ST BHADRA, 1945 WA NO. 1432 OF 2023 ``` ``` AGAINST THE JUDGMENT IN WP(C) 23416/2023 DATED 26.07.2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD, KOZHIKODE 673006 REPRESENTED BY ITS MANAGING TRUSTEE- SECRETARY, V. ANILKUMAR, PIN - 673006 BY ADVS. S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R ``` ## **`RESPONDENT/S:`** - `1 NATIONAL MEDICAL COMMISSION DWARAKA, NEW DELHI, REPRESENTED BY ITS CHAIRMAN, PIN - 110077` - `2 MEDICAL ASSESSMENT & RATING BOARD (MARB) NATIONAL MEDICAL COMMISSION (NMC), POCKET-14, SECTOR-8, DWARKA PHASE-1, NEW DELHI, REPRESENTED BY ITS PRESIDENT, PIN - 110077` - `3 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEAR UDYOG BHAVAN METRO STATION, MOULANA AZAD ROAD, NEW DELHI, PIN – 110011` ``` BY ADV TITUS MANI VETTOM ``` ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -6- ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.08.2023, ALONG WITH WA.1436/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WA NOS. 1436, 1431 & 1432 OF 2023`** ``` -7- ``` ## **JUDGMENT** ## **[WA Nos.1436/2023, 1431/2023, 1432/2023]** ## **A.J.DESAI, CJ.** The appellant, who is the petitioner in all the captioned writ petitions, is a registered charitable trust having the object of promoting education in the field of health and medicine intended to start Medical Colleges from the year 2003-2004. The appellant owns a 330 bedded hospital, but, for various reasons, the appellant could not start a Medical College. For the purpose of establishing the Medical College, in the year 2014, Essentiality Certificate was issued by the Department of Health, Government of Kerala, in favour of the present appellant for establishing a Medical College with 150 seats. Thereafter, for one or other reason, the appellant petitioner could not establish or start the Medical College. Meanwhile, the State of Kerala adopted a policy that no Essentiality Certificate will be issued for self financing medical colleges in the State and therefore, a request made by the appellant for establishing the Medical College came to be rejected on 28.09.2017. W.P.(C)No.40209/2017 was filed by the present appellant challenging the policy, however, due to lack of desire in commencing the Medical College, the same was withdrawn by the ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -8- ``` appellant. Another request made by the appellant for establishing the Medical College in the year 2020-2021 came to be rejected by order dated 01.10.2019. In W.P.(C)No.27266/2019, the policy of not issuing Essentiality Certificate was quashed and ultimately, certain inspections were conducted on 30.04.2021 by the Directorate of Medical Education. However, having found certain deficiencies, the application filed for establishment of Medical College came to be rejected vide order dated 31.05.2021. Again an inspection report was submitted in the month of September and the request for Essentiality Certificate was rejected, observing that the State Government is not issuing any Essentiality Certificate for any new Medical Colleges and the appellant had failed to comply with the prescribed norms. By the judgment in W.P.(C)No.21894/2021 dated 31.05.2022, struck down such policy and held that the State Government cannot withhold Essentiality Certificate on any policy consideration, in the light of a decision of the Hon’ble Apex Court. Since the judgment delivered by this Court was against the petitioner, the same was challenged by the present appellant by filing Special Leave Petition (C) No.16319/2022. During the pendency of the aforesaid SLP(C), the National Medical ## **`WA NOS. 1436, 1431 & 1432 OF 2023`** ``` -9- ``` Commission (hereinafter referred as NMC) conducted an inspection on 11.01.2023, assessing the petitioner’s institution for eligibility to admit 150 students. SLP(C) No.16319/2022 was disposed of by an order dated 09.05.2023, directing the State Government to conduct a fresh inspection of the hospital within a period of two months from the date of the order, to consider the question of grant of Essentiality Certificate. The appellant was also permitted to apply for consent of affiliation from the Kerala University of Health Sciences and the University was directed to take a decision on the application within two months. 2. It appears from the record of the three writ petitions that, though two months time was granted to inspect the institution of the appellant and to take decision on the applications, such exercise was made only at the fag end of the second month. The University, by communication dated 07.07.2023, gave consent of affiliation for 150 seats, keeping in view of the inspection report dated 02.06.2023, carried out by the Medical Inspector deputed by the Director of Medical Education. Though the appellant fulfilled all criteria, by the communication dated 07.07.2023, the Health and Family Welfare ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -10- ``` Department, through the Principal Secretary, Government of Kerala, granted consent for establishment of Medical College only for 100 seats. Being aggrieved with the said decision, the appellant preferred W.P.(C)No.22754/2023. 3. Relying upon the decision dated 07.07.2023 of the State Government, the University passed fresh order reducing the seats from 150 to 100, which came to be challenged by the present appellant by way of filing W.P.(C)No.24363/2023. In the meantime, the NMC, by communication dated 12.07.2023, rejected the application for establishment of new Medical College with 150 MBBS seats for the academic year 2023-2024 on the ground that certain documents like revised consent of affiliation and Essentiality Certificate were not submitted in time. This is the subject matter of W.P. (C)No.23416/2023. All the three petitions were heard together by the learned Single Judge and came to be dismissed by a common judgment dated 26.07.2023, which has been challenged by the aforesaid three different appeals. 4. Sri. Vinod Bhat, learned Counsel for the appellant would submit that the impugned order dated 07.07.2023 issued by the ## **`WA NOS. 1436, 1431 & 1432 OF 2023`** ``` -11- ``` Principal Secretary to Government, Health and Family Welfare Department, is contrary to the regulations namely “Minimum requirement for annual MBBS Admission Regulations, 2020”, which came to be issued by NMC vide notification dated 28.10.2020. By taking us through regulation No.B.1, he would submit that at the time of submission of application for starting Medical College with intake of upto 150 students, there shall be available a fully functional hospital with 300 beds. He would submit that, for the purpose of recognition, the institutions having the bed strength referred as stipulated in B.3.1 would be considered, whereas the Letter of Permission can be granted as provided in B.3.1(2), following the procedure prescribed under Annexures I to IV. 5. By taking us through the relevant annexures, he would submit that for the Letter of Permission for 150 MBBS seats, permission can be granted for the institutions having 330 beds. He would further submit that, in the order impugned, by which the seats have been reduced from 150 to 100, the authority has wrongly relied upon the bed strength referred in B.3.1 which is with regard to recognition of a degree, which is also referred in Annexure II of the said regulations. ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` He would submit that the appellant is having 330 beds in its hospital and is therefore entitled for 150 seats. He would further submit that there are no reasons assigned by the authority, whatsoever, for reducing the seats from 150 to 100 when the appellant was entitled for 150 seats, as per the regulations of 2020. 6. By taking us through a report dated 02.06.2023 issued by the Medical Inspector deputed by the Department of Medial Education, he would submit that it has been specifically observed that the appellant has 330 beds in its hospital and has also adequate infrastructure, faculty, clinical material and other facilities as per the Kerala University of Health Sciences norms as on that day. This report is referred by the department subsequent to the judgment of the Hon’ble Apex Court and therefore, in the absence of any other reasons, the authority ought not to have reduced the number of seats which the appellant is entitled for starting a new Medical College. He would submit that all these aspects have not been properly dealt with by the learned Single Judge, and the impugned order requires to be quashed and set aside. 7. Learned Counsel Sri. Vinod Bhat, would further submit that ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -13- ``` the challenge in W.P.(C)No.24363/2023 is the consequential order passed by the University reducing the seats from 150 to 100. He took us through the affidavit filed by the University, particularly paragraph No.6, to point out that the University has categorically admitted that the order reducing the number of seats was passed in view of the order dated 07.07.2023 of the State Government and therefore, if the order dated 07.07.2023 is quashed and set aside, the effect would be quashing the order of the University reducing the seats from 150 to 100. Sri. Vinod Bhat, would further submit that the Hon’ble Apex Court, while disposing of SLP No.16139/2022, had granted two months time to the concerned authority to inspect the institution, however, the reports came to be submitted in the month of July only and immediately on receiving the orders dated 07.07.2023, the appellant had submitted its application to the NMC and had raised its concern about getting 150 seats and requested to grant the same. But before the application was sent on 11.07.2023, and before the requisite particulars reached to the NMC, the impugned order dated 12.07.2023 came to be passed stating that the reports were not submitted within the time limit granted by the Government authorities. He would ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -14- ``` submit that the appellant is not at fault in submitting the report, since at the fag end of time granted by the Apex Court, the same was received and immediately it was forwarded to NMC and therefore, the same is required to be quashed and set aside and appropriate orders are required to be passed. 8. On the other hand, learned Government Pleader appearing for the State of Kerala has supported the decision passed by the learned Single Judge and requested not to interfere with the order passed by the Principal Secretary, Health and Family Welfare Department, Government of Kerala. He would submit that even if the regulations 2020 makes provision for granting admission to 150 MBBS students, the same is not mandatory and the same can be reduced keeping in mind the necessity of medical practitioners in the State of Kerala. He would submit that the appellant himself had approached the Hon’ble Apex Court against the judgment delivered by this Court. Again there was refusal for grant of permission to start Medical College in the academic year 2021. While disposing of the petition, which was filed challenging the judgment dated 24.02.2021, the Apex Court has held that granting Essentiality Certificate is not a ministerial act and ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -15- ``` fulfilling of criteria is not, by itself, sufficient to accept the application submitted by the concerned institution. By taking us through the said decision, he would submit that, even the Hon’ble Apex Court has relied on the schedule for admission to Medical Colleges. 9. Learned Advocate appearing for NMC has supported the order passed by the Medical Council. He would submit that it is an undisputed fact that the documents required to be submitted by the appellant were not submitted to NMC and therefore, the impugned order was passed. He would submit that under sub section 2 of Section 28 of the National Medical Commission Act, 2019, permission for establishment of new Medical College can be granted only after fulfilling all the particulars which have been specified under the Regulations, but in the present case, the same was not done in time. He therefore would submit that the appeal can be dismissed. 10. Learned Advocate appearing for the University would submit that as per Regulations 2020, the appellant is fulfilling the criteria for letter of permission for establishment of new Medical College, since the appellant is having 330 beds. 11. Learned Advocate appearing for the NMC would submit that ## **`WA NOS. 1436, 1431 & 1432 OF 2023`** ``` -16- ``` the admission to Medical Colleges for the current academic year has already been started and 2[nd] round is going on and therefore, at this stage, if this Court interfere with the orders, it would be impossible to reshuffle the students who have already secured their admission in some Medical College in the State of Kerala. 12. On the other hand, in reply to the submissions made by the learned Advocates for the respondents, Sir. Vinod Bhat, learned Counsel appearing for the appellant has placed details about the admission process going on through the Commissioner for Entrance Examinations in the State of Kerala and submitted that the same may end by October 2023 and therefore, the respondent authorities can take appropriate steps for allotment of students in the Medical Colleges, if the appellant is permitted to start imparting education for the current academic year 2023-2024. 13. We heard the learned Counsel appearing for respective parties. 14. We are of the considered opinion that the issue involved in the matter is with regard to the sustainability of the decision dated 07.07.2023 of the Principal Secretary to Government, Health and ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -17- ``` Family Welfare Department, by which, though the application was made by the petitioner for 150 seats, Essentiality Certificate was granted to the appellant to start the Medical College only with 100 students. As per the Regulations 2020, particularly Clause B.3.1, the bed strength of the teaching hospitals is to be considered only at the time of recognition for qualification aquired by the first batch of MBBS students. The same is reproduced as under: **==> picture [437 x 336] intentionally omitted <==** ## **`WA NOS. 1436, 1431 & 1432 OF 2023`** ``` -18- ``` 15. The present case pertains to an application made by the appellant for getting letter of permission for establishment of new Medical College which is dealt as under: ## B.3.1 ## 1.xxxx 2. The details of the bed requirements for the different clinical teaching departments from LOP till recognition for annual intakes from 100-250 students is provided in Annexure I- IV appended to this regulation. 16. Since it is a question of granting Letter of Permission, the same is referred in Annexure II, which deals with eligibility for an intake for 150 MBBS seats. As per the said Annexure, if the institution wants to get admitted 150 students, there must be minimum 330 beds. Annexure II is reproduced as under: **==> picture [437 x 87] intentionally omitted <==** ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -19- ``` **==> picture [437 x 257] intentionally omitted <==** **==> picture [437 x 256] intentionally omitted <==** 17. It is pertinent to note that it is made clear in the aforesaid method of admission that the bed strength should be increased ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -20- ``` proportionately between the letter of permission and the 3[rd] renewal and it is also referred in the aforesaid agreement that recognition shall be granted only after completion of MBBS course by the first batch, ie, after the 4[th] renewal. That means, recognition which is referred in B.3.1 can be considered at the end of the 4[th] renewal and not at the time of admission for the first year. The authority has committed error in considering the seats referred as 150, since the same is required to be considered only at the time of giving recognition to those students who have completed their MBBS course. Therefore, we are of the considered opinion that the case of the appellant should have been considered for 150 MBBS seats. 18. It is true that as per the decision of Hon’ble Apex Court in _**V.N.Public Health and Educational Trust Etc. v. State of Kerala and Others (AIR 2021 SC 2673)**_ , the act of grant of Essentiality Certificate is not a ministerial action. However, while the authority may have the power to reduce the intake from 150 to 100, there must be some legal and valid reasons to do so. In the present case, apart from a reference to the Regulations of 2020, there is no explanation whatsoever in any of the affidavits filed by the State of ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -21- ``` Kerala to reduce the seats from 150 to 100. On that ground also, we are of the considered opinion that the impugned order has been passed contrary to the Regulations 2020, and it requires to be quashed and set aside. 19. As far as W.A.No.1431/2023 which has been filed against the judgment in W.P.(C)No.24363/2023 is concerned, as stated herein above, the University reduced the seats from 150 to 100, relying upon the decision dated 07.07.2023, which has been categorically stated in paragraph No.6 of the counter affidavit. Hence, the same also requires to be quashed and set aside in view of the fact that the order dated 07.07.2023 has already been quashed by this Court. 20. As far as W.A.No.1432/2023 is concerned, while disposing of SLP(C)No.16319/2023, the Hon’ble Apex Court by order dated 09.05.2023, granted time to authorities to conduct a fresh inspection, to find out whether the Essentiality Certificate can be issued or not, within a period of two months. Such exercise was undertaken only at the fag end of the period of two months granted by the Hon’ble Apex Court. It is pertinent to note that the reports have been received by the appellant only after 07.07.2023, and immediately it has forwarded ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -22- ``` the same to the NMC by registered post. It appears that, before those documents reached the NMC on 12.07.2023, the impugned order was passed on the ground that the documents have not been received. It is also pertinent to note that in all the reports received, including the report dated 02.06.2023, the State authorities have found that the appellant has complied with necessary conditions and therefore in our opinion, NMC could have passed the impugned order only after receiving the reports from the State authorities. Hence, in our opinion, this order also requires to be quashed and set aside. Accordingly, all appeals are allowed and the impugned order is hereby quashed and set aside. Consequences of the judgment passed by this Court shall follow. Sd/- ## **`A.J.DESAI CHIEF JUSTICE`** ``` Sd/- ``` ``` V.G.ARUN JUDGE ``` uu/24.08.2023 ``` WA NOS. 1436, 1431 & 1432 OF 2023 ``` ``` -23- ``` ## **`APPENDIX OF WA 1436/2023`** ``` PETITIONER ANNEXURES Annexure-A1Copy of notification dated 28-10-2020 of 3rd respondent ```