The Principal vs Kerala University Of Health ...
2021 Latest Caselaw 2581 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                  THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                          &

                      THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

               FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                                  WA. No.155 OF 2021

            [AGAINST THE JUDGMENT DATED 05.01.2021 IN WP(C) 26923/2020(M)]



APPELLANT/PETITIONER:

                  THE PRINCIPAL
                  CENTURY INTERNATIONAL INSTITUTE OF DENTAL SCIENCE AND RESEARCH
                  CENTRE, POINACHI, KASARAGODE-671 541.

                  BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.)
                          SRI.TONY GEORGE KANNANTHANAM
                          SRI.THOMAS GEORGE
                          SRI.ALEX GEORGE
                          SRI.EBEE ANTONY KANNANTHANAM


RESPONDENTS/RESPONDENTS:

        1         KERALA UNIVERSITY OF HEALTH SCIENCES
                  REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O,
                  TRICHUR-680 596.

        2         THE STATE OF KERALA,
                  REPRESENTED BY THE SECRETARY TO GOVERNMENT,
                  HEALTH AND FAMILY WELFARE DEPARTMENT,
                  GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.

        3         THE COMMISSIONER FOR ENTRANCE EXAMINATION,
                  TRIVANDRUM -695 001.


                  R1 BY DV. SRI. P. SREEKUMAR, SC
                  R2 & R3 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. 155/2021                               2




                                   JUDGMENT

S. Manikumar, CJ

This intra court appeal is filed against the judgment dated 05.01.2021

in W.P.(C) No.26923 of 2020, by which, a learned single Judge of this Court

declined to grant the reliefs sought for by the writ petitioner/appellant and

dismissed the writ petition, by ordering thus:

"32. In view of the law laid down in the decisions referred to supra, no mandamus can be issued directing the 1 st respondent University to grant continuation of affiliation or to direct the 3rd respondent to include the name of the petitioner's college for centralised allotment process for allotting students for BDS course, for the academic year 2020-21, since no mandamus can be issued to direct an authority to do something contrary to law.

In the result, the petitioner is not entitled to any of the reliefs sought for. The writ petition fails and the same is dismissed."

2. Facts leading to the filing of the instant appeal are that appellant/writ

petitioner is the Principal of an unaided Dental College. He has filed the writ

petition against the refusal of Kerala University of Health Sciences,

respondent No.1, to grant extension of affiliation to the Institute of Dental

Science and Research Centre for the year 2020-2021.

3. Appellant has filed the writ petition stating that the College was

established in the year 2003, on the Letter of Permission (LOP) issued by the

Central Government, on the recommendation of the Dental Council of India

(DCI). At that time, the College was affiliated to Kannur University.

4. As per the provisions of the Dentists Act, 1948, and the regulations

of DCI, LOP has to be renewed year till the College gets recognition.

Recognition is granted by the Central Government, at the time when the first

batch passes out and this is done after a thorough inspection by the DCI.

According to the appellant, once recognition is granted, no further LOP of the

Central Government is needed to make admissions and the said recognition

has to be renewed every five years.

5. Appellant college has further stated that after coming into existence

of the Kerala University of Health Sciences, affiliation of the college stood

transferred to the new University. The University has been renewing the

affiliation of all the unaided schools under the University on an year to year

basis only, and affiliation of the College was, periodically renewed upto and

including the last year i.e. 2019-20. Appellant has applied to the University

for continuation of affiliation for 2021. According to the appellant, there is no

provision in the University Act or the Statutes, which lay down the conditions

under which continuation of affiliation can be granted or refused.

6. Appellant has further stated that the University has issued a letter

dated 10.01.2020 (Exhibit-P3) to the petitioner, directing production of

clearance certificate from the Pollution Control Board and the licence

obtained from the Grama Panchayat. Appellant has submitted a reply on

22.01.2020, wherein it was mentioned that an arrangement is in existence for

collection and disposal of bio-medical waste with the Indian Medical

Association Goes Eco Friendly (IMAGE), and that the application with the

Pollution Control Board was pending.

7. Appellant has further stated that the Dental College was registered

with the Panchayat, in the name of the parent hospital of the College. Two

weeks later, Pollution Control Board has issued "Consent to Operate" dated

12.02.2020 (Exhibit-P7). Yet, the respondent University conducted an

inspection and pointed out certain deficiencies, as evident from Exhibit-P8

letter dated 22.01.2020. After a lot of correspondences between the

appellant and the respondent University on the issue, the University

ultimately, by Exhibit-P10 order dated 04.05.2020, rejected the application for

renewal of affiliation. Aggrieved by the said order, an appeal before the Vice

Chancellor was filed. However, the appeal has also been rejected.

Challenging the rejection of continuation of affiliation, Writ Petition was filed

for the following prayers:

i. Issue a writ of certiorari or other appropriate order or direction to quash Exhibits-P10 and P12 orders dated 04.05.2020 and 27.11.2020 respectively issued by the 1st respondent University.

ii. To declare that the petitioner is entitled to have admissions made in the College for 2020-21.

iii. In the alternative, mandamus to direct the University to issue continuation for affiliation for B.D.S. Course in 2020-21.

iv. To issue a writ of mandamus or other appropriate order, or direction, to direct the Commissioner for Entrance exams to include the petitioner's College for Centralized Allotment and to allot students to the College in 2020 itself.

8. Before the writ court, learned standing counsel for Kerala University

of Health Sciences, respondent No.1, has filed a statement, and the same

reads thus:

A) The petitioner has filed the writ petition challenging the decision taken by the University to reject the application for continuation of affiliation for the academic year 2020-21 in dental courses. The statement is filed without prejudice to the rights of the respondent to file a detailed counter affidavit if found necessary at a later stage.

B) The grievance raised by the petitioner in the writ is in relation to Exhibit P10 order dated 04.05.2020 passed by the respondent University. Exhibit P10 order is legally sustainable and there is no error in the same. The reasons shown in exhibit P10 for rejecting the application for the continuation of affiliation are substantial and justifiable.

C) It is respectfully submitted that being the affiliating and examining body, the University is duty bound to see that the institutions imparting training in the field of Health Sciences maintain the minimum required standard, so as to provide proper training to the students. Once it is found that the institution is not maintaining the standards, the University is bound to take appropriate actions and the same include the rejection of the application for continuing the affiliation.

D) It is further submitted that the University conducts inspection

through its inspectors in the institution to assess the facilities available in the institutions and take a decision regarding affiliation on the basis of the scrutiny of the reports. In the case of the petitioner, an inspection was conducted on 05.12.2019 and the defects noted were intimated to the College. Thereafter, a verification was done on 5.3.2020 through another inspection. It was based on the findings of the said inspections and the scrutiny of the reports received, that the University took the decision to reject the application and issued Exhibit-P10. Though notice was issued to the petitioner regarding the deficiencies, no earnest effort was taken to rectify the same apart from submitting Exhibit P9 compliance report dated 04.02.2020 with annexures. It is settled law that compliance of the conditions on paper alone is not sufficient to consider the application. The petitioner has not raised any serious objections to the findings in the report but contends that the University is not competent to decide on the question of affiliation.

E) It is further submitted that the Hon'ble Apex Court in several judgments held that recognition and affiliation are distinct and different. The recognition is granted by the statutory council or the respective government, whereas grant of affiliation is within the competence of the examining body. It is also the settled proposition of law that affiliation is not automatic or that the University is expected to sign the dotted lines only for the reason that the institution has got recognition or permission from the statutory council.

F) It is further submitted that in the case of dental courses, the Apex body is the Dental Council of India. The regulations issued by the Dental Council or the Central Government are by exercising the powers under Entry 66 of List I, of the 7 th

Schedule of the Constitution of India, whereas the University is a creation of the state under entry 25 of list III. Considering this, the area of operation of the regulations of the DCI and that of the University is different. There is no conflict or repugnancy in the regulations of the DCI and that of the University. Repugnancy could be found only when the provisions in the different enactments are irreconcilable and the operation of the one would render the other inoperative. The courts should attempt to reconcile both the provisions while considering the issue of repugnancy.

G) The petitioner has not stated in the writ petition how the University norms is in conflict with DCI norms and renders the same unworkable. It is a primary requisite in a writ of the present nature to plead and show the repugnancy. Without a finding on repugnancy, it is not possible to discard the authority of the University to grant affiliation. There is also no challenge against any of the provisions in the University Act or the statutes, which prescribe the method to be adopted in dealing with the matter of affiliation.

H) Contention of the petitioner that University is not competent to grant continuation of affiliation is ironic since it is not disputed that the authority to grant affiliation is the University. It is also not the case of the petitioner that the affiliation granted by the University is permanent. The affiliation granted by the University to the petitioner is provisional and for a particular period, and the same is to be extended on the expiry of the period. For the grant of extension of such provisional affiliation, the University adopted the same norms, which are applied for the grant of affiliation. It is also to be noted that though the word used is "continuation of affiliation", the same is granted on the basis of a fresh application.

I) In the case of the petitioner, University has found several deficiencies and they were not rectified by the petitioner. Inspections were conducted by the experts in the field and their findings could not be set aside in a writ petition. While exercising the powers in a writ petition this court is not functioning as an appellate authority. For the foregoing reasons, the respondent University has prayed for dismissal of the writ petition.

9. After considering the pleadings, submissions, material on record,

and taking note of the decisions cited therein, writ court dismissed the writ

petition by the impugned judgment, extracted above. Being aggrieved, the

appellant/writ petitioner has come up with this appeal, raising the following

contentions:

A. The University had never given the appellant or anybody related to the College any notice about the deficiencies noted in the impugned order or the report of the DCI. If the University had any intention of taking any action against the College in the realm of affiliation, the College should have definitely been put to notice and their explanation ought to have been sought for. Nothing of that sort was done by the University.

B. The basic question that remains to be considered is regarding the scope and power of the University in the matter of grant of continuation of affiliation. In the case of Medical and Dental Colleges, the Central Government has to issue Letter of Permission (LO) to admit students every year, till the College gets recognition. Once the College is recognized, no further LOP is required.

C. There is no power vested with the University to issue LOP (by whatever name called) from year to year. This is specifically mentioned in Section 51(3) of the Kerala University of Health Sciences, 2010. What is mentioned therein is, no student shall be admitted by the College unless the "first time" affiliation is granted by the University. Therefore, the embargo for admission is still "the first time affiliation". To have a total picture, we will have to go to the definition of an "affiliated college" mentioned in Section 2(b) of the Act. Here, the affiliation is to the College and it is a one time affair.

D. The only rider in Section 53(1) of the Act, 2010 says that the College may apply for continuation of affiliation for the course of study for which affiliation "was" granted. Therefore, the continuation of affiliation is a process in totality of the course and the college. Continuation of affiliation is not for a course/batch yet to start, but to which it was already granted. Therefore, the power under Section 53(1) cannot be confined to the Course/admission yet to start. Nowhere in the Act/statute, it is provided that no admission shall be effected unless renewal of affiliation for that course is given by the University for any particular year.

F. It is further contended that none of the decisions referred to in the impugned judgment are applicable to the facts on hand. The writ court has not considered the scope and power of the University in granting extension of affiliation to an existing course in an existing college, especially in the light of Sections 51(3) & 53(1) of the KUHS Act, 2010 read with St.10 of Chapter 21 of the First Statutes. The rejection of extension of affiliation to the appellant College by the University is beyond the scope of powers under Chapter 21 of the K.U.H.S First Statutes.

10. Inviting the attention of this Court to Exhibit-P8 dated 22.01.2020,

letter of the Registrar, Kerala University of Health Sciences, Thrissur

addressed to the appellant college, Mr. Kurian George Kannanthanam,

learned Senior Counsel appearing for the appellant, submitted that though

the inspection team recorded that some of the teaching staff were found to

be absent; that the clinical requirements like Dental Extractions and RCT

were not done according to the requirement; that there was no proper

documentation of details of attendance, absence of staff for valuation duty

and satellite clinic; and that the college was informed that the application for

continued affiliation would be considered on submission of a compliance

report, rectifying the deficiencies noted along with an affidavit on stamp

paper worth Rs.200/- to the effect that the deficiencies noted by the scrutiny

committee are rectified within a fortnight, by satisfying that there are major

deficiencies, a reply (compliance report) dated 4.2.2020 was submitted by

the appellant college along with documents annexed thereto, explaining the

reasons for their absence. As regards clinical requirements like dental

extractions and RCT, and documents of attendance etc., a suitable reply was

also given by the college.

11. Learned Senior Counsel appearing for the appellant further

submitted that thereafter on 4.5.2020, Kerala University of Health Sciences,

without considering the compliance report 4.2.2020, in proper perspective,

taking note some complaints, addressed to the Governor of Kerala, that the

college is running without the permission and licence from the Chemmenad

Grama Panchayat and Pollution Control Board, and taking note of some

feedback from some students, rejected the request for continuation of

provisional affiliation, for the academic year 2020-21.

12. Learned Senior Counsel for the appellant further submitted that the

complaint given by some of the students, the inspection said to have been

conducted by the Dental Council of India (DCI), and the report, forwarded by

them to the University, were never a part of the deficiencies pointed out in

Exhibit-P8 letter dated 22.01.2020, sent to the appellant college for

rectification, and fresh reasons have been assigned by the Kerala

University of Health Sciences for rejecting the application for continuation of

provisional affiliation.

13. As regards the 1st deficiency that the Principal of the college was

on leave on the inspection day and that there was no transfer of charge,

learned Senior Counsel for the appellant submitted that as per the procedure

followed, just for one days' leave, charge would not be transferred and that is

done, only if the Principal is on long leave.

14. Learned Senior Counsel further submitted that the appellant

college has been running for fifteen years, and that for mere absence of a

few staff, on the day of inspection, continuation of provisional affiliation

cannot be denied. He further submitted that it is not the case of Kerala

University of Health Sciences, that the appellant college did not appoint the

required staff/faculty for the purpose of imparting education and training, and

thus, not satisfied the norms prescribed by the DCI, the absence of staff/

teachers were duly explained in the compliance report.

15. Learned Senior Counsel further submitted that as per the rejection

order dated 4.5.2020 (Exhibit-P10), 1st respondent University has concluded

that out of 6 medical staff, who were on leave, 3 of them have been

sanctioned leave by the Principal of the appellant college. Among the 3

dental staff, only one person has attended the valuation duty. If the other

persons have not attended the valuation duty, then the college can only take

appropriate action, if their absence from attending the valuation duty is not

satisfactorily explained by them. As regards Mr. Sanjay Bhat, Reader in the

Department of Orthodontics, explanation has also been submitted that he is

on leave; that the college has one Professor and two Readers, in the

Department of OMFC as per the requirement; Regular Dental camps are

arranged in the surrounding remote places; and mobile dental van is

routinely deployed for students to do adequate treatment.

16. Learned Senior Counsel further submitted that absence of a few

staff/faculty on a particular day, in the case on hand, inspection, cannot be

said to be a major deficiency, for rejecting the request of the appellant

college for continuation of provisional affiliation. He also submitted that the

appellant college has been running for 15 years with recognition of the

Dental Council of India.

17. He further submitted that as per the norms of Kerala University of

Health Sciences, even if there is a shortage of 10% attendance, continued

affiliation cannot be denied.

18. He further submitted that without proper consideration of the

compliance report, 1st respondent University has erred in arriving at the

conclusion that there was shortage of 10 Dental and 6 Medical Staff on the

day of inspection, and this amounted to shortage by 17% out of 92

staff/faculty, and on that basis, denied the request for continued affiliation.

19. Per contra, Mr. P. Sreekumar, learned standing counsel for the

respondent University, submitted that the deficiencies found are major in

nature and were not rectified during inspection. Placing reliance on the

decision in Medical Council of India v. Kalinga Institute of Medical

Sciences reported in (2016) 11 SCC 530, learned standing counsel further

submitted that inspection reports cannot be discarded. He prayed to sustain

the orders impugned in the writ petition declining the request of the appellant

college for continuation of provisional affiliation and consequently, the

impugned judgment.

20. Heard the learned counsel for the respective parties and perused

the material available on record.

21. Material on record discloses that by Exhibit-P8 letter dated

22.01.2020, Registrar of Kerala University of Health Sciences, respondent

No.1, has rejected the application submitted by the appellant College for

continuation of provisional affiliation, on the basis of certain deficiencies.

Said letter reads thus:

"No.18534/29019/AC-1/Dent/A1/KUHS Dated:22/01/2020

From The Registrar To The Principal Century International Institute of Dental Sciences & Research, Kasaragod.

Sir, Sub: KUHS - Academic-Dental-Continuation of Provisional Affiliation for the year 2020-21 - Inspection report - Deficiencies pointed out by the Scrutiny Committee-rectification sought for - reg.

Ref: 1. Report of the Inspection Commission dated 05/12/2019

2. Report of the Scrutiny Committee dated 07/01/2020.

Attention invited to the references cited, I am to inform you that on verification of the report of the inspection conducted at Century International Institute of Dental Sciences & Research, Kasaragod for granting Continuation of Provisional Affiliation for the academic year 2020-21, the Scrutiny Committee pointed out the following deficiencies:

1. The Principal was on leave on the day of inspection, without transferring charge to Vice Principal.

2. Five faculty were on leave on the day of inspection.

3. Four faculty were unauthorised absent.

4. Deficiency of one reader in the department of OMFS.

5. The Clinical requirements like Dental extractions and RCT were not done according to the requirement.

6. No proper documentation of the details of attendance, valuation duty and satellite clinic.

Further the college has not submitted renewed MoU with District Taluk Hospital Kanhangad for the year 2020-21.

In the circumstances your application for continuation of provisional affiliation for the year 2020-21 cannot be considered favourable. In order to consider your application for Continuation of Provisional

Affiliation you are requested to submit a compliance report rectifying the above deficiencies along with an affidavit on stamp paper (worth Rs.200) to the effect that the deficiencies noted by the scrutiny committee are rectified within a fortnight.

Yours faithfully, REGISTRAR Approved for Issue

Section Officer"

22. Exhibit-P9 is the compliance report dated 04.02.2020 with

annexures and the same is reproduced hereunder:

"CDC-KUHS/Affiliation/2020/01 Dated:04/02/2020 To The Registrar Kerala University of Health Sciences Thrissur-680596.

Respected Sir, Sub: KUHS-Academic-Dental 7 Continuation of Provisional Affiliation for the year 2020-21 - Inspection report - Deficiencies pointed out by the Scrutiny Committee - rectification sought for - reg

Ref: Your letter No. 18534/2019/AC-1/Dent/A1/KUHS dated 22.01.2020.

We acknowledge the receipt of your letter No. 18534/2019/AC-1/Dent/A1/KUHS dated on 22/01/2020 by post on 03/02/2020.

We refer to the letter under reference and respectfully submit the compliance report.

1. The Principal was on leave on the day of inspection without transferring charge to vice principal.

Compliance: The inspection was a surprise inspection as per order and myself had no prior information about it and had taken casual leave for my personal works. The same was informed to

inspectors on the phone. The transferring of authority to vice principal was done. The copy of it is being resubmitted as annexure-1.

2. Five faculty were on leave on the day of inspection. Compliance: the leave forms of the staffs who were on leave have been submitted as Annexure-2.

3. Four faculty were unauthorised absent.

Compliance: The leave forms of four faculties have been attached in annexure-2. Total 9 staffs were on leave. There was no unauthorised absence.

4. Deficiency of one reader in the department of OMFS. Compliance: We have one professor and two readers in the department of OMFS as per requirements.

1. Dr. Prashanth hegede (Professor)

2. Dr. Dheeraj (reader)

3. Dr. Akshatha(reader) All these staffs are enrolled in the faculty enrollment programme (FEP) and have numbers allotted by KUHS as respectfully submitted. However, one reader Dr. Dheeraj was on leave on the day of inspection and leave form is attached. Annexure- 3

5. The clinical requirements like dental extractions and RC were not done as per requirements.

Compliance: Adequate number of patients /clinical material is there for student and interns training. Extractions are being done by students/interns under supervision of staff. Also regular dental camps are arranged in surrounding remote places so that patients avail adequate dental care. Mobile dental van is routinely deployed for students to do adequate treatments. RCTs are done by interns and staff as per appointments on a given day. Institution is taking various measures to further increase OP on a day to day basis.

6. No proper documentation details of attendance, valuation duty and satellite clinics.

Compliance: Biometric attendance marking is used for all staff. The copy of it on the day of inspection is attached. Annexure-4. Staffs have attended valuation as per university requirements. Valuation duty list is submitted as annexure-5. We are in the process of establishing a new satellite clinic and will be fully compliant as per university requirements.

7. Renewed MoU with district hospital Kanhangad for 2020-21. Compliance: The college has MoU signed for the academic year 2019-20. We have applied for the renewal of the permission from DHS for the year 2020-21. It will be submitted as soon as we receive it. Meanwhile, our own 100 bedded hospital is almost complete and is being made fully functional within campus. In view of these we humbly request you to consider our application for continuation of provisional affiliation for BDS course for the year 2020-21. We comply with norms set by university and will work towards achieving higher standards of academic excellence.

Respectfully submitted with annexures Thanking you, PRINCIPAL"

23. Exhibit-P10 order dated 4.5.2020 passed by the 1st respondent is

extracted hereunder:

"KERALA UNIVERSITY OF HEALTH SCIENCES ABSTRACT KUHS- Academic - Continuation of provisional affiliation for the academic year 2020-21- Century International Institute of Dental Sciences and Research Centre, Kasaragode- rejected - orders issued.

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

ACADEMIC SECTION U.O.No 18534/Ac 1/Dent/A112019/KUHS Date : 04-05-2020

------------------------------------------------------------------------------------- Read :- 1. Notification No. 30/AC-B/KUHS/2016 dated 23-07-2019

2. Letter No. ClIDS/RC/KUH/Affi/2019 dated 17/09/2019

3. Report of the inspection commission dated 05/12/2019

4. Minutes of the Scrutiny Committee held on 07/01/2020

5. Report of the inspection commission dated 05/03/2020

6. Minutes of the Scrutiny Committee held on 18/03/2020

7. Decision no 59.38 of the Governing Council meeting held on 25/04/2020 ORDER

University, vide paper read (1) above invited application for continuation of provisional affiliation from colleges for courses affiliated to the University for the academic year 2020-21. The Principal, Century International Institute of Dental Sciences and Research Centre, Kasaragode, vide paper read (2) above, has submitted an application for continuation of provisional affiliation for BDS course with an intake of 100 seats for the academic year 2020-21. University has processed the application and the inspection commission has been appointed to verify the facilities available in the college for conducting the course. The inspection commission, vide paper read (3) above, has submitted the inspection report. The Scrutiny Committee, vide paper read (4) above, after verifying the inspection report has pointed out the following deficiencies at the college recommended for conducting re-inspection.

i. The Principal was on leave on the day of inspection without transferring charge to Vice Principal.

ii. Five faculty were on leave on the day of inspection. iii. Four faculty were unauthorized absent. iv. Deficiency of one reader in the department of OMFS. v. The Clinical Requirements like Dental extractions and Root Canal Treatment were not done according to the KUHS requirement.

vi. No proper documentation of details of attendance, valuation duty and satellite clinic.

2. The above deficiencies were intimated to the college directing to rectify the deficiencies and submit the compliance report. Meanwhile, a letter was received from the Principal Secretary to the Governor seeking report on the complaint received against Century international institute of Dental Sciences, Kasaragod. The complainant ,Dr. Jayaprasad K., on the basis of the RTI reply from the Chemmenad Grama Panchayath and pollution control board claims that the institution is running without the permission and license from the Chemmenad Grama Panchayath and pollution control board for the past 15 years. Considering the complaint the College was directed to produce the relevant documents at the earliest.. The Kerala Dental Council had conducted an inspection based on the complaint received in their office from internees. The report was forwarded to University for taking further action. On scrutinizing the inspection report it was found that the complaints raised by the internees were genuine since there were gross irregularities in the main attendance register of Internees, some persons signed for others, some internees signed but were not present. There was no logbook. The college had submitted a compliance report regarding the intimated deficiencies. Considering the documents proving the bio-medical waste management facility and application to Kerala state Pollution Control Board, and the report forwarded by Kerala Dental Council, the Scrutiny Committee recommended to conduct a surprise inspection. On receipt of the compliance report, the University has appointed an inspection commission to verify the genuineness of the compliance report. The inspection commission, vide paper read (5) above, has submitted the inspection report. The Scrutiny Committee, vide paper read (6) above, after verifying the

inspection report, has pointed out the following deficiencies

a. The faculty status on the day of inspection was mentioned that 6 Medical staff and 8 Dental staff were on leave. Apart from this 3 faculty were on duty leave for theory paper valuation at KUHS Headquarters and one reader in the Dept of Orthodontics was absent (on long leave). On scrutinizing the submitted supporting documents it is noted that:

i. Of the 6 Medical staff on leave, the leave application of only 3 were sanctioned by the Principal.

ii. Among the 3 Dental staff on valuation duty (as reported by the college), only 1 person Dr. Avinash, Dept. of Orthodontics had attended valuation duty at KUHS on 05.03.2020. The other 2 persons Dr. Ranjith Madavan (Periodontics) and Dr. Anusha (Oral Medicine & Radiology) had not attended valuation duty on the day of Inspection as per university records. iii. It was also noticed that one of the staff Dr. Shahanas (Conservative Dentistry) whose sanctioned leave application submitted had signed in the attendance sheet. iv. Dr. Sajay Bhat Reader in the Dept of Orthodontics was not present on the day of previous inspection as well as on the day of current inspection. It was reported by the college that he is on long leave. But no substitute has been arranged so far. b. Satellite Clinics No satellite clinic facilities are provided by the college which is against the norms of KUHS as well as that of DCI. This deficiency was pointed out during the previous inspection also. c. Student Feedback:

d. On interaction with students, the Inspection team has reported that there are malpractices in the conduct of university examinations. They also mentioned that proper checking of students before entering the examination hall is not done. Besides they have complained that the stipend given to the Interns is not as per KUHS norms.

e. Hence, there is a total shortage of 10 Dental and 6 Medical staff on the day of inspection. This amounts to 16 out of 92 that is around 17%. The shortage of one reader in the Dept of Orthodontics mentioned In the previous Inspection is still not rectified.

3. The whole matter along with the recommendations of the Scrutiny Committee has been placed before the Governing Council and the Governing Council, vide paper read (7) above, has decided to reject the application of Century international institute of Dental Sciences and Research Centre, Kasaragode for Continuation of provisional affiliation for the year 2020-21 considering the major deficiencies.

4. The Hon'ble Vice Chancellor has accorded sanction to implement the decision of the Governing Council read (7) above and to reject the application of Century International Institute of Dental Sciences and Research Centre, Kasaragode for Continuation of provisional affiliation for the year 2020-21 .eased on the major deficiencies.

Registrar To The Principal, Century International Institute of Dental Sciences and Research Centre, Kasaragod."

24. Exhibit-P11 is the appeal filed by the appellant against Exhibit-P10

order dated 04.05.2020 issued by the 1st respondent University, wherein it

was stated thus:

"Sub: Appeal for granting Continuation of Affiliation - BDS Course

- academic year 2020-21.

Ref: KUHS communication U.O. No 18534/AC1/Dent/A1/ 2019/KUHS dtd.4th May, 2020.

It is respectfully submitted that 'Century Dental College' was established in the year 2001, at Poinachi village, Kasaragod District. The BDS course with 100 intake per year conducted by the Institution is recognized by the Central Government and renewed every 5 years thereafter, as published in the official Gazette of the Ministry of Health &FW. The Institution is affiliated

to KUHS from its inception. During the past 18 years, the University conducted yearly inspection and have accorded continuation of affiliation.

For the academic year 2020-21, we applied for Continuation of Affiliation for BDS course and a surprise inspection was conducted by the University on 5.12.2020. Vide letter dated 22.01.2020, the University directed the college to submit a compliance report by rectifying the deficiencies pointed out by the scrutiny committee. A Compliance report dated 4.02.2020 was duly submitted to KUHS. Thereafter, the University conducted yet another surprise inspection on 5.3.2020. No further communication was received from the University after that regarding deficiency noted by the 2 nd Inspection commission. Instead, we received a letter dated 4.5.2020, rejecting our application for continuation of affiliation, without according any venue for explanation or appeal. In the said letter of rejection, the deficiency pointed out in the 1st inspection dated 5.12.2019 and a complaint lodged by one Dr. Jayprasad as well as new deficiencies pointed out in 2nd inspection are narrated.

Therefore, in appeal for reconsideration of our application for continuation of affiliation for the academic year 2020-21, we submit the following point-wise explanation/compliance on deficiency noted in the rejection letter.

1. Deficiency pointed out in 1 inspection report are, ● Principal was on leave on the Inspection day, without transferring charge to the Vice Principal. ● Five faculty were on sanctioned leave and four faculty were on unauthorized leave.

● Deficiency of one Reader in the Department of OMFS.

Dental extraction and RCT were not done as per requirement.

● No proper documentation details of attendance, University valuation duty & satellite clinic

A compliance report dated 4.2.2020 was duly submitted to KUHS along with copies of leave forms for Faculty on eligible leave. Further, the deficiency of one Reader in OMFS do not exist, as we have one Professor (Dr Prasanth Hedge) and two Readers (Dr Dheeraj Devadiga & Dr.Akshatha) as per DCI norms, registered under FEP list and regularly attending KUHS exam duties. Copy of the KUHS letter dated 22.01.2020 and compliance report dated 4.02.2020 submitted by the College are attached.

2. Reference is made to a complaint lodged by one Dr. Jayprasad, a former disgruntled employee of this Institution, alleging that the College is functioning without local Grama Panchayat License and certificate of Pollution control board.

The said allegation is totally baseless. Local Grama Panchayat is not an appropriate Authority to issue a License to operate a Dental college in India as per DCI regulation. However, the College was registered with the Grama panchayat on 16.09.2010, as per their request. We had obtained an affiliation with IMAGE dated 14.12.2019 for Bio-medical waste management and the permission of the Pollution Control Board valid till 2024. Century Hospital, functioning in the College Campus had its own incinerator from the time inception for bio-medical waste management. The said hospital was taken over by the Government for National Highway (NH) road widening purpose. Copies of registration with local Grama Panchayat dated 16.09.2010, certificate of Affiliation with IMAGE for Bio-medical waste management dated 14.12.2019 and the permission of PCB valid till the year 2024 are attached.

3. The new deficiency pointed out in the rejection letter which was not in the 1st inspection report are the following: -

a. (I) Of the 6 Medical staff on leave, applications for leave of only 3 staff were previously sanctioned by the Principal.

(ii) Among 3 Dental staff reportedly attending valuation duty, only Dr. Avinash (orthodontics) attended valuation duty at KUHS campus on the inspection day and two others Dr. Ranjith Madhavan (Periodontics) & Dr.Anusha(OMR) have not attended valuation duty as per the University Records.

(iii) It was noticed that Dr. Shahanas, whose leave application was sanctioned, had also signed in the attendance register.

(iv) Dr. Sanjay Bhat, Reader (Orthodontics), had taken a long leave. But no replacement is made so far.

(b). No satellite clinic was provided by the college. (c&d). Students feedback: Inspection team has reported about malpractice in conducting examinations and proper checking are not done before entering examination.

(e). Hence, there is a total shortage of attendance of 10 dental staff and 6 Medical staff on the day of inspection which amount 17% (16 out of 92) and a shortage of Reader in Dept. of Orthopedics mentioned in 1st Inspection.

Compliance: - a (i). Out of the 6 medical staffs3 staff had obtained prior leave sanction and 3 were on camp duty & casual leave on the inspection day. All of them were on eligible leave as per norms. Copies of leave forms submitted to the inspectors are attached herewith.

(ii) All 3 Dental staff were on paper valuation duty at KUHS Campus in Thrissur and had attended valuation duties as per KUHS direction. The reference w.r.t Dr. Ranjith Madhavan and Mrs. Dr. Anusha were not present for valuation duty on inspection day (5.3.2020) is correct. However, KUHS valuation duty schedule for both of them was till 4.03.2020. In fact both of them completed their paper valuation work the previous day and started their journey back on 4.03.2020 from KUHS campus in Thrissur to Kasaragod which is about a 12-hour journey. As they were already on sanctioned duty leave from the college to attend university valuation duty, they did not attend the college next day (5.3.2020- Inspection day). They have marked their attendance in KUHS attendance register and duty certificates were issued by KUHS.

(iii) Dr. Shahnas(Reader), was on sanctioned leave. However, he came to the College upon hearing about the surprise inspection.

(iv). Dr. Sanjay Bhat, Reader (Orthodontics), had taken a long

leave for personal reasons. He was replaced by promoting Dr. Ajeesha (Orthodontics) to the post of Reader, who had completed 4 years of service as per DCI norms. There is no deficiency in the post of Reader. Copy of the Promotion order is attached. b. The college is conducting regular treatment camps at various locations including satellite clinics by the Faculty, Students and Interns. The Satellite clinics adopted by the Institution are, Smile Dental-care, Kuttikol, Kasaragod-671541 & Smile Dental-care, Kasaragod-671316.

C & d. The information obtained from students regarding malpractice in examination -are not substantiated. There are internal squads of senior staffs to check for any devices to prevent malpractice. Students are properly checked before entering the examination hall. In the event of any malpractice by students, Internal and External examiners duly report such incidents to the University and strict actions are taken against them as per University direction. During the university examinations held in January & February, 2020, no case of malpractice was reported by any observer or by the University appointed squad present at the venue in the college. So, the allegations that examination malpractice is happening in the institution is without any basis.

e. All Faculty including the Principal are eligible to avail leave as per Norms and there is no shortage of Faculty. All Faculty are. regularly attending examination duties assigned by KUHS and all are registered with the University under FEP program. A copy of the Faculty list downloaded from the KUHS website is attached herewith.

In view of the above, we most humbly request to give continuation of affiliation for BDS course with 100 student intakes for the academic year 2020-21, for Century Dental College, which is one and only Dental College in the remote District of Kasaragod.

Yours faithfully,

Dr. Prashanth The PRINCIPAL"

25. Exhibit-P12 order dated 27.11.2020 passed by the 1st respondent

on Exhibit-P11 appeal dated 20.09.2020 submitted by the appellant is

reproduced hereunder:

"No. 18534/2019/Ac-1/Dent/A1/KUHS Date: 27-11-2020 From The Registrar To The Principal Century International Institute of Dental Sciences, Poinachi, Kasaragod.

Sir, Sub:- KUHS-Academic-Dental-Continuation of Provisional Affiliation for the year 2020-21 rejected-reconsideration- requested-reg.

Ref:- 1. U.O. No.18534/AC1/Dent/A1/2019/KUHS dated 04.05.2020.

2. Your letter No.CDC-KUHS/Affiliation/2020-21 dated 20.09.2020.

Attention is invited to the reference cited. I am to inform you that your request to reconsider the decision of the University rejecting the application for Continuation of Provisional Affiliation to your institution to conduct BDS course (100 seats) for the Academic year 2020-21 cannot be considered favourably since the application was rejected based on the grave deficiencies found in your institution during the two inspections conducted in your institution by University related to the grant of Continuation of Provisional Affiliation for 2020-21.

Yours faithfully,

Registrar."

26. Order dated 15.05.2019 issued by the Kerala University of Health

Sciences, Academic I Branch as regards implementation of the decision of

Governing Council is extracted hereunder:

"KERALA UNIVERSITY OF HEALTH SCIENCES Abstract KUHS- Academic- non compliance of Council/University norms-

Conduct of Re-inspection - modification of existing norms - Decision of the Governing Council-implemented - orders issued.

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

ACADEMIC I BRANCH No. 6296/AC-B/KUHS/2013 Thrissur, Dated. 15.05.2019

------------------------------------------------------------------------------------- Read: 1. U. O. No.6296/AC-B/KUHS/2013 Dated 28.11.2018

2. Decision No.52.41 of the 52 nd Governing Council meeting held on 11.04.2018.

ORDER

1. As per the order read 1st above, the norms for conducting re-inspection and rate of fee to be levied for each re-inspection from the colleges who failed to comply the norms fixed by University and Central Councils.

2. While implementing the B point in the order, based on the scrutiny reports of inspections conducted at various institutions under different streams certain clarification are required regarding the shortage of Faculties. The Medical Council of India is permitting 10% Faculty deficiency during inspection for Government Medical Colleges and 5% for Private Medical Colleges. For AYUSH colleges 10% deficiency is permissible by CCIM. Where as for Nursing colleges, INC is not permitting such relaxations. The Paramedical courses are not controlled by anyApex councils.

3. A proposal for modifying the University order ( Point -B) was placed before the 52 nd Governing Council meeting held on 11.04.2019. After detailed discussions the Governing Council has approved in Principle the proposal to modify the clause B in the order read 1°' above, as mentioned below:-

"Continuation of affiliation may be granted to colleges subject to rectification of Faculty deficiency (upto 5% to 10% as given by apex councils wherever applicable and 5% for courses having no statutory council stipulations to

this effect) which may be verified during the next years surprise inspections. No re-inspection fee may be levied for such cases.

Those colleges where a re-inspection is required due to major deficiencies including IP strength and faculty deficiency above the limit, have to remit a re-inspection fee of Rs. 20,000/- (Rupees twenty thousand only) and submit an affidavit from the Principal to the effect that the college has rectified all the deficiencies noted by the inspection team and decision based on the findings of the re-inspection conducted by the University to verify this claim shall be final"

Other conditions in the University Order (Clause A and C) remain unaltered.

4. Sanction has been accorded by the Hon'ble Vice Chancellor to implement the decision of the Governing Council.

5. The decision of the Governing Council (No. 52.41) is implemented and orders are issued accordingly.

6. The order read 1" above stands modified to the above extent.

REGISTRAR"

27. Perusal of the order dated 04.05.2020 (Exhibit-P10) shows that

though the Kerala University of Health Sciences has stated that transfer of

charge was not given, in the compliance report dated 04.02.2020, it is

explained that on the date of inspection, the Principal was on casual leave

and transferring of authority has been done. Presumably, accepting the said

explanation, in the order of rejection of continued affiliation, his absence and

not effecting charge have not been mentioned.

28. Out of the 6 Medical staff, recorded as absent, the appellant

college has explained that they were on leave. University, while considering

the explanation, found that for 3 of them, leave applications have been

sanctioned. For the rest, it is for the appellant college to take appropriate

decision. Therefore, it can be concluded that only 3 of the Medical staff were

not present, without due authorisation. Absence can be only three.

29. As regards the 2nd deficiency, out of 3 Dental staff deputed for

valuation duty, only one has reported for duty and other 2 have not. Judicial

notice can be taken that deputation of faculty for valuation duty can be done

only when the University directs the respective colleges to depute for such

duty. In the case on hand, admittedly, one Dental staff has attended the

valuation duty and the two staff may require to explain to the college, as to

why they have not attended the duty. Thus, all the three Dental staff cannot

be said to be absent. At this juncture, explanation offered by the appellant

college is reproduced:

"(ii) All 3 Dental staff were on paper valuation duty at KUHS Campus in Thrissur and had attended valuation duties as per KUHS direction. The reference w.r.t Dr. Ranjith Madhavan and Mrs. Dr. Anusha were not present for valuation duty on inspection day (5.3.2020) is correct. However, KUHS valuation duty schedule for both of them was till 4.03.2020. In fact both of them completed their paper valuation work the previous day and started their journey back on 4.03.2020 from KUHS campus in Thrissur to Kasaragod which is about a 12-hour journey. As they were already on sanctioned duty leave from

the college to attend university valuation duty, they did not attend the college next day (5.3.2020- Inspection day). They have marked their attendance in KUHS attendance register and duty certificates were issued by KUHS.

30. At any rate, only two of the Dental staff can be said to be absent.

Further, the appellant college cannot be held responsible for their absence in

not attending the valuation duty.

31. As regards the attendance of Dr. Shahanas (Reader), University

has recorded that though Dr. Shahanas was sanctioned leave, he had

signed the attendance register, for which, the appellant college has replied

that though he was sanctioned leave, on coming to know that there was an

inspection, Dr. Shahanas had attended duty, and accordingly, signed the

attendance register.

32. As regards the 4th deficiency in the rejection order (Exhibit-P8), that

there was no Reader in the Department of Orthodontics and no substitute

has been made, appellant college has submitted that Dr. Sanjay Bhat,

Reader (Orthodontics), had taken a long leave for personal reasons; he was

replaced by promoting Dr. Ajeesha (Orthodontics) to the post of Reader, who

had completed 4 years of service as per DCI norms; and there is no

deficiency in the post of Reader.

33. Perusal of the order of rejection further shows that there is no

proper consideration to the explanation offered by the appellant college.

Nevertheless, even taking it for granted that the said Reader was absent, the

total number of Medical, as well as Dental Staff, who can be said to be

absent cannot be 16 (sixteen), on the day of inspection, out of 92

(staff/faculty). That apart, it is the specific case of the appellant college that

out of six Medical staff, three staff had obtained prior leave. Appellant

college has further stated that they have enclosed the leave applications

along with the compliance report.

34. Thus, going through the material on record, particularly the order of

rejection of the application for continuation of provisional affiliation, it is

evident that the University itself has admitted that leave applications of three

Medical staff, out of six, have been sanctioned. From the above, it could be

deduced that six staff were not available at the time of inspection and not 16,

as concluded by the University, out of 92 (staff/faculty). At the risk of

repetition, ground (e) of the order of rejection is reproduced:

"e. Hence, there is a total shortage of 10 Dental and 6 Medical staff on the day of inspection. This amounts to 16 out of 92 that is around 17%. The shortage of one reader in the Dept of Orthodontics mentioned In the previous Inspection is still not rectified."

35. Said conclusion of the respondent University is erroneous.

36. As rightly pointed out by the learned Senior Counsel for the

appellant college, none of the averments in the order impugned in the writ

petition, relating to the complaints submitted to the Governor of Kerala,

Inspection done by the Dental Council of India, and the students feedback,

were part of the deficiencies noticed by the Kerala University of Health

Sciences for rectification and that the appellant college was not given an

opportunity to substantiate their stand. Therefore, the appellant cannot be

denied continuation of provisional affiliation, on those grounds.

37. With respect to the other deficiencies noticed by the respondent

University, i.e. satellite clinic etc., appellant has stated that the college is

conducting regular treatment camps at various locations, including satellite

clinics by the Faculty, Students and Interns and that the Satellite clinic

adopted by the institutions are, Smile Dentalcare, Kuttikol, Kasaragod, and

Smile Dentalcare, Periya, Kasaragod.

38. It is not disputed that the appellant college is running for 15 years

continuously. All the students have been admitted to the examinations

periodically. It is not the case of the 1st respondent University, that the

college has not appointed adequate staff/faculty for imparting teaching and

practical training to the students and thus, not adhered to the norms

prescribed by the Dental Council of India. Deficiency noticed is regarding

the absence of Medical/Dental staff, on the inspection day.

39. Attention of this court was also brought to the notice of an office

order dated 15.05.2019, wherein continuation of affiliation is permissible,

subject to the rectification of insufficiency staff/faculty upto 5 to 10%. As

pointed out in the forgoing paragraphs, if 6 staff were absent, then the

percentage would be 6/92, i.e. 6.5%. On the basis of the above said order,

the appellant college is entitled to seek for continuation of affiliation, subject

to rectification of faculty, in the subsequent inspection.

40. Though Mr. P. Sreekumar, learned standing counsel for the Kerala

University of Health Science, respondent No.1, placed reliance on the

decision in Kalinga Institute of Medical Science (cited supra), a close

scrutiny of the facts and material on record, in particular, the impugned order,

prima facie, we are of the view that the appellant college has made out a

case for interference with the orders impugned in the writ petition and

consequently, the judgment of the learned single Judge in W.P.(C) No.26923

of 2020 dated 05.01.2021.

41. Accordingly, orders dated 4.5.2020 and 27.11.2020 (Exhibits-P10

& P12) issued by the 1st respondent University and the impugned judgment

are set aside. Court, in normal circumstances, would only direct the

authorities concerned, to reconsider the issue of continued affiliation.

However, considering the totality of the case and in the light of the order

dated 15.05.2019 passed by the Kerala University of Health Sciences

University, we deem it fit to direct the University, to grant continued affiliation

to the appellant college, for the academic year 2020-21, for BDS course. As

regards allotment of students by the 3rd respondent, allotment procedure, be

duly followed.

In the result, this Writ Appeal is allowed.

Learned counsel for the respondents are directed to communicate this

judgment to the respective parties, for compliance.

Sd/-

S. Manikumar Chief Justice

Sd/-

Shaji P. Chaly Judge

krj

//TRUE COPY//

P.A. TO C.J.