Csi College Of Nursing vs State Of Kerala
2022 Latest Caselaw 2447 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
                        TH
        FRIDAY, THE 4        DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
                             WP(C) NO. 5577 OF 2022
PETITIONER:

            CSI COLLEGE OF NURSING,
            DR. SOMERVELL MEMORIAL CSI MEDICAL COLLEGE AND HOSPITAL
            KARAKONAM P.O., THIRUVANANTHAPURAM DISTRICT-695 504,
            REPRESENTED BY ITS PRINCIPAL , SUJA BABY Y. Y,
            D/O P.YESUDASAN, AGED 46 YEARS DEIGRATIA, OLIPPUSALA,
            KODANGAVILA P.O., THIRUVANANTHAPURAM-695 123.

            BY ADVS.
            S.SREEKUMAR (SR.)
            ARUN.B.VARGHESE
            VARNA MANOJ
            AISWARYA V.S.


RESPONDENTS:

    1       STATE OF KERALA,
            REPRESENTED BY ITS SECRETARY,
            HEALTH AND FAMILY WELFARE DEPARTMENT,
            GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

    2       KERALA NURSES & MIDWIVES COUNCIL,
            REPRESENTED BY ITS REGISTRAR ,
            RED CROSS ROAD, THIRUVANANTHAPURAM-695 035.

    3       INDIAN NURSING COUNCIL,
            REP. BY ITS SECRETARY, 8TH FLOOR, NBCC CENTRE,
            PLOT NO 2, COMMUNITY CENTRE, OKHLA PHASE-1,
            NEW DELHI-110 020.

    4       KERALA UNIVERSITY OF HEALTH SCIENCES,
            REPRESENTED BY ITS REGISTRAR, THRISSUR-680 596

    5       L B S CENTRE FOR SCIENCE AND TECHNOLOGY,
            REPRESENTED BY ITS DIRECTOR, EXTRA POLICE ROAD,
            NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM-695 033.

            BY ADVS.
            N.RAGHURAJ
            DR.ABRAHAM P.MEACHINKARA,SC, INDIAN NURSING COUNCIL
            SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH
 WP(C) NO. 5577 OF 2022         -2-



             SCIENCES
             SMT.SHAMEENA SALAHUDHEEN, SC, LBS CENTRE FOR SCIENCE
             AND TECHNOLOGY
            ADV.SHAMEENA SALAHUDHEEN-SC,ADV.ANNA LINDA EDEN


     THIS   WRIT   PETITION    (CIVIL)   HAVING    COME    UP    FOR
ADMISSION   ON   04.03.2022,    THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 5577 OF 2022           -3-



                             JUDGMENT

Order dated 24.01.2022 Ext.P13 of Kerala University of

Health Sciences - respondent No.4 is under challenge in this writ

petition whereby the request of the petitioner college for

enhancement of the seats on the basis of the average result of

regular examination, while, taking into consideration the formula of

pass percentage, has been rejected, which, according to the

pleadings and prima facie submissions is against the order dated

29.03.2016 Ext.P14.

2. Petitioner is a Nursing College attached to

Dr.Somervell Memorial CSL Medical College and Hospital. It was

established in the academic year 2002-2003 and affiliated with

Kerala University of Health Sciences respondent No.4. The

parent hospital is a 690 bedded hospital with all specialties and

the medical college is having an urban rural center at

Kazhakoottam with 100 beds. The intake of students for the

academic year 2020-21 was fifty(50).

3. Mr.S.Sreekumar, learned Senior Counsel assisted by

Mr.Arun Varghese and Ms.Anna Linda Eden, representing the

petitioner submit that respondent No.4 caused the notification

dated 27.08.2020 Ext.P1 inviting applications for starting new

colleges/additional courses/enhancement of seats for the

academic year 2021-22. Pursuant to the aforementioned

notification, an application for enhancement of the seats from 50

to 100 was submitted on 30.12.2020 Ext.P2. Government of

Kerala - respondent No.1 vide Order dated 22.02.2021 Ext.P3

granted the permission for enhancement of the seats for

academic year 2021-22 subject to the fulfillment of approval from

Kerala Nurses and Midwives Council and Indian Nursing Council,

respondent Nos.2 and 3 respectively. Respondent No.2 after

conducting inspection resolved to accord for enhancement of the

seats from 50 to 85 during the academic year 2021-22 vide order

dated 21.06.2021 Ext.P4 respondent No.3 also in the similar

manner had granted the intake of 85 seats vide order dated

06.09.2021 Ext.P5. However, respondent No.4 i.e., Kerala

University of Health Sciences with whom the petitioner is affiliated

did not communicate any intimation regarding the permission. As

per the contents of the letter dated 18.07.2021 Ext.P7 it was

informed that the enhancement of seats for the academic year

cannot be considered favourably as pass percentage of the

college was below 50%. In response to the aforementioned letter

the result of the pass percentage of the existing batches having

60% pass was submitted to respondent No.4 vide communication

dated 18.10.2021 Ext.P8 and other relevant documents were also

submitted, but the request was again not considered evident from

communication dated 07.11.2021 Ext.P10. The aforementioned

order was assailed by the petitioner in this Court in W.P(C).

No.29496/2021. This Court vide judgment dated 28.12.2021

Ext.P12 directed the respondent No.4 to revisit the issue and in

view thereof, vide impugned communication dated 24.01.2022

Ext.P13, has rejected the aforementioned request.

4. It is contended that the university had been

approbating and re-probating at the same time in as much as at

earlier point of time, the condition for enhancement of the seat

was a pass percentage as per the letter dated 16.04.2015

Ext.P11, but subsequently vide order dated 29.03.2016 Ext.P14

the Academic Council decided that for enhancement of the seats,

every result of regular examination of particular course shall be

50% and for new course the average result of all regular

examinations of the courses under the same faculty in the

institution shall be 50% at the time of processing of the

application. In other words the nomenclature of the pass

percentage was taken off. However the impugned order reflects

that the University had been remiss in applying the previous order

which was not in existence in the eyes of law as on plain and

simple perusal of Ext.P13, there has been a reference of the

previous order dated 16.04.2015 Ext.P11.

5. Mr.P.Sreekumar learned counsel representing the

respondent has countered the aforesaid arguments by supporting

the impugned order on the ground that a duty is cast upon the

respondents to ensure that the affiliated institutions maintain the

standards required in the field of health sciences and one of the

criteria relied on for that said purpose was pass percentage of the

students from the said institutions as it had been done to ensure

the quality of education imparted by the affiliated institutions. The

College has to satisfy the condition that the average pass

percentage of regular examinations of all existing batches should

be above the minimum prescribed by the Governing Council in

terms of the statute 5 (ii) (v) of Chapter XXI of the Kerala

University of Health Sciences First Statutes, 2013 whereby the

minimum pass percentage had been prescribed as 50%.

6. During the course of the argument, this Court was

handed over a copy of the notification dated 24.02.2020 whereby

the Governing Council in exercise of the powers by virtue of

Section 41 of the Kerala University of Health Sciences Act, 2010

with the approval from the Government of Kerala amended 5

Chapter XXI of the Kerala University of Health Sciences First

Statutes, 2013 pertaining to the affiliation of colleges in the

meeting held on 26.08.2019 assented to by the Chancellor on

02.12.2009 and had been held to be effective from the said date

of decision whereby the average of the pass percentage had been

the condition precedent for enhancement of the seats in the

previous regular examinations of all existing batches of the same

courses at the time of the submission of the applications and thus

urged this Court for dismissal of the writ petition.

7. Before I could give my finding on the rival contentions

of the parties, when the matter was taken up for hearing

yesterday, Mr.S.Sreekumar, learned Senior Counsel submitted

that difference between the criteria of application of pass

percentage and average percentage are totally opposite to each

other as by applying the ratio as per the decision of the University,

the pass percentage would be much below than the average

percentage. A formula for the said calculation has been submitted

to this Court with advance copy to the counsel for the respondents

which has not been denied and has been taken on record as

Ext.X.

8. In rebuttal, Mr.S.reekumar further contended that the

notification b relied upon by the respondent no doubt is dated

24.02.2020 but had been notified only on 15.12.2021 and as per

the provisions of the General Clauses Act, the date of the

notification would be the effective date and not the date of it's

decision. Moreover the said notification had not been referred to

while rejecting the application of the petitioner on plain and simple

perusal of the impugned order Ext.P13.

9. On perusal of Ext.X i.e., the chart viz-a-viz the average of

pass percentage and average result, it is evident that the criteria

for assessing the percentage by taking into consideration the

expression 'pass' would be far less than that of the average result.

10. I have heard learned counsel for the parties and

appraised the paper books and of the view that there is force and

merit in the arguments of Mr.Sreekumar and the reasons are not

one but the following:

The application for enhancement of the seats was submitted as

far back as of 30.12.2020 vide Ext.P2. At the relevant point of

time the order dated 29.03.2016 Ext.P14 was in force. Relevant

portions of the same reads as under:

"KERALA UNIVERSITY OF HEALTH SCIENCES Abstract

Kerala University of Health Sciences - Academic - Norms for granting new courses/enhancement of seats - Orders issued.

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

ACADEMIC SECTION No.2022/AC.H/2015/KUHS Thrissur, dated:29/03/2016

--------------------------------------------------------------------------------- Read: 1. U.O.No.2022/ACH/KUHS/2015 dated 16/04/2015

2.U.O.No.2022/ACH/KUHS/2015 dated 14/12/2015

3.Decision No.10.10 of the Academic council dated 15/12/2015

4.Decision No.29.18 of the Governing council dated 21/12/2015

5.U.O.No.5208/AC.A/2015/KUHS dated 08/01/2016

ORDER The 10th meeting of Academic council dated 15/12/2015 has resolved to modify the existing clause that, "for enhancement of seats the average result of all regular examinations of that particular course shall be 50% and for new course the average result of all regular examinations of the courses under same faculty in the institution shall be 50%" at the time of processing of application. The decision of Academic Council, was approved by the Governing Council dated 21/12/2015 and implemented vide order read (5) above.

The U.O. referred (1) & (2) above stands modified to this extent. Orders are issued accordingly.

Sd/-

REGISTRAR"

Before the submission of the application there was an order of

University dated 16.04.2015 Ext.P11 which imposed the condition

of 'pass percentage' which had been taken off in the subsequent

decision dated 29.03.2016 Ext.P14 by confining it only to the

'average' result insisting upon the pass percentage.

11. It would be expedient to extract the order dated

16.04.2015 Ext.P11.

"KERALA UNIVERSITY OF HEALTH SCIENCES Abstract Academic - Granting of new courses/enhancement of seats

- clarification - Orders issued.

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

ACADEMIC SECTION No.2022/AC.H/2015/KUHS Thrissur, dated: 16/04/2015

--------------------------------------------------------------------------------- Read: 1. Decision No.24.09 of the minutes of twenty fourth meeting of Governing council held on 30/03/2015

2. U.O.No.15/AC.L/1/KUHS dated 17.05.2013

ORDER The twenty third meeting of the Governing Council decided to change the existing clause for granting of new courses/enhancement of seats, "as 60% or above University average in the final year results" as "average of the regular examinations of all years of the concerned batch shall be 50% or above". Since there is ambiguity in the decision, the twenty fourth meeting of the Governing Council held on 30/03/2015 decided vide the agenda read (1) above to change the existing clause for granting of new courses/enhancement of seats as "the average of pass

percentage of regular examinations of all batches of the institution shall be 50% or above at the time of processing of application."

The U.O. referred 2 above stands modified to this extent. Orders are issued accordingly.

Sd/-

CONTROLLER OF EXAMINATIONS In Charge of REGISTRAR"

12. The tenor and mode of the impugned order as reflected

from Ext.P13 from Paragraph Nos.4 and 6 are also extracted

herein below:

"4.The Principal vide paper read (4) above has requested repeatedly to reconsider their application for enhancement of seats of B.Sc. Nursing course for the academic year 2021-22 and again calculated the pass percentage which was increased to 43.75% after calculating with Fourth year Regular Examinations results of 2016 Admissions (The average calculated with pass % of 7 results). The college still have not achieved the required pass percentage. The calculation during reconsideration of the application is as follows:

      Year             of 2016      2017       2018       Total
      Admission
      First Year         22.00%     18.00%     45.10%
      Second Year        48.94%     40.00%     -
                                                          306.3/7=43.75%
      Third Year         53.19%     -          -
      Fourth Year        79.07      -          -

6. In compliance with the Judgment of Hon'ble High Court of Kerala, the University has reconsidered the application again and calculated pass percentage by taking into consideration all the eligible results as on date by including the Third Year Regular Examinations results of 2017 Admissions by which the pass percentage was increased to 44.27% (The average calculated with pass % of 8 results). Even after doing this exercise also the college still lacks the required pass percentage. The calculation is as follows:

      Year      of 2016          2017         2018        Total
      Admission
      First Year     22.00%      18.00%       45.10%
      Second         48.94%      40%          -
      Year                                                354.22/8=44.27%

      Third Year     53.19%      47.92%       -
      Fourth Year 79.07          -            -

13. The University on the previous order had taken into

consideration the applicability of the order dated 16.04.2015 which

was not in vogue by insisting for pass percentage resulting into

the rejection of the application. Things did not end here. The

counter statement of the University do not reflect anything about

the notification but only gives a passing reference of Statute V of

Chapter XXI. In other words, the provisions of the notification had

conspicuously been prevented from the notice of this Court.

Condition No.(v) of the notification dated 24.02.2020 notified on

15.12.2021 reads thus:

"(v) In the case of additional courses and/or for enhancement of seats, the colleges shall satisfy the condition that 1 st 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."

14. It is trite law that the effective date of the notification

would be the date of it's notification in the official gazette.

Application of the petitioner was submitted on 30.12.2020

whereas the notification which is still holding the field, as per the

contention of the respondent, would be actually effective from

15.12.2021 and not from the date of the decision or the date

notified by the University, thus, would not have any retrospective

effect.

For the reason aforementioned the impugned decision

Ext.P13 is non est in the eyes of law and unsustainable, suffers

from aberration, irrationality and accordingly set aside. Writ

petition is allowed. Directions are given to the respondents to

grant the permission to the petitioner for increase in the number of

seats strictly as per the order dated 29.03.2016 extracted above,

within a period of two weeks from the date of receipt of a certified

copy of the order.

Sd/-

AMIT RAWAL JUDGE

vv

APPENDIX OF WP(C) 5577/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF NOTIFICATION BEARING NO 25494/AC1/GEN/A2/2020/KUHS DATED 27.8.2020 ISSUED BY THE 4TH RESPONDENT UNIVERSITY

Exhibit P2 TRUE COPY OF THE APPLICATION DATED 30.12.2020 SUBMITTED BY THE WRIT PETITIONER BEFORE THE 4TH RESPONDENT FOR ENHANCEMENT OF SEATS

Exhibit P3 TRUE COPY OF GO(MS) NO 63/2021/H & FWD DATED 22.2.2021 ISSUED BY THE 1ST RESPONDENT

Exhibit P4 TRUE COPY OF ORDER NO G 11654/03/NC DATED 21.6.2021 ISSUED BY THE 2ND RESPONDENT

Exhibit P5 TRUE COPY OF FILE NO 18-16/3660-INC DATED 6.9.2021 ISSUED BY THE 3RD RESPONDENT

Exhibit P6 TRUE COPY OF LETTER NO MCHK/2338/NC/20 DATED 5.10.2021 SUBMITTED BY THE WRIT PETITIONER BEFORE THE 4TH RESPONDENT UNIVERSITY

Exhibit P7 TRUE COPY OF LETTER NO 2020/28689/AC11/SNG/A1/KIHS DATED 18.7.2021 ISSUED BY THE 4TH RESPONDENT TO THE WRIT PETITIONER

Exhibit P8 TRUE COPY OF LETTER NO MCHK/2838/NC DATED 18.10.2021 SUBMITTED BY THE WRIT PETITIONER TO THE 4TH RESPONDENT UNIVERSITY

Exhibit P9 TRUE COPY OF LETTER NO MCHK/2838/NC DATED 20.10.2021 SUBMITTED BY THE WRIT PETITIONER TO THE 4TH RESPONDENT UNIVERSITY

Exhibit P10 TRUE COPY OF LETTER NO 2020/28689/AC11/NSG/A1/KIHS DATED 7.1.2021 ISSUED BY THE 4TH RESPONDENT TO THE WRIT PETITIONER

Exhibit P11 TRUE COPY OF ORDER NO 2022/A.CH /2015/KUHS DATED 16.4.2015 ISSUED BY THE 4TH RESPONDENT UNIVERSITY

Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 28.12.2021 IN WPC NO 29496/2021 OF THE HONOURABLE HIGH COURT OF KERALA

Exhibit P13 TRUE COPY OF ORDER BEARING NO UO NO 48/2022/ACADEMIC/KUHS DATED 24.1.2022 ISSUED BY THE 4TH RESPONDENT

Exhibit P14 TRUE COPY OF THE ORDER BEARING NO 2022/ACH/2015/KUHS DATED 29.3.2016

Exhibit P15 TRUE COPY OF THE CALCULATION STATEMENT OF 1ST YEAR REGULAR EXAMINATION OF 2016 ADMISSION

Exhibit P16 TRUE COPY OF THE CALCULATION STATEMENT OF 2ND YEAR REGULAR EXAMINATION OF 2016 ADMISSION

Exhibit P17 TRUE COPY OF THE CALCULATION STATEMENT OF 3RD YEAR REGULAR EXAMINATION OF 2016 ADMISSION

Exhibit P18 TRUE COPY OF THE CALCULATION STATEMENT OF 4TH YEAR REGULAR EXAMINATION OF 2016 ADMISSION

Exhibit P19 TRUE COPY OF THE CALCULATION STATEMENT OF 1ST YEAR REGULAR EXAMINATION OF 2017 ADMISSION

Exhibit P20 TRUE COPY OF THE CALCULATION STATEMENT OF 2ND YEAR REGULAR EXAMINATION OF 2017 ADMISSION

Exhibit P21 TRUE COPY OF THE CALCULATION STATEMENT OF 3RD YEAR REGULAR EXAMINATION OF 2017 ADMISSION

Exhibit P22 TRUE COPY OF THE CALCULATION STATEMENT OF 1ST YEAR REGULAR EXAMINATION OF 2018 ADMISSION