Kunhitharuvai Memorial ... vs Kerala University Of Health ...
2021 Latest Caselaw 9814 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

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                           WA.No.481 OF 2021

AGAINST THE JUDGMENT IN WP(C) 4975/2021(V) OF HIGH COURT OF KERALA

APPELLANT/PETITIONER:

             KUNHITHARUVAI MEMORIAL CHARITABLE TRUST
             CORPORATE OFFICE, KMCT MEDICAL COLLEGE CAMPUS,
             MANASSERY, MUKKAM, KOZHIKODE - 673 602 REPRESENTED BY
             ITS CHAIRMAN AND MANAGING TRUSTEE, DR.K.MOIDU,
             S/O.KUNHITHARUVAI HAJI, AGED 86 YEARS, RESIDING AT
             HAZEL, VAZHIPOKK ROAD, THONDAYAD BYPASS, KOZHIKODE -
             673 016.

             BY ADVS.
             SRI. RAJU JOSEPH(SR) FOR APPELLANT,
             SRI.K.M.JAMALUDHEEN
             SMT.LATHA PRABHAKARAN

RESPONDENTS/RESPONDENTS:

      1      KERALA UNIVERSITY OF HEALTH SCIENCES
             MEDICAL COLLEGE POST, THRISSUR - 680 596, REPRESENTED
             BY ITS REGISTRAR.

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

      3      THE COMMISSIONER OF ENTRANCE EXAMINATIONS
             OFFICE F THE COMMISSIONER OF ENTRANCE EXAMINATIONS,
             5TH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR,
             THIRUVANANTHAPURAM - 695 001.

             R1 BY SHRI.P.SREEKUMAR, STANDING COUNSEL, KERALA
             UNIVERSITY OF HEALTH SCIENCES
             R2 & R3 BY SRI. M.A ASIF, SPL GOVERNMENT PLEADER
     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2021, THE
COURT ON 24-03-2021 DELIVERED THE FOLLOWING:
 WA.No.481 OF 2021                           2




                                 JUDGMENT

Dated this the 24th day of March 2021

SHAJI P.CHALY,J

The captioned appeal is filed by petitioner in W.P.(C) No.4975 of 2021,

challenging the judgment of the learned single Judge dated 25.2.2021, which

was dismissed by the learned single Judge holding that the impugned Ext.P11

communication dated 19.2.2021 issued by the Kerala University of Health

Sciences, the 1st respondent, declining increasing the intake in B.Pharm course

from 60 to 100 seats, for the academic year 2021 holding that as per norms for

increasing the sanctioned intake, the 1st batch of the existing course has to

pass out and since the appellant has not acquired the said qualification, the

findings made in Ext.P11 is neither perverse nor patently illegal warranting

interference in writ jurisdiction. It is thus challenging the legality and

correctness of the judgment, the appeal is preferred.

2. Shorn of unnecessary details, basic material facts for the disposal of the

appeal are as follows; the appellant is a trust running a Self Financing Pharmacy

College, viz., KMCT College of Pharmacy, Mampara, Kozhikode District. Appellant

obtained approval as per Ext.P1 to start the B.Pharm course on 10.4.2020, for

the academic year 2020-2021 with an intake of 100 students subject to the

stipulations and conditions prescribed thereunder. On the basis of the approval,

appellant applied for issuance of consent of affiliation, however, for an intake of

60 students for the Undergraduate B.Pharm course for the academic year 2020-

2021, was granted by the University as per Ext.P6 order dated 16.10.2020

subject to the conditions prescribed thereunder.

3. The appellant has approached the writ court seeking a writ of certiorari

to quash Ext.P11 communication issued by the University dated 19 th February,

2021, whereby the appellant was informed that as per norms for increasing the

sanctioned intake, the 1st batch of students in the existing course has to pass out

and therefore, the application submitted by the appellant cannot be considered

favourably. It is an admitted fact that as per Ext.P5 application submitted before

the University, appellant has sought for consent of affiliation from the University

only for 60 seats.

4. It is quite clear and evident from Ext.P5 application that the details of

the faculty are given in accordance with the requirement of the University and

also declaring that 100% physical infrastructure and staff and equipments as per

University norms are available. Apart from the same, a general declaration is

made in the application that the details furnished are true to the best of the

knowledge of the signatory to the applicant and supported by valid documents.

5. While so, the Government of India, Ministry of Ayurveda, Yoga &

Naturopathy, Unani, Siddha and Homeopathy (AYUSH), New Delhi as per Ext.P9

communication dated 8.12.2020 addressed the State Authorities that due to

prevailing COVID - 19 pandemic, Ministry has decided that the last date/cut off

date for admission in ASU & H Under Graduation and Post-graduation courses

will be 28th February, 2021 for the academic year 2020-2021. Matters being so,

Ext.P8 communication was issued by the State Government dated 27.1.2021

informing that the cut off date for admission to B.Pharm course is fixed as

15.2.2021 and hence, the Commissioner of Entrance Examinations was

requested to conduct one more allotment incorporating EWS reservation before

the cut off date. Apparently, taking advantage of the said situation appellant has

submitted a request before the Registrar of the Kerala University of Health

Sciences, for increasing the intake of seats in Bachelor of Pharmacy Course for

the academic year 2020-2021 onwards. In view of the contentions advanced in

the appeal, it is worthwhile to extract the request made by the appellant, which

reads as follows:

"K M C T COLLEGE OF PHARMACY Approved by Pharmacy Council of India, AICTE & Affiliated to Kerala University of Health Sciences

KMCT/COP/2021/013 16-02-2021

To, The Registrar, Kerala University for Health Science, Thrissur.

Sir, Sub:- Request for increasing the intake of seats in Bachelor of Pharmacy Course for the Academic year 2020-2021 onwards The Pharmacy Council of India by consent letter dated 10-4-2020 had issued consent to us to start the Bachelor of Pharmacy Course and Diploma in Pharmacy course from the academic year 2020 onwards. The Pharmacy council allowed to start the course of BPharm with 100 seats and D Pharm

with 60 seats. We have forwarded the copy of the above letter to your good office along with your application for granting affiliation to the BPharm course.

The All India Council for Technical Education (Herein after mentioned as AICTE) by letter dated 30-6-2020 had also issued approval lo start the college for B Pharm and D Pharm courses with the above numbers of seats in both courses. The copy of the above letter is also forwarded to your good office at the time of filing application for granting affiliation to the B.Pharm course.

It is submitted that we have constructed 43492 square feet of building with most modem facilities to conduct the classes, libraries, laboratory facilities and have arranged other facilities which are sufficient for starting the B Pharm course with 100 students.

We may inform your good office that since there was some delay in taking further action in our application for the grant of affiliation to start the course, we had approached the Hon'ble High Court of Kerala by filing Writ Petition No.16791/2020 for granting affiliation to the courses.

This is to inform your good office that by interim order dated 14-8- 2020 the Hon'ble High Court of Kerala had directed your good office to open the web portal of the University so as to enable us to submit our application for the grant of affiliation to the course with the number of students approved by the Pharmacy Council of India.

It is submitted that the University after conducting the inspection and being satisfied with the facilities arranged by us, has granted affiliation to start the B Pharm course with 60 students from 2020-2021 academic year by order dated 16-10-2020.

This is to inform your good office that as the Pharmacy Council of India had already agreed to start the Bachelor of Pharmacy Course with 100 seats and the AICTE also approved the sanction for 100 seats of students, we humbly request your good office to grant permission to start the BPharm course with 100 students from 2020-2021 academic year onwards and for that necessary affiliation and recognition may be granted. We are prepared to remit necessary fees for the increase of seats and approval for the same.

As we have arranged all infrastructure facilities and other facilities for accommodating 100 students in B Pharm course, we request your good office to conduct an inspection in the matter and to process our application for the increase of seats without waiting for 4 years as the Pharmacy Council of India and AICTE had granted their permission and sanction to start the college and course with 100 students. As we have already arranged the facilities to start the B.Pharm course for accommodating 100 students, the facilities arranged for 40 students are lying vacant. This can be used if permission is granted for increasing the intake of seats by 100 from 2020-2021 academic year. We have already spent huge amounts for arranging the facilities for accommodating and starting the B Pharm course with 100 students.

As we have already arranged all facilities for accommodating 100 students in compliance with the orders of the Pharmacy Council of India and AICTE for B Pharm course, we request your good office to take immediate action in the matter for increasing the intake of the number of seats to 100 from 60 already granted and to issue necessary affiliation for the same for filling up those seats from the academic year 2020-2021 onwards especially considering the orders of the Pharmacy Council of India and AICTE to start the college and course with 100 number of seats in B Pharm course.

An early and favorable action in the matter is awaited.

Thanking you.

Yours Faithfully,

Sd/-

Dr. Navas K.M CEO & Executive Trustee KMCT"

6. Whatever that be, the contention now advanced by the appellant is that

it was due to an oversight that the appellant had sought permission to start the

B.Pharm course with 60 seats even though the Pharmacy Council of India has

granted permission to start the B.Pharm course with 100 seats. It is also

contended that the Kerala University of Health Sciences conducted inspection in

the college and by order dated 12.10.2020 instructed the appellant to remit the

requisite fees for granting affiliation for accommodating 60 students in the

course. Yet another case projected by the appellant is that the allotment of seats

to the Medical courses was over only during the month of December, 2020 and

hence, the students who got first allotment of seats in Pharmacy courses left the

college leaving such seats vacant and it was being faced with such situation, the

State of Kerala as per Ext.P8 letter dated 27.1.2021, directed the Commissioner

of Entrance Examinations, to conduct one more allotment of seats in B. Pharm

course by re-fixing the date as 15.2.2021.

7. Another predominant contention advanced by the appellant is that the

Pharmacy Council of India had sanctioned/approved 100 seats in the appellant

college for B.Pharm course for the academic year 2020-2021 and the appellant

applied for 60 seats due to an oversight and it was accordingly that Ext.P10

application was submitted before the University for re-considering their

application to increase the seats from 60 to 100 as sanctioned by the Pharmacy

Council of India. The paramount contention advanced by the appellant is that,

the appellant has all the infrastructure facilities for 100 students in the B.Pharm

course as sanctioned by the Pharmacy Council of India and therefore, the

consent of affiliation granted by the University to start the college with 60

students needs re-consideration especially taking into account the present

pandemic situation. It is again contended that the University was not right in

restricting the admission to 60 seats by stating flimsy reasons and based on the

same, it is contended that if any norms are framed for enhancement of the seats

for the same academic year, they are illegal, arbitrary and unconstitutional apart

from being submitting that, the University has only the power to verify the

facilities provided by the colleges and not vested with any powers to restrict the

number of seats.

8. The sum and substance of the contention advanced by the appellant is

that when the Pharmacy Council has granted approval for 100 seats, the

University is not vested with any powers to restrict the seats to 60. The learned

single Judge after taking into account the contentions advanced by the appellant

and the provisions of the Kerala University of Health Sciences Act, 2010 and

Chapter XXI of the Kerala University of Health Sciences First Statutes, 2013

regarding affiliation of colleges, has arrived at the conclusion that Ext.P11

communication issued by the University, impugned in the writ petition is in

accordance with law. It was also found as per the Bachelor of Pharmacy

(B.Pharm) Course Regulations - 2014, particularly regulation 3, the duration of

B.Pharm course shall be four academic years (annual/semester) full-time with

each academic year spread over a period of not less than 200 working days for

annual pattern and 100 working days for each semester. The learned single

Judge has also traverse through various provisions of the Pharmacy Act, 1948

and the Regulations, 2014 and has arrived at the conclusion that though the

Pharmacy Council has granted approval for 100 seats by virtue of the provisions

of the First Statutes 2013, the University is vested with ample powers to conduct

due inspection in regard to the infrastructure of the college so as to issue the

consent of affiliation and restrict the seats. Anyhow after elaborately considering

the issues raised by the appellant and the judgment of the Apex Court in Maa

Vaishno Devi Mahila Mahavidyalaya v. State of U.P. [(2013) 2 SCC 617],

University of Calicut v. Amala Institute of Medical Sciences [2009(2) KHC

71], Principal, Upasana College of Nursing v. Kerala University of

Health and Allied Sciences [2010(4)KHC 224] and KVM Trust v. Kerala

University of Health & Allied Sciences [2011(4)KHC 948] held that the

appellant was not entitled to get any relief.

9. We have heard Senior Counsel for the appellant Sri.Raju Joseph,

assisted by Adv.Jamaludheen.K.M., Sri.P.Sreekumar for the Kerala University of

Health Sciences and the learned Special Government Pleader Sri.M.A.Asif for the

State Government and perused the pleadings and materials on record.

10. The learned Senior Counsel for the appellant has addressed arguments

on the basis of the contentions advanced above. According to us, the issues

addressed will have to be taken into account on the basis of the documents

available on record. It is true, the All India Council for Technical Education, the

then authority, to deal with Pharmacy courses, has granted approval for intake of

100 students for the B. Pharm course during the academic year 2020-2021, as

per Ext.P2 order dated 30th June, 2020. It is clear from the Note to Ext.P2 that

the approval is valid for two years from the date of issue of the letter only for

getting affiliation with respective University/Board of Technical Education etc.

Several conditions are also prescribed in the letter of approval and which are

stated to be mandatory in nature and the management of the institution was

directed to strictly follow further conditions as may be specified by the Council

from time to time and the Council is vested with liberty to withdraw the

approval, in case it observes any violation of the conditions and/or non-

adherence to the norms and standards prescribed by the Council,

misrepresentation of facts and submitting factually incorrect information to it.

11. Anyhow it is an admitted fact that in the application submitted by the

appellant in the prescribed format dated 30.9.2020, appellant has applied only

for 60 seats for the B.Pharm. Therefore, the University was duty bound to

conduct the inspection on the basis of the materials furnished by the appellant in

regard to 60 students and found that the appellant has necessary infrastructure

to conduct the B.Pharm course with an intake of 60 students only for the

academic year 2020-2021. It is quite clear and evident from Ext.P6 that the

consent of affiliation is granted with various conditions to be followed by the

management. It is significant to note that the appellant did not raise any case

with respect to the mistake committed by it, by not requesting for 100 seats for

the B.Pharm course till such time the cut-off date was extended by the

Government of India as per Ext.P9 communication dated 8.12.2020 and Ext.P8

communication of the State Government dated 27.1.2021. This we say because,

the appellant has submitted Ext.P10 request only on 16.2.2021 and that too, a

request for enhancement of seats from 60 to 100 for the B.Pharm course during

the academic year 2020-2021.

12. The request so made has to be considered taking into account the

First Statues, 2013, whereby it is clearly specified as per statute 5(v)iii that, an

application for additional affiliation and for enhancement of seats shall be

presented in the prescribed form as given in the Appendix-1C to the Statutes.

Therefore, it is clear that once consent of affiliation is granted by the University,

it can never be enhanced by receiving a request letter from the appellant.

Application for enhancement of seats in Form 1-C deals with various aspects

including an annual report of institution of the previous year submitted.

Therefore, in our considered opinion, the University is duty bound to exercise its

powers within the framework of law and therefore, it had no other option than to

reject the request made by the appellant for enhancement of seats. That apart

statue 5(v) of Statues, 2013 clearly stipulates that in the case of additional

courses and/or for enhancement of seats, the colleges shall satisfy the condition

that first batch of the courses in the institution under the same stream shall be

passed out and the details of the average of pass percentage of previous regular

examinations of all existing batches of the same course at the time of submitting

the application and a declaration that the percentage is not below the minimum

prescribed by the Governing Council in the notification issued by the University

for the purpose of the addition/enhancement concerned.

13. Therefore, on a reading of the provisions of statute 5 of Statues, 2013,

it is unequivocal that a clear cut procedure is prescribed in the matter of

enhancement of seats which are to be scrupulously followed by the University. It

was taking into account all these aspects that the learned single Judge dismissed

the writ petition. Even though learned Senior Counsel for the appellant has

advanced an argument that there is no prohibition contained under the University

Act and the First Statutes, 2013, disabling the University from doing so,

considering the issue from a different angle than as projected by the appellant,

we are unable to accept the said contention for the basic reason that when there

is a specific prescription contained under law to discharge the duties, it shall be

done in the same manner, failing which, the authorities of the University would

be overreaching the law, which would in turn becomes arbitrary and illegal.

Though the Pharmacy Council is not a party to the proceedings, we deem it fit to

place on record that the Pharmacy Council is guided by the Bachelor of Pharmacy

(B.Pharm) Course Regulations, 2014, constituted under sections 10 & 18 of the

Pharmacy Act, 1948 in the matter of conditions to be fulfilled by the institutions

seeking approval of courses of study for B.Pharm. Regulation 9 stipulates that

approval of the authority is required to conduct the course of study and sub-

regulation (1) prescribes that no person, institution, society, trust or university

shall start and conduct B.Pharm programme without the prior approval of the

Pharmacy Council of India. Other requirements are also prescribed under

regulation 9, which are to be followed by the institution/university etc. in order to

secure the approval. Appendix-A provided to Regulations, 2014 delineates the

requirements to be fulfilled by the academic training institution to satisfy the

infrastructure facilities by the institution/university etc. That apart a scheme is

framed under regulation 9(1) of the Regulations, 2014 dealing with the

application to be submitted under the scheme to the Secretary of the Pharmacy

Council of India, New Delhi. Paragraph B prescribes the qualifying criteria which

prescribes inter alia among other conditions pre-requisite mandatory documents

to be submitted by an applicant as per para B (f) and clause (iii) thereto clearly

stipulates that consent of affiliation of the examining authority (University) is

required for permission to start the course or increase in intake capacity. We

deem it appropriate to place on record that the said condition was not admittedly

followed by the appellant while submitting the application for approval before the

Pharmacy Council of India, New Delhi. Be that as it may, we do not propose to

make any adverse observations in regard to the same since the Council is not a

party before us, however, it is so observed since it was pointed out to us by the

Standing Counsel for the University.

14. Which thus means, the mandatory requirements of the

provisions of the Statutes, 2013 makes a clear prohibition from

considering application for enhancement of seats otherwise than as

provided under law. In the matter of exercising the writ jurisdiction,

the writ court is expected to take note of the provisions of the

Statues and overlooking the provisions of law, no directions can be issued. To

put it otherwise, normally and ordinarily writ court is not expected to overlook

the provisions of law and issue directions to act contrary to law, which is a well

settled proposition in law. A reference to the judgment of the Apex Court in

Union of India and another v. Kirloskar Pneumatic Co.Ltd. [(1996) 4 SCC

453] would make the situation very clear. Paragraph 10 of the said judgment

reads thus:

"10. According to these sub-sections, a claim for refund or an order of

refund can be made only in accordance with the provisions of Section 27 which inter alia includes the period of limitation mentioned therein. Mr Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. The learned counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. Maybe the High Court or a civil court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in clause (3) of the impugned order is unsustainable in law. When we expressed this view during the hearing Mr Hidayatullah requested that in such a case the matter be remitted to the High Court and the High Court be left free to dispose of the writ petition according to law. "

15. The principles of law laid down in the said judgment has been

followed by the Apex Court in Union of India and others v. Concord

Fortune Minerals India Private Limited [(2018)12 SCC 279] and held that

a writ court exercising the power under Article 226 of the Constitution of India

should exercise the discretion consistent with the provisions of law and the

High Court shall ensure that the rule of law is enforced by the authorities and

the organs of the States should be directed to act in accordance with law only

and not contrary to law.

16. Though we are informed that time period is extended for submitting

applications as per an order dated 16 th March, 2021 upto 26th March, 2021,

appellant is not entitled to get any relief in view of the facts and circumstances

involved in the case at hand. To put it short, merely because time was

extended by the Government of India for accepting the applications, that will

not enable the appellant to make a request for enhancement of the seats since

it is against the mandate of law as deliberated above. Thinking so, we have no

reason to think that the learned single Judge has committed any jurisdictional

error in the matter of exercising the discretionary power, justifying this Court to

interfere in an intra court appeal filed under section 5 of the High Court Act,

1958. Needless to say, appeal fails, accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                   SHAJI P.CHALY

smv                                                     JUDGE



                         APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE AFFILIATION GRANTED BY THE
                     PHARMACY COUNCIL OF INDIA DATED 10/4/2020.

EXHIBIT P2           TRUE COPY OF THE AFFILIATION GRANTED BY THE
                     ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
                     DATED 30/6/2020 TO THE PETITIONER.

EXHIBIT P3           TRUE COPY OF THE INTERIM ORDER OF THIS
                     HON'BLE COURT IN WRIT PETITION
                     NO.16791/2020 DATED 13/8/2020.

EXHIBIT P4           TRUE COPY OF THE INTERIM ORDER OF THIS
                     HON'BLE COURT IN WRIT PETITION
                     NO.16791/2020 DATED 25/8/2020.

EXHIBIT P5           TRUE COPY OF THE APPLICATION DATED 3/9/2020
                     SUBMITTED BY THE PETITIONER TO 1ST
                     RESPONDENT.

EXHIBIT P6           TRUE COPY OF THE AFFILIATION ORDER DATED
                     16/10/2020 ISSUED BY THE KERALA HEALTH
                     SCIENCE UNIVERSITY.

EXHIBIT P7           TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
                     COURT IN WRIT PETITION NO.21929/2020 DATED
                     23/10/2020.

EXHIBIT P8           TRUE COPY OF THE LETTER OF THE 2ND
                     RESPONDENT DATED 27/1/2021.

EXHIBIT P9           TRUE COPY OF THE LETTER DATED 8/12/2020
                     ISSUED BY MINISTRY OF AYURVEDA, YOGA,
                     NATUROPATHY, SIDHA AND HOMEOPATHY.

EXHIBIT P10          TRUE COPY OF THE APPLICATION SUBMITTED BY
                     THE PETITIONER TO THE 1ST RESPONDENT DATED
                     16/2/2021.

EXHIBIT P11          TRUE COPY OF THE COMMUNICATION DATED
                     19/2/2021 ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A           TRUE COPY OF THE LETTER DATED 8/3/2021
                     ISSUED BY THE MINISTRY OF AYURVEDA, YOGA,
                     NATUROPATHY, SIDHA AND HOMEOPATHY.