Kerala High Court
Moulana College Of Paramedical ... vs State Of Kerala on 28 May, 2021
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943
WP(C) NO. 2151 OF 2021
PETITIONER/S:
MOULANA COLLEGE OF PARAMEDICAL SCIENCES
NEAR RAILWAY STATION, ANGADIPPURAM P.O., PERINTHALMANNA,
MALAPPURAM DISTRICT-679 321, REPRESENTED BY ITS
PRINCIPAL, MR. JAYAKRISHNAN M.
BY ADVS.SANTHOSH MATHEW
SRI.ARUN THOMAS, SRI.JENNIS STEPHEN
SRI.VIJAY V. PAUL, SMT.KARTHIKA MARIA
SRI.ANIL SEBASTIAN PULICKEL, SMT.DIVYA SARA GEORGE
SMT.JAISY ELZA JOE, SMT.VEENA RAVEENDRAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY SELFARE K DEPARTMENT, KERALA GOVT.
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 KERALA UNIVERSITY OF HEALTH SCIENCES
MEDICAL COLLEGE, TRICHUR, KERALA 680 596 REPRESENTED BY
ITS REGISTRAR.
3 THE REGISTRAR
KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE,
TRICHUR, KERALA-680 596.
4 THE DIRECTOR OF MEDICAL EDUCATION
OFFICE OF THE DIRECTORATE OF MEDICAL EDUCATION, MEDICAL
COLLEGE P.O., THIRUVANANTHAPURAM-695 011.
BY ADVS.SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF
HEALTH SCIENCES
OTHER PRESENT:
SRI K.R.RANJITH - GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.03.2021, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING:
W.P(C).No.2151 of 2021 -2-
"C.R"
JUDGMENT
The petitioner, namely, Moulana College of Paramedical Sciences, Angadipuram, is a Paramedical College established by Moulana Charitable Trust, in the year 2005, which is attached to Moulana Hospital. The petitioner college is conducting B.Sc.(MLT) course, from the academic year 2005-06, on the strength of Letter of Permission granted by the 1 st respondent State, vide Ext.P1 order dated 08.04.2005 and provisional affiliation originally granted by the University of Calicut, vide Ext.P1A order dated 24.06.2005, based on the inspection report of an Expert Committee and the recommendation of Kerala Paramedical Council, with an intake of 30. As evident from Ext.P1A, subject to ratification by the Syndicate of University of Calicut and subject to approval of Paramedical Council, the petitioner institution was granted provisional affiliation for conducting B.Sc.(MLT) course with the said intake. It was specified in Ext.P1A order that the petitioner college has to apply for continuation of provisional affiliation for the ensuing years, after remitting the required fee, which will be fixed by the University from time to time, along W.P(C).No.2151 of 2021 -3- with the approval of Paramedical Council. After the formation of the 2nd respondent Kerala University of Health Sciences, the petitioner college obtained continuation of provisional affiliation from that University. As evidenced by Ext.P1B order dated 06.01.2021, the 2nd respondent University granted continuation of provisional affiliation to the petitioner college for conducting B.Sc.(MLT) course, for the academic year 2020-21, with an intake of 30.
2. Seeking no-objection certificate to increase the intake of B.Sc.(MLT) course from 30 to 40, the petitioner college submitted Ext.P2 request dated 06.02.2020 before the 1 st respondent State. By Ext.P3 communication dated 20.08.2020, the 1st respondent requested the 4th respondent Director of Medical Education to take steps to place the said request before the Expert Committee constituted vide G.O(Ms.)No. 101/2020/H&FWD dated 10.07.2020, for ascertaining essentiality for seat enhancement. In the meanwhile, the 2 nd respondent University issued Ext.P4 notification dated 27.08.2020 inviting applications for starting new colleges/ W.P(C).No.2151 of 2021 -4- additional courses/enhancement seats in Nursing, Pharmacy, Paramedical and Allied Health Science courses, for the academic year 2021-22, and in Medical and Dental courses, for the academic year 2022-23. It is stipulated in the said notification that, for starting of new colleges/courses/enhancement of seats (UG/PG), applications are invited from Paramedical institutions attached to Medical Colleges. The last date for submission of online application, with the requisite documents and fee, was fixed as 31.12.2020.
3. According to the petitioner, no clear reason has been provided by the 2nd respondent University as to why only Paramedical institutions attached to Medical Colleges alone have been permitted to submit applications. On 30.11.2020, the petitioner submitted online application through the website of the 2nd respondent University for enhancement of seats in B.Sc.(MLT) course from 30 to 40, as evidenced by Ext.P5 acknowledgement. Since the petitioner was not provided with password for uploading the details, the petitioner submitted Ext.P6 request dated 21.12.2020 before the 3 rd respondent Registrar, which was W.P(C).No.2151 of 2021 -5- followed by Ext.P7 reminder dated 29.12.2020. The 3 rd respondent replied by e-mail, requiring the petitioner to go through the notification, and the petitioner was informed that in the case of Paramedical courses only Paramedical institutions attached to Medical Colleges can apply. Later, the 2 nd respondent University issued Ext.P8 circular dated 29.12.2020, clarifying that the University is accepting online application for affiliation for starting new colleges/courses/enhancements of seats, provisionally, without insisting for essentiality certificate from the Government of Kerala, since applications seeking essentiality certificate are pending before the State Government. Vide Ext.P9 communication dated 07.01.2021, the petitioner was informed that the request made on 21.12.2020 for permission to submit online application for enhancement of seats is rejected as the petitioner college is not attached to a Medical College, as stipulated in Ext.P4 notification dated 27.08.2020. The document marked as Ext.P10 is the minimum standards for the conduct of B.Sc.(MLT) course, prescribed by the 2nd respondent University. W.P(C).No.2151 of 2021 -6-
4. Challenging the restriction imposed in Ext.P4 notification, and also the rejection of the application for enhancement of seats vide Ext.P9 communication, the petitioner college has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 notification to the extent it restricts the petitioner from submitting the application and being considered for applying for enhancement of UG/PG seats in Paramedical and Allied Health Science category. The petitioner college has also sought for a writ of certiorari to quash Ext.P9 communication issued by the 3 rd respondent, based on Ext.P4 notification; and a writ of mandamus commanding the respondents to process its application, which was successfully registered, as evidenced by Ext.P5, and complete the procedures with respect to that online application for enhancement of seats in B.Sc.(MLT) course, from 30 to 40.
5. On 28.1.2021, when this writ petition came up for admission the learned Standing Counsel for the 2 nd respondent University sought time to get instructions.
W.P(C).No.2151 of 2021 -7-
6. On 22.02.2021, the learned Standing Counsel for the 2nd respondent University has filed a statement, on behalf of respondents 2 and 3, wherein it has been stated that, while issuing Ext.P4 notification dated 27.08.2020 inviting applications from colleges or institutions to start or increase intake in Paramedical courses, for the academic year 2021-22, a condition was imposed that the institutions submitting applications should be attached to a Medical College. Such a condition was imposed for the reason that many stand-alone institutions are lacking facilities and they are continuously failing to meet the required standards. Further in the light of Covid-19 pandemic, verification of the facilities through an inspection was also not likely to yield the desired result of the proper evaluation of the facilities. In the case of Medical Colleges, the same would have the minimum facilities as the institution is being constantly watched and inspected by several agencies. Further, permission granted for commencement or enhancement of seats could not be easily withdrawn if it is later found that the institution lacks facilities. In such circumstances, the University took a decision to consider W.P(C).No.2151 of 2021 -8- institutions which are attached to Medical Colleges for the coming academic year. The above stand taken by the University cannot be said to be illegal or arbitrary, which was taken considering the necessity to maintain the required standards in institutions. The University issued Ext.P4 notification on 27.08.2020 and the petitioner college did not raise any objection or made any challenge to the condition imposed therein, till the filing of the present writ petition. It is possible for an institution to submit online application when web portal is open and the system would be generating a communication as well. But the application would be approved and further steps would be taken only on verification of the eligibility of the applicant in terms of the notification. The application made by the petitioner pursuant to Ext.P4 notification was not approved and further steps were not taken, since that application was not in terms of the notification. Later the application was rejected, as evidenced by Ext.P9. Respondents 2 and 3 would also contend that there is no fundamental right in the matter of grant of affiliation. Article 19(1)(g) of the Constitution of India has no application in the W.P(C).No.2151 of 2021 -9- matter of deciding the issue of grant of affiliation, which is a statutory right.
7. On 01.03.2021, the petitioner has filed a reply affidavit, producing therewith a copy of Ext.P11 notification dated 22.02.2021 issued by the 2nd respondent. In the reply affidavit it has been stated that, as per instruction No.1 in Ext.P4 notification, all institutions should satisfy the norms fixed by the Apex Council concerned, Government of Kerala and the 2 nd respondent University. Neither the Government of Kerala nor the Paramedical Council has issued any notification regarding starting of new colleges/courses/enhancement of seats in Paramedical and Allied Health Science courses, reserving such notification only for Paramedical institutions attached to Medical Colleges. The petitioner college is having all the required facilities for the conduct of classes, as required by the minimum standards prescribed in Ext.P10. It is only after conducting inspection in the respective institutions, the authorities will be able to know whether stand-alone institutions are lacking facilities as per the standards set by the University. All Paramedical colleges started W.P(C).No.2151 of 2021 -10- functioning with the no-objection certificate/essentiality certificate issued by the Government and are governed by the same norms and rules as stipulates by the Government, 2 nd respondent University and also the Paramedical Council, irrespective of whether it is attached to a Medical Colleges or not. The 1st respondent State has not yet changed its policy in this regard, giving sole benefit to Paramedical colleges attached to Medical Colleges. Therefore, restricting the petitioner and similarly placed institutions from applying for enhancement of seats is discriminatory in nature. During Covid-19 pandemic, the 2nd respondent University conducted inspections in many affiliated colleges and inspections are still going on. The 2 nd respondent conducted two inspections in the petitioner's sister college, Moulana College of Pharmacy, in January, 2021 for approval of Pharm D course and another inspection in February, 2021, for continuation of provisional affiliation. Pursuant to Ext.P4 notification, the 2nd respondent conducted inspection in Muthoot Paramedical and Allied Health Science College, Pathanamthitta, in January, 2021 and in St.Joseph College of W.P(C).No.2151 of 2021 -11- Allied Health Sciences, Changanassery, in February, 2021, for starting new B.Sc.(MLT) courses. Both the above colleges are not attached to Medical Colleges and their affiliation process are still going on. As per the handbook of the 2nd respondent University, a total of 52 colleges are conducting Paramedical and Allied Health Science courses, out of which there are 6 Government Medical Colleges and 5 Self-Financing Medical Colleges. 41 independent colleges, not attached to Medical Colleges, are conducting Paramedical and Allied Health Science courses under the 2 nd respondent University. As per Chapter XXI Rule 2 of Kerala University of Health Science First Statute, 2013, applications for affiliation of colleges or for affiliation of additional subjects or for enhancement of seats shall be addressed to the Registrar and shall be forwarded to him as per the date fixed by the University. Restrictions as to classifying colleges which can/cannot apply is not specified in the Kerala University of Health Science Act or in the Statute.
8. On 04.03.2021, when this writ petition came up for consideration, the learned Special Government Pleader, after W.P(C).No.2151 of 2021 -12- referring to Ext.P1(a) provisional affiliation, submitted that, before approaching the 2nd respondent University seeking enhancement of intake in B.Sc.(MLT) course, the petitioner has to obtain prior approval of the Paramedical Council.
9. On 8.3.2021, the learned Special Government Pleader was directed to get instructions as to whether any decision has already been taken on the request made by the petitioner dated 06.02.2020 (reference No.1 in Ext.P3) seeking no-objection certificate for increasing the intake in B.Sc.(MLT) course, from 30 to 40, and as to whether the application made by the petitioner is in conformity with the requirements in Government Orders dated 04.03.2002, 30.04.2008, 18.01.2014, etc.
10. Pursuant to the aforesaid order of this Court dated 08.03.2021, the learned Special Government Pleader has filed a statement, as instructed by the 4th respondent Director of Medical Education. In the said statement it is stated that consequent to Ext.P3 Government letter dated 20.08.2020, the Expert Committee was convened by the 4th respondent, on 18.09.2020. The Expert Committee has recommended to the Government not W.P(C).No.2151 of 2021 -13- to enhance the seats in B.Sc.(MLT) course in the petitioner college from 30 to 40, as sought for. While making recommendations, the Expert Committee considered the need of the State on long term to be assessed before granting permission for enhancement of seats. The Expert Committee has also recommended to promote degree and post graduate Paramedical courses in institutions attached to Medical Colleges and to discourage stand-alone Paramedical institutions from running Paramedical degree courses. The Expert Committee has brought it to the notice of the Government that, as far as Malappuram District is concerned, at present there are 5 institutions conducting B.Sc.(MLT) course with a total intake of 160. There are 3 institutions in Malappuram District which conduct D.MLT course with an intake of 90 and as such there is no need for additional B.Sc.(MLT) seats in Malappuram District. In the statement it has also been stated that the petitioner has not submitted applications to the Paramedical Council in the prescribed format (Annexure I).
W.P(C).No.2151 of 2021 -14-
11. Heard the learned counsel for the petitioner, learned Special Government Pleader appearing for respondents 1 and 4 and also the learned Standing Counsel appearing for respondents 2 and 3.
12. The issues that arise for consideration in this writ petition are as to whether the petitioner college is entitled for consideration of the application made before the 2 nd respondent University, as evidenced by Ext.P5 acknowledgement, for enhancement of seats in B.Sc.(MLT) course, from 30 to 40, during the academic year 2021-22; and whether any interference is warranted on Ext.P4 notification dated 27.08.2020 issued by the 2nd respondent University, to the extent it restricts the petitioner college, a Paramedical college not attached to Medical College, from submitting application for enhancement of seats in B.Sc.(MLT) course, during the academic year 2021-22 and also on Ext.P9 communication dated 07.01.2021 of the 3 rd respondent Registrar, whereby the petitioner college was informed that the request made on 21.12.2020 for permission to submit online application for enhancement of seats in B.Sc.(MLT) course stands W.P(C).No.2151 of 2021 -15- rejected, as the college is not attached to a Medical College, as stipulated in Ext.P4 notification.
13. As already noticed hereinbefore, the petitioner college is conducting B.Sc.(MLT) course, from the academic year 2005- 06, on the strength of Ext.P1 Letter of Permission granted by the 1st respondent, dated 08.04.2005, and also the provisional affiliation originally granted by the University. As evident from Ext.P1A order dated 24.06.2005, the petitioner college was originally granted provisional affiliation by the University of Calicut with an intake of 30, on the basis of the inspection report of an Expert Committee and the recommendation of the Paramedical Council. The grant of provisional affiliation was subject to ratification by the Syndicate of the University and subject to approval of the Paramedical Council. It is specified in Ext.P1A order that the petitioner college has to apply for continuation of provisional affiliation, for the ensuing years, along with the approval of the Paramedical Council. After the formation of the 2nd respondent Kerala University of Health Sciences, the petitioner college obtained continuation of provisional affiliation W.P(C).No.2151 of 2021 -16- from the said University and the document marked as Ext.P1B is the University order granting provisional affiliation, for the academic year 2020-21, with an intake of 30.
14. The 1st respondent State constituted Paramedical Council, Technical Committee and District Inspection Committee, vide G.O.(Ms.)No.73/2002/H&FWD dated 21.3.2002, since many self-financing institutions applied for sanction to start Paramedical courses in the State. Till the issuance of the said Government order, there was no policy or guidelines or eligibility criteria for proper administration of Paramedical institutions in the State. Therefore, the Government found it necessary to have a specific policy for starting Paramedical courses, to fix the eligibility criteria, standards, etc., and also to constitute an authority to ensure the quality of education in Paramedical institutions. Accordingly, the Government issued the order dated 21.03.2002 constituting Technical Committee, District Inspection Committee and also a Paramedical Council for the State. The Technical Committee has been constituted for prescribing minimum requirements for the issuance of no-objection W.P(C).No.2151 of 2021 -17- certificate for various Paramedical courses. The District Inspection Committee has been constituted to conduct site inspection, once the minimum standards are prescribed. The Paramedical Council for the State has been constituted for identifying the institutions with the required infrastructure, recommending recognition by the Government, academic aspects such as prescribing syllabus, eligibility of admission, qualification of faculties, conduct of examinations, recognition of courses by the concerned Universities, AICTE, etc., prescribing uniform fee structure to different courses, etc. As per the said Government order, the inspection report of the District Inspection Committee will be scrutinised by the Paramedical Council and the course will be sanctioned based on the recommendations of the Paramedical Council. Para.3 of the Government order dated 21.03.2002 reads thus;
"3. Government after examining the matter in detail, are pleased to issue the following orders with immediate effect. A. Technical Committee with following members will be constituted for prescribing minimum requirements for issue of NOC for various Para Medical Courses. i. Director of Medical Education W.P(C).No.2151 of 2021 -18- ii. Director of Health Services iii. Principal, Medical College, Thiruvananthapuram iv. Principal, Co-operative Medical College, Cochin v. Joint Secretary, Health & Family Welfare - Convener B. The Committee will submit their report within one month. Once the minimum standards are prescribed, actual site inspection will be done through a District Inspection Committee consisting of i. District Collector ii. RDO concerned iii. District Medical Officer(H) iv. The District Collector is authorised to co-opt one or two specialists also in the team C. A Para Medical Council for the State will be constituted consisting of the following members:
i Additional Chief Secretary Chairman
ii Secretary, Health & Family Member
Welfare
iii Director of Medical Education Member
iv Director of Health Services Member
v Principal, Medical College, Member
Thiruvananthapuram
vi Joint Secretary, Health & Family Secretary/
Welfare Convener
The powers and functions of the Para Medical Council would be identifying institutions with the required infrastructure, recommending recognition by Government, academic aspects such as prescribing syllabus, eligibility of admission, qualification of faculties, conducting of examinations, W.P(C).No.2151 of 2021 -19- recognition of the courses by concerned universities, AICTE/ UGC/IMC, prescribing uniform fee structure to different courses etc. D. The inspection report of the District Inspection Committee will be scrutinised by the Para Medical Council and the courses will be sanctioned based on the recommendation of the Para Medical Council. E. An inspection fee of Rs.50,000/- per applicant will be collected to create a fund, which will be utilized for the functioning of council and other expenses connected with self-financing courses in health sector. The Para Medical Council Secretary will keep the above fund in nationalized bank and keep proper account for its expenditure. The said fund will be utilized for preparation of various project reports in Health Sector.
F. The whole process of prescribing standards, site inspections, scrutiny of applications will be completed in a time bound manner and recommendations furnished to Government before 15.05.2002."
15. The Government vide G.O.(Rt.)No.1598/2008/H& FWD dated 30.04.2008 issued revised guidelines laying down the procedure for submitting application for Paramedical courses. A reading of the said Government order would show that the revised guidelines have been issued to streamline the procedural formalities for the approval of new Paramedical courses and to W.P(C).No.2151 of 2021 -20- prescribe a uniform format for applications for new courses. The Paramedical Council in its meeting held on 24.01.2008 and 04.04.2008 recommended to the Government to issue orders on uniform application format, time schedule for submitting application, application fee, etc. After examining the said recommendation, the Government issued the aforesaid order dated 30.04.2008, in respect of Paramedical courses being conducted by the Director of Medical Education and the Director of Health Services, in self-financing sector. Para.2 of the said Government order reads thus;
"2. Government have examined the case in detail and are pleased to issue the following orders in respect of the Paramedical courses being conducted by Director of Medical Education and Director of Health Services in Self Financing Sector.
1. Application for new Courses The following schedule of time is prescribed for submitting application for new courses in Self Financing Sector.
1. Notification April 5
2. Last date of submission of May 15 Application
3. Verification of application May 16 to May 31
4. Inspection Report from DME/ 1st June to 15th August DHS W.P(C).No.2151 of 2021 -21-
5. Meeting of Paramedical 16th Aug to 15th Sept Council and recommendation to Government
6. Letter of Intent by 16th Sept to 15th Oct Government
7. Construction and 16th Oct to 15th Oct Infrastructural facilities by Next Year (One year) institutions
8. Inspection by Technical team 16th Oct to 15th Jan next year
9. Letter of Permission by 16th Jan to 15th March Government
10. Prospectus 16th March to 15th May
11. Admission Notification 20th May
12. Last Date of Application 10th June
13. Publication of Rank List 15th July
14. Counselling for admission 15th August
15. Starting of classes 15th September The model application and minimum standards shall be downloaded from the website 'www.arogyakeralam.gov.in' till website for Paramedical Council is made operative. The application shall be accompanied by a Demand Draft for Rs. 50,000/- (Rupees Fifty Thousand Only) per course towards non-refundable application fee, Branch, Thiruvananthapuram. On receipt of valid application the District Inspection team with the following members will visit the institution.
1) District Medical Officer (Health)/Deputy Medical Officer (Health)
2) District Programme Manager, NRHM
3) One subject expert from DME/DHS W.P(C).No.2151 of 2021 -22- The team will submit report to the Paramedical Council. The Paramedical Council will recommend to Government for considering Letter of Intent/NOC.
2. Annual Inspection Fee An annual inspection fee of Rs. 10,000/- (Rupees Ten Thousand Only) per course will be charged from the self- financing institutions from the year 2008-09 for conducting annual inspection by the team of Director of Medical Education/Director of Health Services. The amount shall be remitted as Demand Draft drawn in favour of Secretary, Paramedical Council, payable at SBT, Main Branch, Thiruvananthapuram."
16. The Government vide GO(Rt.)No.195/2014/H&FWD dated 18.01.2014 notified fee on the request made for enhancement of seats of Paramedical Degree and Diploma courses in self-financing institutions. In the said order, the Government noticed that, as per the guidelines prescribed in Government order dated 13.04.2008 regarding issuance of no- objection certificate to commence Paramedical courses in self- financing sector, institutions seeking no-objection certificates have to remit non-refundable application fee of Rs.50,000/- per course to the Paramedical Council. No fee is levied for issuance of Letter of Permission. Fee on requests for enhancement of seats is W.P(C).No.2151 of 2021 -23- also not prescribed in the above order. Therefore, the Government vide order dated 18.01.2014 ordered that self- financing institutions seeking increase in intake shall remit Rs.25,000/- per course as non-refundable inspection fee, in favour of the Principal of the Government Medical College to which their application for enhancement is forwarded for inspection by the Government or by the Paramedical Council. On receipt of inspection fee, the Principal shall arrange inspection and forward report of inspection to the Government/Paramedical Council, through the Director of Medical Education. Paras.1 to 4 of the Government order dated 18.01.2014 read thus;
"Guidelines regarding issuance of No Objection Certificate to commence paramedical courses in self-financing sector was issued as per order read as first paper above. In the said order, institutions seeking No Objection Certificate have to permit non-refundable application fee of Rs. 50,000/- per course to Kerala Paramedical Council. No fee is levied for the issuance of Letter of Permission. Fee on requests for enhancement of seats is also not prescribed in the above order. Institutions who have obtained No Objection Certificate and Letter of Permission are requesting W.P(C).No.2151 of 2021 -24- Government or Paramedical Council to grant permission to increase intake in various courses.
2. In the above circumstances, Government order that self- financing institutions seeking increase in intake shall remit Rs.25,000/- (Rupees Twenty Five Thousand Only) per course as non-refundable inspection fee in the Government Medical College to which their applications for enhancement are forwarded for inspection by Government or Paramedical Council by way of Demand Draft drawn in favour of Principal concerned.
3. Government also order that on receipt of inspection fee, the Principal shall arrange inspection and forward report of inspection to Government/Kerala Paramedical Council through Director of Medical Education.
4. The Principals of concerned colleges shall keep a separate ledger account for the fee collected and the expenditure towards TA/DA for the faculty deployed for inspection on requests for enhancement of seats shall be met from the fee so collected in the rate prescribed by Government vide order read as second paper above."
17. In Bahuleyan Charitable Foundation v. Kerala University of Health Sciences and another [2019 (5) KHC 301] a Division Bench of this Court noticed that though the State Government have made an attempt to bring in an enactment, namely, the Kerala Paramedical Act, 2007, it did not fructify and W.P(C).No.2151 of 2021 -25- thus, the abovesaid Government orders dated 21.03.2002, 03.04.2008 and 18.01.2014 hold the field. In the said decision, the Division Bench held that, a reading of the above Government orders make it clear that an educational agency intending to start a Paramedical course, has to obtain a Letter of Permission from the Government and thereafter, approach the University for affiliation. On the facts of the case, the Division Bench noticed that, though the appellants have assailed the orders of writ court on various grounds, it is well known that approval or recognition or letter of permission is followed by affiliation and not the reverse.
18. In Bahuleyan Charitable Foundation the challenge made before the Division Bench in W.A.Nos.1312 of 2019 and 1384 of 2019 is against a common order dated 08.03.2019 in W.P.(C)Nos.39605 of 2018 and 16768 of 2015. In W.P.(C)No. 39605 of 2018, Bahuleyan Charitable Foundation has sought for a writ of certiorari to quash Ext.P9 communication to the extent it requires issuance of essentiality certificate from the Government. The petitioner has also sought for a writ of W.P(C).No.2151 of 2021 -26- mandamus commanding the Kerala University of Health Sciences to issue affiliation to the petitioner's college for MPT (Neurology) course, as sought for in Ext.P2, for the academic year 2018- 2019; and a declaration that the insistence of essentiality certificate by the University, in order to obtain affiliation for the new course as unconstitutional. In W.P.(C)No.16768 of 2015, Bahuleyan Charitable Foundation has sought for a writ of mandamus commanding the University, to grant affiliation to its college for MPT (Musculoskeletal and Sports). The petitioner has also sought for a writ of mandamus commanding the State of Kerala to issue no-objection certificate for MPT course, as sought for in Exts.P2, P4 and P11. In paragraph 3 of the judgment, the Division Bench has extracted paragraphs 5 to 8 of the common judgment of the learned single Judge dated 08.03.2019 in W.P. (C)Nos.39605 of 2018 and 16768 of 2015. Paragraph 3 of the judgment of the Division Bench in W.A.Nos.1312 of 2019 and 1384 of 2019 reads thus;
"3. As both the writ petitions relate to a common cause of obtaining permission from the Government, to start Paramedical Courses in the State of Kerala, based on the W.P(C).No.2151 of 2021 -27- recommendation of the Paramedical Council, Kerala, they were taken up together and adverting to the pleadings and submissions, by a common order dated 8.3.2019, a learned single Judge of this court, dismissed the writ petitions and at paragraph Nos.5-8 held thus:
"5. There are no statutory regulations regulating qualification of Paramedical Technicians and also for registration of institutions imparting Paramedical courses. The State's power to legislate cannot be disputed in the light of Entry 25 in List III of Schedule 7 of the Constitution of India. It was also seen that the State made an attempt to bring a Legislation on the subject as early as in the year 2007. However, the bill lapsed. As seen from Government Order, G.O.(Ms.) No.73/2002/H&FWD, dated 21.3.2002, the Government constituted a Paramedical Council. The Council consists of Chairman and the members, who are Government officials. As seen from the above order, G.O.(Ms.)No.73/2002/H&FWD, Paramedical Council is the authority to recommend for issuance of Letter of Permission by the Government for Paramedical courses. It also refers prescription of fees for considering the applications for recognition. The Government by another order, G.O.(Rt.)No. 159 2008/H&FWD, dated 30.4.2008, streamlined procedure for submitting application for Paramedical courses. Therefore, it is clear that without recommendation of Paramedical Council, the Government cannot issue Letter of Permission.W.P(C).No.2151 of 2021 -28-
6. The University cannot grant affiliation without Letter of Permission issued by the Government on recommendation of the Paramedical Council. In such circumstances, I am of the view that the petitioners cannot admit students without Letter of Permission by the Government. The admission of the students into the course is irregular. The Government will have to consider regularization of admissions. It is open for the Government to impose fine and regularize admission.
7. The request of the petitioner in W.P.(C)No.39605 of 2018 for increasing intake was rejected. The petitioner also challenges rejection. However, the petitioner admitted students without Letter of Permission and without permission from this Court. In such circumstances, it is for the Government to consider regularization of admissions. The learned Senior Counsel for the petitioner had argued that the reasoning in the order rejecting the request for increasing the intake is legally unsustainable. Even assuming that the reason is unsustainable, the petitioner has no matter of right to admit the students without the same being interfered by this Court. This results in a situation for directing the Government to consider regularisation of admissions.
8. It is to be noted that a letter of permission was already issued to the writ petitioner in W.P.(C)No. 33045 of 2018. However, it seems that they have admitted students over and above the intake permitted by the Government. The next academic year onwards the petitioners cannot admit students to any of the W.P(C).No.2151 of 2021 -29- Paramedical courses without Letter of Permission. If the time limit for applying for Letter of Permission is over for the next academic year, the petitioner shall be permitted to apply within two weeks from the date of receipt of a copy of this judgment. The Government also should give publicity in regard to obtaining permission from the Government for admission to institutes offering Paramedical courses. Anyhow, the Universities shall not grant permission without Letter of Permission issued by the Government. The Government shall take appropriate decision on regularising admission within a period of one month."
(underline supplied)
19. In the judgment of the learned Single Judge in W.P. (C).Nos.39605 of 2018 and 16768 of 2015 it was held that, as seen from G.O.(Ms.)No.73/2002/H&FWD dated 21.03.2002, Paramedical Council is the authority to recommend for issuance of Letter of Permission by the State Government for Paramedical courses. The Government by G.O.(Rt.)No.159/2008/H&FWD, dated 30.4.2008, streamlined procedure for submitting application for Paramedical courses. Therefore, it is clear that without recommendation of Paramedical Council, the State Government cannot issue Letter of Permission. The University cannot grant affiliation without Letter of Permission issued by the W.P(C).No.2151 of 2021 -30- Government, on recommendation of the Paramedical Council. In such circumstances, the petitioner cannot admit students without Letter of Permission by the State Government. A reading of paragraph 7 of the said judgment would show that the challenge made in W.P.(C).No.39605 of 2018 filed by Bahuleyan Charitable Foundation was against rejection of the request for increasing intake in Paramedical course. The petitioner admitted students without Letter of Permission. Therefore, it was held that, next academic year onwards the petitioner cannot admit students to any of the Paramedical courses without Letter of Permission. The University shall not grant affiliation without Letter of Permission issued by the State Government.
20. In Bahuleyan Charitable Foundation the Division Bench noticed that without getting Letter of Permission from the State Government, the appellant started two post graduate courses, i.e., MPT (Neurology) and MPT (Musculoskeletal and Sports) respectively. As rightly held by the Writ Court, in the absence of statutory provisions regulating Paramedical technicians and for registration of institutions imparting W.P(C).No.2151 of 2021 -31- Paramedical courses, in the light of Entry 25 in List III of Schedule 7 of the Constitution of India, the State has got the power to legislate under Article 162 of the Constitution of India. After referring to few decisions of the Apex Court dealing with the executive powers of the State under Article 162 of the Constitution, the Division Bench held that there is no error in the order of the writ court warranting interference and W.A.Nos.1312 of 2019 and 1384 of 2019 are accordingly dismissed.
21. As held by the Division Bench in Bahuleyan Charitable Foundation, in the absence of a legislation regulating Paramedical institutions imparting Paramedical courses, the provisions under the aforesaid Government orders dated 21.03.2002, 03.04.2008 and 18.01.2014 hold the field. Therefore, in order to start new Paramedical course or for enhancement of intake in an existing course Letter of Permission/no-objection certificate of the State Government, based on the recommendation made by the Paramedical Council, is an essential requirement and the University cannot grant provisional affiliation for a new Paramedical course or for W.P(C).No.2151 of 2021 -32- enhancement of intake in an existing course without Letter of Permission/no-objection certificate of the State Government.
22. A Paramedical college like the petitioner college, in order to enhance the intake in B.Sc.(MLT) course has to obtain no-objection certificate from the State Government, by submitting a proper application after remitting the requisite fee. On such application being forwarded, the Principal of the concerned Government Medical College, shall arrange an inspection and forward the report of the inspection to the Government/Paramedical Council, through the Director of Medical Education. On the recommendation of the Paramedical Council, the State Government shall grant no-objection certificate for enhancement of intake in B.Sc.(MLT) course. On the strength of such permission, the Paramedical college has to approach the University for grant of provisional affiliation for the enhanced intake.
23. In the instant case, as evidenced by Annexure II Government order, i.e., G.O.(Rt.)No.668/2021 H&FWD dated 16.03.2021, produced along with the statement filed by the W.P(C).No.2151 of 2021 -33- Special Government Pleader dated 18.03.2021, Ext.P2 request dated 06.02.2020 made by the petitioner college seeking no- objection certificate for increasing the intake in B.Sc.(MLT) course from 30 to 40 stands rejected, in the light of the report of the Expert Committee. A reading of the said Government order would show that the Government, vide G.O.(Ms.)No.101/2020/H&FWD dated 10.07.2020, constituted an Expert Committee to study the essentiality with respect to various Allied Health Sciences courses under the Kerala University of Health Sciences and to submit a detailed perspective plan. The application for enhancement of seats was forwarded to the Director of Medical Education for placing the matter before the Expert Committee. Vide letter No.B4/3166/2020/DME dated 13.10.2020, the Director of Medical Education submitted the report of the Expert Committee on the essentiality for seat enhancement. In the said report, the Expert Committee has opined as follows;
"As per the norms of the Kerala University of Health Sciences, the maximum seat capacity fixed for B.Sc.(MLT) is
30. Malappuram District is saturated with four institutions. The Expert Committee did not recommend for granting no- objection certificate for increasing the intake from 30 to 40 W.P(C).No.2151 of 2021 -34- seats for B.Sc.(MLT) course at Maulana College of Paramedical Sciences, Malappuram"
24. As discernible from Annexure II Government order dated 16.03.2021, the Government, after having examined the matter in detail, in the light of the report of the Expert Committee, rejected Ext.P2 request made by the petitioner college for no-objection certificate for increasing the intake in B.Sc.(MLT) course from 30 to 40. In view of Annexure II Government Order dated 16.03.2021, the petitioner college cannot seek provisional affiliation from the 2 nd respondent University for enhancement of intake in B.Sc.(MLT) course from 30 to 40, for the academic year 2021-22.
25. In so far as the challenge made against Ext.P4 notification dated 27.08.2020 issued by the 2 nd respondent University and Ext.P9 communication dated 07.01.2021 issued by the 3rd respondent Registrar is concerned, as per the said notification, for starting new colleges/courses/enhancement of seats (UG/PG), the institution should satisfy the norms fixed by the Apex Council concerned, if any, the Government of Kerala and the Kerala University of Health Sciences. Applications without W.P(C).No.2151 of 2021 -35- the documents and the requisite fee will be summarily rejected. Appendix A to Ext.P4 notification prescribes list of enclosures to be submitted along with the application, by the existing affiliated colleges. As per the said list, essentiality certificate from Government of Kerala is one of the mandatory documents to be submitted along with the application. In Ext.P4 notification, the last date for submission of online application, with requisite documents and fee, was fixed as 31.12.2020.
26. The petitioner college, without challenging the restriction imposed in Ext.P4 notification for enhancement of seats (UG/PG) in Paramedical institutions, submitted online application in the web portal of the University, on 30.11.2020, for enhancement of intake in B.Sc.(MLT) course, for the academic year 2021-22, as evidenced by Ext.P5 acknowledgement. Though it is averred in paragraph 9 of the writ petition that, Ext.P5 application submitted by the petitioner has been successfully registered, the stand taken in paragraph 4 of the statement filed on behalf of respondents 2 and 3 is that, though it is possible to submit an application when the web portal is W.P(C).No.2151 of 2021 -36- open and the system will be generating a communication regarding successful registration of such an application, that application would be approved and further steps would be taken only on verification of the eligibility of the applicant in terms of the notification. In the case of the petitioner the application for enhancement of intake was not approved and further steps were not taken since the application was not in terms of Ext.P4 notification.
27. The petitioner submitted Ext.P6 letter dated 21.12.2020 for an opportunity to upload the documents in support of the application seeking enhancement of intake in B.Sc. (MLT) course, before 31.12.2020. In Ext.P6 it was pointed out that for grant of no-objection certificate the petitioner college has already made Ext.P2 request dated 06.02.2020 before the 1 st respondent State, which is pending consideration. Ext.P6 letter was followed by Ext.P7 e-mail dated 29.12.2020, requesting the 3rd respondent Registrar to provide user name and password so as to enable the petitioner college to upload further documents in connection with the application for enhancement of intake. In W.P(C).No.2151 of 2021 -37- paragraph 11 of the writ petition it is stated that, the 3 rd respondent replied by e-mail requiring the petitioner to go through Ext.P4 notification and the petitioner was informed that, in the case of Paramedical courses, only Paramedical institutions attached to Medical Colleges can apply. While so, the 2nd respondent University, vide Ext.P8 circular dated 29.12.2020, clarified that the University is accepting online applications for provisional affiliation for starting new colleges/courses/ enhancement of seats provisionally without insisting essentiality certificate from the State Government. Such a circular has been issued taking note of the fact that the last date for submission of the online application fixed in Ext.P4 notification is 31.12.2020 and that, applications for essentiality certificate made by various institutions are pending before the State Government. On 07.01.2021 the petitioner was informed vide Ext.P9 communication of the 3rd respondent Registrar that Ext.P6 request dated 21.12.2020 made by the petitioner college for permission to submit online application for starting new courses is rejected as the institution is not attached to a Medical College, W.P(C).No.2151 of 2021 -38- as stipulated in Ext.P4 notification.
28. As already noticed hereinbefore the last date for submitting online application as per Ext.P4 notification was on 31.12.2020. In Ext.P8 circular the 2 nd respondent University has clarified that the University is accepting online applications in terms of Ext.P4 notification, without insisting essentiality certificate from the State Government. In terms of Ext.P8 circular, online application without essentiality certificate could have been submitted on or before 31.12.2020. However, the condition stipulated in Ext.P4 notification, which is under challenge in this writ petition, disentitled the petitioner college, which is not a Paramedical institution attached to a Medical College, from submitting online application without essentiality certificate, on or before 31.12.2020, for starting new courses/ enhancement of intake in existing courses. The petitioner has not chosen to challenge such a restriction imposed in Ext.P4 notification, by filing a writ petition under Article 226 of the Constitution of India, before the last date for submission of online application prescribed in the said notification, i.e., 31.12.2020. W.P(C).No.2151 of 2021 -39- The present writ petition is one filed on 27.01.2021, after the receipt of Ext.P9 reply dated 07.01.2021, whereby the request made by the petitioner college in Ext.P6 for permission to submit online application in terms of Ext.P4 notification stands rejected for the reason stated therein.
29. Relying on Ext.P11 notification dated 22.02.2021 issued by the 2nd respondent University, produced along with the reply affidavit filed on 01.03.2021, the petitioner would contend that the University has extended the last date for submission of online application till 08.03.2021. In such circumstances, the petitioner college is entitled to submit application pursuant to that notification, for enhancement of intake in B.Sc.(MLT) course from 30 to 40, for the academic year 2021-22. Along with the reply affidavit the petitioner has also filed I.A.No.1 of 2021 seeking an interim relief to that effect.
30. A reading of Ext.P11 notification would make it explicitly clear that it is one inviting applications for starting new colleges/additional courses/enhancement of number of seats from institutions which are having no-objection certificate/ W.P(C).No.2151 of 2021 -40- essentiality certificate from Government (except courses for which institutions which have already submitted applications to the University in accordance with Ext.P4 notification dated 27.08.2020 and notification dated 28.10.2020). In Ext.P11 notification as well, it is stipulated that, in the case of Paramedical and Allied Health Science courses, Paramedical institutions attached to Medical Colleges alone are eligible to submit applications.
31. In the instant case, Ext.P2 request made by the petitioner college for no-objection certificate for enhancement of intake in B.Sc.(MLT) course, for the academic year 2021-22, has already been rejected by Annexure II order dated 16.03.2021 of the 1st respondent State. The petitioner college will not fall under the category of 'institutions which are having no-objection certificate/essentiality certificate from the Government', as on the date of Ext.P11 notification, i.e., 22.02.2021, or as on 08.03.2021, the last date for submission of online application stipulated in that notification. In such circumstances, the petitioner college is not entitled for submission of application for W.P(C).No.2151 of 2021 -41- enhancement of intake in B.Sc.(MLT) course, for the academic year 2021-22, in terms of Ext.P11 notification. Moreover, the restriction imposed in Ext.P11 notification, as in the case of Ext.P4 notification, disentitle the petitioner college, which is not a Paramedical institution attached to a Medical College, from submitting application seeking enhancement of intake in B.Sc. (MLT) course, for the academic year 2021-22.
32. Another contention raised in the writ petition is that the restriction imposed in Ext.P4 notification, which is under challenge in this writ petition, is discriminatory and violative of the fundamental rights guaranteed under Article 14 and 19(1)(g) of the Constitution of India. The learned counsel for the petitioner would rely on the decision of the Apex Court in T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481] in order to contend that right to impart education is a fundamental right. Relying on the decision of a Division Bench of this Court in State of Kerala v. M.G.M College of Arts and Science [2017 (3) KHC 965] the learned counsel for the petitioner would contend that right to impart education can be W.P(C).No.2151 of 2021 -42- restricted not by a policy decision, but only by a law. 'Law' means law made by the competent legislature and not by an executive fiat.
33. In DM Wayanad Institute of Medical Sciences v. Union of India [(2016) 2 SCC 315], a decision relied on by the learned Standing Counsel for the University, the Apex Court noticed that, in Unni Krishnan, J.P. v. State of A.P. [(1993) 1 SCC 645] the right guaranteed under Article 19(1)(g) of the Constitution of India has been elaborately discussed by the Five- Judge Constitution Bench, which held that imparting education cannot be treated as a trade or business. Trade or business normally connotes an activity carried on with a profit motive. Education has never been nor can it be allowed to become commerce in this country. Education has always been treated, in this country, as a religious and charitable activity and making it commercial is opposed to the ethos, tradition and sensibilities of this nation. A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less of fundamental right to affiliation or W.P(C).No.2151 of 2021 -43- recognition. In DM Wayanad, considering the facts of the case as averred by the petitioners and the rights claimed therein, the Apex Court held that the petitioners, even though have a right to establish institutions for imparting medical and technical education, such right is not a fundamental right.
34. As already noticed hereinbefore, the petitioner has not chosen to challenge the restriction imposed in Ext.P4 notification, by filing a writ petition under Article 226 of the Constitution of India, before the last date for submission of online application prescribed in the said notification, i.e., 31.12.2020. Vide Annexure II order dated 16.03.2021, the 1 st respondent State has already rejected Ext.P2 request made by the petitioner college for no-objection certificate for increasing the intake in B.Sc.(MLT) course from 30 to 40, for the academic year 2021-22. In Ext.P11 notification as well, Paramedical institutions attached to Medical Colleges alone are eligible to submit applications. Moreover, the petitioner college will not fall under the category of 'institutions which are having no-objection certificate/essentiality certificate from the Government', as on the date of Ext.P11 W.P(C).No.2151 of 2021 -44- notification, i.e., 22.02.2021, or as on 08.03.2021, the last date for submission of online application prescribed in that notification. In such circumstances, the petitioner college is not entitled for submission of application for enhancement of intake in B.Sc.(MLT) course, for the academic year 2021-22, in terms of either Ext.P4 notification dated 27.08.2020 or Ext.P11 notification dated 22.02.2021. In such circumstances, in the writ petition, this Court need to go into the merits of the contention raised that the aforesaid restriction imposed in Ext.P4 notification is discriminatory and violative of the fundamental rights guaranteed under Article 14 and 19(1)(g) of the Constitution of India.
In the above circumstances, the petitioner is not entitled for the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE bkn/-
W.P(C).No.2151 of 2021 -45-
APPENDIX OF WP(C) 2151/2021 ANNEXURE/EXHIBITS EXHIBIT P1 TRUE COPY OF THE GOVERNEMNT ORDER G.O. (RT) NO.1066/05/H&FW DATED 8.4.2005.
EXHIBIT P1A TRUE COPY OF THE ORDER NO.GA
1/D1/4493/2003 DATED 24.6.2005 ISSUED BY
THE UNIVERISTY OF CALICUT.
EXHIBIT P1B TRUE COPY OF THE ORDER
U.O.NO.3/2021/ACADEMIC/KUHS DATED
6.1.2021 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE LETTER NO.MINPS/B.SC.
(MLT)2020-21 DATED 6.2.2020 SUBMITTED
BEFORE THE IST RESPONDENT BY THE
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE LETTER
NO.78/K2/2020/H&FWD DATED 20.8.2020
ISSUED TO DIRECTOR OF MEDICAL EDUCATION,
THIRUVANANTHAPURAM BY THE PRINCIPAL
SECRETARY TO GOVERNMENT H & FW (K)
DEPARTMENT.
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION NO.
25494/AC1/GEN A2/2020/KUHS ISSUED BY THE
2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT DATED
30.11.2020 EVIDENCING THE APPLICATION
ONLINE THROUGH THE 2ND RESPONDENT'S
WEBSITE FOR SEAT ENHANCEMENT FOR B.SC.
(MLT) SUBMITTED BY THE PETITIONER ON
30.11.2020.
EXHIBIT P6 TRUE COPY OF THE LETTER
NO.MINPS/MLT/2020-21 DATED 21.12.2020
SENT BY THE PETITIONER TO THE 3RD
RESPONDENT.
EXHIBIT P7 TRUE COPY THE EMAIL DATED 29.12.2020
SENT BY THE PETITIONER TO THE 3RD
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE CIRCULAR
NO.25494/AC1/GEN A2/2019/KUHS DATED
29.12.2020 ISSUED BY THE 2ND RESPONDENT.
W.P(C).No.2151 of 2021 -46-
EXHIBIT P9 TRUE COPY OF THE REJECTION LETER
NO.28593/2020/ACII/PM/A2/KUHS(B) ISSUED
BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE MINIMUM STANDARDS FOR
THE CONDUCT OF B.SC. MLT DEGREE COURSES
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE NOTIFICATION
NO.25494/ACI/GEN A2/2020/KUHS DATED
22/02/2021 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE I TRUE COPY OF THE FORMAT PRESCRIBED BY
PARAMEDICAL COUNCIL
ANNEXURE II TRUE COPY OF THE G.O(Rt).NO.668/2021 H &
FWD DATED 16.03.2021.