St.Joseph Hospital vs State Of Kerala
2022 Latest Caselaw 342 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                        THE HONOURABLE MR. JUSTICE AMIT RAWAL
             THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                               WP(C) NO. 26442 OF 2020
PETITIONER/S:
      1       ST.JOSEPH HOSPITAL
              DHARMAGIRI, KOTHAMANGALAM P O, ERNAKULAM-686691, REPRESENTED BY ITS
              ADMINISTRATOR SR..ABHAYA.

      2      SR. ABHAYA
             AGED 45 YEARS
             D/O P V JOSEPH,
             MEMBER, CONGREGATION OF MEDICAL SISTERS OF ST.JOSEPH (MSJ), ST.
             JOSEPH HOSPITAL, DHARMAGIRI, KOTHAMANGALAM P O, ERNAKULAM-686691.

             BY ADVS.
             BABU KARUKAPADATH
             SMT.M.A.VAHEEDA BABU
             SHRI.P.U.VINOD KUMAR
             SMT.ARYA RAGHUNATH
             SMT.VAISAKHI V.
             SRI.T.M.MUHAMMED MUSTHAQ
             SHRI.UNAIS K.P.


RESPONDENT/S:
      1       STATE OF KERALA
              REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY T THE GOVERNMENT,
              DEPARTMENT OF HEALTH AND FAMILY WELFARE, 6TH FLOOR, ANNEX-II,
              SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2      DIRECTOR OF MEDICAL EDUCATION
             DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P O,
             THIRUVANANTHAPURAM-695011.

      3      THE SECRETARY
             PARA MEDICAL COUNCIL, HEALTH AND FAMILY WELFARE DEPARTMENT, SOUTH
             BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

      4      THE DISTRICT INSPECITON TEAM CONSTITUTED BY THE STATE
             WITH RESPECT TO PARA MEDICAL INSTITUTIONS, REPRESENTED BY THE
             DISTRICT MEDICAL OFFICER (HEALTH),
             PARK AVENUE,
             MARINE DRIVE, ERNAKULAM,
             KERALA-682011.

             BY ADV GOVERNMENT PLEADER

OTHER PRESENT:
              SR GP SRI K R RENJITH

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 26442 OF 2020
                                2


                            JUDGMENT

Ext.P10 dated 19.10.2020, order of the Government rejecting

the essentiality certificate to the petitioner for running a Bachelor

of Science in Medical Laboratory Technology has been challenged

in the present writ petition. This is the third round of litigation

where earlier direction was issued as no action was taken on the

application for carrying on the course and resulted into an order

rejecting the permission which was set aside vide judgment dated

9.1.2020, Ext.P6, resulting into a constitution of a committee,

recommendation and rejection as per the impugned order.

2. First petitioner is a medical institution situated in the

eastern part of Ernakulam District, almost on the border of Idukki

which is a 300 bedded charitable hospital having 22 departments

including Departments of General Medicine, General Surgery,

Obstetrics and Gynecology etc with sufficient staffs equated to

aforementioned needs. The aforementioned hospital is situated in

a rural area where there are about 12 Higher Secondary and 5

Vocational Higher Secondary Schools in the area but no Para

Medical or Allied Institutions in the locality. Many parents and

students, especially from High Ranges also feel lack of sufficient

high standard colleges in the locality creating skilled professionals WP(C) NO. 26442 OF 2020

to provide important Para Medical Services wherein, the students

can join for Paramedical Courses which is highly job oriented.

Petitioner Hospital submitted an application dated 22.1.2019,

Ext.P1 to the Additional Chief Secretary of the Government,

Department of Health and Family Welfare/Respondent No.1. On

the basis of the directions given by this Court, the application was

rejected vide order Ext.P5, resulting into filing of a writ petition as

stated above.

3. Learned counsel appearing for the petitioner submits

that as per the directions of this Court, the Government was

directed to revisit the issue and decide matter afresh but vide

order dated 10.7.2020, Ext.P8 constituted a five member committee

consisting of Director of Medical Education, Joint Director of

Medical Education (Medical), Joint Director of Medical Education

(General), Dean Faculty of Allied Health Sciences and Professor of

School of Health Policy and Planning, Kerala University of Health

Sciences to study the essentiality with respect to various allied

health science courses. The Committee after having undertaking

the task, submitted a report dated 14.10.2020 to the Principal

Secretary to Government, Health and Family Welfare Department,

Ext.P9 and as per the report it was found that around 900 seats in WP(C) NO. 26442 OF 2020

30 institutions, required to be increased and allotted additional 10

seats whereas additional 5 institutions in the District where there is

no such course as sought to be started by the petitioner and thus

can be permitted in the following districts; a) Idukki b) Wayanadu

c) Kasargod and d) Pathanamthitta and 100 seats can be

increased as there is a demand. But for granting the essentiality a

detailed application and inspection is required to be conducted.

4. Government on the basis of the aforementioned report,

vide impugned order rejected the same. Learned counsel

appearing for the petitioner further in support of the grounds

raised the following submissions:

5. Right to education is a fundamental right and cannot be

whittled away by fettering hands of the institutions, who are willing

to start the aforementioned courses to cater to the students, who

are willing to undertake the paramedical courses, the course the

one which institution wants to introduce as it is located 10 km away

from the Idukki District. In such circumstances, inspection would

have been sine qua non and germane for considering the

application of the petitioner.

6. Government in undue haste, without examining the

report in detail as an eyewash just to overcome the wrath of the WP(C) NO. 26442 OF 2020

contempt petition rejected the application.

7. On receipt of the report, it was incumbent upon the

Government to direct the committee to conduct the inspection and

submit the report for assessing the viability of institution,

particularly, when the committee had recommended for

establishment of the five institutions in the area by increasing 100

seats. The officers at the helm of affairs are not supposed to act as

a post office but pass an order after due application of mind and

should not compel the parties to indulge into multifarious litigation

rejecting the application as has been done in the past. In support

of the aforementioned contentions various judgments have been

cited to contend that in all the matters referred to above after

having granted the institutions to run, particularly the self

financing institutions which the petitioner is of, Government has

decided with one stroke to refrain from imparting the education

which was struck down by this Court. Right to education is a

fundamental right which cannot be taken away for the citizens /

aspirants who seek to undergo the courses with a hope and aim to

earn the livelihood as per the Article 21 of the Constitution of India

and also to contribute in the family corpus.

8. On the other hand, learned Government Pleader WP(C) NO. 26442 OF 2020

supported the impugned order on the premise that this Court on

receipt of an application for conducting the provisional inspection

vide detailed order dated 22.12.2020 rejected the application with

a direction to the department to file a detailed affidavit over and

above the statement furnishing the list of the institutions which

were already imparting such courses and as per the additional

affidavit there are about 900 seats allotted and in the Ernakulam

District about 7 institutions, who are undertaking such course and

the seats allotted are 195. The necessity to increase the seat

though was recommended by the committee, only to the extent of

10 in number in proportion to all the institutions, keeping in view of

the lapse of time and the need. It is a prerogative of the

Government to examine the matter of issuance of essentiality

certificate by taking into certain parameters ie., socio-economic

conditions as well as the location of the institutions. Petitioner

institution is not situated in the District recommended for

undertaking the courses and rightly so, the application has been

rejected. The judgments as cited are based upon the facts of each

case, where the law of estoppel was pressed into service as after

granting certain permissions which were being taken away but

here the case has been rejected at the threshold. Therefore the WP(C) NO. 26442 OF 2020

same would not be applicable.

9. I have heard the learned counsel for the parties and

appraised the paper book. It would be expedient to extract certain

orders, penultimate paragraph of judgment Ext.P6, Ext.P9 report

and relevant portion of the impugned order, Ext.P10.

Penultimate paragraph of judgment, Ext.P6

In the above view of the matter, I am of the opinion that Ext.P5 only expresses the policy of the Government not to permit new courses in the Paramedical sector. This is not what is Contemplated while considering an application for Essentiality Certificate. In the above view of the matter, Ext.P5 which does not consider the necessary question of essentiality for starting of a new course is bad in law. The same is set aside.

There will be a direction to the respondents to reconsider the application submitted by the petitioner for Essentiality Certificate, taking note of the relevant aspects after conducting due enquries. Orders as directed above shall be passed within a period of two months from the date of receipt of a copy of this judgment. The procedure as prescribed in Ext.P2 shall be followed in the case of consideration of Ext.P3 application.

Relevant portion of Ext.P9, Report

Ref: 1. 46/K2/2019/H&FWD dated 12.10.2020

2. 29/K2/2019/H&FWD dated 12.10.2020

3. B4/3166/2020/DME dated 13.10.2020

As the reference cited above. I am hereby forwarding the reports of proceedings initiated currently for the above said reference (1) and reference (2).

The record meeting of the expert committee was convened 18/9/2020 and the minutes with enclosure were forwarded vide reference (3) cited

St. Joseph's Hosptial. Kothamangalam has requested for NOC for B.Sc. MLT committee observed that only after getting application WP(C) NO. 26442 OF 2020

and getting a detailed application and conducting inspection it can be recommended. But vide enclosure 2 sub committee of KUHS has submitted status report by which it is observed that

Around 900 seats institutions. if needed institutions may be allotted additional 10 seats. (BOS MLT already approved this) Additional 5 institutions in Districts where there is no MLT course and may be permitted include (Idukki, Wayanadu, Kasargod Pathanamthitta) Can increase to 100 seats. There is demand Malappuram saturated 4 institutions. St.Joseph's Hospital, Manjummal has requested NOC for BPT.BSC. Imaging Technology and BCVT a. B.Sc Imaging Technology is not being conducted by KUHS now and hence cannot be recommended.

b. For BPT the observation is that 14 Institutions 500 seats, not sufficient Demand for the course (students going outside Kerala) Placement available abroad Can increase to 200 seats (4 colleges preferably in Government sector in Alappuzha,Kollam,Pathanamthitta. Wayanad) Saturation in no districts c. For BCVT the observation is that Total 20 seats now not much for demand Can increase to 8 seats (in 2 Institutions or extra may be permitted in current colleges) Saturation in no districts d. Along with this Diploma in Cardio Vascular Technology is being conducted in 7 self financing institutions with 71 seats per year.

For BPT and BCVT the eligibility of the institution can be assessed only after getting detailed application and conduct of Inspection.

Relevant portion of impugned order Ext.P10

4) The application for granting Essentiality Certificate was forwarded for the consideration of the Expert Committee. As per the letter read as sixth paper above, the Director of Medical Education submitted the Expert Committee Report in respect of granting Essentiality Certificate for starting Bachelor of Science in Medical Laboratory Technology course. The Expert Committee observed that granting essentiality certificate to St.Joseph's Hospital, Kothamangalam, Ernakulam to start WP(C) NO. 26442 OF 2020

Bachelor of Science in Medical Laboratory Technology course can be recommended only after getting a detailed application and conducting inspection. The Committee also recommended that if needed existing institutions may be allotted additional 10 seats and is silent about granting essentiality certificate to new institutions.

5) Government have examined the matter in detail. In the light of the report of the Expert Committee, the request of the Administrator, St. Joseph's Hospital, Kothamangalam, Ernakulam to issue Essentiality Certificate for starting Bachelor of Science in Medical Laboratory Technology course is rejected.

6) Judgment of the Hon'ble High Court of Kerala, read as third paper above, is thus complied with.

The report of the committee extracted above, in the absence of

any inspection, recommended the additional 5 institutions in the

Districts where there MLT Course was not imparted and could be

permitted ie., Idukki, Wayanadu, Kasargod and Pathanamthitta.

Concededly the institution is situated 10 km away from the boarder

of Idukki. It is a gateway to Idukki. Recommendation had already

been made to increase 10 seats in all existing 30 institutions and

100 seats as there is a demand. But the eligibility of the institution

could be assessed only after obtaining the detailed application and

conduct of the inspection. In my view the contents of the

application submitted by the petitioner from time to time did not

lack any material particulars and the rejection of the provisional

inspection vide order aforementioned would not also be treated as

a bar for this Court to examine the veracity of the order under WP(C) NO. 26442 OF 2020

challenge. This Court is of the opinion that the Government ought

not to have rejected the application of the petitioner in a manner

and mode as has been done just for the purpose of compliance of

the direction of this Court as it ought to have pondered upon the

feasibility by requesting / directing the committee to conduct the

inspection particularly, when there was a recommendation. The

order has not been passed by an Officer of the Junior rank but of

the rank of Principal Secretary, who is expected to work in a

pragmatic and judicious manner and if at all, some more time was

required for an application for extension of time could have been

moved for purported compliance, particularly, the fact that this is

the 3rd round of litigation, where the petitioner is impelled to

approach this Court for seeking the grievance. In the unreported

case of UKF College of Engineering and Technology, official

respondent had rejected the no objection certificate for stopping

the diploma level courses in the college which was rejected by the

court on the ground that once the AICTE recommended, there was

no occasion for the official respondent to reject the objection. In

the instant case also the committee had recommended to establish

the institutions in the five district considering the fact that the

petitioner is located nearby the boarder of Idukki. Inspection by WP(C) NO. 26442 OF 2020

the Committee on their own or as per the direction of the

Government was sine qua non. I am afraid it has perpetuated and

reached this Court for examination of the order while exercising

the power of judicial review under Article 226 of the Constitution of

India. Respondent No.1 has also not examined the report minutely

and just extracted the certain observations and rejected which in

my view is not correct, appropriate and justified. Accordingly, the

impugned order Ext.P10 is quashed. Government is directed to

revisit the issue in view of the observation made herein above and

pass an order after receipt of the inspection report from the

already constituted committee after affording an opportunity of

hearing to the petitioner. Petitioner is at liberty to place on record

additional material in support of the aforementioned contentions.

Let this exercise be undertaken within a period of four months

from the date of receipt of a certified copy of this judgment.

Petitioner is at liberty to furnish fresh DD or deposits through

RTGS, a statutory fees for undertaking the task.

Sd/-

sab                                                AMIT RAWAL

                                                    JUDGE
 WP(C) NO. 26442 OF 2020



                    APPENDIX OF WP(C) 26442/2020

PETITIONER EXHIBITS

EXHIBIT P1                A TRUE COPY OF APPLICATION DATED
                          22/0182019 SUBMITTED BY THE PETITIONER
                          HOSPITAL BEFORE THE 1ST RESPONDENT ALONG
                          WITH ITS POSTAL RECEIPT.

EXHIBIT P2                A TRUE COPY OF G.O (Rt) O.1598/2008/H &
                          FWD DATED 30.04.2008.

EXHIBIT P3                A TRUE COPY OF THE FORWARDING LETTER DATED

02.05.2019 ALONG WITH THE RELEVANT PORTION OF THE APPLICATION DATED 02.05.2019 SUBMITTED DIRECTLY BY THE PETITIONER HOSPITAL, TO THE 3RD RESPONDENT FOR GRANTING ESSENTIALITY CERTIFICATED/LETTER OF INTENT/LETTER OF CONSENT/NOC TO START B.Sc MLT COURSE IN THE PETITIONER INSTITUTION.

EXHIBIT P4 A TRUE COPY OF THE DD DATED 29/04/2019 IN FAVOUR OF THE 3RD RESPONDENT, WHICH WAS PRODUCED ALONG WITH EXHIBIT P3.

EXHIBIT P5 A TRUE COPY OF THE GOVERNMENT ORDER DATED 21/08/2019 OF THE 1ST RESPONDENT REJECTING EXHIBIT P1 APPLICATION WITHOUT FOLLOWING THE PROCEDURE IN EXHIBIT P2 G O AND ALSO WITHOUT CONSIDERING AND PROCESSING EXHIBIT P3 APPLICATION DULY SUBMITTED BY THE PETITIONER HOSPITAL.

EXHIBIT P6                A TRUE COPY OF THE JUDGMENT DATED
                          09/01/2020 IN WPC NO.23959/2019 OF THIS
                          HON'BLE COURT.

EXHIBIT P7                A TRUE COPY OF THE AFFIDAVIT DATED
                          23/10/2020 FILED BY THE 1ST RESPONDENT IN
                          CONTEMPT CASE (C) NO.1132/2020, WITHOUT
                          ANNEXURES.
 WP(C) NO. 26442 OF 2020





EXHIBIT P8                A TRUE COPY OF GO (MS) N0.101/2020/H & FWD

DATED 10/07/2020 CONSTITUTING A COMMITTEE, ANNEXED ALONG WITH EXHIBIT P7.

EXHIBIT P9 A TRUE COPY OF THE LETTER / REPORT DATED 14/10/2020 OF THE JOINT DIRECTOR, DIRECTORATE OF MEDICAL EDUCATION, ANNEXED ALONG WITH EXHIBIT P7.

EXHIBIT P10 A TRUE COPY OF THE ORDER OF REJECTION DATED 19/10/2020 ISSUED BY THE 1ST RESPONDENT, REJECTING EXHIBIT P1 APPLICATION SUBMITTED BY THE PETITIONER HOSPITAL FOR ISSUANCE OF ESSENTIALITY CERTIFICATE FOR STARTING BSC MLT COURSE, ANNEXED ALONG WITH EXHIBIT P7.