Kerala High Court

V.N. Public Health And ... vs Dr.Rajan N.Khobragade on 5 January, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

     THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                            &

         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

       Con.Case(C).No.1913 OF 2020 IN WA. 1401/2020

  AGAINST THE JUDGMENT IN WA 1401/2020 OF HIGH COURT OF
                  KERALA DATED 3.11.2020


PETITIONER/PETITIONER:

           V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST
           A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE
           ROAD, KOZHIKODE, REPRESENTED BY ITS MANAGING
           TRUSTEE V. ANILKUMAR.

           BY ADVS.
           SRI.S.VINOD BHAT
           KUM.ANAGHA LAKSHMY RAMAN

RESPONDENT(CONTEMNOR)/RESPONDENT NO.1:

           DR.RAJAN N.KHOBRAGADE,
           AGED ABOUT 54 YEARS, SECRETARY TO GOVERNMENT,
           DEPARTMENT OF HEALTH AND FAMILY WELFARE,
           SECRETARIAT, THIRUVANANTHAPURAM-695001.

           R1 BY SPL.GOVERNMENT PLEADER SRI. M.A. ASIF


     THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN
FINALLY HEARD ON 05-01-2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
  Cont. Case(C).1913/2020
                                       2


                              JUDGMENT

Dated this the 5th day of January, 2021

S. Manikumar, CJ

Alleging willful disobedience of the judgment in W.A. No.1401 of

2020 dated 03.11.2020, instant Contempt Case is filed. In the said

judgment, we ordered thus:

"17. Government is also directed to scrutinize the application, cause inspection of the proposed Medical College, if required and thereafter intimate the proposed Medical College, the defects, if any, to be rectified. The said exercise should be done within two weeks from today. On receipt of the communication from the Government, it is open to the proposed Medical College to submit all the documents required for the purpose of grant of Essentiality Certificate. That should be done within one week.

18. Thereafter, the Government is directed to send appropriate communication to the Medical Council of India for consideration of the application submitted by the proposed Medical College.

19. In so far as Kerala University of Health & Allied Sciences (KUHAS) is concerned, no sooner the online application along with documents / hard copy of the application for grant of affiliation is received, the University shall scrutinize the application and intimate the proposed college, if there is any defect. Appellant college is permitted to rectify the defects, if any, noticed during the stage of scrutiny.

20. University is directed to cause inspection of the college and also to consider the factors for Consent of Affiliation and Cont. Case(C).1913/2020

accordingly, communicate its decision to the Medical Council of India.

21. The above said exercise should be completed before 23.11.2020. To avoid multiplicity of inspection and to save time, it is desirous to have a joint inspection by the Government and University. The above said directions and time schedule are issued to ensure that the exercise undertaken should not be futile.

22. The judgment impugned, is modified to the extent of consideration, for establishment of Medical College for the academic year 2021-22."

2. In the contempt petition, petitioner has contended that vide

judgment dated 03.11.2020, this Court was pleased to direct the

contemnor/ respondent in the above writ appeal, to scrutinize and

pass orders on the application submitted by the petitioner seeking

issuance of Essentiality Certificate for starting the Medical College

before 23.11.2020. It is submitted that convinced of the lethargic

attitude of the contemnor against the strict time schedule mandated

by the Medical Council of India (now, National Medical Commission)

for submission of applications by the petitioner before the latter, this

Court issued directions to the contemnor/respondent.

3. In Annexure-A1 judgment dated 03.11.2020 in W.A. No. 1401

of 2020, this Court had specifically directed that scrutiny of the

application, inspection (if required), and intimation of defects (if any) Cont. Case(C).1913/2020

should be done, within 2 weeks from 03-11-2020. The petitioner was

given a week's time thereafter, to cure any such defects, if pointed out

by the contemnor/ respondent, such that, the decision on the

application of the petitioner will be finally made by the

contemnor/respondent, before 23.11.2020.

4. Pursuant to Annexure-A1 judgment, petitioner has taken all

the steps and rendered all the compliance/assistance to the

respondent/ contemnor, to facilitate completion and time bound action

on his part, in accordance with Annexure-A1. Further, the petitioner

was constantly following up with the contemnor/respondent in this

regard. In order to substantiate the same, the petitioner has produced

some of the letters written to the respondent/contemner dated

05.11.2020, 11.11.2020, 23.11.2020 as Annexures-A2, A3, A4 and A5

respectively. Despite the same, it is submitted that apart from making

a show of scrutinizing/considering the petitioner's application, by

sending few officials for inspection on 13-11-2020, the application has,

in fact, not been scrutinized or decided up till date.

5. It is further submitted that the petitioner has not received

any communication from the contemnor/respondent informing of any

defects, to be cured by the trust. It is further submitted that the

petitioner has not been informed of any decision on their application Cont. Case(C).1913/2020

for grant of Essentiality Certificate, till date. It is also submitted that

the time period fixed by this Court has expired, without any fruitful

action on the part of the contemnor/ respondent, which action

amounts to non-compliance of the judgment of this Court. The

contemnor has failed to pass appropriate and time bound order in

compliance with Annexure-A1 judgment. The contemnor has

disobeyed the direction in Annexure-1 judgment. The respondent has

not shown any seriousness in complying with the judgment of this

Hon'ble Court. There is wilful and intentional default on the part of the

contemnor to comply with Annexure-1 judgment of this Hon'ble Court.

6. When this contempt case came up for hearing, on

27.11.2020 this Court passed the following order:

"Alleging wilful disobedience of the judgment made in W.A.No.1401 of 2020 dated 3.11.2020, instant contempt petition is filed. Relevant portions of the directions contained in the impugned judgment read thus:

"17. Government is also directed to scrutinize the application, cause inspection of the proposed Medical College, if required and thereafter intimate the proposed Medical College, the defects, if any, to be rectified. The said exercise should be done within two weeks from today. On receipt of the communication from the Government, it is open to the proposed Medical College to submit all the documents required for the purpose of grant of Essentiality Certificate. That should be done within one week.

18. Thereafter, the Government is directed to send appropriate communication to the Medical Council of India for consideration of the application submitted by the proposed Medical College.

Cont. Case(C).1913/2020

19. In so far as Kerala University of Health & Allied Sciences (KUHAS) is concerned, no sooner the online application along with documents / hard copy of the application for grant of affiliation is received, the University shall scrutinize the application and intimate the proposed college, if there is any defect. Appellant college is permitted to rectify the defects, if any, noticed during the stage of scrutiny.

20. University is directed to cause inspection of the college and also to consider the factors for Consent of Affiliation and accordingly, communicate its decision to the Medical Council of India.

2. Referring to G.O.(Rt)No.2178/2020/H&FWD dated 21.11.2020, Mr.M.A.Asif, learned Special Government Pleader submitted that after joint inspection, the Director of Medical Education has sent a letter along with the inspection report, wherein it was found that:

"1) Construction not completed and even the space for accommodating para clinical departments (Pharmacology, Pathology, Microbiology, Community Medicine forensic Medicine) are not available.

2) Only basic equipments are available in the hospital, even essential facilities and equipments in Central Sterile Supply Department, Blood bank are not fully equipped.

3) Available clinical material on the day of inspection is grossly inadequate.

4) Faculty position is grossly inadequate.

5) The hospital is functional for the last one year only as per the hospital statistics given."

3. Learned Special Government Pleader further Cont. Case(C).1913/2020

submitted that the above said defects are incurable.

However, seeks time to get instructions as to whether the Government Order dated 21.11.2020 has been communicated to the appellant or not.

4. Heard the learned counsel for the parties.

5. The Government Order dated 21.11.2020 reads thus:

"GOVERNMENT OF KERALA

Abstract

Health & Family Welfare Department - V.N. Public Health & Educational Trust, Calicut -Essentiality Certificate to establish a new medical college at Walayar in Palakkad District - Judgement dated 12/10/2020 in WP(c) No. 27266/2019 - Health & Family Welfare Department-V.N . Public Health & Educational Trust, Judgement dated 03/11/2020 in W.A. No. Nos. 1401 and 1403 of 2020 - Complied with-Orders issued.

-------------------------------------------------------------------------------

HEALTH & FAMILY WELFARE (S) DEPARTMENT G.O.(Rt)No.2178/2020/H&FWD Dated, Thiruvananthapuram, 21/11/2020

------------------------------------------------------------------------------- Read: 1. Letter No. VNPT/H&FWD/Essentiality Certificate / 09/2019 dated 12/09/2019 from the Chairman, V.N. Public Health & Educational Trust, Calicut.

2. Government letter No. S3/272/2019 dated 01/10/2019.

3. Judgement of Hon'ble High Court of Kerala dated 12/10/2020 in WP(c) No. 27266/2019 filed by V.N.Public Health & Educational Trust, Calicut.

             4     Judgement of Hon'ble High Court of Kerala dated
                  03/11/2020       in      W.A.No. 1401/2020     &

W.A.No.1413/2020 filed by V.N. Public Health & Educational Trust, Calicut.

             5.        Letter     No.          VNPT/H&FWD      /Essentiality
                  Certificate/010/2020          dated 21/10/2020 & No.
 Cont. Case(C).1913/2020


                VNPT/Essentiality       Certificate/ 11/2020 dated
                05/11/2020 from the Managing Trustee          -Secretary,

V.N . Public Health & Educational Trust, Calicut.

6. Government letter No. S3/340/2019 dated 11/11/2020.

7. Letter No. DME/4017/2020-B4 dated 18/11/2020 & 19/11/2020 from the Director of Medical Education, Thiruvananthapuram.

ORDER The Chairman of V.N. Public Health & Educational Trust, Calicut as per his letter cited 1 st above has requested the Government to issue Essentiality Certificate to establish a new Medical College at Palakkad District. As per the Letter read as 2 nd paper above, the Government had rejected the application for Essentiality certificate. Aggrieved over this, the applicant filed Writ Petition before the Hon'ble High Court of Kerala. The Court as per Order cited 3rd above, ordered that, in the event of petitioner submitting application for EC for the year 2022-23 for starting a Medical College, the State of Kerala shall consider the said application on merits taking into consideration the findings and observations made in the judgement dated 12/10/2020, pass orders thereon within a period of one month from the date of receipt of the application. Subsequently, the applicant filed Writ Appeal before the Hon'ble High Court of Kerala against the above Judgement and order dated 20/10/2020 in R.P 773 of 2020 in WP(C) 27266/2019 of High Court. The Hon'ble Chief Justice Court as per the order cited 4 th above has permitted the appellant in Writ Appeal No. 1401 of 2020 to submit the documents stated supra to the Government, as expeditiously as possible. The Hon'ble Chief Justice Court also ordered as follows;

"Government is also directed to scrutinize the application, cause inspection of the proposed Medical College, if required and thereafter intimate the proposed Medical College, the defects, if any, to be rectified. The said exercise should be done within two weeks from today (03/11/2020). On receipt of the communication from the Government, it is open to the proposed Medical College to submit all the documents required for the purpose of grant of Essentiality Certificate. That should be done within one week.

Thereafter, the Government is directed to send appropriate communication to the Medical Council of India for consideration of the application submitted by the proposed Medical College. Cont. Case(C).1913/2020

In so far as Kerala University of Health & Allied Sciences (KUHAS) is concerned, no sooner the online application along with documents / hard copy of the application for grant of affiliation is received, the University shall scrutinize the application and intimate the proposed college, if there is any defect. Appellant college is permitted to rectify the defects, if any, noticed during the stage of scrutiny.

University is directed to cause inspection of the college and also to consider the factors for Consent of Affiliation and accordingly, communicate its decision to the Medical Council of India. The above said exercise should be completed before 23.11.2020. To avoid multiplicity of inspection and to save time, it is desirous to have a joint inspection by the Government and University. The above said directions and time schedule are issued to ensure that the exercise undertaken should not be futile. The judgement impugned, is modified to the extent of consideration, for establishment of Medical College for the academic year 2021-22.

Accordingly, writ appeals are disposed of" As per the Hon'ble Court direction, Government directed the University and the Director of Medical Education to conduct a joint inspection at the proposed medical college and submit a report to Government. Accordingly the Director of Medical Education as per letter read above has submitted the inspection report which is as follows;

1) Construction not completed and even the space for accommodating para clinical departments (Pharmacology, Pathology, Microbiology, Community Medicine forensic Medicine) are not available.

2) Only basic equipments are available in the hospital, even essential facilities and equipments in Central Sterile Supply Department, Blood bank are not fully equipped.

3) Available clinical material on the day of inspection is grossly inadequate.

4) Faculty position is grossly inadequate.

5) The hospital is functional for the last one year only as per the hospital statistics given.

In this connection, DME has also reported that it will be difficult to start the Medical College in the coming academic year (2021-22) as the minimum requirements Cont. Case(C).1913/2020

stipulated by National Medical Commission for issuing Letter of Permission is not at all fulfilled. The Medical College and collegiate hospital attached to the college require a lot of further development.

Government have examined the matter in detail. In a recent issue the Madhya Pradesh Government repealed the Essentiality Certificate provided to Gyanjeet Sewa Mission Trust for starting a medical college in Jabalpur. This was disputed before the Madhya Pradesh High Court which backed the Government's order noting that it has given consideration to the fraud done by the college in seeking the Essentiality Certificate, the incompetency of the trust to furnish the minimum benchmarks of infrastructure and other facilities as provided by the Medical Council of India (MCI) for running of a medical college along with total loss of substratum and larger public interest, as reasons for cancellation of Essentiality Certificate.

The present Inspection report highlights the grossly inadequate clinical materials and also points out the fact that the hospital is functional for the last one year only as per the hospital statistics given. It may be noted that the honourable High Court had ordered the closure of two medical colleges in the state recently due to lack of clinical materials. So if the Essentiality certificate is issued based on the inspection report it will adversely affect the future of the students. In addition to that the DME has categorically stated that the Collegiate hospital attached to the proposed College requires a lot of further development. By considering these facts, the application read above, seeking Essentiality Certificate to establish a new Medical College at Walayar in Palakkad District by V.N . Public Health & Educational Trust, Calicut deserves no merit for consideration and is summarily rejected.

The judgements read above are thus complied with.

(By order of the Governor)

RAJAN NAMDEV KHOBRAGADE PRINCIPAL SECRETARY To:

The Advocate General, Kerala, Ernakulam(With C/L) The Chairman /Managing Trustee-Secretary, V.N .Public Health & Educational Trust, A2, Jawahar Nagar Colony, Sales Tax Office Road, Calicut.

The Director of Medical Education, Thiruvananthapuram Cont. Case(C).1913/2020

The Registrar, Kerala University of Health Sciences, Thrissur The Information Officer, Web & New Media, I&PRD. Stock File /Office Copy (S3/340/2019-Health)"

6. Perusal of the Government Order indicates that the appellant has not been informed of the defects noticed in the inspection, as ordered by us in paragraph No.17 of the judgment. Had the appellant been informed of the defects, no sooner the inspection was completed, the appellant could have offered his reply to the Government, as to whether the defects noticed are curable or not. Though the Government Order is dated 21.11.2020, Mr. S. Vinod Bhat, learned counsel for the appellant, submitted that the college has not received the same.

7. Learned Special Government Pleader is directed to get instructions as to the steps taken for effectively implementing paragraph No.17 of the judgment and also as to whether Order dated 21.11.2020 has been communicated to the appellant or not.

Post on 30.11.2020."

7. On 30.11.2020, we passed the following order:

"Pursuant to the order dated 27 th November 2020, a statement has been filed on behalf of the Secretary to the Government, Department of Health and Family Welfare along with Annexure-II Government Order dated 21.11.2020, which shows that the directions contained in W.A.Nos.1401 and 1403 of 2020 have been complied with.

By Annexure-II Government Order, Government have rejected the request for issuance of Essentiality Certificate to establish a new Medical College at Walayar in Palakkad district. However, attention of this court is drawn to Cont. Case(C).1913/2020

Annexure-IV communication dated 27.11.2020 of the Secretary, National Medical Commission informing that the time for submission of online applications for establishing new medical college for the academic year 2021-22 has been extended upto 15.12.2020.

2. Today, when the case came up for consideration, Sri.Vinod Bhat, learned counsel for the contempt petitioner submitted that G.O.(Rt)No.2178/2020/H&FWD dated, 21.11.2020 (Annexure-II) has been furnished to the contempt petitioner and the same would be challenged in a separate writ petition.

3. It is also his submission that the request for consent of affiliation sought for has been rejected by the Kerala University of Health Sciences on 23.11.2020 and the said order has been challenged before the learned Single Judge of this court. In that case, notice has been issued to the University returnable within 6.12.2020.

4. It is also submitted by the learned counsel for the contempt petitioner that the writ petition challenging the rejection of consent of affiliation was heard by Hon'ble Justice Anil K Narendran, whereas writ petition to be filed challenging the rejection of essentiality certificate for establishment of Medical College as per roster, would be listed before the Hon'ble Justice P.V.Asha. As reasons for rejection are more or less the same, considering the extension of time upto 15.12.2020 by the National Medical Commission, learned counsel for the contempt petitioner requested this court to consider hearing of the writ petitions together by this bench. We are of the view that such a request cannot be acceded.

Cont. Case(C).1913/2020

5. What remains to be considered in this contempt petition is whether the Government as well as the University have wilfully and intentionally violated the directions contained in paragraph 17 of the common judgment in W.A.Nos.1401 and 1403 of 2020 or not. Therefore, we intend to deal with the same.

Post the Contempt Petition on 7.12.2020."

8. On 7.12.2020, we directed the respondent to file an affidavit

along with documents, explaining the steps taken to serve the copy of

the Government order, G.O.(Rt).No.2178/2020/H&FWD, dated

21.11.2020.

9. Let us consider what the Secretary to the Government,

Health and Family Welfare Department, Government of Kerala,

Thiruvananthapuram, has done.

10. Affidavit filed by the respondent on 07.12.2020, reads thus:

"I, Dr. Rajan N. Khobragde, S/o. Namdevrao, aged 54 years, residing at Thiruvananthapuram, do hereby solemnly affirm and state as follows:

1. I am the Principal Secretary, Health and Family Welfare Department, Government of Kerala, Thiruvananthapuram and the respondent in the above contempt of court case. I know the facts of the case, as disclosed from the relevant files. It is submitted that I always have utmost respect to the orders and judgments of this Hon'ble Court as also of all courts of law. As a responsible public servant, I make all endeavours to timely comply with all the directions issued Cont. Case(C).1913/2020

by this Hon'ble Court. There is no wilful disobedience or delay except the unavoidable administrative delay in this matter. The Contempt of Court case is filed alleging non compliance of the judgment of this Hon'ble court dated 03-11-2020 in W.A.No.1401 of 2020.

2. It is submitted that consequent to the Judgment of this Hon'ble court dated 03-11-2020, the petitioner submitted Form-5 and other necessary documents in my office on 05- 11-2020 to consider grant of Essentiality Certificate. It is submitted that immediately on receipt of the Form-5 and other necessary documents in my office on 05-11-2020, direction was given to the Director of Medical Education to conduct expert inspection and submit a report to the Government in the matter of grant of Essentiality Certificate for the petitioner to start the proposed Medical College. It is submitted that the inspection of the proposed college was conducted on 13.11.2020. Thereafter on 19-11-2020, the Director of Medical Education submitted the report before the Government. True copy of the summary report submitted by the Director of Medical Education before the Government on 19-11-2020, is produced herewith and marked as Annexure-1.

3. It is submitted that the Government considered the matter on priority. It is submitted that e-governance system is followed in the Government and orders can be approved by the competent officer round the clock even on holidays. It is submitted that based on Ext-R1(a) report, G.O.(Rt.) No. 2178/2020/H&FWD dated 21.11.2020 was approved by me on 21.11.2020 and the order was forwarded for issue on the next working day i.e. on 23.11.2020 (21.11.2020 is Cont. Case(C).1913/2020

a Saturday and 22.11.2020 is Sunday both days being Holidays). True copy of the G.O(Rt.) No. 2178/2020/H&FWD dated 21.11.2020 is produced herewith and marked as Annexure-2. Thereafter, the order was communicated to all concerned on 24.11.2020. True copy of the relevant pages of the dispatch register of S3 section and that of the Dispatch section attached to my office showing the dispatch of the G.O(Rt.) No.2178/2020/H&FWD dated 21.11.2020 to the petitioner and others is produced herewith marked as Annexure-3. It is submitted that in the meantime, National Medical Commission vide Notice No.NMC/Secy/2020/06 dated 27- 11-2020 had extended the last date of submission of application for starting new medical colleges up to 15-12- 2020. True copy of the National Medical Commission Notice No. NMC/Secy/2020/06 dated 27-11-2020 is produced herewith marked as Annexure-4.

4. It is submitted that acute shortage in infrastructure, Clinical materials, faculty and all related fields was reported by the Director of Medical Education in Annexure-1 report and it was further reported to the Government in Annexure-1 that since the deficiencies noted are so grave and fundamental, it is not curable so as to commence the Medical College in the academic year 2021-22. It is in such a circumstance since the defect was reported to be incurable, I was under the bonafide impression that the notice of it need not be given since it will not serve any useful purpose. Therefore, giving notice to the petitioner so as to cure the defects pointed out in a week was impossible in the case in hand. Further giving notice and waiting for a Cont. Case(C).1913/2020

week for the petitioner's reply would only further delay the process for no fruitful purpose.

5. It is submitted that in spite of the Health Emergency that prevails in the state due to the Covid-19 pandemic and the resultant constraints and stress on the Health Department in particular, the Government had taken all earnest effort for prompt compliance of the directions of this Hon'ble court.

6. In the light of the above facts it is submitted that I had never violated the solemn orders of this Hon'ble Court and had acted with utmost bonafides. I, sincerely and unconditionally apologize before this Hon'ble Court for the inconvenience caused to this Hon'ble court by the present proceedings. Under the above circumstance it is most humbly prayed that this Hon'ble Court may be pleased to accept my affidavit and close the Contempt of Court Case. "

11. Summary report submitted by the Director of Medical

Education before the Government on 19.11.2020 (Annexure-1) reads

thus:

"GOVERNMENT OF KERALA DIRECTORATE OF MEDICAL EDUCATION Medical College.P.O.

Thiruvananthapuram 695 011

------------------------------------------------------------------------- DME/4017 /2020/B4 19/11/2020 The Principal Secretary Health & Family Welfare Department Govt of Kerala.

Sir,

Sub:- MES-Request for establishment of a Medical College at Walayar in Palakkad District --

Cont. Case(C).1913/2020

Essentiality Certificate -- Judgment of the Hon'ble High Court of Kerala - summary of the inspection report-forwarding of-- reg.

Ref:- 1. Govt Letter No. S3/340/2019/ Health dated 11/11/2020.

2. Judgment dated 03/11/2020 of Hon. High Court of Kerala in WA No. 1401 of 2020.

3. This office letter of even number dated 18/11/2020.

After going through the inspection report, I am submitting herewith the summary of the said report :-

1) Construction not completed even the space for accommodating para-clinical departments (Pharmacology, Pathology, Microbiology, Community Medicine forensic Medicine) are not available.

2) Only basic equipments are available in the hospital, even essential facilities and equipments in Central Sterile Supply Department, Blood bank are not fully equipped.

3) Available clinical material on the day of inspection is grossly inadequate.

4) Faculty position is grossly inadequate.

5) The hospital is functional for the last one year only as per the hospital statistics given.

In this connection, it will be difficult to start the Medical College in the coming academic year (2021-

22) as the minimum requirements stipulated by the National Medical Commission for issuing Letter of Permission is not at all fulfilled. The Medical College and collegiate hospital attached to the college require a lot of further development and are important."