Kerala High Court
Kmct Dental College vs Kerala University Of Health Sciences on 14 January, 2021
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A. No. 1523/2020 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
WA.No.1523 OF 2020
AGAINST THE JUDGMENT DATED 30.10.2020 IN WP(C) 19593/2020(Y) OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER IN THE WRIT PETITION:
KMCT DENTAL COLLEGE,
MANASSERY, MUKKAM, KOZHIKODE-673 602, REPRESENTED BY
PRINCIPAL, DR. MANOJKUMAR K.P.
BY ADVS.
SRI.K.M.JAMALUDHEEN
SMT.LATHA PRABHAKARAN
SRI.N.NANDAKUMARA MENON (SR.)
RESPONDENTS/RESPONDENTS IN THE WRIT PETITION:
1 KERALA UNIVERSITY OF HEALTH SCIENCES,
THRISSUR-680 596, REPRESENTED BY ITS REGISTRAR.
2 DENTAL COUNCIL OF INDIA,
AIWAN-E-GALIB MARG, KOTLA ROAD, TEMPLE LANE,
NEW DELHI-110 002, REPRESENTED BY ITS SECRETARY.
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-110 011.
R1 BY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH
SCIENCES
R3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.P.SREEKUMAR, SC FOR R1,
SRI.M.P.PRAKASH SC FOR R2,
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-01-2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 1523/2020 :2:
Dated this the 14th day of January, 2021.
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeal is filed by the petitioner in the writ petition challenging the judgment dated 30.10.2020 in W.P.(C) No. 19593 of 2020, by which the following reliefs sought for in the writ petition were declined:
1. To issue a writ of mandamus or such other writ directing the consideration of Ext.P10 application by the first respondent and order granting consent of affiliation (COA) by the first respondent within the time limit set by Ext.P9.
2. To issue a writ of mandamus or such other writ directing the first respondent to keep its web portal open for a specified number of days, so as to receive the online application to be performed by the petitioner.
2. Brief material facts for the disposal of the writ appeal are as follows:
The appellant submitted Exts. P4 to P8 applications for accommodating three additional students in 5 specializations in Master of Dental Surgery (M.D.S) for the academic year 2021-2022 before the Secretary to Government of India, Health and Family Welfare, New Delhi. The appellant had remitted the requisite fee by way of demand draft, which was produced along with the application. The Dental Council of India i.e., the second respondent, as per Ext.P9 letter dated 18.09.2020, directed the appellant to produce the consent of affiliation from the University within 10 days.W.A. No. 1523/2020 :3:
Thereupon, the appellant submitted Ext. P10 application before the Kerala University of Health Sciences, the first respondent, requesting to open their web portal for enabling it to submit its application for getting consent of affiliation from the University. It is an admitted fact that the University had not invited applications for starting new Dental Colleges or for increasing the seats in the existing colleges for the academic year 2021-2022. According to the appellant, since no action was taken, the appellant was constrained to file the writ petition, which was dismissed. It is also submitted that as per Annexure A judgment dated 18- 09 -2020 in W.P.(C) No. 16098 of 2020, a learned single Judge of this Court directed the University to get their web portal open for three days from 22.09.2020. Anyhow, while the writ petition was pending, as per Ext.P13 letter dated 14.10.2020, the Dental Council of India directed the appellant to produce the consent of affiliation within 7 days. These are the basic background facts available for the disposal of the appeal.
3. The University has filed a statement in the writ petition refuting the allegations and the claims and demands raised by the appellant. It is stated that in terms of the Regulations framed for the grant of letter of permission from the Central Government for the Dental courses, an applicant college is duty bound to submit the application along with the consent of affiliation issued by the concerned University, and that it is settled law that an incomplete application submitted is liable to be rejected at the initial stage W.A. No. 1523/2020 :4: itself as is held by the Apex Court in Royal Medical Trust v. Union of India [(2015) 10 SCC 19) that the initial assessment of the application at the first level should comprise of checking necessary requirements, such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement etc. Therefore, according to the learned counsel, if an applicant fails to fulfil those requirements, the application on the face of it would be incomplete and the same is to be rejected and those who fulfil the basic requirements would be considered at the next stage. That apart, it was submitted that the processing of an application for consent of affiliation includes the inspection of the institution to verify the infrastructure available and in terms of the judgments rendered by the Apex Court, every inspection should have an element of surprise.
4. The sum and substance of the contention put forth by the University is that the benefit of surprise inspection could be achieved only if there is sufficient time available in scheduling the inspections. In order to facilitate sufficient time, the University notifies the invitation of application for affiliation well in advance. On the other hand, if an application is received without such a notification and the same is to be processed within a span of 10 days as the petitioner has demanded, such action would negate the whole purpose of inspections. That apart, it was pointed out that the University did not invite applications for affiliation for the academic year 2021-2022, which would have normally happened during December, 2019.
W.A. No. 1523/2020 :5:Since the appellant was aware of the fact that no applications were invited, he did not take any action to challenge the decision of the University. In the decision cited by the appellant, the petitioner therein challenged the action of the University in time. However, in the case of the appellant college, it did not approach the University for the consent of affiliation before submitting the request to the Central Government for grant of letter of permission. It is also submitted that the Central Government erred in forwarding a defective application to the Dental Council of India for further processing, which action would be violative of the law laid down in the judgment in Royal Medical Trust (supra). Matters being so, the University, as per Annexure R1A dated 24.09.2020, addressed the second respondent i.e., the Dental Council of India pointing out that the time schedule has to be strictly adhered to and that the authorities have to act in tandem.
5. The Dental Council of India has also filed a statement basically submitting that the Dental Council of India, in exercise of its powers conferred under Section 10A r/w Section 20 of the Dentists Act, 1948, with the previous approval of the Central Government, has published the Dental Council of India (Establishment of New Dental Colleges Opening of New or Higher Course of Study or Training and increase of Admission Capacity in Dental Colleges) Regulations, 2006. It was also stated that the Union of India, in exercise of its power under Foot Note (2) below of the Time Schedule annexed with the Regulations by a public notice dated 07.07.2020, W.A. No. 1523/2020 :6: has extended the last date for receipt of application to it for MDS Courses for the academic year 2021-2022 till 31.07.2020, evident from Annexure R2(a).
6. The learned single Judge, after taking into account the rival submissions made and the principles of law laid down by the Apex Court in its various judgments, has dismissed the writ petition holding that the appellant failed to challenge the action of the University in not inviting application for affiliation for Medical and Dental courses for the academic year 2021-2022 and therefore, the appellant cannot seek a writ of mandamus commanding the first respondent University to consider Ext. P10 application for consent of affiliation, for additional intake in 5 MDS specialties, for the academic year 2021-2022.
7. We have heard Senior Advocate Sri. N. Nandakumara Menon assisted by Adv. Sri. K.M. Jamaludheen, Sri. P. Sreekumar, learned Standing Counsel for the Kerala University of Health Sciences, Sri. M.P. Prakash for the Dental Council of India and the learned Assistant Solicitor General of India Sri. P. Vijayakumar for the Union of India, and perused the pleadings and materials on record.
8. The narration of facts put forth by the respective parties as above would make it clear that for the academic year 2021-2022, the University has not invited application for enhancement of intake. It is true, the appellant submitted an application along with the demand draft. However, W.A. No. 1523/2020 :7: that by itself will not persuade the University to accept the application and then process the same. According to the University, since the applications were not invited by the University and the same was not under challenge at the right point of time, the appellant was not at liberty to challenge the action of the University in not considering the application submitted by the appellant without any invitation for the same. It is also an admitted fact that the application was submitted before the Dental Council of India without accompanied by a consent of affiliation from the University which is a mandatory requirement under law. The learned single Judge has taken into account the entire gamut of the issues raised by the parties and has entered into the findings to dismiss the writ petition after relying upon the propositions of law laid down by the Apex Court in its various judgments in regard to the manner in which an application is to be submitted seeking consent of affiliation and the manner in which it is to be processed etc. The relevant findings rendered by the learned single Judge would alone be sufficient for the disposal of this appeal and they read thus:
"27. In Royal Medical Trust v. Union of India [(2015) 10 SCC 19] the Apex Court noticed that, Section 10A of the Indian Medical Council Act, 1956 contemplates submission of a scheme to the Central Government in prescribed form, which scheme is then to be referred by the Central Government to the Medical Council of India for its appropriate recommendations. The scheme is to be considered having regard to the features referred to in sub-section (7) and is then placed before the Central Government along with the recommendations of the Council. In exercise of powers conferred by Section 10A read with Section 33 of the Act, the Medical Council of India with the previous sanction of the Central W.A. No. 1523/2020 :8: Government has made the Establishment of the Medical College Regulations, 1999 which were published in the Gazette of India on 28.08.1999. Para.3 lays down that no person shall establish a medical college except after obtaining prior permission of the Central Government by submitting a scheme. The Regulations then deal with the scheme in extenso. Clauses 1 and 2 of the scheme deal with 'eligibility criteria' and 'qualifying criteria' respectively. Clause 3 then sets out certain requirement in parts (i), (ii) and (iii) concerning various details about the status of the applicant in terms of the eligibility criteria, name and address of the medical college including various facets of the infrastructure and planning and the details of the existing hospital including availability of various facilities and capacities as also upgradation and expansion programme. Para.7 of the Regulations deals with reports of the Medical Council of India, while Para.8 deals with grant of permission by the Central Government. The Schedule to the Regulations sets out various stages dealing with processing of applications preferred by the medical colleges and how the matter is to be dealt with at various stages, which has undergone changes over a period of time. The Regulations were further amended by Amendment Notification dated 21.09.2012, which was published in the Gazette of India on 01.10.2012. It substituted the Schedule and added a Note. As per the Note, the time schedule indicated may be modified by the Central Government, for reasons to be recorded in writing, in respect of any class or category of applications.
28. In Royal Medical Trust the Apex Court held that the Medical Council of India and the Central Government have been vested with monitoring powers under Section 10A of the Indian Medical Council Act, 1956 and the Establishment of the Medical College Regulations, 1999. It is expected of these authorities to discharge their functions well within the statutory confines as well as in conformity with the Schedule to the Regulations. The Medical Council of India and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various stages and time limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. The Schedule must ideally take care of:
(A) Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfill these W.A. No. 1523/2020 :9: requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfill the basic requirements would be considered at the next stage.
(B) Inspection should then be conducted by the Inspectors of the Medical Council of India. By very nature such inspection must have an element of surprise. Therefore sufficient time of about three to four months ought to be given to the Medical Council of India to cause inspection at any time and such inspection should normally be undertaken latest by January. Surprise Inspection would ensure that the required facilities and infrastructure are always in place and not borrowed or put in temporarily. (C) Intimation of the result or outcome of the inspection would then be communicated. If the infrastructure and facilities are in order, the concerned Medical College should be given requisite permission/renewal. However if there are any deficiencies or shortcomings, the Medical Council of India must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.
(D) If compliance is reported and the applicant states that the deficiencies stand removed, the Medical Council of India must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of the Medical Council of India and the Central Government. In cases where actual physical verification is required, the Medical Council of India and the Central Government must cause such verification before the deadline. (E) The result of such verification if positive in favour of the Medical College concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned.
29. In Royal Medical Trust, on the facts of the cases in hand, the Apex Court noticed that the Central Government did not choose to extend the time limits in the Schedule despite being empowered by Note below the Schedule. Though the Central Government apparently felt constrained by the directions in Priya Gupta it did exercise that power in favour of Government Medical Colleges. The decision of this Court in Priya Gupta v. State of Chhattisgarh [(2012) 7 SCC 433] undoubtedly directed that Schedule to the Regulations must be strictly and scrupulously observed.
W.A. No. 1523/2020 : 10 :However, subsequent to that decision, the Regulations stood amended, incorporating a Note empowering the Central Government to modify the stages and time limits in the Schedule to the Regulations. The effect of similar such empowerment and consequential exercise of power as expected from the Central Government has been considered by the Court in Priyadarshini Dental College and Hospital v. Union of India [(2011) 4 SCC 623]. The Central Government is thus statutorily empowered to modify the Schedule in respect of class or category of applicants, for reasons to be recorded in writing. Because of the subsequent amendment and incorporation of Note as aforesaid, the matter is required to be seen in the light of and in accord with Priyadarshini where similar Note in pari materia Regulations was considered by the Court. The Apex Court held that the directions in Priya Gupta must now be understood in the light of such statutory empowerment and the Apex Court declared that it is open to the Central Government, in terms of the Note, to extend or modify the time limits in the Schedule to the Regulations. However the deadline, namely, 30th of September for making admissions to the first MBBS course as laid down by the Court in Medical Council of India v. Madhu Singh [(2002) 7 SCC 258] and Mridul Dhar v. Union of India [(2005) 2 SCC 65] must always be observed.
30. In Royal Medical Trust, the challenge was against the communications issued by the Central Government recommending disapproval of applications made in respect of the medical colleges of the applicants, for the academic year 2014-2015, for establishing new medical colleges/for increase of admission capacity MBBS course/renewal of permission granted in the previous academic year. After conducting inspection of the respective medical colleges the Medical Council of India had found infirmities or inadequacies in the infrastructure, facilities and faculty. The respective applicants then claimed that they had rectified the shortcomings and asked for compliance verification. But the Central Government and/or the Medical Council of India refused to undertake any fresh inspection for verification, for want of adequate time. In so far as the initial assessment of the application is concerned, the Apex Court has stated in categorical terms, in Para.31 of the judgment in Royal Medical Trust [@ page 47 SCC] that, the initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfill these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfill the basic requirements would be considered at the next W.A. No. 1523/2020 : 11 : stage.
31. In D.Y. Patil Medical College v. Medical Council of India [(2015) 10 SCC 51], in the context of the qualification criteria prescribed in the Medical Council of India Opening of New or Higher Course of Study or Training (Including Postgraduate Course of Study or Training) and Increase of Admission Capacity in Any Course of Study or Training (Including Postgraduate Course of Study or Training) Regulations, 2000 and also the Time Schedule prescribed in the Medical Council of India Establishment of New Medical College Regulations, 1999, the Apex Court held that, it is apparent from the decisions in S.R.M. Institute of Science and Technology [(2004) 9 SCC 676], Educare Charitable Trust [(2013) 16 SCC 474] and Royal Medical Trust [(2015) 10 SCC 19] and the Regulations that the application at the first instance is required to be complete and incomplete applications are liable to be rejected. In D.Y. Patil Medical College the Apex Court was dealing with a case in which the application for increase of admission capacity was admittedly incomplete when it was filed. Though there is a dispute whether it was filed before 31.08.2014, it was submitted on behalf of the Medical Council of India that it was filed on 02.09.2014. The Apex Court observed that, even assuming that it was filed before 31.08.2014, admittedly it was an incomplete application as the essentiality certificate issued by the Government of Maharashtra was not enclosed along with the application form, due to which application came to be rejected and delay has taken place for which the petitioner has to blame itself.
32. In Medical Council of India v. V.N. Public Health and Education Trust [(2016) 11 SCC 216] the Apex Court reiterated the law laid down in D.Y. Patil Medical College [(2015) 10 SCC 51], Educare Charitable Trust [(2013) 16 SCC 474] and Royal Medical Trust [(2015) 10 SCC 19]. The Apex Court noticed that, in D.Y. Patil Medical College the controversy had arisen due to rejection of the application of the institution on the ground that essentiality certificate was not filed along with the application form. The Court dwelled upon the principles stated in Educare Charitable Trust and Royal Medical Trust and various other decisions and, after analysing the scheme of the Act held that, the application at the first instance is required to be complete and incomplete applications are liable to be rejected. Thereafter, there has to be an inspection and other stages of decision making process. On the facts of the case on hand, the Apex Court noticed that the application for grant of approval was filed with the essentiality certificate which was a conditional one and, therefore, a W.A. No. 1523/2020 : 12 : defective one. It was not an essentiality certificate in law. In such a situation, the High Court could not have directed for consideration of the application for the purpose of the inspection. Such a direction runs counter to the law laid down in Educare Charitable Trust and Royal Medical Trust. On the date of the application, the essentiality certificate was not in order. The Schedule prescribed by the Medical Council of India, which had been approved by this Court, is binding on all concerned. The Medical Council of India cannot transgress it. The High Court could not have gone beyond the same and issued any direction for conducting an inspection for the academic year 2016-17. Therefore, the Apex Court held that the directions issued by the learned single Judge and the affirmation thereof by the Division Bench are wholly unsustainable.
33. In State of Kerala v. V.N. Public Health and Education Trust [Civil Appeal Nos.2920 of 2020 and 2921 of 2020 - Order dated 07.08.2020] a Three-Judge Bench of the Apex Court was considering a case in which the 1st respondent Trust filed W.P.(C)No.27266 of 2019 questioning Ext.P6 communication by which the State Government expressed its inability to consider the request made to issue essentiality certificate to establish medical colleges in the private sector in Palakkad district. A learned Single Judge, vide judgment dated 19.11.2019, quashed Ext.P6 communication and directed the Government to issue an essentiality certificate in the proforma on or before 30.11.2019. It was also directed that the Medical Council of India shall accept the essentiality certificate issued by the State Government, in terms of the judgment, as one received on time. That judgment was affirmed by the Division Bench in W.A.No.2443 of 2020. Civil Appeal No.2920 of 2020 arises out of those judgments. The 1st respondent Trust filed another writ petition, i.e., W.P.(C)No.29098 of 2019 challenging the decision taken by the Kerala University of Health Sciences, rejecting the request to grant consent for affiliation. In that writ petition the prayer for interim relief against refusal to grant the consent for affiliation was rejected by the learned Single Judge, as per the order dated 31.10.2019. The 1st respondent Trust filed yet another writ petition, i.e., W.P.(C)No.34275 of 2019 with a prayer to direct the Medical Council of India and Government of India to process the application filed by the Trust without insisting for the essentiality certificate or the consent for affiliation. By the order dated 13.12.2019, the learned Single Judge allowed that interim relief. Civil Appeal No.2921 of 2020 arises out of that order. After considering the the rival contentions, the Apex Court held that the order dated 13.12.2019 of the High Court in W.P. (C)No.34275 of 2019 is palpably illegal and could not have been passed, in view of the fact that, in case any order was to be W.A. No. 1523/2020 : 13 : solicited, it was to be passed by the Apex Court in the pending SLP, out of which C.A.No.2920 of 2020 arises. It was absolutely improper for the High Court to pass such an order directing the Medical Council of India to process the application without consent for affiliation granted by the University and essentiality certificate granted by the State Government. Both directions were illegal. It is pre-requisite for the Medical Council of India to process any application that the essentiality certificate and consent for affiliation are produced. Apart from that, pursuant to the refusal to grant consent for affiliation, W.P.(C)No.29098 of 2019 was filed. That was pending consideration. The High Court declined the interim order. The filing of the third writ petition was uncalled for. The High Court ought to have decided the issue of essentiality certificate for which W.P.(C)No.27266 of 2019 was filed with W.P.(C)No.29098 of 2019 regarding grant of consent for affiliation. The matter of permission to establish and/or recognition could not have been processed by the Medical Council of India/Government of India without essentiality as well as consent for affiliation. The Apex Court allowed the Civil Appeals filed by the State, by quashing the impugned interim order passed in W.P.(C)No.34275 of 2019 on 13.12.2019 and the judgment passed by the Division Bench in W.A.No.2443 of 2019 dated 5.12.2019, thereby affirming the order dated 19.11.2019 of the learned Single Judge in W.P.(C)No.27266 of 2019. The Apex Court ordered that let the writ petitions, i.e., W.P.(C)Nos.27266 of 2019 and 29098 of 2019, be decided analogous to avoid any conflicting decision as they are intertwined issues. As several considerations may be common, the grant of consent for affiliation and essentiality certificate may depend upon several factors. As per the guidelines of Government and of the University, various aspects are to be examined. By merely quashing of order based on policy, the grant of essentiality or consent for affiliation does not follow automatically. They have to be considered as per prevailing norms. The Apex Court noticed that the filing of third writ petition being W.P.(C)No.34275 of 2019 was uncalled for. No interim order could have been passed, giving final relief and that too on an impermissible basis.
34. In the instant case, Exts.P4 to P8 applications made by the petitioner for enhancement of intake in 5 MDS specialities, for the academic year 2021-22 are dated 28.07.2020 and the demand drafts for Rs.5,31,000/- each, enclosed along with those applications are dated 30.07.2020. The documents placed on record as Exts.P4 to P8 are, in fact, covering letters along with which the respective application in Form 3 and its enclosures were mailed to the additional 3rd respondent, which the said respondent forwarded to the 2nd respondent, along with Ext.R2(b) letter dated W.A. No. 1523/2020 : 14 : 10.08.2020, for evaluation and necessary action, for the academic year 2021-22. As evident from Ext.R2(b) letter, as on 10.08.2020, the petitioner has not submitted physical/original application before the Central Government. Based on the decision of the Executive Committee of the Dental Council of India, in its meeting held on 02.09.2010, the petitioner was required by Ext.P9 letter dated 18.09.2020 of the 2nd respondent to submit letter of University's permission, valid for the entire duration of the MDS course, for increase of intake in 5 specialties, from the affiliating University, within 10 days. It is thereafter that the petitioner, for the first time, made Ext.P10 application dated 18.09.2020 before the 1st respondent University, seeking consent of affiliation.
35. In Exts.P4 to P8 covering letters along with which the respective application in Form 3 and its enclosures were mailed to the additional 3rd respondent, the petitioner has stated no reason for not obtaining the consent of affiliation from the 1st respondent University. As already noticed, it is averred in Para.4 of the writ petition that the 1st respondent University refused to issue notification for the academic year 2021-22, calling for applications for enhancement of intake. It was in such circumstances and keeping in mind the time schedule set under the Dental Council of India Regulations that the petitioner preferred Exts.P4 to P8 applications, even in the absence of consent of affiliation from the 1 st respondent University.
36. Chapter 21 of the Kerala University of Health Sciences First Statutes, 2013 deals with affiliation of Colleges. As per Statute 2, which deals with date of application, applications for affiliation of a college or for affiliation for additional seats or affiliation for enhancement of seats or for consent of affiliation shall be addressed to the Registrar, and shall be forwarded to him on or before the date fixed by the University from time to time.
37. As pointed out in the statement filed by the 1st respondent University, the University did not invite applications for affiliation for the academic year 2021-22. Normally this would have happened in December 2019. The petitioner did not challenge the said decision of the University. During the course of argument, the learned Standing Counsel for the University has pointed out Notification No.25494/ACI/GEN.A2/2020/KUHS dated 27.08.2020 issued by the 1st respondent University, as per which, in accordance with Kerala University of Health Sciences Act, 2010 and in conformity with Decision No.60.08 of the 60th Governing Council meeting held on 25.07.2020, applications are invited for starting new W.A. No. 1523/2020 : 15 : colleges/additional courses / enhancement of seats for the academic year 2021-22 (for Nursing, Pharmacy, Para medical & Allied Health Science courses) and for the year 2022-2023 (for Medical & Dental courses) as detailed below;
"Medical : starting new / increase of seats in PG Medical Degree/ Superspeciality courses.
Dental : Starting / enhancement of PG seats in existing affiliated dental colleges.
Nursing : Starting new colleges / additional courses / enhancement of seats in UG and PG courses Pharmacy:
(i) Starting of additional courses/enhancement of seats in UG / PG courses in existing affiliated pharmacy institutions.
(ii) Starting new degree courses in Government Institutions / institutions having PCI approval for starting UG courses.
Paramedical & Allied Health Science : Starting of new colleges /courses / enhancement of seats (UG/PG) in Paramedical institutions attached to medical colleges."
As per the notification dated 27.08.2020, all Institutions should satisfy the norms fixed by the Apex Council concerned (if any), Government of Kerala and also the Kerala University of Health Sciences. The applications are to be submitted online and the online facility will be available in the University web site www. kuhs.ac.in. The application fee should be remitted through online and the rates of fee for Government colleges and Self Financing Colleges will be as per U.O.No.9038/2019/AC1/Gen.A2/KUHS dated 22.11.2019. The last date for submission of online application with requisite documents and fee is 31.12.2020.
38. The fact that the 1 st respondent University did not invite applications for affiliation for Medical and Dental courses for the academic year 2021-22 is not in dispute. The petitioner has not chosen to challenge the said action of the University, at appropriate time, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.
39. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v.
W.A. No. 1523/2020 : 16 :Sipahi Singh [(1977) 4 SCC 145], a Three- Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction.
40. In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F.G. Ferris and F.G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice.
41. In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.
42. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.
43. Having failed to challenge, at appropriate time, the action of the 1st respondent University in not inviting applications for affiliation for Medical and Dental courses, for the academic year 2021-22, the petitioner cannot seek a W.A. No. 1523/2020 : 17 : writ of mandamus commending the 1st respondent University to consider Ext.P10 application for consent of affiliation, for additional intake in 5 MDS specialties, for the academic year 2021-22.
44. In Principal, Educare Institute of Dental Sciences v. Kerala University of Health and Sciences [W.A.No.1987 of 2019 - Judgment dated 31.01.2020] a decision relied on by the learned counsel for the petitioner, the Division Bench of this Court was dealing with a case in which, after the rejection of applications made for starting MDS course in 3 specialties, for the academic year 2016-17, the appellant submitted Ext.P6 series of applications dated 28.12.2018 before the University for starting MDS course in 4 specialties, for the academic year 2019-20, after remitting the requisite fee by way of demand draft. Thereafter, the appellant submitted Exts.P7 series of applications before the Central Government. While so, the University as per Ext.P8 order dated 09.04.2019 rejected Ext.P6 series of applications, stating that it had not invited applications for starting new colleges or courses. As per the Schedule to the DCI Regulations, 2006 applications are to be submitted before the Central Government between 15th March to 7 th April (both days inclusive), which have to be forwarded by the Central Government by 31st April. The appellant filed W.P (C)No.15925 of 2019, on 11.06.2019, challenging Ext.P8 order. The learned Single Judge though declined interference on Ext.P8, disposed of the writ petition by directing reconsideration of Ext.P6 series of applications, and pass orders on merits before February, 2020, in case the University does not publish the perspective plan or does not call for applications by January, 2020. The Division Bench of this Court, by judgment dated 13.01.2020, disposed of that writ appeal, taking note of the direction issued by the Dental Council of India, as per Ext.P9 dated 11.6.2019, whereby, the college is directed to rectify the deficiencies. By that judgment, the Division Bench permitted the petitioner to submit fresh applications along with the requisite fee for which the University shall open its portal for a period of five days from the date of judgment and the University shall consider the application taking into consideration of the aforesaid direction and pass appropriate orders within a further period of two weeks from the date of receipt of the online application. Therefore, the Division Bench was dealing with a case in which the application made by the appellant, before 31.12.2018, seeking consent of affiliation, for the academic year 2019-20, was rejected by the University by Ext.P8 order, which was challenged before this Court by filing W.P.(C)No.15925 of 2019, on 11.06.2019.
45. In view of the law laid down by the Apex Court in Dental Council of India W.A. No. 1523/2020 : 18 : [(2004) 9 SCC 676], Educare Charitable Trust [(2013) 16 SCC 474], Royal Medical Trust [(2015) 10 SCC 19], D.Y. Patil Medical College [(2015) 10 SCC 51] and V.N. Public Health and Education Trust [(2016) 11 SCC 216], the Central Government shall forward an application or scheme submitted by a dental college for increase of admission capacity in Post Graduate level to the Dental Council of India for technical scrutiny, only if the college has fulfilled the qualifying criteria laid down in Regulation 19 of the DCI Regulations, 2006. If the college fails to fulfil the qualifying criteria, the application, on the face of it would be incomplete, which has to be returned by the Central Government to the college concerned. In view of the law laid down by a Three-Judge Bench of the Apex Court in V.N. Public Health and Education Trust [Civil Appeal Nos.2920 of 2020 and 2921 of 2020] the Central Government shall not forward an application submitted by a dental college for increase of admission capacity in Post Graduate level, to the Dental Council of India, without insisting consent of affiliation granted by the affiliating body, which is a pre-requisite for the Dental College of India to process such an application.
46. In Kerala Private Medical College Management Association v. Medical Council of India and others [W.A.No.1346 of 2020 - Judgment dated 15.10.2020] the Division Bench of this Court was dealing with an appeal preferred by the writ petitioner in W.P.(C)No.15607 of 2020, challenging the judgment of the learned Single Judge dated 16.09.2020, whereby that writ petition was dismissed holding that the application submitted by the members of the appellant association was not liable to be considered by the Medical Council of India, after the extended cut off date of 31.08.2020 and therefore, there is no requirement to direct the Kerala University of Health Sciences to consider the application submitted by the members of the appellant association for issue of consent of affiliation, for the academic year 2021-22. The Division Bench noticed that the learned Single Judge after taking into account the submissions made by rival parties and taking into account the statement filed by the University has found that the schedule fixed by the Medical Council of India is guided by the direction of the Apex Court. Therefore, it is only those colleges, which have been able to submit the applications complete in all respects would be entitled to the benefit of extensions granted by the Medical Council of India and therefore, it was held that the reliefs sought for by the writ petitioner are against the directions of the Apex Court and as also the time line prescribed by the Medical Council of India. It is an admitted fact that, as per Ext.P2 public notice the Secretary General of the Medical Council of India informed that those colleges, who wish to apply for starting/ increase of seats in Post Graduate W.A. No. 1523/2020 : 19 : courses under Section 10A of the Indian Medical Council Act, for the academic year 2021-22, are required to be submit application to the Secretary General, Medical Council of India, from 16.03.2020 to 07.04.2020 in the prescribed format. Ext.P2 public notice was issued on the basis of Ext.P3 amendment notification dated 04.04.2020 issued by the Board of Governors, in supersession of Medical Council of India, in exercise of the powers conferred under Section 33 of the Indian Medical Council Act, with the previous sanction of the Central Government, amending the MCI Regulations. The appellant has no case that the member colleges have submitted any application or has received the consent of affiliation from the University at any time before the finally extended time of 31.08.2020. Therefore, there was no deficiency on the part of the Medical Council of India/Board of Governors to consider any application or were bound to receive any application without the required documents. It is also clear from Exts.P2, P3 and P5 and further extensions made upto 31.08.2020 that the Medical Council of India/Board of Governors were not at liberty to receive any application after the cut off date. In that view of the matter, no manner of directions can be issued to the Medical Council of India, as sought for in the writ petition, to accept and process the applications preferred without the supporting documents envisaged in Ext.P2 guidelines. It was purely on the basis of Ext.P2 public notice dated 13.03.2020 inviting applications for the academic year 2021-22, which thus means the public notice was issued only inviting applications for the academic year 2021- 22. Therefore, the contention put forth by the learned counsel for the appellant that a direction can be issued to the University to process the applications of the members of the appellant association enabling the member colleges to pursue the matter before the Medical Council of India/Board of Governors, cannot be sustained since the cut off date fixed by the Medical Council of India was over by 31.8.2020. Accordingly there was no reason for the writ court to issue any such direction to the University to consider applications submitted by the member colleges. If any direction as sought for by the appellant is granted, it would go against the spirit of Ext.P2 guidelines issued by the Medical Council of India/Board of Governors since the applications were invited only for the academic year 2021-22. Taking into account all the above aspects, the Division Bench declined to interfere with the judgment of the learned Single Judge in the intra court appeal filed under Section 5 of the Kerala High Court Act."
9. It is an admitted fact that since the applications were not invited by the University, the appellant was not at liberty to submit any application W.A. No. 1523/2020 : 20 : before the Dental Council of India and that too without securing consent from the University. The University need to consider the application for consent of affiliation only if the applications were invited for the academic year 2021-2022. It is also an admitted fact that in order to grant consent of affiliation, the University by virtue of the Regulations, need to conduct inspection of the College in order to identify as to whether the appellant college has the necessary infrastructure and other facilitates for the purpose of securing the consent of affiliation. Moreover, the findings rendered by the learned Single Judge makes it amply clear that the issues raised by the appellant were all considered by applying the principles of law involved in the matter exhaustively and after undertaking a threadbare discussion of the relevant and appropriate Judgments of the Apex Court on the points in issue.
We are also of the opinion that Annexure A judgment was rendered by the learned Single Judge in an entirely different factual situation and therefore the appellant is not entitled to get any benefit out of the same .
10. It is also significant to note that it was after assimilating the facts and the law involved in the case at hand, the learned single Judge has found that the appellant was not entitled to secure the reliefs, since the appellant has not challenged the action of the University in not inviting applications for affiliation for medical and dental courses for the academic year 2021-2022 at the right time. It is also an admitted fact that since the period of receiving and processing the applications are all over to the concerned academic year, W.A. No. 1523/2020 : 21 : the University cannot accept the application from the appellant by extending the time period, since it is well settled and recognized that the University is not entitled to extend the time period prescribed by the authority concerned, and in accordance with the law laid down and the directions issued by the Apex Court in its various judgments in that regard.
11. That being the situation, we do not think that the learned single Judge committed any error or mistake in exercising the discretionary power conferred under Article 226 of the Constitution of India and therefore, we do not find any justifiable reason to entertain the writ appeal. Accordingly, the writ appeal is dismissed. However, we have no reason to think that if any application is submitted by the appellant seeking consent of affiliation for any subsequent academic year, it will not be considered by the University in accordance with law.
sd/- S. MANIKUMAR, CHIEF JUSTICE.
sd/- SHAJI P. CHALY, JUDGE.
Rv W.A. No. 1523/2020 : 22 : APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE JUDGMENT IN WRIT PETITION
NO.16098/2020 OF THIS HON'BLE COURT DATED
18/09/2020.
ANNEXURE B TRUE COPY OF THE LETTER DATED 19/11/2020 ISSUED BY
THE 2ND RESPONDENT TO THE PETITIONER.
ANNEXURE C TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN
WA NO.2084/2019 DATED 29/10/2019.
ANNEXURE D TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN
WA NO.1483/2019 DATED 09/07/2019.
ANNEXUER E TRUE COPY OF THE LETTER ISSUED BY THE 2ND
RESPONDENT DATED 30.11.2020.
ANNEXURE F TRUE COPY OF THE LETTER ISSUED BY THE 3RD
RESPONDENT DATED 15.12.2020.
RESPONDENTS' EXHIBITS: NIL
/True Copy/
PS To Judge.
rv