Mgm College Of Pharmacy vs Kerala University Of Health ...
2021 Latest Caselaw 2341 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

     THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942

                       WP(C).No.26452 OF 2020(F)


PETITIONER:

               MGM COLLEGE OF PHARMACY
               MGM TECHNOLOGICAL CAMPUS, PILATHARA, VILAYANCODE P.O,
               CHERUTHAZHAM, KANNUR - 670501, REPRESENTED BY ITS
               EXECUTIVE DIRECTOR.

               BY ADVS.
               SRI.MOHAN JACOB GEORGE
               SMT.P.V.PARVATHY (P-41)
               SMT.REENA THOMAS
               SMT.NIGI GEORGE

RESPONDENTS:

      1        KERALA UNIVERSITY OF HEALTH SCIENCES
               MEDICAL COLLEGE P.O, THRISSUR, KERALA, PIN - 680596,
               REPRESENTED BY ITS REGISTRAR.

      2        VICE CHANCELLOR,
               KERALA UNIVERSITY OF HEALTH SCIENCES,
               MEDICAL COLLEGE P.O, THRISSUR, KERALA, PIN - 680596.

               R1-2 BY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF
               HEALTH SCIENCES


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.26452 OF 2020(F)

                                          2



                                     JUDGMENT

The petitioner, a private self financing college, which is

granted approval by the Pharmacy Council of India for

conducting B.Pharm. course and affiliation from the 1st

respondent Kerala University of Health Sciences, Thrissur,

has filed this writ petition under Article 226 of the

Constitution of India seeking a writ of certiorari to quash

Ext.P14 order dated 19.11.2020, issued by the 1 st

respondent and for other consequential reliefs. During the

pendency of this writ petition, Ext.P29 order dated

21.12.2020 has been issued. In such circumstances, the

petitioner filed an application for amendment, which was

allowed on 12.01.2021, and the petitioner has also filed an

amended writ petition incorporating the challenge against

Ext.P29 order.

2. The learned Standing Counsel for the 1 st

respondent University has filed a statement dated

03.12.2020 opposing the reliefs sought for in the writ

petition. The petitioner has filed a reply dated 07.12.2020.

On 20.01.2021 the learned Standing Counsel for the 1 st WP(C).No.26452 OF 2020(F)

respondent University has filed an additional statement,

producing therewith a copy of the inspection report dated

16.12.2020 of the inspection conducted by the inspection

commission on 16.12.2020, wherein various deficiencies are

pointed out.

3. Heard the learned counsel for the petitioner and

also the learned Standing Counsel for the 1 st respondent

University representing the respondents.

4. The issue that arises for consideration in this writ

petition is as to whether any interference is warranted on

Exts.P14 and P29 orders issued by the 1 st respondent,

whereby the application made by the petitioner seeking

continuation of affiliation for B.Pharm. Course for the

academic year 2020-21 stands rejected.

5. The application made by the petitioner for

continuation of affiliation was originally rejected by Ext.P14

order for the reasons stated therein. Now, by Ext.P29 order

that request is again rejected stating various deficiencies.

Along with the additional statement filed by the learned

Standing Counsel for the 1st respondent University the

report of the inspection commission is placed on record. WP(C).No.26452 OF 2020(F)

The deficiencies noted in that report reads thus:

"Akshaya GP

1. M Pharm registration with the Kerala state pharmacy council not done.

2. As per the compliance report from the institution and the reply from the KUHS her specialization is mentioned as Pharmaceutics but the said candidate possess PG certificate in Pharmaceutical chemistry and she belongs to the department of pharmaceutical chemistry.

Dr P Satish

1. B Pharm and M Pharm registration with the state pharmacy council not done Dr Uma Nath U

1. Relieving order not produced, she has produced a copy of resignation letter submitted to the Principal, DM WIMS Pharmacy College, Naseera Nagar, Meppadi, Wayanad, Kerala, duly forwarded by the Principal, MGM Silver Jubilee Pharmacy College.

2. As pre the attendance register she has joined the MGM Silver Jubilee Pharmacy College on 11/12/2020 without the relieving order from DMWIMS Pharmacy college.

Dr Prakash

1. M Pharm registration with the state pharmacy council not done Mr Saleef KV

1. M Pharm registration with the Kerala state pharmacy council not done.

WP(C).No.26452 OF 2020(F)

Ms Amalna S Kumar

1. M Pharm registration with the Kerala state pharmacy council not done Ms Kavyasree SN

1. MS Pharma in Medical Chemistry

2. Equivalence of MS Pharma with M.Pharm in the minimum qualification of Pharmacy teaching has to be clarified with the regulatory authorities

3. PG registration with the Kerala state pharmacy council not done."

6. In Mar Gregorious Memorial Muthoot Medical

Centre v. Kerala University of Health and Allied

Sciences [2011 (4) KHC 333], the question that came up

for consideration before a learned Judge of this Court in W.P.

(C)Nos.24933 of 2011 and 26443 of 2011 was as to whether

Kerala University of Health Sciences is supposed to act just

as a 'rubber stamp' in the matter of granting affiliation to

institutions invoking the power under Section 50 or 53 of the

Kerala University of Health Sciences Act, 2010, once

approval is granted in respect of the courses and

infrastructure by Indian Nursing Council and Kerala Nurses

and Midwives Council. Relying on two Full Bench decisions of

this Court in Vikram Sarabhai Educational Trust & B.Ed

College v. University of Calicut [2008 (2) KHC 647] WP(C).No.26452 OF 2020(F)

and K. Velayudhan Memorial Trust [2010 (3) KHC 23]

it was contended that the University does not have any

power or authority to decline affiliation in respect of B.Sc

Nursing course or Post Basic B.Sc Nursing course sanctioned

by Nursing Council or reduce the intake by stipulating some

or other norms of their choice.

7. In Mar Gregorious Memorial Muthoot Medical

Centre this Court found considerable force in the

submission made by the learned Standing Counsel for the

University that the decision rendered by the Full Bench is

not an authority to hold that affiliation to be given by the

University is only an empty formality or that once sanction is

given by the State Council as aforesaid, affiliation to be

given by the University is automatic. There is no such

declaration of law in the decision rendered by the Full Bench

referring to the relevant provisions of the University

Act/Statute or as to the relative rights and liberties of the

University in relation to the powers and authority of the

Indian Nursing Council/Kerala Nurses and Midwives Council.

In Upasana College of Nursing v. Kerala University for

Health and Allied Sciences [2010 (4) KHC 224] it was WP(C).No.26452 OF 2020(F)

held that, granting of affiliation by the University is not an

automatic exercise once sanction/permission is obtained

from Indian Nursing Council/ Kerala Nurses & Midwives

Council. Interference was declined and the writ petitions

preferred by the concerned institutions were dismissed as

devoid of any merit. The matter was taken up in appeal by

the aggrieved institutions. After detailed hearing, the

Division Bench, vide judgment dated 13.10.2010 in

W.A.No.1715 of 2010 and connected cases, held that the

process of affiliation was never automatic. The grant of

affiliation is not an empty formality by the University. The

University which awards the degree certificates can always

ensure that students undergo the proper course study in an

eligible institution in accordance with the curriculum

prescribed by the University. Further, referring to the

relevant provisions under the Calicut University Act and the

Calicut University First Statutes, 1977, it has been held by a

Division Bench of this Court in University of Calicut v.

Amala Institute of Medical Sciences [2009 (2) KHC

71] that the University is having ample power to inspect the

college seeking affiliation and that the institution is bound to WP(C).No.26452 OF 2020(F)

furnish any information called for in this regard. It has also

been held that, if there is any serious deficiency in the

manner of running the college, the University can definitely

take action against the college and 'dis-affiliate' it; the

power to dis-affiliate being corollary to the power to affiliate

and that the University is vested with the power to conduct

necessary inspection and to satisfy itself as to the

availability of infrastructure and such other aspects. As the

primary function of the University is to guarantee quality

education, maintaining/regulating academic standards of the

affiliated institutions, it is open for the University to

prescribe conditions for recognition of the institutions, which

is not in conflict with the norms prescribed by the INC under

the Central Act. As such, the contention of the petitioners

that the respondent University is bound to 'sign on the

dotted lines' for granting affiliation, the petitioners having

obtained sanction/approval from the Central/State Council,

is wrong and unfounded.

8. In K.V.M. Trust v. Kerala University of Health

& Allied Sciences [2011 (4) KHC 948] [W.A.No.1528 of

2011 arising out of W.P.(C)No.26443 of 2011] the appellant WP(C).No.26452 OF 2020(F)

contended, inter alia, that once the Indian Nursing Council

and the State Nurses and Midwives Council accorded

permission for the intake of 50 students, the respondent

University has no authority to restrict the intake to a lesser

number. The Division Bench, relying on the decisions in

Amala Institute of Medical Sciences [2009 (2) KHC

71] and Upasana College of Nursing [2010 (4) KHC

224] and also the Regulations of the Indian Nursing Council

held that the permission accorded by the Indian Nursing

Council is basing upon a prima facie satisfaction of the

availability of the infrastructure facilities and it is for the

State Council to accord its permission as well as the

respondent University to conduct inspection and satisfy the

availability of the infrastructure facilities for running the

course before granting affiliation. Therefore, the Division

Bench upheld the finding of the learned Single Judge that

granting affiliation is not an empty formality.

9. In Maa Vaishno Devi Mahila Mahavidyalaya v.

State of U.P. [2013 (2) SCC 617] the Apex Court, in the

context of the National Council for Teacher Education

(Recognition Norms and Procedure) Regulations, 2009 held WP(C).No.26452 OF 2020(F)

that, grant of recognition or affiliation to an institute is a

condition precedent to running of the courses by the

Institute. If either of them is not granted to the institute, it

would not be in a position to commence the relevant

academic courses. There is a possibility of some conflict

between a University Act or Ordinance relating to affiliation

with the provisions of the Central Act. In such cases, the

matter is squarely answered in the case of State of

Maharashtra v. Sant Dnyaneshwar Shikshan Shastra

Mahavidyalaya [(2006) 9 SCC 1] where the Court stated

that after coming into operation of the Central Act, the

operation of the University Act would be deemed to have

become unenforceable in case of technical colleges. It also

observed that provision of the Universities Act regarding

affiliation of technical colleges and conditions for grant of

continuation of such affiliation by university would remain

operative but the conditions that are prescribed by the

university for grant and continuation of affiliation must be in

conformity with the norms and guidelines prescribed by the

National Council for Teacher Education (NCTE). Under

Section 14 of the National Council for Teacher Education Act, WP(C).No.26452 OF 2020(F)

1993 and particularly in terms of Section 14(3)(a), the NCTE

is required to grant or refuse recognition to an institute. It

has been empowered to impose such conditions as it may

consider fit and proper keeping in view the legislative intent

and object in mind. In terms of Section 14(6) of the Act, the

examining body shall grant affiliation to the institute where

recognition has been granted. In other words, granting

recognition is the basic requirement for grant of affiliation. It

cannot be said that affiliation is insignificant or a mere

formality on the part of the examining body. It is the

requirement of law that affiliation should be granted by the

affiliating body in accordance with the prescribed procedure

and upon proper application of mind. Recognition and

affiliation are expressions of distinct meaning and

consequences. In the case of Chairman, Bhartia

Education Society v. State of Himachal Pradesh

[(2011) 4 SCC 527] it was held that the purpose of

recognition and affiliation is different. In the context of the

Act, affiliation enables and permits an institution to send its

students to participate in public examinations conducted by

the examining body and secure the qualification in the WP(C).No.26452 OF 2020(F)

nature of degrees, diploma and certificates. On the other

hand, recognition is the licence to the institution to offer a

course or training in teaching education. The Court also

emphasised that the affiliating body/examining body does

not have any discretion to refuse affiliation with reference to

any of the factors which have been considered by the NCTE

while granting recognition. The examining body can impose

conditions in relation to its own requirements. These aspects

are (a) eligibility of students for admission; (b) conduct of

examinations; (c) the manner in which the prescribed

courses should be completed; and (d) to see that the

conditions imposed by the NCTE are complied with. Despite

the fact that recognition itself covers the larger precepts of

affiliation, still the affiliating body is not to grant affiliation

automatically but must exercise its discretion fairly and

transparently while ensuring that conditions of the law of the

university and the functions of the affiliating body should be

complementary to the recognition of NCTE and ought not to

be in derogation thereto.

10. In the instant case, the application for

continuation of affiliation for conducting B.Pharm course WP(C).No.26452 OF 2020(F)

made by the petitioner, which was originally rejected by

Ext.P14 order is again rejected by Ext.P29 order dated

21.12.2020 of the 1st respondent University, pointing out

various deficiencies in the minutes of the Scrutiny

Committee on the report of the Inspection Commission. The

deficiencies noted by the Scrutiny Committee are serious in

nature.

11. In Medical Council of India v. The Principal,

KMCT Medical College [(2018) 9 SCC 766] it was

contended before the Apex Court that the inspection was not

properly conducted. Repelling the said contention, the Apex

Court held as follows;

"15. We do not deem it necessary to deal with the submission made on behalf of the College regarding the inspection not being properly conducted. This Court has repeatedly said that a decision taken by the Union of India on the basis of a recommendation of an expert body regarding the inadequacy of facilities in medical colleges cannot be interfered with lightly. Interference is permissible only when the colleges demonstrate jurisdictional errors, ex facie perversity or mala fide. [See: Manohar Lal Sharma v. Medical Council of India (2013) 10 SCC 60 and Medical Council of India v. Kalinga WP(C).No.26452 OF 2020(F)

Institute of Medical Sciences (2016) 11 SCC 530]. As no case is made out by the College for interference with the inspection report, we decline the request of Mr.Sibal for remand of the matter to the High Court."

12. The deficiencies noted by the inspection team are

serious in nature. Any interference is permissible in the

findings of the 1st respondent University in Ext.P29 order,

which is based on the aforesaid report of the Inspection

Commission and the minutes of the scrutiny committee, is

permissible only when the petitioner demonstrate

jurisdictional errors, ex-facie perverse or malafide. In the

absence of any such case made out by the petitioner, no

interference is warranted.

The writ petition fails and the same is accordingly

dismissed. No order as to costs.

Sd/-

ANIL K. NARENDRAN, JUDGE Skk//21012021 WP(C).No.26452 OF 2020(F)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE 02.309TH EXECUTIVE COMMITTEE MEETING DATED 11TH MAY 2019 GRANTING APPROVAL OF THE B.PHARM COURSE BY THE PCI TO THE PETITIONER COLLEGE.

EXHIBIT P2 COPY OF THE COMMON JUDGMENT DATED 09.07.2019 IN WA NOS 1484/2019, 1483/2019, 1485/2019, 1487/2019, 1489/2019 AND 1500/2019.

EXHIBIT P3 COPY OF THE ORDER DATED 02.08.2019 OF THE HON'BLE SUPREME COURT IN SLP (CIVIL) NOS 17929/2019 AND CONNECTED CASES.

EXHIBIT P4 COPY OF THE ORDER OF THE FIRST RESPONDENT GRANTING AFFILIATION TO THE PETITIONER COLLEGE DATED 03.09.2019.

EXHIBIT P5 COPY OF THE COMMON INTERIM ORDER DATED 25.08.2020 PASSED IN WP(C) 35379/2019,. 35730/2019 AND WP(C) NO. 1994 AND 16093/2020.

EXHIBIT P6 COPY OF THE INTERIM ORDER DATED 20.102.20 IN WP(C) NO. 20199/2020.

EXHIBIT P7 COPY OF RELEVANT PORTION OF THE MINUTES OF THE 02.335TH EXECUTIVE COMMITTEE MEETING OF THE PHARMACY COUNCIL HELD ON 20.10.2020.

EXHIBIT P8 COPY OF THE LETTER DATED 10.10.2020 OF THE FIRST RESPONDENT TO THE PETITIONER.

EXHIBIT P9 COPY OF THE COMPLIANCE REPORT DATED 23.10.2020 BY THE PETITIONER.

EXHIBIT P10 COPY OF THE JUDGMENT DATED 05.11.2020 IN WP(C) NO.23540/2020 WP(C).No.26452 OF 2020(F)

EXHIBIT P11 COPY OF THE REVIEW PETITION FILED BY THE FIRST RESPONDENT AS R.P NO.

872/2020.

EXHIBIT P12 COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN EXT P-11 REVIEW PETITION,

EXHIBIT P13 COPY OF THE JUDGMENT DATED 19.11.2020 IN RP NO. 872/2020.

EXHIBIT P14 COPY OF THE DEFICIENCY LETTER DATED 19.11.2020,

EXHIBIT P15 COPY OF THE EMAIL ALONG WITH THE COMPLIANCE REPORT SUBMITTED BY THE PETITIONER DATED 20.11.2020.

EXHIBIT P16 COPY OF THE JOINING REPORT OF SRI, R.RAJKMUAR.

EXHIBIT P16 (a) COPY OF THE JOINING REPORT OF SRI.

R.VEKATESH

EXHIBIT P16(b) COPY OF THE JOINING REPORT OF SRI.

P.SATISH.

EXHIBIT P16(c) COPY OF THE JOINING REPORT OF SRI.

A.PRAKSH

EXHIBIT P16(d) COPY OF THE JOINING REPORT OF AKILA SUKUMARAN.

EXHIBIT P17 COPY OF THE EMAIL DATED 23.11.2020 OF THE FIRST RESPONDENT.

EXHIBIT P17(a) COPY OF THE AFFIDAVIT OF DR.

RAGUPATHI,

EXHIBIT P18 COPY OF THE EMAIL DATED 24.11.2020 OF THE 1ST RESPONDENT.

EXHIBIT P19 COPY OF THE EMAIL DATED 25.11.2020 OF THE 1ST RESPONDENT DENYING THE CONTINUATION OF AFFILIATION TO THE PETITIONER.

EXHIBIT P20 COPY OF THE REPRESENTATION DATED 26.11.2020 SUBMITTED BY BEFORE THE WP(C).No.26452 OF 2020(F)

2ND RESPONDENT.

EXHIBIT P21 COPY OF THE COMMUNICATION DATED 09.09.2020 OF THE 1ST RESPONDENT ALONG WITH LEGIBLE COPY OF SAME.

EXHIBIT P22 COPY OF THE DEFICIENCY LETTER DATED 09/08/2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P23 COPY OF THE CIRCULAR NO.6296/AC-

B/KUHS DATED 24/09/2018.

EXHIBIT P23(a)c: COPY OF THE CIRCULAR NO.6296/AC-

B/KUHS DATED 28/11/2018.

EXHIBIT P23(b): COPY OF THE CIRCULAR NO.6296/AC-

B/KUHS DATED 15/05/2019.

EXHIBIT P24: COPY OF THE CIRCULAR NO.25494/AC-

I/KUHS/2020 KUHS DATED 27/08/2020.

EXHIBIT P25: COPY OF THER DEFICIENCY REPORT DATED 10/10/2020 COMMUNICATED TO THE PETITIONER.

EXHIBIT P26: COPY OF THE COMPLIANCE REPORT DATED 23/10/2020 SUBMITTED BY THE PETITIONER.

     EXHIBIT P27:       LIST OF FACULTY


     EXHIBIT P28:       COPY OF EMAIL DATED 17.12.2020SENT
                        BY THE 1ST RESPONDENT


     EXHIBIT P28(a)     LIST OF THE ELEVEN FACULTIES WHO
                        WERE PRESENT IN THE COLLEGE DURING
                        THE INSPECTION ON 16.12.2020

     EXHIBIT P29:       COPY OF THE ORDER NO.AC
                        II/PHARM/A3/10177/2020 DATED
                        21.12.2020 OF THE 1ST RESPONDENT

     EXHIBIT P30:       COPY OF THE PCI REGULATION OF THE
                        YEAR 2014
 WP(C).No.26452 OF 2020(F)



     EXHIBIT P30(a):     COPY OF THE LATEST CIRCULAR OF PCI
                         DATED 01.12.2019

EXHIBIT P31: COPY OF THE LEAVE APPLICATION SUBMITTED BY DR.R.VENKITESH AND HANDED OVER TO THE INSPECTION TEAM

EXHIBIT P32: COPY OF THE APPOINTMENT ORDER OF DR.UMANATH.U.

EXHIBIT P33: COPY OF EMAIL DATED 11.12.2020.