Kerala High Court
K V M Trust vs Kerala University Of Health Sciences on 18 September, 2014
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938
WP(C).No. 33389 of 2015 (W)
----------------------------
PETITIONERS:
------------
1. K V M TRUST
POST BOX-30, CHERTHALA,
REPRESENTED BY THE DIRECTOR DR.V.V.PYARELAL.
2. THE PRINCIPAL
KVM COLLEGE OF PHARMACY, KOKKOTHAMANGALAM P.O.,
CHERTHALA-688583, ALAPPUZHA DISTRICT.
BY ADVS.SRI.GEORGE POONTHOTTAM
SMT.NISHA GEORGE
RESPONDENT:
-----------
KERALA UNIVERSITY OF HEALTH SCIENCES
MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O., TRICHUR-680596,
REPRESENTED BY THE REGISTRAR.
R1 BY ADV. SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH &
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07-06-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 33389 of 2015 (W)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
P1: TRUE COPY OF THE LETTER NO.KVM/CP/PCI/APPROVAL PHARM D/2014
DATED 18/9/2014.
P2: TRUE COPY OF THE COMMUNICATION NO.50-1029/14-PCI/51329 DATED
12.12.2014.
P3: TRUE COPY OF THE COMMUNICATION NO.8423/AC.F/PHARM/KUHS/2014-15
DATED 10.2.15.
P4: TRUE COPY OF THE COMMUNICATION NO.KVM/CP/PCI/APPROVAL PHARM
D/2015 DATED 11.2.2014.
P5: TRUE COPY OF THE ORDER DATED 5.5.2015 IN W.P.(C) NO.224/2015.
P6: TRUE COPY OF THE DECISION AS PUBLISHED IN THE WEBSITE OF THE
PHARMACY COUNCIL F.NO.02.265/2015-PCI.
P7: TRUE COPY OF THE COMMUNICATION NO.50-1029/2014-PCI/29563-65
DATED 16.9.2015.
P8: TRUE COPY OF THE CIRCULAR NO.2015/3941/AC-H/KUHS DATED
18.8.2015.
P9: TRUE COPY OF THE LIST OF STUDENTS ADMITTED FOR PHARM D COURSE
FOR THE YEAR 2015-16 WITH COVERING LETTER DATED 30.9.2015.
P10: TRUE COPY OF THE CIRCULAR NO.2015/3941/AC-H/KUHS DATED
8.10.2015.
P11: TRUE COPY OF THE LETTER NO.PROVISIONAL AFFI/2015/KVMCP DATED
31.08.2015
P12: TRUE COPY OF THE COMMUNICATION NO.8423/AC.F/PHARM/KUHS/2015
DATED 28.10.2015
P13: TRUE COPY OF THE RELEVANT PAGES NOTIFICATION DATED 28.05.2016
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
//TRUE COPY//
P.A. TO JUDGE
JJJ
K. VINOD CHANDRAN, J.
------------------------------------------
W.P.(C) No. 33389 of 2015 (W)
------------------------------------------
Dated: 7th June, 2016
J U D G M E N T
The writ petition brings forth another instance, where the rigmarole of affiliation and approval coupled with the over anxiety of the Self-financing Institutions; places the students in jeopardy; by reason only of the attempt to pre-empt the provisions for affiliation and approval. The writ petition was placed on the board with an interim application of the petitioner, to consider the provisional registration of the students, admitted to the first batch of Pharm-D course. Considering the fact that the academic year has just commenced and the students would be continued with uncertainity; this Court, on consent of both parties, took up the writ petition itself for consideration.
W.P.(C) No.33389/2015 -2-
2. The 1st petitioner is a Trust which runs the 2nd respondent's college wherein B.Pharm. course was started in the academic year 2010-2011; which admissions have cleared the course. On such completion of the graduate course, by the 1st admissions, the Pharmacy Council of India permits Pharm-D courses to be commenced, with due affiliation from the University. Pharm-D course is a six year integrated course, granting Post Graduate and Doctoral degrees; the eligibility for admission of which is the four year B.Pharm course; which makes it, probably the highest qualification that could be acquired in the subject.
3. The 1st petitioner was before the Pharmacy Council of India for commencing the Pharm-D course in the academic year 2015-2016, by Ext.P1 dated 18.09.2014. The request was declined by the Council W.P.(C) No.33389/2015 -3- (Ext.P2) for reason of there being no consent/affiliation of the University. The petitioner then approached the respondent University, which granted Ext.P3 consent of affiliation dated 10.02.2015; with conditions. On the basis of the said affiliation, the petitioner again approached the Council with Ext.P4. The Council rejected the application of the petitioner, filed along with consent of affiliation, for reason that, the time for approval is over. The letter dated 16.03.2015, issued by the Council, though not produced herein, was challenged before the Hon'ble Supreme Court.
4. The Hon'ble Supreme Court having noticed the consent of affiliation (Ext.P3), issued by the University, as also the fact that there had been no fresh ground for denial of approval in the letter of the Council dated 16.03.2015, directed the grant of approval. It is also to be noticed that the grant was directed since the W.P.(C) No.33389/2015 -4- petitioner had made repeated applications before the Council within time and also since the Council failed to appear, despite notice having been served on them.
5. On the basis of the directions of the Hon'ble Supreme Court, the Executive Committee of the Council convened a meeting on 17.08.2015, in which the approval for starting the Pharm-D course in the petitioner's college, was granted with intake of 30 students. The Minutes of the meeting is produced at Ext.P6. The petitioner contends that since the cut-off date of admissions was fixed as 19.08.2015, by the University, the petitioner had admitted students on 18th and 19th of August, 2015. The petitioner then made an application to the University, by Ext.P9 dated 30.09.2015, with the names of students admitted; requesting them to be registered in the Pharm-D course commencing in 2015-2016 and registering them for the W.P.(C) No.33389/2015 -5- examinations.
6. The cut-off date for admissions stood extended to 16.10.2015 as per Ext.P10. The petitioner contends that even prior to Ext.P9, the petitioner had sought for affiliation as per Ext.P11 dated 31.08.2015. The petitioner was issued with Ext.P12, informing them that the provisional affiliation has not been granted for the course for the academic year 2015-2016. The registration of students were declined on the ground that no admissions could have been made without provisional affiliation.
7. The learned Counsel for the petitioner would contend that when consent of affiliation has been granted at Ext.P3, it is for the University to grant provisional affiliation on the basis of the stipulations contained in Ext.P3 and the University having not conducted any further inspection, there could not be a W.P.(C) No.33389/2015 -6- denial of provisional affiliation. It is also contended that the Council had granted the approval after due inspection of the premises of the College. The petitioner contends that the University is attempting to frustrate the orders of the Hon'ble Supreme Court as seen at Ext.P5. The petitioner seeks that the students admitted may be allowed to continue and their admissions regularised as also their participation in examinations ensured, by an appropriate writ issued by this Court.
8. The learned Standing Counsel for the University has filed a statement which has listed out the objections of the University. Primarily, it is stated that unless the provisional affiliation is obtained by the College, no admissions could be made. It cannot be said that the petitioner was unaware of such a procedure. The University, oftentimes, considering the W.P.(C) No.33389/2015 -7- fact that the apex bodies under various streams of study considers approval only on affiliation being granted, issues a consent of affiliation; subject to provisional affiliation being obtained, after the approval from the apex body is obtained. The recitals in Ext.P3, according to the learned Standing Counsel, would substantiate the aforesaid contention. Further, it is stated that there is absolutely no possibility of the petitioner having admitted the students on 18th and 19th of August, 2015, especially when the order of the apex Council was issued only on 17.08.2015. The admissions asserted is only an attempt to overreach the cut-off date prescribed as per Ext.P8, which is 19.08.2015.
9. Then again, nothing is disclosed as to from where the admissions were made and how the students were selected. It is submitted that there is constituted an Admission Supervisory Committee, which deals with W.P.(C) No.33389/2015 -8- the admissions made to Self Financing Colleges and also the fee structure of the various courses in such Colleges. It is a mandate that the list of admissions should be approved by the Admission Supervisory Committee and the said procedure has also been approved by the Hon'ble Supreme Court in Islamic Academy of Education v. State of Karnataka - (2003) 6 SCC 697.
10. The thrust of the argument of the petitioner is that nothing more remains to be done after Ext.P5 judgment directing grant of approval by the Council. It is to be immediately noticed that before the Hon'ble Supreme Court the respondent University was not made a party. The Hon'ble Supreme Court had perused the consent letter issued dated 10.02.2015 and in such circumstance had directed approval. The approval was also granted by Ext.P6, which facts are not in dispute W.P.(C) No.33389/2015 -9- and which does not arise for further examination by this Court. This, however, does not detract, from the requirement of a provisional affiliation.
11. A reading of Ext.P3 indicates that the consent of affiliation was conditional and there was a specific direction that the College should rectify the deficiencies before applying for provisional affiliation. Hence, it cannot be said that the petitioner was not aware of the fact that admissions could be carried out and course commenced only after provisional affiliation is obtained. Though Ext.P3 was sufficient for the apex Council to decide on approval, the petitioner, even by the consent granted, had an obligation to get provisional affiliation. The three conditions in Ext.P3 were that deficiencies pointed out by the University should be rectified, approval of the Pharmacy Council of India and the provisional affiliation of the University be obtained; W.P.(C) No.33389/2015 -10- prior to the admissions being made. The petitioner also was quite aware of the clear stipulations as they had, by Ext.P11 on 31.08.2015, sought for provisional affiliation from the University. There is nothing placed on record to evidence the petitioner having addressed the University as to the rectification of defects, as noticed in Ext.P3. The petitioner also contends that the apex Council carried out physical inspection; which is also not substantiated. In any event, that would not absolve the petitioner of its duty to convince the University; of the existence of the necessary infrastructure, faculty position etc: and ensure rectification of defects pointed out.
12. Ext.P11 was a request of the petitioner for provisional affiliation; after the approval of the Council was obtained. In Ext.P11, as rightly pointed out by the learned Standing Counsel for the University; there is no W.P.(C) No.33389/2015 -11- whisper about the admissions made. The subsequent communication of the petitioner college at Ext.P9 asserts that the admissions were made on 18th and 19th of August, 2015. Ext.P11, issued long prior to Ext.P9, did not contain such a assertion. Moreover, the request made on 31.08.2015 for provisional affiliation, after the alleged admissions made, requested for affiliation with an intake of 30 students. The petitioner, hence, cannot rely on the admissions made on 18th and 19th of August, 2015.
13. This Court is also inclined to accept the contention of the learned Standing Counsel that, when the Executive Committee of the Pharmacy Council met and granted approval on 17.08.2015, immediately in the next two days the admissions could not have been made. Obviously, the assertion of the admissions made earlier to the request of provisional affiliation, was an W.P.(C) No.33389/2015 -12- after thought and intended merely to overreach the cut-off date prescribed at Ext.P8. The petitioner at that point could not have predicted an extension of the cut-off date; and the assertion made of admissions, puts at peril the very foundation of the case built up by the petitioner.
14. The petitioner cannot feign ignorance of the requirement for a provisional affiliation from the University, before commencement of the Course and the admissions said to have been made, is bereft of bona fides. The petitioner's attempt to over reach the cut-off date first prescribed by the University; has landed them in the present predicament. If they had been more compliant to law and procedure; then they could have availed of the benefit of the extension of cut-off date, made as per Ext.P10.
W.P.(C) No.33389/2015 -13-
15. The students admitted have been listed out along with Ext.P9. The petitioner, though pleads that the admissions were made, as per the eligibility criteria of the Pharmacy Council of India, is silent about the manner in which a selection was conducted. It is submitted by the learned Counsel for the petitioner that the students were admitted from the list published by the Entrance Commissioner of the State of Kerala. But, no such details as to the rank and merit of those candidates are forthcoming, either in Ext.P9 or in the writ petition. It is also to be noticed that there is wide disparity of marks of the students whose admissions are alleged to have been made; ranging from 94% to 61% in aggregate and 92% to 55% for the Science subjects.
16. It has to be accepted that there is no statutory mandate as such to get the approval of the Admissions Supervisory Committee. But, it cannot be ignored that W.P.(C) No.33389/2015 -14- as a matter of practice the self-financing institutions in the State place their admissions before the Admissions Supervisory Committee; which is statutorily constituted. The petitioner for the current academic year has approached the Admissions Supervisory Committee with their list of students for the B.Pharm Course. The fees payable has definitely to be examined by the Committee and it was incumbent upon the petitioner to place the admissions before it.
17. On the facts as indicated herein above and the requirement of the provisional affiliation which, even according to the petitioner, has to be obtained before admissions are made, this Court is not inclined to accept the prayer of the petitioner that the students admitted as indicated at Ext.P9 are to be regularised. The issuance of provisional affiliation is not a mere formality and the Consent of Affiliation at Ext.P3 itself, W.P.(C) No.33389/2015 -15- makes the consent conditional. The admission, hastily made is also not above suspicion.
The writ petition is found to be devoid of merit and hence would stand dismissed. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 7/6/16