K.V.M. Trust vs The Kerala University Of Health ...
2023 Latest Caselaw 9290 Ker

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WPC 26099/2023


                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
              THE HONOURABLE MR.JUSTICE BASANT BALAJI
       FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
                         WP(C) NO. 26099 OF 2023
PETITIONER/S:


            K.V.M. TRUST, P B NO. 13, CHERTHALA, ALAPPUZHA
            DISTRICT, REPRESENTED BY THE DIRECTOR DR. V.V.
            PYARELAL., PIN - 688524

            BY ADVS.
            NISHA GEORGE
            GEORGE POONTHOTTAM (SR.)
            ANN MARIA FRANCIS


RESPONDENT/S:


            THE KERALA UNIVERSITY OF HEALTH SCIENCE,
            SMULANGUNNATHUKAVU, MEDICAL COLLEGE P.O., THRISSUR
            REPRESENTED BY ITS REGISTRAR, PIN - 680596

            BY ADV SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF
            HEALTH SCIENCES


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WPC 26099/2023




                              JUDGMENT

(Dated this the 25th day of August 2023)

The petitioner is a Trust which is running a super

specialty hospital at Cherthala. B.Sc. Nursing program was

sanctioned in the year 2002 with an intake of 50 seats. Thereafter,

it was increased to 70. During 2017-18 academic year, there was

a strike in the hospital called by the Nurses Association and the

functioning of the hospital was jeopardised. But the conduct of

nursing program was not obstructed by the strike. The students

were taken to an affiliated hospital. During the academic 2019-

20, the respondents declined to give affiliation even though

sanction and permission were granted by the Indian Nursing

Council as well as State Nursing Council with an intake of 100

and 60 seats respectively. For the academic year 2020-21 though

the Nursing Council sanctioned an intake of 100 seats and the

State Nursing Council with an intake of 60 seats, affiliation was

WPC 26099/2023

declined by the respondent. It was under challenge in W.P.(C)

No.28745 of 2019, which ended in dismissal. Though an appeal

was filed, it also was also not fruitful, against which SLP was

filed. But due to the passage of time, admission could not be

made for the academic year 2020-21 and the hon'ble apex court

issued direction to conduct the inspection by the

respondent. Thereafter, the college was given affiliation with an

intake of 50 seats during the year 2021-22, though the Nursing

Council granted 60 seats. For the year 2022-23 also on the basis

of the application filed by the petitioner, the Indian Nursing

Council allowed for an intake of 100 seats. The State Nursing

Council also conducted an inspection before granting affiliation

and issued an order for an intake of 60 seats. The respondent

thereafter conducted an inspection for continuation of affiliation.

The inspection was conducted on 5.5.2022. The physical

facilities, bed occupancy and the infrastructure of the college as

well as the affiliated college were also verified. But the

WPC 26099/2023

respondent has restricted the intake at 50 for the academic year

2022-23.

2. By Ext.P16, the petitioner filed an application for

enhancement of seats from 50 to 60. An inspection was

conducted on 13.12.2022 and the proceedings were issued

requesting for enhancement of seats from 50 to 60. Aggrieved

by the order refusing to enhance the seats, the petitioner filed

W.P.(C) No.41066 of 2022 for a direction to the respondent to

grant an intake of students in tune with the permission granted

by the State Nursing Council. This court passed an order

directing the competent authority of the respondent to revisit the

college. Another inspection was conducted on 22.12.2022 and

on the basis of inspection report, it was found that the college

was eligible for an intake of 55 seats. Therefore, the Writ

Petition was closed.

WPC 26099/2023

3. By Ext.P25 order dated 31.3.2023, the respondent

decided to grant 55 seats for the academic year 2022-23. The

State Nursing Council on 26.4.2023 accorded sanction for

continuing nursing program for one year for the academic year

2022-23 subject to approval of the Government with a

sanctioned seat of 60. On the basis of the notification issued on

27.8.2022 inviting applications for continuation of affiliation

for the academic year 2023-24, the petitioner submitted an

application for affiliation with 55 seats. After conducting an

inspection and facilities at the college, the

university/respondent passed Ext.P27 order limiting the intake

as 50 seats. Therefore the petitioner has filed this Writ

Petition with the following reliefs:

i) Issue a writ of certiorari calling for the records leading to Exhibit-P27 and to quash the same to the extent of restricting the intake as 50 when the petitioner is entitled to get 60 seats as found by the State Nursing Council;

WPC 26099/2023

ii) Issue a writ declaring that the reduction of intake than the one permitted by the State Nursing Council in Exhibit-P27 is without the manner prescribed under law, unauthorized and Illegal and therefore bad in law.

iii) Issue a writ declaring that no power has been prescribed under the University Act conferring power on the University to reduce intake as sanctioned by the State Nursing Council and therefore the reduction of intake is unauthorised;

iv) Issue a writ in the nature of mandamus directing respondent to sanction 60 seats for B.Sc Nursing programs in the petitioner's college for the academic year 2023-24;

iv) Dispense with filing of the English translation of vernacular documents;

4. A statement has been filed for and on behalf of

the respondent. It is stated that Ext.P27 order granting

provisional affiliation for the academic year 2023-24 was based

on the inspection report obtained by the respondent. As per the

norms prescribed by the Indian Nursing Council, the student-

patient ratio in the parent hospital should be 1:3. Having found

WPC 26099/2023

that the patient strength available as on the date of inspection as

152, the University fixed the intake as 50 in terms of the

regulations. The petitioner cannot rely on the bed strength in the

affiliated hospitals as the affiliation is permitted only for the

specialised training in certain subjects.

5. A perusal of Ext.P28 shows that as on the date of

inspection, the total number of inpatients was 179. To have an

intake of 55 seats, the minimum number of inpatients should be

165 or more. The figure 179 includes 31 patients in the

emergency/casualty and according to the respondent when the

total number of IP patients is taken into consideration, the entire

patients in the casualty cannot be counted. Therefore, the

respondent has reduced 27 patients out of the casualty to arrive

at the figure of 152 IP patients. It is on the basis of the said

report and number of patients as on the date of inspection the

WPC 26099/2023

petitioner Trust was granted continuation of affiliation with an

intake of 50 students.

6. The learned senior counsel, Shri.George Poonthottam

submits that for the academic year 2022-23 the petitioner

hospital was given continuing affiliation of 55 seats on the basis

of inspection conducted on 22.12.2022 based on the direction

of this court. Therefore, the reduction of 5 seats from the last

academic year is illegal and improper. Therefore, he prays that

the petitioner is entitled for at least 55 seats which was granted

for the last academic year 2022-23 though they are entitled for

60 as per Ext.P26.

7. A perusal of Ext.P28 shows that if there were 165

patients, the petitioner is entitled to retain 55 seats. But it is

short of 13. It is to be noted that the orders are passed on the

basis of an inspection of a particular day. The number of

patients may increase or decrease depending upon many

WPC 26099/2023

factors. Since the petitioner is given permission by the State

Nursing Council for an intake of 60 seats on 2023-24 and they

were having affiliation for 55 seats for the academic year 2022-

23, I am of the opinion that the petitioner can be given an

opportunity to increase the number of patient student ratio, so

that they can continue with 55 seats as granted for the previous

academic year. For this, the petitioner has to file an undertaking

before the respondent that the number of IP patients in the

parent hospital would be increased on the basis of the

infrastructures and facilities so that the IP patient number would

cross 165 to retain an intake of 55 seats. Therefore, having

considered the rival submissions addressed at the Bar, I deem it

appropriate to dispose of the Writ Petition with the following

directions:

(1) The petitioner shall give an undertaking before the respondent that the student patient ratio would be maintained so that the number of IP patients is

WPC 26099/2023

more than 165, by increasing the infrastructure or other facilities required. The undertaking shall be filed before the respondent on or before 1.9.2023.

(2) Along with the undertaking mentioned above, the respondent shall make a deposit of Rs.1 lakh (Rupees one lakh only) with the respondent and if the said deposit is made, the respondent is directed to issue provisional affiliation to the petitioner college for B.Sc. Nursing course with an intake of 55 seats for the academic year 2023-24.

(3) If on further inspection the respondent University is satisfied that the undertaking is fulfilled, the amount under deposit can be returned to the petitioner or else it can be forfeited.

With the said directions, this Writ Petition is disposed of.

Sd/-

BASANT BALAJI, JUDGE dl/

WPC 26099/2023

APPENDIX OF WP(C) 26099/2023 PETITIONER EXHIBITS

Exhibit -P1 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.

20040 OF 2019 DATED 24.09.2019

Exhibit-P2 TRUE COPY OF THE ORDER DATED 15.04.2021 IN SPECIAL LEAVE TO APPEAL (C) NOS. 1689-1690 OF 2021 PASSED BY THE HON'BLE SUPREME COURT OF INDIA

Exhibit-P3 TRUE COPY OF THE ORDER DATED 13.08.2021 IN SPECIAL LEAVE TO APPEAL (C) NOS. 1689-1690 OF 2021 PASSED BY THE HON'BLE SUPREME COURT OF INDIA

Exhibit-P4 TRUE COPY OF THE ORDER DATED 02.09.2021 IN SPECIAL LEAVE TO APPEAL (C) NOS. 1689-1690 OF 2021 PASSED BY THE HON'BLE SUPREME COURT OF INDIA

Exhibit-P5 TRUE COPY OF THE ORDER DATED 08.12.2021 IN SPECIAL LEAVE TO APPEAL (C) NOS. 1689-1690 OF 2021 PASSED BY THE HON'BLE SUPREME COURT OF INDIA

Exhibit-P6 TRUE COPY OF THE ORDER BEARING FILE NO. 18-

16/2304 DATED 12.08.2022 ISSUED BY THE INDIAN NURSING COUNCIL IN THIS REGARD SANCTIONING AN INTAKE OF 100 SEATS WHICH IS IN CONTINUATION OF THE INTAKE PERMITTED INITIALLY DURING THE ACADEMIC YEAR 2012-13

Exhibit-P7 A TRUE COPY OF THE ORDER NO.G. 5279/10/NC DATED 12.08.2022 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL

Exhibit -P8 TRUE COPY OF THE RELEVANT PAGES OF THE INSPECTION REPORT RECEIVED ON APPLICATION UNDER THE RIGHT TO INFORMATION ACT, DATED 05.05.2022 WHICH IS RELEVANT FOR THE PURPOSE

Exhibit-P9 TRUE COPY OF THE SAID RECOMMENDATION BEARING COMMUNICATION NO. 23545/ACII/NSG/ A2/2021/KUHS DATED 07.07.2022 ISSUED BY THE RESPONDENT UNIVERSITY

WPC 26099/2023

Exhibit-P10 TRUE COPY OF THE ORDER BEARING U.O.NO.

832/2022/ ACADEMIC/KUHS DATED 01.09.2022

Exhibit-P11 COPY OF THE LETTER DATED 11.07.2022 ISSUED BY THE PETITIONER TRUST TO THE RESPONDENT UNIVERSITY, WITH ENCLOSURES,

Exhibit-P12 COPY OF THE SAID COMMUNICATION BEARING F.NO.22-10/NEET/2018-19-INC DATED 09.09.2022 ISSUED BY THE INDIAN NURSING COUNCIL

Exhibit -P13 TRUE COPY OF THE JUDGMENT DATED 11.11.2022 IN W.P.(C). NO. 32954 OF 2022 PASSED BY THIS HON'BLE COURT

Exhibit -P14 COPY OF THE JUDGMENT DATED 11.11.2022 IN W.P.(C) 35157 OF 2022 PASSED BY THIS HON'BLE COURT

Exhibit-P15 COPY OF THE COVERING LETTER DATED 19.11.2022 SUBMITTED BY THE PETITIONER'S COLLEGE, WITHOUT ENCLOSURE,

Exhibit-P16 TRUE COPY OF THE APPLICATION NO. PAS/2022/193 DATED 05.12.2022 SUBMITTED BY THE PETITIONER'S COLLEGE, ALONG WITH COVERING LETTER

Exhibit-P17 COPY OF THE PROCEEDINGS BEARING U.O.NO.

1169/2022/ACADEMIC/KUHS DATED 02.12.2022 ISSUED BY THE RESPONDENT UNIVERSITY

Exhibit-P18 COPY OF THE BROCHURE OF THE 16TH GRADUATION CEREMONY FOR B.SC NURSING STUDENTS

Exhibit-P19 . TRUE COPY OF THE APPOINTMENT ORDER DATED 01/12/2022, ISSUED BY THE PETITIONER, ALONG WITH ENCLOSURES,

Exhibit -P20 COPY OF THE PROCEEDINGS BEARING U.O.NO.

1227/2022/ ACADEMIC/ KUHS DATED 14.12.2022 ISSUED BY THE RESPONDENT UNIVERSITY

Exhibit-P21 COPY OF THE DETAILS OF TEACHING FACULTY OF ALL NURSING PROGRAMEME OFFERED BY THE PETITIONER INSTITUTION

WPC 26099/2023

Exhibit-P22 COPY OF THE IP AND OP DETAILS OF THE PETITIONER'S HOSPITAL FROM JUNE 2022 TO NOVEMBER 2022

Exhibit-P23 COPY OF THE DETAILS OF THE IP AND OP DETAILS OF THE PETITIONER'S HOSPITAL FROM 01.12.2022 TO 14.12.2022

Exhibit-P24 A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.

41066 OF 2023 DATED 09.01.2023

Exhibit-P25 A TRUE COPY OF THE ORDER U.O.NO.

441/2023/ACADEMIC/KUHS DATED 31.03.2023 ISSUED BY THE RESPONDENT UNIVERSITY

Exhibit-P26 A TRUE COPY OF THE ORDER NO.G.5279/10/NC DATED 26.04.2023 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL

Exhibit-P27 A TRUE COPY OF THE ORDER BEING U.O.NO.

1092/2023/ ACADEMIC/KUHS ISSUED BY THE UNIVERSITY DATED 20.07.2023 ISSUED BY THE RESPONDENT UNIVERSITY

Exhibit-P28 A TRUE COPY OF THE IP AND OP DETAILS OF THE PETITIONER HOSPITAL AT THE TIME OF INSPECTION

RESPONDENT ANNEXURES

Annexure R1A A true copy of the order dated 08.03.2022 in SLP No 1689-90 of 2021

Annexure R1B A true copy of the order dated 23.03.2022 in SLP No 1689-90 of 2022

Annexure R1C A true copy of the order dated 29.03.2022 in SLP No 1689-90