Rabindranath Tagore Education ... vs The State Of Kerala
2021 Latest Caselaw 5524 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

     TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                      WP(C).No.25655 OF 2020(F)


PETITIONER:

               RABINDRANATH TAGORE EDUCATION TRUST
               SIDA BHAVAN, JAWAHAR JUNCTION, KOLLAM,
               PIN CODE-691 001, A TRUST REGISTERED WITH DOCUMENT
               BEARING NO.261 OF 1982 OF ERAVIPURAM SUB REGISTRY,
               REP. BY ITS CHAIRMAN, P. SADASIVAN, AGED 86, S/O.LATE
               PADAMANABHAN, RESIDING AT SIDA BHAVAN, JAWAHAR
               JUNCTION, KOLLAM-691 001

               BY ADVS.
               SRI.P.VISWANATHAN (SR.)
               SRI.SHIBU JOSEPH
               SRI.AJITH VISWANATHAN
               SHRI. SAYED MANSOOR BAFAKHY THANGAL
               SRI.S.SREEKUMAR (KOLLAM)

RESPONDENTS:

      1        THE STATE OF KERALA
               REP. BY ITS CHIEF SECRETARY, SECRETARIAT,
               THIRUVANANTHAPURAM, PIN CODE-695 001

      2        THE SECRETARY
               HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM, PIN CODE-695 001

      3        THE SECRETARY
               DEPARTMENT OF AURVEDA, YOGA AND NATUROPATHY, UNANI,
               SIDDA AND HOMOEPATHY (AYUSH), AYUSH BHAVAN,
               B BLOCK, GPO COMPLEX, INA COLONY, NEW DELHI,
               PIN CODE 110 023


OTHER PRESENT:

               SMT.PRINCY XAVIER, GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
09.02.2021, THE COURT ON 16.02.2021 DELIVERED THE FOLLOWING:
 WP(C).No.25655 OF 2020(F)

                                           2


                                    P.V.ASHA J.
                          ------------------------------------
                            W.P.(C).No.25655 of 2020
                          -------------------------------------
                    Dated this the 16th day of February, 2021
                                JUDGMENT

Petitioner Trust is aggrieved by the rejection of its application for NOC

for starting a new Ayurveda Medical College, by the 1st respondent.

2. It is stated that the petitioner Trust is having 5.32 acres of land in

Pavithreswaram village in Kottarakara Taluk and a building with 20000 squire

feet in Kundara in its own land for starting an Ayurveda Medical College and

hospital.

3. It had submitted Ext.P5 application for no objection certificate

before the 2nd respondent on 31.12.2018 along with a project report of the

scheme for proposed Ayurveda Medical College and hospital. It is stated that

though the committee constituted by the Government had inspected the

premises on 25.04.2019, the application was rejected as per Ext.P7 letter dated

20.09.2019 stating that NOC cannot be granted for the years 2019-20 and 20-

21 in the light of Ext.P6 letter dated 15.06.2018 of the Ministry of Ayush,

Government of India informing its decision not to entertain any fresh

applications for starting new AYUSH colleges for those 2 academic years.

Thereafter as per Ext.P8 letter dated 13.04.2020 the Ministry of Ayush

informed that the State Governments and Universities may issue NOC consent

of affiliation respectively for starting new ASU & H Colleges, as it had WP(C).No.25655 OF 2020(F)

decided to receive fresh applications for starting colleges from 1 st July to 31st

August 2020 from academic year 2021-22 onwards. Based on that the

petitioner submitted Ext.P9 application. It was rejected as per Ext.P10 letter

dated 14.10.2020 informing that the request cannot be allowed since there is no

requirement of new Ayurveda Medical Colleges in the prevailing

circumstances.

4. According to the petitioner, Ext.P10 is illegal as the petitioner is

having all infrastructure facilities for starting a new College. It is stated that

the role of State Government is confined to the verification as to the

availability of the requisite extent of land and other parameters required for

starting the college. It is stated that starting a new college is always for the

interest of public and there is no justification for denying NOC.

5. The respondents have filed a statement, according to which NOC

from Government is a basic document for starting a new course and it is not

automatic; the order Ext.P10 was passed after verification of all the relevant

factors and considering all the circumstances prevailing in the State. Para.3 of

the statement which is relevant reads as follows:

"3. It is submitted that at present there are sufficient number of Ayurveda Colleges in the Government, Aided and Private sector in the State. There is no apparent shortage of doctors in the Ayurveda sector in the state.

Further, the students who pass out as Ayurveda doctors do not have adequate job opportunities in Government or private sector. As such it is not practical to sanction new Ayurveda Medical Colleges in Private sector. Moreover, to maintain high standard of education and to avoid increase in qualified WP(C).No.25655 OF 2020(F)

unemployment hands in this sector, it is not proper to give NOC for starting new Ayurveda Medical Colleges in private sector. It is also submitted that local need is not a criterion to grant NOC for starting an institution in the Higher Education Sector."

6. Sri. Viswanathan learned Senior Counsel relying on the

judgments in Jaya Gokul Educational Trust v. Commissioner and Secretary

to Government: 2000(2) KLT 467 and P.N.N.M. Ayurveda Medical College

vs. Kerala University of Health Sciences : 2018(1) KHC 695 argued that

the issue is already settled by a series of judgments of this Court and the Apex

Court and that for issuing NOC, the State Government is not supposed to look

into the number of institutions or its requirement. It need look into the

documents furnished by the petitioner and all other requirement would be

considered by the Central Government. On the other hand, Sri. M.A.Asif , the

learned Special Government Pleader relying on the judgment of the Apex

Court in Jawaharlal Nehru Technological University Registrar v. Sangam

Laxmi Bai Vidyapeet and Others : 2018 KHC 6863 argued that it is

incumbent on the State Government to consider the necessity of any more

colleges in the field and various other aspects.

7. Having heard the contentions on both sides it is necessary to have

a look at the provisions contained in "The Establishment of New Medical

College, Opening of New or Higher Course of Study or Training and Increase

of Admission Capacity by a Medical College Regulations, 2019" framed by the

Central Council of Indian Medicine, under Section 36 of the Indian Medicine WP(C).No.25655 OF 2020(F)

Central Council Act, 1970. As per Regulation 3, a person intending to

establish a medical college shall follow the procedure and criteria mentioned in

regulations 4 to 6 and submit a scheme to the Central Government along with

an application in the form specified in regulation 4. Regulation 4 (1) reads as

follows:

"4. Application Form of scheme.-

(1)Any person intending to establish a medical college shall submit the application online in Form-1 as amended from time to time along with non-refundable application fee.

Regulation 5 provides that the application shall be submitted to the Secretary to the Government of India, Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH), as per the schedule annexed to the regulations. A person is eligible to submit application under Regulation 4(1) only if he fulfills the conditions stipulated in Regulation 6(1), which reads as follows:.

6. Eligibility for making an application.-(1)For making an application under sub- regulation (1) of regulation 4, a person shall be eligible if, -

(a) his one of the objectives is to impart education about Ayurveda or Siddha or Unani Tibb or Sowa Rigpa;

(b) owns or possesses the land on lease of not less than thirty years, in the name of college and renewal shall be required on expiry of lease;

(i) for intake capacity upto sixty seats, a single piece of land, not less than three acres;

(ii) for intake capacity from sixty one to hundred seats, land shall not be less than five acres and not more than two plots at a distance not exceeding two kilometers;

(iii) plot, if separated by a road or canal or rivulet but connected with a bridge, shall be treated as one piece of land.

(c) has obtained 'No Objection Certificate' in Form- 4 from the concerned State Government for establishing a new medical college at the proposed site;

(d) has obtained a 'Consent of Affiliation' in Form- 5 for establishing a new medical college from a University established under any Central or State statute;

(e) owns and manages a hospital in Ayurveda or Siddha or Unani or Sowa Rigpa and in a position to establish infrastructure and manpower in phased manner as specified in the notified requirements of Minimum Standard regulations of concerned systems of Indian Medicine.

WP(C).No.25655 OF 2020(F)

(f) furnishes an undertaking that, selection or admission of students will be made strictly on the basis of academic merit as prescribed by Central Council;

(g) furnishes an undertaking that, the nomenclature of courses and teacher-student ratio will be kept as laid down in the concerned regulations;

(h) has not already admitted students in any class or standard or course or training of the proposed medical college;

and(i) is in a position to furnish fixed security deposit valid for a period of five years in favour of the Central Council of Indian Medicine, New Delhi as follows:-

(i) for the establishment of medical college: upto 60 seats - rupees one crore;

(ii) between 61 - 100 seats - rupees two crores:

Provided that it shall not apply to the colleges governed by the State Governments or Union Territories, if they give an Undertaking to provide funds in their plan budget regularly till requisite facilities are fully provided as per time bound programme indicated by them.

Xx"

Regulation 7 provides for the procedure to be followed by the Central

Government which reads as follows:

7. Recommendation of Central Council.-(1) The Central Government, after receipt of the applications shall scrutinized the application on the basic of eligibility criteria like Application Fee, No Objection Certificate of the State Government and Consent of Affiliation of the University etc. and the Central Government shall forward only eligible applications to the Central Council of Indian Medicine for further consideration and the ineligible and incomplete applications shall be rejected and returned to the applicants by the Central Government.

(2)The Central Council of Indian Medicine shall inspect colleges and issue Letter of Intent at their level in Form-6, if the college is found eligible as specified in the regulations 6 and the Central Council of Indian Medicine shall again inspect or verify the compliance of requirement of minimum standards as specified in concerned regulations and other conditions of Letter of Intent and send the recommendations only once for denial or issuing Letter of Permission as the case may be in Form-7, by the 31st March for approval of the Central Government."

WP(C).No.25655 OF 2020(F)

According to the learned Senior Counsel, for the purpose of granting NOC the

State Government need only look into clause (i) to (iii) of Regulation 6(1) viz.

whether it owns or possesses the requisite land, financial capacity to provide

infrastructure and that as long as the petitioner has fulfilled those conditions

the rejection of NOC is illegal. In this context it is necessary to have a look at

the form no.4 in which the NOC is required under Regulation 6(1)(c) , which

is as follows:

FORM-4 [See regulation 6] No Objection Certificate from the State Government No..............

Government of --------------------------- The Department of ISM/AYUSH, To Dated, the ____________ (Name and address of applicant), Subject : No Objection Certificate Reference :

Sir, The desired "No Objection Certificate" in respect of following facts is being issued:- (1) Number of Medical and Ayurved or Siddha or Unani Tibb or Sowa Rigpa institutions already existing in the State.

(2) Number of seats available or number of Medical and Ayurved or Siddha or Unani Tibb or Sowa Rigpa practitioners being produced annually.

(3) Number of Ayurved or Siddha or Unani Tibb or Sowa Rigpa practitioners registered with the State Council/Board of Indian Systems of Medicine. (4) Number of Ayurved or Siddha or Unani Tibb or Sowa Rigpa practitioners in State Government Service.

(5) Number of vacant Government posts of Ayurved or Siddha or Unani Tibb or Sowa Rigpa doctors in the State,particularly in rural/difficult areas. (6) Number of Ayurved or Siddha or Unani Tibb or Sowa Rigpa doctors registered with the State Employment Exchanges.

(7) Ayurved or Siddha or Unani Tibb or Sowa Rigpa Doctors-population ratio in the State.

(8) How the establishment of the medical College/increase in admission capacity/starting---------------- course would resolve the problem of deficiencies of qualified medical personnel in the State and improve the availability of such medical manpower in the State.

(9) The restrictions imposed by the State Government, if any, on students who are not domiciled in the State from obtaining admissions in the State be specified. (10) Full justification for opening of the proposed medical College/increase in admission capacity/starting new or higher course. (11) Ayurved or Siddha or Unani Tibb or Sowa Rigpa Doctors-population ratio to be achieved.

WP(C).No.25655 OF 2020(F)

The (name of the person) ___________________________________ has applied for establishment of Ayurved or Siddha or Unani Tibb or Sowa Rigpa college at ______________________________ . On careful consideration of the proposal, the Government of ________________________ has decided to issue 'No Objection Certificate' to the applicant for the establishment of an Ayurved or Siddha or Unani Tibb or Sowa Rigpa College with _____________________ (number) seats/increase in admission capacity from---------to---- seats/starting -------------------- course. It is certified that: -

(a) the applicant owns and manages a _______bedded hospital, which was established in the year _________________,

(b) it is desirable to establish an Ayurved or Siddha or Unani Tibb or Sowa Rigpa College in the public interest/increase in admission capacity/starting---------------- course and

(c) establishment of Ayurved or Siddha or Unani Tibb or Sowa Rigpa college /increase in admission capacity/starting---------------- course at ___________________________ by (the name of Trust) is feasible.

It is also certified that adequate clinical material as per norms of the Central Council of Indian Medicine is available with the proposed/existing Medical College. It is further certified that in case the applicant fails to create infrastructure for the Ayurved or Siddha or Unani Tibb or Sowa Rigpa College as per Central Council of Indian Medicine norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College with the permission of the Central Government.

(emphasis supplied)"

When Form 4 itself provides for the various factors to be certified including

the justification of the College and it also requires an undertaking from the

Government that it would take over the responsibility of the students already

admitted in the College, in eventualities mentioned in it, I am unable to accept

the contention of the petitioner that the State Government need only look into

the availability of land and building alone.

8. In Jayagokulam's case this Court was considering the role of

State Government in a case where approval was granted by the AICTE

referring to the AICTE Regulations which were then in force. In PNNM

College's case the action of the University in restricting the intake of students

when central council had already granted permission to enhance the intake,

was the issue considered. Those judgments relied on by the learned Senior WP(C).No.25655 OF 2020(F)

Counsel do not apply to the factual circumstances arising in the case. The

judgment in Thirumuruga Kirupananda Variyar Thavathiru Sundara

Swamigal Medical Educational and Charitable Trust v. State of T.N &

others: (1996) 3 SCC 15 also would not apply in the present case as it was a

case where the repugnancy between State Act and Central Act was considered.

In the present case, the Regulations issued by the Central Council itself

provide for the factors which are required to be verified for issuing NOC as

given in Form 4. Therefore, there is no question of repugnancy.

9. In the judgment in Jawaharlal Nehru Technological University

Registrar v. Sangam Laxmi Bai Vidyapeet and Others: 2018 KHC 6863, the

Apex Court considered a case where the College had challenged the affiliation

Regulations of the University, based on which NOC was denied for starting a

Pharmacy College. The Apex Court considered the question whether the

University has got any authority to deny NOC or whether the University is

bound to issue NOC for opening a Pharmacy college and thereby to promote

the mushroom growth of institutions. The University stated that most of the

seats were remaining vacant. After considering the provisions contained in the

affiliation regulations of the University as well as those in AICTE Regulations

and also the provisions contained in the State Act, it was found that there is no

repugnacy between the two. In paras. 21 and 26 it was observed as follows:

" 21. xxx The mushroom growth of educational institutions cannot be permitted. The observation made by the High Court that unfit institution will WP(C).No.25655 OF 2020(F)

automatically shut down the courses is not the judicious approach warranted in such matters. It is not only that the requirement of the locality should exist but it has to be ensured that only the standard educational institutions should come up and once they come up, they should be able to survive. A large number of Institutions are not to be opened up to die an unnatural death on the principle of survival of the fittest and due to non - availability of teachers / students. Standard of education cannot be compromised and sacrificed by permitting institutions to come up in a reckless manner without there being any requirement for them at a particular place. There is a need to strengthen the existing system of education not to make it weak by further complicating the issues by wholly unwarranted approach as the one adopted by the High Court. It cannot be left at the choice of the institution to open the course whenever or wherever they desire. The High Court has also erred in observing that the seats remaining vacant could not be the relevant criteria for refusal of NOC. Xxx

26. xxxx A large number of institutions have already been permitted to function in the State by the Central Bodies. It is painful to note that at several places mushroom growth of the institutions had been permitted by such bodies in an illegal manner. In case there is no check or balance and the power is exercised in an unbridled reckless manner, the sufferer is going to be the standard of education. At the same time, there is a necessity of good institutions with new technology, but at the same time mushroom growth of the substandard institutions cannot be permitted. There has to be a requirement of educational institutions in the locality and that is one of the main considerations."

The State Government has a duty to see that the standard of education is

not deteriorated by permitting mushrooming of colleges, as held by the

Apex Court. The contention raised by the petitioner that NOC has to be

granted by State Government if an applicant has the requisite landed WP(C).No.25655 OF 2020(F)

property and building is unsustainable. As pointed out by the learned

Government Pleader, when Government had to re-allot the students of

certain medical colleges which stopped functioning, within the last two

years, on intervention by this Court, Government has to be more

cautious.

10. However, as and when it is found that there is requirement of

Ayurveda Medical Colleges, the request of the petitioner shall be

considered.

The Writ Petition is dismissed accordingly.

Sd/-

P.V.ASHA, JUDGE rtr/ WP(C).No.25655 OF 2020(F)

APPENDIX PETITIONER'S EXHIBITS:

   EXHIBIT P1         TRUST DEED NO.261 OF 1982 OF
                      ERAVIPURAM SUB REGISTRY

   EXHIBIT P2         ADDENDUM TRUST DEED NO.174 OF 2001 OF
                      ERAVIPURAM SUB REGISTRY

   EXHIBIT P3         LOCATION SKETCH OF THE PROPERTIES
                      OWNED BY THE PETITIONER

   EXHIBIT P4         POSSESSION CERTIFICATE OF THE
                      PROPERTIES OWNED BY THE PETITIONER

   EXHIBIT P4 (A)     POSSESSION CERTIFICATE OF THE
                      PROPERTIES OWNED BY THE PETITIONER

   EXHIBIT P5         APPLICATION DATED 31.12.2018 SUBMITTED
                      BY THE PETITIONER BEFORE THE 2ND
                      RESPONDENT

   EXHIBIT P6         LETTER ISSUED BY THE MINISTRY OF
                      AYUSH, GOVERNMENT OF INDIA, BEARING
                      NO.R.13040/8/2018/HD (TECH), DATED
                      15.6.2018

   EXHIBIT P7         COMMUNICATION DATED 20.09.2019 ISSUED
                      ON BEHALF OF THE 2ND RESPONDENT TO THE
                      PETITIONER TRUST

   EXHIBIT P8         COMMUNICATION ISSUED BY THE MINISTRY
                      OF AYUSH, GOVERNMENT OF INDIA DATED
                      13.4.2020

   EXHIBIT P9         APPLICATION FOR NO.OBJECTION
                      CERTIFICATE FOR SUBMITTED BY THE
                      PETITIONER BEFORE THE 2ND RESPONDENT
                      DATED 20.8.2020

   EXHIBIT P10        LETTER ISSUED BY THE 2ND RESPONDENT
                      DATED 14.10.2020