The vs Sesha Kumari
2021 Latest Caselaw 2803 AP

           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.

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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.

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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.

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(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.

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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.

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                                      W.P.No.6297 of 2021




      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




                W.P.No.6297 of 2021




                  3rd August, 2021
Js.