HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.6297 of 2021
ORDER:
The petitioner is an institution offering diploma in paramedical courses. This institution was granted recognition by the 1st respondent- Medical Board to conduct the courses in Diploma in Multi Purpose Health Assistants, for a period of five years between 05.10.2018 to 04.10.2023. Similarly, it had also been granted recognition by the 1st respondent-Board to conduct Diploma in Medical Lab Technician course for the period 25.07.2014 to 24.07.2019. After completion of the period the petitioner had, by an application dated 02.01.2021, requested the 1st respondent for renewal of the recognition granted earlier for Diploma in Medical Lab Technician course.
2. While the said application was pending, the 1st respondent has issued a notification dated 27.02.2021 bearing No.06/APPMB/ Admissions/AY 2021-2022, seeking applications for admission into various Para Medical Courses. In this notification, the petitioner-institution was shown at Sl.No.1 for Visakhapatnam District. However, the petitioner was permitted to admit only 40 students for the diploma in Multi Purpose Health Assistants course. However, the petitioner was not given recognition/permission to admit students for the Diploma in Medical Lab Technician course.
3. Aggrieved by the said notification and the inaction of the 1st respondent in considering the application of the petitioner for recognition of the Diploma in Medical Lab Technician course, the petitioner has approached this Court by way of the present writ petition.
2 RRR,J
W.P.No.6297 of 2021
4. It is the case of the petitioner that once the application had been made by the petitioner way back on 02.01.2021, the 1 st respondent ought to have considered the said application and passed orders granting recognition at the earliest and the delay in granting such recognition, even till today, is arbitrary and requires to be interdicted by this Court.
5. The 1st respondent has filed a counter affidavit wherein it is stated that under G.O.Ms.No.304 dated 07.08.1997, the institutions seeking such recognition, are required to obtain an essentiality certificate under Rule 10 of the Rules issued in G.O.Ms.No.304. It is stated that as the said essentiality certificate had not been obtained, further consideration of the application would not arise.
6. The counter affidavit goes on to state that after the A.P. Para Medical Board Act, 2006 (for short 'the Act') had been issued, further rules have been framed in relation to the manner and the method in which recognition is to be given. To sum up, the contention in the writ petition is that once the permission granted earlier had expired, the application of the petitioner for recognition can be considered only upon an essentiality certificate being issued by the Government. It is further submitted that the Government by G.O.Rt.No.700, Health, Medical & Family Welfare (C.1) Department, dated 26.11.2015 had entrusted the said work of issuance of essentiality certificate / no objection certificate to a High Power Committee and it is the High Power Committee which has to conduct the inspection of the institutions seeking recognition and issue an essentiality certificate/no objection certificate, which shall be the basis for further processing and grant of recognition.
3 RRR,J
W.P.No.6297 of 2021
7. Heard Sri C. Raghu, learned counsel appearing for Smt. V. Sesha Kumari, learned counsel for the petitioner and learned Government Pleader for Medical and Health appearing for the respondents.
8. It appears that till the year 2006 the institutions offering Para Medical Education were considered to be the institutions under the Andhra Pradesh Education Act, 1982 and the recognition and conduct of the institutions offering such education were regulated under the said Act. G.O.Ms.No.304, dated 07.08.1997 is a Government Order was issued under the said Act.
9. The Andhra Pradesh Para Medical Board Act, 2006 came into force from 01.08.2006. Section 24 of the Act provides for recognition of institutions providing paramedical education and training, which reads as follows:-
24. Recognition of Institutions. - (1) Subject to the provisions contained in section 24, no person shall establish a paramedical institution or conduct any paramedical course for preparing students to acquire any recognized qualification, without the prior recognition by the Board.
(2) A person may apply for the recognition of a paramedical institution shall be made to the Secretary of the Board in such form and shall be accompanied by such fee, as may be prescribed.
(3) On receipt of the application made under subsection (2), the Secretary to the Board shall conduct such enquiry in such manner as may be prescribed and shall, by order grant recognition or reject the application for recognition in such manner as may be prescribed.
(4) The educational and training institutions conforming to the standards fixed by the Board by regulations made under this Act, alone shall be given recognition under this Act.
4 RRR,J
W.P.No.6297 of 2021
(5) Notwithstanding anything contained in subsection (1), all institutions conducting paramedical courses as on the date of commencement of this Act shall apply for recognition to the Board within three months from the date of commencement of this Act. If the institution applying for recognition does not conform to the standards fixed by the Board in this regard, temporary recognition may be granted to the institution subject to the condition that the facilities in accordance with the standards fixed by the Board shall be provided within a period of one year from the date of grant of temporary recognition.
(6) If the institution does not provide the facilities in accordance with the standards fixed by the Board, within the period specified therein the temporary recognition granted under sub-section(5) shall be withdrawn forthwith.
10. Section 25 of the Act deals with withdrawal of recognition, which reads as follows:
25. Withdrawal of recognition. - Where, on the basis of a report of a Committee appointed by the Board in this behalf, it is satisfied that an institution recognized under this Act, -
(a) has failed to comply with conditions of recognition; or
(b) there exists any of the grounds which would have entitled to refuse the application for recognition the Board may by order withdraw such recognition, provided that, before such withdrawal of recognition, the Board shall give an opportunity to the person managing that institution for making his representation.
11. Under these provisions any institution offering paramedical education, at the inception of the Act and any new institution, which is seeking to obtain recognition for offering the said education, can apply for recognition to conduct such education. This application has to be made to the Paramedical Board. Upon such application being made, the Board has 5 RRR,J W.P.No.6297 of 2021 to conduct such enquiry in such manner as may be prescribed, and shall by order grant recognition or reject the application for recognition in such manner as may be prescribed. These provisions do not provide for any role for the Government. It is only the Paramedical Board that is to conduct the enquiry and to decide whether recognition is to be granted or not. There is no provision for grant of essentiality certificate by the Government either under Section 24 or any other provision in the Act.
12. Reliance placed on G.O.Ms.No.304 dated 07.08.1997 by the learned Government Pleader cannot be accepted. It must be noticed that G.O.Ms.No.304 was issued on 07.08.1997 before the Paramedical Board Act came into force. Once the said Act came into force, only such Rules, which are made under the Paramedical Board Act, would apply. Section 44 of the Act provides for the Government to make such Rules.
13. The Government in accordance with Section 44 issued G.O.Ms.No.128, Health Medical and Family Welfare (k2), dated 25.04.2007 making the Rules known as The Andhra Pradesh Paramedical Board Rules, 2006 (for short 'the Rules'). The relevant Rules are Rules 8, 17, and 18. Rule 8 sets out the fees payable along with an application for recognition to the Board. Rule 17 stipulates that every institution is to apply for recognition for every course that is sought to be offered by the said institution. Upon such application being made, an inspection would be carried out by the inspecting officers appointed by the Board. Thereafter, the Board on the basis of the inspection reports and such other material, as may be permitted to be placed before the Board, shall consider the case of the institution. In the event of any defects, an opportunity would be given to the applicant institution to rectify the said deficiencies. Upon 6 RRR,J W.P.No.6297 of 2021 such deficiencies being rectified, the secretary of the Paramedical Board would issue a certificate of recognition in Form-XVI
14. Neither the provisions of the Act nor the Rules provide for any time limit on the validity of the certificate of recognition. However, Form-XVI stipulates that a certificate of recognition given under the Rules would be valid for a period of five years only.
15. In view of the limitation, in time, set out in Form-XVI, every institution which has been granted recognition would be required to apply for fresh recognition under Section 17 upon the expiry of the existing certificate of recognition. At this stage, it is necessary, to note that under Rule 17(4) of the Paramedical Board Rules, whenever an existing institution makes an application for a fresh recognition, a temporary certificate of recognition prescribed in Form-XV shall mandatorily be issued by the secretary of the Board to the institution within a period of 15 days subject to the condition that the facilities available in the institution shall be according to the standards fixed by the Board and such facilities will be provided within a period of one year from the date of granting temporary recognition. This would mean that as and when an existing institution applies for fresh recognition, the secretary to the Paramedical Board shall automatically extend the recognition for a period of one year within which the necessary inspection is to be carried out and defects, if any, are permitted to be rectified. This would not mean that the Board cannot cancel the temporary certificate of recognition. However, that would require the Board to follow the process of cancellation of recognition set out under Section 25 of the Act read with the Rules. In the said circumstances, the petitioner upon application for fresh recognition 7 RRR,J W.P.No.6297 of 2021 on 02.01.2021 would be entitled for a temporary recognition for a period of one year.
16. At this stage, the learned Government Pleader for Medical and Health would submit that an inspection of the institution was carried out in the year 2019 and various defects had been pointed out in the said inspection. Sri C. Raghu, learned counsel appearing for the petitioner would submit that this inspection was prior to the application dated 02.01.2021.
17. Before parting with this case, it would also be necessary to notice the judgment of the learned Single Judge of the erstwhile High Court at Hyderabad for the State of Telangana and the State of Andhra Pradesh dated 05.10.2017 in W.P.No.16610 of 2016 and batch, wherein the learned Single Judge, after considering G.O.Ms.No.304 and the provisions of the A.P. Paramedical Board Act, 2006, had held that the question of requirement of essentiality certificate from the State Government does not arise for processing the applications of institutions seeking recognition by the A.P. Paramedical Board. I am in respectful agreement with the ratio in the judgment of the learned Single Judge.
18. In view of the fact that the inspection was carried out even before the application for recognition was made, the writ petition is allowed directing -
1) The 1st respondent to issue a temporary certificate as provided under Rule 17(4) of the Rules and permit the petitioner to admit students for the Medical Lab Technician course for the academic year 2021-2022, provided the admissions are still open and counselling is being carried on for such admissions.
8 RRR,J
W.P.No.6297 of 2021
2) The application for recognition made by the petitioner on 02.01.2021 shall be considered by the Paramedical Board without insisting upon a certificate of essentiality from the State Government or require any inspection or certification from any High Power Committee appointed by the State Government. As a sequel, pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
_________________________ R. RAGHUNANDAN RAO, J.
3rd August, 2021 Js.
9 RRR,J
W.P.No.6297 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.6297 of 2021
3rd August, 2021
Js.