Kerala High Court
Moulana College Of Paramedical ... vs State Of Kerala on 28 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943
WP(C) NO. 2151 OF 2021
PETITIONER/S:
MOULANA COLLEGE OF PARAMEDICAL SCIENCES
NEAR RAILWAY STATION, ANGADIPPURAM P.O., PERINTHALMANNA,
MALAPPURAM DISTRICT-679 321, REPRESENTED BY ITS
PRINCIPAL, MR. JAYAKRISHNAN M.
BY ADVS.SANTHOSH MATHEW
SRI.ARUN THOMAS, SRI.JENNIS STEPHEN
SRI.VIJAY V. PAUL, SMT.KARTHIKA MARIA
SRI.ANIL SEBASTIAN PULICKEL, SMT.DIVYA SARA GEORGE
SMT.JAISY ELZA JOE, SMT.VEENA RAVEENDRAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY SELFARE K DEPARTMENT, KERALA GOVT.
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 KERALA UNIVERSITY OF HEALTH SCIENCES
MEDICAL COLLEGE, TRICHUR, KERALA 680 596 REPRESENTED BY
ITS REGISTRAR.
3 THE REGISTRAR
KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE,
TRICHUR, KERALA-680 596.
4 THE DIRECTOR OF MEDICAL EDUCATION
OFFICE OF THE DIRECTORATE OF MEDICAL EDUCATION, MEDICAL
COLLEGE P.O., THIRUVANANTHAPURAM-695 011.
BY ADVS.SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF
HEALTH SCIENCES
OTHER PRESENT:
SRI K.R.RANJITH - GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.03.2021, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING:
W.P(C).No.2151 of 2021 -2-
"C.R"
JUDGMENT
The petitioner, namely, Moulana College of Paramedical
Sciences, Angadipuram, is a Paramedical College established by
Moulana Charitable Trust, in the year 2005, which is attached to
Moulana Hospital. The petitioner college is conducting B.Sc.(MLT)
course, from the academic year 2005-06, on the strength of
Letter of Permission granted by the 1 st respondent State, vide
Ext.P1 order dated 08.04.2005 and provisional affiliation
originally granted by the University of Calicut, vide Ext.P1A order
dated 24.06.2005, based on the inspection report of an Expert
Committee and the recommendation of Kerala Paramedical
Council, with an intake of 30. As evident from Ext.P1A, subject to
ratification by the Syndicate of University of Calicut and subject
to approval of Paramedical Council, the petitioner institution was
granted provisional affiliation for conducting B.Sc.(MLT) course
with the said intake. It was specified in Ext.P1A order that the
petitioner college has to apply for continuation of provisional
affiliation for the ensuing years, after remitting the required fee,
which will be fixed by the University from time to time, along
with the approval of Paramedical Council. After the formation of
the 2nd respondent Kerala University of Health Sciences, the
petitioner college obtained continuation of provisional affiliation
from that University. As evidenced by Ext.P1B order dated
06.01.2021, the 2nd respondent University granted continuation
of provisional affiliation to the petitioner college for conducting
B.Sc.(MLT) course, for the academic year 2020-21, with an
intake of 30.
2. Seeking no-objection certificate to increase the intake
of B.Sc.(MLT) course from 30 to 40, the petitioner college
submitted Ext.P2 request dated 06.02.2020 before the 1 st
respondent State. By Ext.P3 communication dated 20.08.2020,
the 1st respondent requested the 4th respondent Director of
Medical Education to take steps to place the said request before
the Expert Committee constituted vide G.O(Ms.)No.
101/2020/H&FWD dated 10.07.2020, for ascertaining
essentiality for seat enhancement. In the meanwhile, the 2 nd
respondent University issued Ext.P4 notification dated
27.08.2020 inviting applications for starting new colleges/
additional courses/enhancement seats in Nursing, Pharmacy,
Paramedical and Allied Health Science courses, for the academic
year 2021-22, and in Medical and Dental courses, for the
academic year 2022-23. It is stipulated in the said notification
that, for starting of new colleges/courses/enhancement of seats
(UG/PG), applications are invited from Paramedical institutions
attached to Medical Colleges. The last date for submission of
online application, with the requisite documents and fee, was
fixed as 31.12.2020.
3. According to the petitioner, no clear reason has been
provided by the 2nd respondent University as to why only
Paramedical institutions attached to Medical Colleges alone have
been permitted to submit applications. On 30.11.2020, the
petitioner submitted online application through the website of the
2nd respondent University for enhancement of seats in B.Sc.(MLT)
course from 30 to 40, as evidenced by Ext.P5 acknowledgement.
Since the petitioner was not provided with password for
uploading the details, the petitioner submitted Ext.P6 request
dated 21.12.2020 before the 3 rd respondent Registrar, which was
followed by Ext.P7 reminder dated 29.12.2020. The 3 rd
respondent replied by e-mail, requiring the petitioner to go
through the notification, and the petitioner was informed that in
the case of Paramedical courses only Paramedical institutions
attached to Medical Colleges can apply. Later, the 2 nd respondent
University issued Ext.P8 circular dated 29.12.2020, clarifying that
the University is accepting online application for affiliation for
starting new colleges/courses/enhancements of seats,
provisionally, without insisting for essentiality certificate from the
Government of Kerala, since applications seeking essentiality
certificate are pending before the State Government. Vide Ext.P9
communication dated 07.01.2021, the petitioner was informed
that the request made on 21.12.2020 for permission to submit
online application for enhancement of seats is rejected as the
petitioner college is not attached to a Medical College, as
stipulated in Ext.P4 notification dated 27.08.2020. The document
marked as Ext.P10 is the minimum standards for the conduct of
B.Sc.(MLT) course, prescribed by the 2nd respondent University.
4. Challenging the restriction imposed in Ext.P4
notification, and also the rejection of the application for
enhancement of seats vide Ext.P9 communication, the petitioner
college has filed this writ petition under Article 226 of the
Constitution of India, seeking a writ of certiorari to quash Ext.P4
notification to the extent it restricts the petitioner from
submitting the application and being considered for applying for
enhancement of UG/PG seats in Paramedical and Allied Health
Science category. The petitioner college has also sought for a writ
of certiorari to quash Ext.P9 communication issued by the 3 rd
respondent, based on Ext.P4 notification; and a writ of
mandamus commanding the respondents to process its
application, which was successfully registered, as evidenced by
Ext.P5, and complete the procedures with respect to that online
application for enhancement of seats in B.Sc.(MLT) course, from
30 to 40.
5. On 28.1.2021, when this writ petition came up for
admission the learned Standing Counsel for the 2 nd respondent
University sought time to get instructions.
6. On 22.02.2021, the learned Standing Counsel for the
2nd respondent University has filed a statement, on behalf of
respondents 2 and 3, wherein it has been stated that, while
issuing Ext.P4 notification dated 27.08.2020 inviting applications
from colleges or institutions to start or increase intake in
Paramedical courses, for the academic year 2021-22, a condition
was imposed that the institutions submitting applications should
be attached to a Medical College. Such a condition was imposed
for the reason that many stand-alone institutions are lacking
facilities and they are continuously failing to meet the required
standards. Further in the light of Covid-19 pandemic, verification
of the facilities through an inspection was also not likely to yield
the desired result of the proper evaluation of the facilities. In the
case of Medical Colleges, the same would have the minimum
facilities as the institution is being constantly watched and
inspected by several agencies. Further, permission granted for
commencement or enhancement of seats could not be easily
withdrawn if it is later found that the institution lacks facilities. In
such circumstances, the University took a decision to consider
institutions which are attached to Medical Colleges for the coming
academic year. The above stand taken by the University cannot
be said to be illegal or arbitrary, which was taken considering the
necessity to maintain the required standards in institutions. The
University issued Ext.P4 notification on 27.08.2020 and the
petitioner college did not raise any objection or made any
challenge to the condition imposed therein, till the filing of the
present writ petition. It is possible for an institution to submit
online application when web portal is open and the system would
be generating a communication as well. But the application would
be approved and further steps would be taken only on
verification of the eligibility of the applicant in terms of the
notification. The application made by the petitioner pursuant to
Ext.P4 notification was not approved and further steps were not
taken, since that application was not in terms of the notification.
Later the application was rejected, as evidenced by Ext.P9.
Respondents 2 and 3 would also contend that there is no
fundamental right in the matter of grant of affiliation. Article
19(1)(g) of the Constitution of India has no application in the
matter of deciding the issue of grant of affiliation, which is a
statutory right.
7. On 01.03.2021, the petitioner has filed a reply
affidavit, producing therewith a copy of Ext.P11 notification dated
22.02.2021 issued by the 2nd respondent. In the reply affidavit it
has been stated that, as per instruction No.1 in Ext.P4
notification, all institutions should satisfy the norms fixed by the
Apex Council concerned, Government of Kerala and the 2 nd
respondent University. Neither the Government of Kerala nor the
Paramedical Council has issued any notification regarding starting
of new colleges/courses/enhancement of seats in Paramedical
and Allied Health Science courses, reserving such notification
only for Paramedical institutions attached to Medical Colleges.
The petitioner college is having all the required facilities for the
conduct of classes, as required by the minimum standards
prescribed in Ext.P10. It is only after conducting inspection in the
respective institutions, the authorities will be able to know
whether stand-alone institutions are lacking facilities as per the
standards set by the University. All Paramedical colleges started
functioning with the no-objection certificate/essentiality
certificate issued by the Government and are governed by the
same norms and rules as stipulates by the Government, 2 nd
respondent University and also the Paramedical Council,
irrespective of whether it is attached to a Medical Colleges or not.
The 1st respondent State has not yet changed its policy in this
regard, giving sole benefit to Paramedical colleges attached to
Medical Colleges. Therefore, restricting the petitioner and
similarly placed institutions from applying for enhancement of
seats is discriminatory in nature. During Covid-19 pandemic, the
2nd respondent University conducted inspections in many
affiliated colleges and inspections are still going on. The 2 nd
respondent conducted two inspections in the petitioner's sister
college, Moulana College of Pharmacy, in January, 2021 for
approval of Pharm D course and another inspection in February,
2021, for continuation of provisional affiliation. Pursuant to
Ext.P4 notification, the 2nd respondent conducted inspection in
Muthoot Paramedical and Allied Health Science College,
Pathanamthitta, in January, 2021 and in St.Joseph College of
Allied Health Sciences, Changanassery, in February, 2021, for
starting new B.Sc.(MLT) courses. Both the above colleges are not
attached to Medical Colleges and their affiliation process are still
going on. As per the handbook of the 2nd respondent University, a
total of 52 colleges are conducting Paramedical and Allied Health
Science courses, out of which there are 6 Government Medical
Colleges and 5 Self-Financing Medical Colleges. 41 independent
colleges, not attached to Medical Colleges, are conducting
Paramedical and Allied Health Science courses under the 2 nd
respondent University. As per Chapter XXI Rule 2 of Kerala
University of Health Science First Statute, 2013, applications for
affiliation of colleges or for affiliation of additional subjects or for
enhancement of seats shall be addressed to the Registrar and
shall be forwarded to him as per the date fixed by the University.
Restrictions as to classifying colleges which can/cannot apply is
not specified in the Kerala University of Health Science Act or in
the Statute.
8. On 04.03.2021, when this writ petition came up for
consideration, the learned Special Government Pleader, after
referring to Ext.P1(a) provisional affiliation, submitted that,
before approaching the 2nd respondent University seeking
enhancement of intake in B.Sc.(MLT) course, the petitioner has to
obtain prior approval of the Paramedical Council.
9. On 8.3.2021, the learned Special Government Pleader
was directed to get instructions as to whether any decision has
already been taken on the request made by the petitioner dated
06.02.2020 (reference No.1 in Ext.P3) seeking no-objection
certificate for increasing the intake in B.Sc.(MLT) course, from 30
to 40, and as to whether the application made by the petitioner is
in conformity with the requirements in Government Orders dated
04.03.2002, 30.04.2008, 18.01.2014, etc.
10. Pursuant to the aforesaid order of this Court dated
08.03.2021, the learned Special Government Pleader has filed a
statement, as instructed by the 4th respondent Director of Medical
Education. In the said statement it is stated that consequent to
Ext.P3 Government letter dated 20.08.2020, the Expert
Committee was convened by the 4th respondent, on 18.09.2020.
The Expert Committee has recommended to the Government not
to enhance the seats in B.Sc.(MLT) course in the petitioner
college from 30 to 40, as sought for. While making
recommendations, the Expert Committee considered the need of
the State on long term to be assessed before granting permission
for enhancement of seats. The Expert Committee has also
recommended to promote degree and post graduate Paramedical
courses in institutions attached to Medical Colleges and to
discourage stand-alone Paramedical institutions from running
Paramedical degree courses. The Expert Committee has brought
it to the notice of the Government that, as far as Malappuram
District is concerned, at present there are 5 institutions
conducting B.Sc.(MLT) course with a total intake of 160. There
are 3 institutions in Malappuram District which conduct D.MLT
course with an intake of 90 and as such there is no need for
additional B.Sc.(MLT) seats in Malappuram District. In the
statement it has also been stated that the petitioner has not
submitted applications to the Paramedical Council in the
prescribed format (Annexure I).
11. Heard the learned counsel for the petitioner, learned
Special Government Pleader appearing for respondents 1 and 4
and also the learned Standing Counsel appearing for respondents
2 and 3.
12. The issues that arise for consideration in this writ
petition are as to whether the petitioner college is entitled for
consideration of the application made before the 2 nd respondent
University, as evidenced by Ext.P5 acknowledgement, for
enhancement of seats in B.Sc.(MLT) course, from 30 to 40,
during the academic year 2021-22; and whether any interference
is warranted on Ext.P4 notification dated 27.08.2020 issued by
the 2nd respondent University, to the extent it restricts the
petitioner college, a Paramedical college not attached to Medical
College, from submitting application for enhancement of seats in
B.Sc.(MLT) course, during the academic year 2021-22 and also
on Ext.P9 communication dated 07.01.2021 of the 3 rd respondent
Registrar, whereby the petitioner college was informed that the
request made on 21.12.2020 for permission to submit online
application for enhancement of seats in B.Sc.(MLT) course stands
rejected, as the college is not attached to a Medical College, as
stipulated in Ext.P4 notification.
13. As already noticed hereinbefore, the petitioner college
is conducting B.Sc.(MLT) course, from the academic year 2005-
06, on the strength of Ext.P1 Letter of Permission granted by the
1st respondent, dated 08.04.2005, and also the provisional
affiliation originally granted by the University. As evident from
Ext.P1A order dated 24.06.2005, the petitioner college was
originally granted provisional affiliation by the University of
Calicut with an intake of 30, on the basis of the inspection report
of an Expert Committee and the recommendation of the
Paramedical Council. The grant of provisional affiliation was
subject to ratification by the Syndicate of the University and
subject to approval of the Paramedical Council. It is specified in
Ext.P1A order that the petitioner college has to apply for
continuation of provisional affiliation, for the ensuing years, along
with the approval of the Paramedical Council. After the formation
of the 2nd respondent Kerala University of Health Sciences, the
petitioner college obtained continuation of provisional affiliation
from the said University and the document marked as Ext.P1B is
the University order granting provisional affiliation, for the
academic year 2020-21, with an intake of 30.
14. The 1st respondent State constituted Paramedical
Council, Technical Committee and District Inspection Committee,
vide G.O.(Ms.)No.73/2002/H&FWD dated 21.3.2002, since many
self-financing institutions applied for sanction to start
Paramedical courses in the State. Till the issuance of the said
Government order, there was no policy or guidelines or eligibility
criteria for proper administration of Paramedical institutions in
the State. Therefore, the Government found it necessary to have
a specific policy for starting Paramedical courses, to fix the
eligibility criteria, standards, etc., and also to constitute an
authority to ensure the quality of education in Paramedical
institutions. Accordingly, the Government issued the order dated
21.03.2002 constituting Technical Committee, District Inspection
Committee and also a Paramedical Council for the State. The
Technical Committee has been constituted for prescribing
minimum requirements for the issuance of no-objection
certificate for various Paramedical courses. The District
Inspection Committee has been constituted to conduct site
inspection, once the minimum standards are prescribed. The
Paramedical Council for the State has been constituted for
identifying the institutions with the required infrastructure,
recommending recognition by the Government, academic aspects
such as prescribing syllabus, eligibility of admission, qualification
of faculties, conduct of examinations, recognition of courses by
the concerned Universities, AICTE, etc., prescribing uniform fee
structure to different courses, etc. As per the said Government
order, the inspection report of the District Inspection Committee
will be scrutinised by the Paramedical Council and the course will
be sanctioned based on the recommendations of the Paramedical
Council. Para.3 of the Government order dated 21.03.2002 reads
thus;
"3. Government after examining the matter in detail, are
pleased to issue the following orders with immediate effect.
A. Technical Committee with following members will be
constituted for prescribing minimum requirements for issue
of NOC for various Para Medical Courses.
i. Director of Medical Education
ii. Director of Health Services
iii. Principal, Medical College, Thiruvananthapuram
iv. Principal, Co-operative Medical College, Cochin
v. Joint Secretary, Health & Family Welfare - Convener
B. The Committee will submit their report within one month.
Once the minimum standards are prescribed, actual site
inspection will be done through a District Inspection
Committee consisting of
i. District Collector
ii. RDO concerned
iii. District Medical Officer(H)
iv. The District Collector is authorised to co-opt one or two
specialists also in the team
C. A Para Medical Council for the State will be constituted
consisting of the following members:
i Additional Chief Secretary Chairman
ii Secretary, Health & Family Member
Welfare
iii Director of Medical Education Member
iv Director of Health Services Member
v Principal, Medical College, Member
Thiruvananthapuram
vi Joint Secretary, Health & Family Secretary/
Welfare Convener
The powers and functions of the Para Medical Council would
be identifying institutions with the required infrastructure,
recommending recognition by Government, academic
aspects such as prescribing syllabus, eligibility of admission,
qualification of faculties, conducting of examinations,
recognition of the courses by concerned universities, AICTE/
UGC/IMC, prescribing uniform fee structure to different
courses etc.
D. The inspection report of the District Inspection
Committee will be scrutinised by the Para Medical Council
and the courses will be sanctioned based on the
recommendation of the Para Medical Council.
E. An inspection fee of Rs.50,000/- per applicant will be
collected to create a fund, which will be utilized for the
functioning of council and other expenses connected with
self-financing courses in health sector. The Para Medical
Council Secretary will keep the above fund in nationalized
bank and keep proper account for its expenditure. The said
fund will be utilized for preparation of various project reports
in Health Sector.
F. The whole process of prescribing standards, site
inspections, scrutiny of applications will be completed in a
time bound manner and recommendations furnished to
Government before 15.05.2002."
15. The Government vide G.O.(Rt.)No.1598/2008/H&
FWD dated 30.04.2008 issued revised guidelines laying down the
procedure for submitting application for Paramedical courses. A
reading of the said Government order would show that the
revised guidelines have been issued to streamline the procedural
formalities for the approval of new Paramedical courses and to
prescribe a uniform format for applications for new courses. The
Paramedical Council in its meeting held on 24.01.2008 and
04.04.2008 recommended to the Government to issue orders on
uniform application format, time schedule for submitting
application, application fee, etc. After examining the said
recommendation, the Government issued the aforesaid order
dated 30.04.2008, in respect of Paramedical courses being
conducted by the Director of Medical Education and the Director
of Health Services, in self-financing sector. Para.2 of the said
Government order reads thus;
"2. Government have examined the case in detail and are
pleased to issue the following orders in respect of the
Paramedical courses being conducted by Director of Medical
Education and Director of Health Services in Self Financing
Sector.
1. Application for new Courses
The following schedule of time is prescribed for submitting
application for new courses in Self Financing Sector.
1. Notification April 5
2. Last date of submission of May 15
Application
3. Verification of application May 16 to May 31
4. Inspection Report from DME/ 1st June to 15th August
DHS
5. Meeting of Paramedical 16th Aug to 15th Sept
Council and recommendation
to Government
6. Letter of Intent by 16th Sept to 15th Oct
Government
7. Construction and 16th Oct to 15th Oct
Infrastructural facilities by Next Year (One year)
institutions
8. Inspection by Technical team 16th Oct to 15th Jan
next year
9. Letter of Permission by 16th Jan to 15th March
Government
10. Prospectus 16th March to 15th May
11. Admission Notification 20th May
12. Last Date of Application 10th June
13. Publication of Rank List 15th July
14. Counselling for admission 15th August
15. Starting of classes 15th September
The model application and minimum standards shall be
downloaded from the website 'www.arogyakeralam.gov.in'
till website for Paramedical Council is made operative. The
application shall be accompanied by a Demand Draft for Rs.
50,000/- (Rupees Fifty Thousand Only) per course towards
non-refundable application fee, Branch,
Thiruvananthapuram. On receipt of valid application the
District Inspection team with the following members will
visit the institution.
1) District Medical Officer (Health)/Deputy Medical Officer
(Health)
2) District Programme Manager, NRHM
3) One subject expert from DME/DHS
The team will submit report to the Paramedical Council. The
Paramedical Council will recommend to Government for
considering Letter of Intent/NOC.
2. Annual Inspection Fee
An annual inspection fee of Rs. 10,000/- (Rupees Ten
Thousand Only) per course will be charged from the self-
financing institutions from the year 2008-09 for conducting
annual inspection by the team of Director of Medical
Education/Director of Health Services. The amount shall be
remitted as Demand Draft drawn in favour of Secretary,
Paramedical Council, payable at SBT, Main Branch,
Thiruvananthapuram."
16. The Government vide GO(Rt.)No.195/2014/H&FWD
dated 18.01.2014 notified fee on the request made for
enhancement of seats of Paramedical Degree and Diploma
courses in self-financing institutions. In the said order, the
Government noticed that, as per the guidelines prescribed in
Government order dated 13.04.2008 regarding issuance of no-
objection certificate to commence Paramedical courses in self-
financing sector, institutions seeking no-objection certificates
have to remit non-refundable application fee of Rs.50,000/- per
course to the Paramedical Council. No fee is levied for issuance of
Letter of Permission. Fee on requests for enhancement of seats is
also not prescribed in the above order. Therefore, the
Government vide order dated 18.01.2014 ordered that self-
financing institutions seeking increase in intake shall remit
Rs.25,000/- per course as non-refundable inspection fee, in
favour of the Principal of the Government Medical College to
which their application for enhancement is forwarded for
inspection by the Government or by the Paramedical Council. On
receipt of inspection fee, the Principal shall arrange inspection
and forward report of inspection to the Government/Paramedical
Council, through the Director of Medical Education. Paras.1 to 4
of the Government order dated 18.01.2014 read thus;
"Guidelines regarding issuance of No Objection Certificate to
commence paramedical courses in self-financing sector was
issued as per order read as first paper above. In the said
order, institutions seeking No Objection Certificate have to
permit non-refundable application fee of Rs. 50,000/- per
course to Kerala Paramedical Council. No fee is levied for
the issuance of Letter of Permission. Fee on requests for
enhancement of seats is also not prescribed in the above
order. Institutions who have obtained No Objection
Certificate and Letter of Permission are requesting
Government or Paramedical Council to grant permission to
increase intake in various courses.
2. In the above circumstances, Government order that self-
financing institutions seeking increase in intake shall remit
Rs.25,000/- (Rupees Twenty Five Thousand Only) per
course as non-refundable inspection fee in the Government
Medical College to which their applications for enhancement
are forwarded for inspection by Government or Paramedical
Council by way of Demand Draft drawn in favour of Principal
concerned.
3. Government also order that on receipt of inspection fee,
the Principal shall arrange inspection and forward report of
inspection to Government/Kerala Paramedical Council
through Director of Medical Education.
4. The Principals of concerned colleges shall keep a separate
ledger account for the fee collected and the expenditure
towards TA/DA for the faculty deployed for inspection on
requests for enhancement of seats shall be met from the fee
so collected in the rate prescribed by Government vide order
read as second paper above."
17. In Bahuleyan Charitable Foundation v. Kerala
University of Health Sciences and another [2019 (5) KHC
301] a Division Bench of this Court noticed that though the State
Government have made an attempt to bring in an enactment,
namely, the Kerala Paramedical Act, 2007, it did not fructify and
thus, the abovesaid Government orders dated 21.03.2002,
03.04.2008 and 18.01.2014 hold the field. In the said decision,
the Division Bench held that, a reading of the above Government
orders make it clear that an educational agency intending to start
a Paramedical course, has to obtain a Letter of Permission from
the Government and thereafter, approach the University for
affiliation. On the facts of the case, the Division Bench noticed
that, though the appellants have assailed the orders of writ court
on various grounds, it is well known that approval or recognition
or letter of permission is followed by affiliation and not the
reverse.
18. In Bahuleyan Charitable Foundation the challenge
made before the Division Bench in W.A.Nos.1312 of 2019 and
1384 of 2019 is against a common order dated 08.03.2019 in
W.P.(C)Nos.39605 of 2018 and 16768 of 2015. In W.P.(C)No.
39605 of 2018, Bahuleyan Charitable Foundation has sought for
a writ of certiorari to quash Ext.P9 communication to the extent
it requires issuance of essentiality certificate from the
Government. The petitioner has also sought for a writ of
mandamus commanding the Kerala University of Health Sciences
to issue affiliation to the petitioner's college for MPT (Neurology)
course, as sought for in Ext.P2, for the academic year 2018-
2019; and a declaration that the insistence of essentiality
certificate by the University, in order to obtain affiliation for the
new course as unconstitutional. In W.P.(C)No.16768 of 2015,
Bahuleyan Charitable Foundation has sought for a writ of
mandamus commanding the University, to grant affiliation to its
college for MPT (Musculoskeletal and Sports). The petitioner has
also sought for a writ of mandamus commanding the State of
Kerala to issue no-objection certificate for MPT course, as sought
for in Exts.P2, P4 and P11. In paragraph 3 of the judgment, the
Division Bench has extracted paragraphs 5 to 8 of the common
judgment of the learned single Judge dated 08.03.2019 in W.P.
(C)Nos.39605 of 2018 and 16768 of 2015. Paragraph 3 of the
judgment of the Division Bench in W.A.Nos.1312 of 2019 and
1384 of 2019 reads thus;
"3. As both the writ petitions relate to a common cause of
obtaining permission from the Government, to start
Paramedical Courses in the State of Kerala, based on the
recommendation of the Paramedical Council, Kerala, they
were taken up together and adverting to the pleadings and
submissions, by a common order dated 8.3.2019, a learned
single Judge of this court, dismissed the writ petitions and
at paragraph Nos.5-8 held thus:
"5. There are no statutory regulations regulating
qualification of Paramedical Technicians and also for
registration of institutions imparting Paramedical
courses. The State's power to legislate cannot be
disputed in the light of Entry 25 in List III of Schedule
7 of the Constitution of India. It was also seen that the
State made an attempt to bring a Legislation on the
subject as early as in the year 2007. However, the bill
lapsed. As seen from Government Order, G.O.(Ms.)
No.73/2002/H&FWD, dated 21.3.2002, the
Government constituted a Paramedical Council. The
Council consists of Chairman and the members, who
are Government officials. As seen from the above
order, G.O.(Ms.)No.73/2002/H&FWD, Paramedical
Council is the authority to recommend for issuance of
Letter of Permission by the Government for
Paramedical courses. It also refers prescription of fees
for considering the applications for recognition. The
Government by another order, G.O.(Rt.)No. 159
2008/H&FWD, dated 30.4.2008, streamlined procedure
for submitting application for Paramedical courses.
Therefore, it is clear that without recommendation of
Paramedical Council, the Government cannot issue
Letter of Permission.
6. The University cannot grant affiliation without Letter
of Permission issued by the Government on
recommendation of the Paramedical Council. In such
circumstances, I am of the view that the petitioners
cannot admit students without Letter of Permission by
the Government. The admission of the students into
the course is irregular. The Government will have to
consider regularization of admissions. It is open for the
Government to impose fine and regularize admission.
7. The request of the petitioner in W.P.(C)No.39605 of
2018 for increasing intake was rejected. The petitioner
also challenges rejection. However, the petitioner
admitted students without Letter of Permission and
without permission from this Court. In such
circumstances, it is for the Government to consider
regularization of admissions. The learned Senior
Counsel for the petitioner had argued that the
reasoning in the order rejecting the request for
increasing the intake is legally unsustainable. Even
assuming that the reason is unsustainable, the
petitioner has no matter of right to admit the students
without the same being interfered by this Court. This
results in a situation for directing the Government to
consider regularisation of admissions.
8. It is to be noted that a letter of permission was
already issued to the writ petitioner in W.P.(C)No.
33045 of 2018. However, it seems that they have
admitted students over and above the intake permitted
by the Government. The next academic year onwards
the petitioners cannot admit students to any of the
Paramedical courses without Letter of Permission. If the
time limit for applying for Letter of Permission is over
for the next academic year, the petitioner shall be
permitted to apply within two weeks from the date of
receipt of a copy of this judgment. The Government
also should give publicity in regard to obtaining
permission from the Government for admission to
institutes offering Paramedical courses. Anyhow, the
Universities shall not grant permission without Letter of
Permission issued by the Government. The Government
shall take appropriate decision on regularising
admission within a period of one month."
(underline supplied)
19. In the judgment of the learned Single Judge in W.P.
(C).Nos.39605 of 2018 and 16768 of 2015 it was held that, as
seen from G.O.(Ms.)No.73/2002/H&FWD dated 21.03.2002,
Paramedical Council is the authority to recommend for issuance
of Letter of Permission by the State Government for Paramedical
courses. The Government by G.O.(Rt.)No.159/2008/H&FWD,
dated 30.4.2008, streamlined procedure for submitting
application for Paramedical courses. Therefore, it is clear that
without recommendation of Paramedical Council, the State
Government cannot issue Letter of Permission. The University
cannot grant affiliation without Letter of Permission issued by the
Government, on recommendation of the Paramedical Council. In
such circumstances, the petitioner cannot admit students without
Letter of Permission by the State Government. A reading of
paragraph 7 of the said judgment would show that the challenge
made in W.P.(C).No.39605 of 2018 filed by Bahuleyan Charitable
Foundation was against rejection of the request for increasing
intake in Paramedical course. The petitioner admitted students
without Letter of Permission. Therefore, it was held that, next
academic year onwards the petitioner cannot admit students to
any of the Paramedical courses without Letter of Permission. The
University shall not grant affiliation without Letter of Permission
issued by the State Government.
20. In Bahuleyan Charitable Foundation the Division
Bench noticed that without getting Letter of Permission from the
State Government, the appellant started two post graduate
courses, i.e., MPT (Neurology) and MPT (Musculoskeletal and
Sports) respectively. As rightly held by the Writ Court, in the
absence of statutory provisions regulating Paramedical
technicians and for registration of institutions imparting
Paramedical courses, in the light of Entry 25 in List III of
Schedule 7 of the Constitution of India, the State has got the
power to legislate under Article 162 of the Constitution of India.
After referring to few decisions of the Apex Court dealing with the
executive powers of the State under Article 162 of the
Constitution, the Division Bench held that there is no error in the
order of the writ court warranting interference and W.A.Nos.1312
of 2019 and 1384 of 2019 are accordingly dismissed.
21. As held by the Division Bench in Bahuleyan
Charitable Foundation, in the absence of a legislation
regulating Paramedical institutions imparting Paramedical
courses, the provisions under the aforesaid Government orders
dated 21.03.2002, 03.04.2008 and 18.01.2014 hold the field.
Therefore, in order to start new Paramedical course or for
enhancement of intake in an existing course Letter of
Permission/no-objection certificate of the State Government,
based on the recommendation made by the Paramedical Council,
is an essential requirement and the University cannot grant
provisional affiliation for a new Paramedical course or for
enhancement of intake in an existing course without Letter of
Permission/no-objection certificate of the State Government.
22. A Paramedical college like the petitioner college, in
order to enhance the intake in B.Sc.(MLT) course has to obtain
no-objection certificate from the State Government, by
submitting a proper application after remitting the requisite fee.
On such application being forwarded, the Principal of the
concerned Government Medical College, shall arrange an
inspection and forward the report of the inspection to the
Government/Paramedical Council, through the Director of Medical
Education. On the recommendation of the Paramedical Council,
the State Government shall grant no-objection certificate for
enhancement of intake in B.Sc.(MLT) course. On the strength of
such permission, the Paramedical college has to approach the
University for grant of provisional affiliation for the enhanced
intake.
23. In the instant case, as evidenced by Annexure II
Government order, i.e., G.O.(Rt.)No.668/2021 H&FWD dated
16.03.2021, produced along with the statement filed by the
Special Government Pleader dated 18.03.2021, Ext.P2 request
dated 06.02.2020 made by the petitioner college seeking no-
objection certificate for increasing the intake in B.Sc.(MLT) course
from 30 to 40 stands rejected, in the light of the report of the
Expert Committee. A reading of the said Government order would
show that the Government, vide G.O.(Ms.)No.101/2020/H&FWD
dated 10.07.2020, constituted an Expert Committee to study the
essentiality with respect to various Allied Health Sciences courses
under the Kerala University of Health Sciences and to submit a
detailed perspective plan. The application for enhancement of
seats was forwarded to the Director of Medical Education for
placing the matter before the Expert Committee. Vide letter
No.B4/3166/2020/DME dated 13.10.2020, the Director of Medical
Education submitted the report of the Expert Committee on the
essentiality for seat enhancement. In the said report, the Expert
Committee has opined as follows;
"As per the norms of the Kerala University of Health
Sciences, the maximum seat capacity fixed for B.Sc.(MLT) is
30. Malappuram District is saturated with four institutions.
The Expert Committee did not recommend for granting no-
objection certificate for increasing the intake from 30 to 40
seats for B.Sc.(MLT) course at Maulana College of
Paramedical Sciences, Malappuram"
24. As discernible from Annexure II Government order
dated 16.03.2021, the Government, after having examined the
matter in detail, in the light of the report of the Expert
Committee, rejected Ext.P2 request made by the petitioner
college for no-objection certificate for increasing the intake in
B.Sc.(MLT) course from 30 to 40. In view of Annexure II
Government Order dated 16.03.2021, the petitioner college
cannot seek provisional affiliation from the 2 nd respondent
University for enhancement of intake in B.Sc.(MLT) course from
30 to 40, for the academic year 2021-22.
25. In so far as the challenge made against Ext.P4
notification dated 27.08.2020 issued by the 2 nd respondent
University and Ext.P9 communication dated 07.01.2021 issued by
the 3rd respondent Registrar is concerned, as per the said
notification, for starting new colleges/courses/enhancement of
seats (UG/PG), the institution should satisfy the norms fixed by
the Apex Council concerned, if any, the Government of Kerala
and the Kerala University of Health Sciences. Applications without
the documents and the requisite fee will be summarily rejected.
Appendix A to Ext.P4 notification prescribes list of enclosures to
be submitted along with the application, by the existing affiliated
colleges. As per the said list, essentiality certificate from
Government of Kerala is one of the mandatory documents to be
submitted along with the application. In Ext.P4 notification, the
last date for submission of online application, with requisite
documents and fee, was fixed as 31.12.2020.
26. The petitioner college, without challenging the
restriction imposed in Ext.P4 notification for enhancement of
seats (UG/PG) in Paramedical institutions, submitted online
application in the web portal of the University, on 30.11.2020, for
enhancement of intake in B.Sc.(MLT) course, for the academic
year 2021-22, as evidenced by Ext.P5 acknowledgement.
Though it is averred in paragraph 9 of the writ petition that,
Ext.P5 application submitted by the petitioner has been
successfully registered, the stand taken in paragraph 4 of the
statement filed on behalf of respondents 2 and 3 is that, though
it is possible to submit an application when the web portal is
open and the system will be generating a communication
regarding successful registration of such an application, that
application would be approved and further steps would be taken
only on verification of the eligibility of the applicant in terms of
the notification. In the case of the petitioner the application for
enhancement of intake was not approved and further steps were
not taken since the application was not in terms of Ext.P4
notification.
27. The petitioner submitted Ext.P6 letter dated
21.12.2020 for an opportunity to upload the documents in
support of the application seeking enhancement of intake in B.Sc.
(MLT) course, before 31.12.2020. In Ext.P6 it was pointed out
that for grant of no-objection certificate the petitioner college has
already made Ext.P2 request dated 06.02.2020 before the 1 st
respondent State, which is pending consideration. Ext.P6 letter
was followed by Ext.P7 e-mail dated 29.12.2020, requesting the
3rd respondent Registrar to provide user name and password so
as to enable the petitioner college to upload further documents in
connection with the application for enhancement of intake. In
paragraph 11 of the writ petition it is stated that, the 3 rd
respondent replied by e-mail requiring the petitioner to go
through Ext.P4 notification and the petitioner was informed that,
in the case of Paramedical courses, only Paramedical institutions
attached to Medical Colleges can apply. While so, the 2nd
respondent University, vide Ext.P8 circular dated 29.12.2020,
clarified that the University is accepting online applications for
provisional affiliation for starting new colleges/courses/
enhancement of seats provisionally without insisting essentiality
certificate from the State Government. Such a circular has been
issued taking note of the fact that the last date for submission of
the online application fixed in Ext.P4 notification is 31.12.2020
and that, applications for essentiality certificate made by various
institutions are pending before the State Government. On
07.01.2021 the petitioner was informed vide Ext.P9
communication of the 3rd respondent Registrar that Ext.P6
request dated 21.12.2020 made by the petitioner college for
permission to submit online application for starting new courses
is rejected as the institution is not attached to a Medical College,
as stipulated in Ext.P4 notification.
28. As already noticed hereinbefore the last date for
submitting online application as per Ext.P4 notification was on
31.12.2020. In Ext.P8 circular the 2 nd respondent University has
clarified that the University is accepting online applications in
terms of Ext.P4 notification, without insisting essentiality
certificate from the State Government. In terms of Ext.P8
circular, online application without essentiality certificate could
have been submitted on or before 31.12.2020. However, the
condition stipulated in Ext.P4 notification, which is under
challenge in this writ petition, disentitled the petitioner college,
which is not a Paramedical institution attached to a Medical
College, from submitting online application without essentiality
certificate, on or before 31.12.2020, for starting new courses/
enhancement of intake in existing courses. The petitioner has not
chosen to challenge such a restriction imposed in Ext.P4
notification, by filing a writ petition under Article 226 of the
Constitution of India, before the last date for submission of online
application prescribed in the said notification, i.e., 31.12.2020.
The present writ petition is one filed on 27.01.2021, after the
receipt of Ext.P9 reply dated 07.01.2021, whereby the request
made by the petitioner college in Ext.P6 for permission to submit
online application in terms of Ext.P4 notification stands rejected
for the reason stated therein.
29. Relying on Ext.P11 notification dated 22.02.2021
issued by the 2nd respondent University, produced along with the
reply affidavit filed on 01.03.2021, the petitioner would contend
that the University has extended the last date for submission of
online application till 08.03.2021. In such circumstances, the
petitioner college is entitled to submit application pursuant to
that notification, for enhancement of intake in B.Sc.(MLT) course
from 30 to 40, for the academic year 2021-22. Along with the
reply affidavit the petitioner has also filed I.A.No.1 of 2021
seeking an interim relief to that effect.
30. A reading of Ext.P11 notification would make it
explicitly clear that it is one inviting applications for starting new
colleges/additional courses/enhancement of number of seats
from institutions which are having no-objection certificate/
essentiality certificate from Government (except courses for
which institutions which have already submitted applications to
the University in accordance with Ext.P4 notification dated
27.08.2020 and notification dated 28.10.2020). In Ext.P11
notification as well, it is stipulated that, in the case of
Paramedical and Allied Health Science courses, Paramedical
institutions attached to Medical Colleges alone are eligible to
submit applications.
31. In the instant case, Ext.P2 request made by the
petitioner college for no-objection certificate for enhancement of
intake in B.Sc.(MLT) course, for the academic year 2021-22, has
already been rejected by Annexure II order dated 16.03.2021 of
the 1st respondent State. The petitioner college will not fall under
the category of 'institutions which are having no-objection
certificate/essentiality certificate from the Government', as on the
date of Ext.P11 notification, i.e., 22.02.2021, or as on
08.03.2021, the last date for submission of online application
stipulated in that notification. In such circumstances, the
petitioner college is not entitled for submission of application for
enhancement of intake in B.Sc.(MLT) course, for the academic
year 2021-22, in terms of Ext.P11 notification. Moreover, the
restriction imposed in Ext.P11 notification, as in the case of
Ext.P4 notification, disentitle the petitioner college, which is not a
Paramedical institution attached to a Medical College, from
submitting application seeking enhancement of intake in B.Sc.
(MLT) course, for the academic year 2021-22.
32. Another contention raised in the writ petition is that
the restriction imposed in Ext.P4 notification, which is under
challenge in this writ petition, is discriminatory and violative of
the fundamental rights guaranteed under Article 14 and 19(1)(g)
of the Constitution of India. The learned counsel for the
petitioner would rely on the decision of the Apex Court in T.M.A.
Pai Foundation v. State of Karnataka [(2002) 8 SCC 481]
in order to contend that right to impart education is a
fundamental right. Relying on the decision of a Division Bench of
this Court in State of Kerala v. M.G.M College of Arts and
Science [2017 (3) KHC 965] the learned counsel for the
petitioner would contend that right to impart education can be
restricted not by a policy decision, but only by a law. 'Law' means
law made by the competent legislature and not by an executive
fiat.
33. In DM Wayanad Institute of Medical Sciences v.
Union of India [(2016) 2 SCC 315], a decision relied on by
the learned Standing Counsel for the University, the Apex Court
noticed that, in Unni Krishnan, J.P. v. State of A.P. [(1993) 1
SCC 645] the right guaranteed under Article 19(1)(g) of the
Constitution of India has been elaborately discussed by the Five-
Judge Constitution Bench, which held that imparting education
cannot be treated as a trade or business. Trade or business
normally connotes an activity carried on with a profit motive.
Education has never been nor can it be allowed to become
commerce in this country. Education has always been treated, in
this country, as a religious and charitable activity and making it
commercial is opposed to the ethos, tradition and sensibilities of
this nation. A citizen of this country may have a right to establish
an educational institution but no citizen, person or institution has
a right much less of fundamental right to affiliation or
recognition. In DM Wayanad, considering the facts of the case
as averred by the petitioners and the rights claimed therein, the
Apex Court held that the petitioners, even though have a right to
establish institutions for imparting medical and technical
education, such right is not a fundamental right.
34. As already noticed hereinbefore, the petitioner has not
chosen to challenge the restriction imposed in Ext.P4 notification,
by filing a writ petition under Article 226 of the Constitution of
India, before the last date for submission of online application
prescribed in the said notification, i.e., 31.12.2020. Vide
Annexure II order dated 16.03.2021, the 1 st respondent State
has already rejected Ext.P2 request made by the petitioner
college for no-objection certificate for increasing the intake in
B.Sc.(MLT) course from 30 to 40, for the academic year 2021-22.
In Ext.P11 notification as well, Paramedical institutions attached
to Medical Colleges alone are eligible to submit applications.
Moreover, the petitioner college will not fall under the category of
'institutions which are having no-objection certificate/essentiality
certificate from the Government', as on the date of Ext.P11
notification, i.e., 22.02.2021, or as on 08.03.2021, the last date
for submission of online application prescribed in that
notification. In such circumstances, the petitioner college is not
entitled for submission of application for enhancement of intake
in B.Sc.(MLT) course, for the academic year 2021-22, in terms of
either Ext.P4 notification dated 27.08.2020 or Ext.P11
notification dated 22.02.2021. In such circumstances, in the writ
petition, this Court need to go into the merits of the contention
raised that the aforesaid restriction imposed in Ext.P4 notification
is discriminatory and violative of the fundamental rights
guaranteed under Article 14 and 19(1)(g) of the Constitution of
India.
In the above circumstances, the petitioner is not entitled for
the reliefs sought for in this writ petition. The writ petition fails
and the same is accordingly dismissed. No order as to costs.
Sd/-
ANIL K.NARENDRAN,
JUDGE
bkn/-
APPENDIX OF WP(C) 2151/2021
ANNEXURE/EXHIBITS
EXHIBIT P1 TRUE COPY OF THE GOVERNEMNT ORDER G.O.
(RT) NO.1066/05/H&FW DATED 8.4.2005.
EXHIBIT P1A TRUE COPY OF THE ORDER NO.GA
1/D1/4493/2003 DATED 24.6.2005 ISSUED BY
THE UNIVERISTY OF CALICUT.
EXHIBIT P1B TRUE COPY OF THE ORDER
U.O.NO.3/2021/ACADEMIC/KUHS DATED
6.1.2021 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE LETTER NO.MINPS/B.SC.
(MLT)2020-21 DATED 6.2.2020 SUBMITTED
BEFORE THE IST RESPONDENT BY THE
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE LETTER
NO.78/K2/2020/H&FWD DATED 20.8.2020
ISSUED TO DIRECTOR OF MEDICAL EDUCATION,
THIRUVANANTHAPURAM BY THE PRINCIPAL
SECRETARY TO GOVERNMENT H & FW (K)
DEPARTMENT.
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION NO.
25494/AC1/GEN A2/2020/KUHS ISSUED BY THE
2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT DATED
30.11.2020 EVIDENCING THE APPLICATION
ONLINE THROUGH THE 2ND RESPONDENT'S
WEBSITE FOR SEAT ENHANCEMENT FOR B.SC.
(MLT) SUBMITTED BY THE PETITIONER ON
30.11.2020.
EXHIBIT P6 TRUE COPY OF THE LETTER
NO.MINPS/MLT/2020-21 DATED 21.12.2020
SENT BY THE PETITIONER TO THE 3RD
RESPONDENT.
EXHIBIT P7 TRUE COPY THE EMAIL DATED 29.12.2020
SENT BY THE PETITIONER TO THE 3RD
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE CIRCULAR
NO.25494/AC1/GEN A2/2019/KUHS DATED
29.12.2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE REJECTION LETER
NO.28593/2020/ACII/PM/A2/KUHS(B) ISSUED
BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE MINIMUM STANDARDS FOR
THE CONDUCT OF B.SC. MLT DEGREE COURSES
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE NOTIFICATION
NO.25494/ACI/GEN A2/2020/KUHS DATED
22/02/2021 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE I TRUE COPY OF THE FORMAT PRESCRIBED BY
PARAMEDICAL COUNCIL
ANNEXURE II TRUE COPY OF THE G.O(Rt).NO.668/2021 H &
FWD DATED 16.03.2021.
