Rajiv Gandhi Memorial ... vs Kerala University Of Health ...
2023 Latest Caselaw 1736 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                     THE HONOURABLE MR. JUSTICE SATHISH NINAN
         WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                             WP(C) NO. 40005 OF 2022
PETITIONER:

              RAJIV GANDHI MEMORIAL EDUCATIONAL & CHARITABLE SOCIETY
              (REGN.NO.448/2004)
              REPRESENTED BY ITS SECRETARY TRIKKARIPUR.P.O.,
              KASARGOD - 671 310.

              BY ADVS.
              KURIAN GEORGE KANNANTHANAM (SR.)
              P.M.SANEER
              TONY GEORGE KANNANTHANAM



RESPONDENTS:

     1        KERALA UNIVERSITY OF HEALTH SCIENCES,
              REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O.,
              TRICHUR - 680 596.

     2        THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
              5TH FLOOR, K.S.H.B. BUILDING, THIRUVANANTHAPURAM - 695 001.

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




     THIS     WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                     SATHISH NINAN, J.
           = = = = = = = = = = = = = = = = = =
                 W.P.(C) No.40005 of 2022
           = = = = = = = = = = = = = = = = = =
         Dated this the 1st day of February, 2023

                       J U D G M E N T

Petitioner is an educational agency which runs a

Pharmacy College. The writ petition is filed challenging

Ext.P8 order rejecting their application for

Continuation of Provisional Affiliation, and Ext.P10

notice for withdrawal of affiliation.

2. The petitioner established a Pharmacy College in

the year 2006-07. The College was affiliated to the

Kannur University. It had the approval of the Pharmacy

Council of India. Since the constitution of the Kerala

University of Health Sciences, the college was

affiliated to the said University. The affiliation was

being extended from year to year. The last extension was

for the year 2021-22 as per Ext.P2.

3. Seeking continuation of the provisional

affiliation for the period 2022-23, the petitioner, on W.P.(C) No.40005 of 2022

02.09.2021, submitted application for extension/renewal.

4. On 16.02.2022 an inspection was conducted by the

University at the institution. Thereafter, University

issued Ext.P4 communication dated 26.04.2022 pointing

out certain deficiencies. On complying with the same,

the petitioner issued Ext.P6 compliance report with

Ext.P5 covering letter. Thereafter on 29.09.2022, in

compliance with the e-mail from the University dated

28.09.2022, a hard copy of the compliance report was

submitted by the petitioner as per Ext.P7. The

petitioner also requested that affiliation for M.Pharm

for the year 2022-23 may be kept in abeyance. This was

followed by Ext.P8 communication by the University

rejecting the application for continuation of

affiliation (Ext.P8).

5. Thereupon, the petitioner, as per Ext.P9, made a

request for fresh consideration of renewal, attaching

therewith the details of the deficiencies pointed out by W.P.(C) No.40005 of 2022

the University and also its compliance. Petitioner

alleges that, without considering the same the

University issued Ext.P10 notice proposing to

withdraw/cancel the affiliation granted to the College.

The petitioner challenges Exts.P8 and P10, and seeks for

a direction for continuation of provisional affiliation

for the year 2022-23 for conducting B.Pharm course.

6. Heard Sri.Kurian George Kannanthanam, the

learned Senior Counsel appearing on behalf of the

petitioner and Sri.P.Sreekumar, learned Standing Counsel

for the first respondent.

7. Sri.Kurian George Kannanthanam, learned Senior

Counsel for the petitioner raises multi-pronged

challenge against the rejection of the application for

continuation of provisional affiliation and against the

proposal to withdraw/cancel the affiliation (Exts.P8 and

P10). The grounds urged are :-

W.P.(C) No.40005 of 2022

(i) Clause 19 of the University First Statutes

though provide for submission of application for

continuation of affiliation every year, it contemplates

inspection by the University only once in two years.

Inspection having been conducted in the year 2021 and

Ext.P2 affiliation having been issued in the previous

year, a further inspection is contemplated only in the

year 2023.

(ii) The inspection which led to the rejection of

continuation of provisional affiliation is stated to be

based on a complaint. Clause-17 of the First Statutes of

the University provides for actions of withdrawal/

suspension on such complaints but not an action for

refusal to renew the provisional affiliation. The proper

procedure is to initiate steps in terms of clause-17 for

withdrawal/suspension of such affiliation.

(iii) The enquiry report relied on by the

University is vitiated for the reason that, the W.P.(C) No.40005 of 2022

complainant himself was a member of the inspection

committee. The report is thus bad for bias.

(iv) In the compliance report/explanation submitted

by the petitioner, it was specifically expressed that

they are not seeking for renewal of affiliation for the

M.Pharm Course for the year 2022-23. So also, steps

taken for compliance with regard to the other

deficiencies pointed out in the inspection were also

mentioned. However, the same were not taken note of

while issuing Exts.P8 order and P10 notice.

(v) The report and the consequential rejection of

affiliation being illegal and liable to be set aside,

the petitioner is entitled for deemed affiliation for

the year 2022-23 in the light of the judgment of this

Court in Director, Jubilee Mission Medical College & Research

Institute v. University of Calicut and Ors. [2008 (4) KLT 966].

8. Sri.P.Sreekumar, the learned counsel for the

respondent referring to the judgment of the Apex Court W.P.(C) No.40005 of 2022

in Medical Council of India v. Chairman, S.R.Educational & Charitable

Trust [2018 11 JT 62], contended that, this Court is not to

sit in appeal over the inspection report of the expert

body and that, even the petitioner does not have a case

that the deficiencies pointed out by the inspection team

did not exist. The University statutes does not prohibit

an inspection at any time. The grounds of challenge are

without any basis, it was argued.

9. Clause-19 of Chapter XXI of the Kerala

University of Health Sciences First Statutes, 2013 reads

thus:-

"19) Continuation of affiliation: In the case of application for

continuation of affiliation, the institution has to apply every year in

Form 1A of the Appendix within the time notified by the University

and shall be subject to all conditions mentioned in the foregoing

provisions subject to the following conditions, viz.

i. The institution has complied with all conditions

stipulated for affiliation during the preceding year;

provided that till the first batch of students in the W.P.(C) No.40005 of 2022

affiliated course pass out of the institution, an

inspection shall be conducted before granting

continuation of affiliation every year. In other cases,

inspection will normally be necessary only once in

two years; but the University, will, however be free

to cause an inspection of the affiliated institution at

nay point of time if situations warrant the same.

ii. The approval from the apex statutory councils or

Government of India, as the case may be, shall be a

condition precedent for allowing continuation of

affiliation.

iii. For the purpose of granting continuation of

affiliation, the inspection committee shall consist of

two teachers from the same stream who are qualified

to be Examiners and unrelated to the institution or

management concerned. In case of difficulty to meet

this requirement, the Vice Chancellor may nominate

appropriate hands with authority to make such

inspection.

W.P.(C) No.40005 of 2022

iv. The requirement for scrutiny shall be the same as

specified for affiliation."

10. A reading of 19(i) indicates that, what the

statute contemplates is, a mandatory inspection once in

two years. However, it does not prohibit an inspection

at any time in between. The requirement for mandatory

inspection cannot be read to mean that, inspection shall

be conducted only once in two years. The learned Senior

Counsel would contend that, unless some extraordinary

circumstances exists, there is no reason to conduct an

inspection within the stipulated period of two years.

11. The provision is incorporated in the statue to

ensure that the institutions possess sufficient

infrastructure and faculty. It is in the interests of

the students. Existence of extraordinary circumstances

is not necessary to conduct an inspection in between,

within a period of two years. Placing such an

interpretation is against the very purpose for which W.P.(C) No.40005 of 2022

such provisions are incorporated. Therefore, the fact

that more than one inspection was conducted within a

period of two years cannot be faulted.

12. Clause-17 of the Statutes reads thus:-

"17. Withdrawal or suspension of affiliation- The Governing

Council, either suo moto, or on complaint, shall have the

power, at any time after causing due enquiry, to decide to

withdraw or suspend for a definite period the affiliation

granted to a college in part or in full, provided that before

taking such action the Governing Council shall inform the

management of the college concerned of the findings in the

enquiry and shall allow it an opportunity of making such

representations as it may deem fit and shall record its opinion

on the representation thus made.

Provided, that for withdrawal of affiliation on ground of

failure to comply with any of the conditions in the agreement

entered into with the University and the Government, there will

be no need to issue such show cause notice or to conduct any

enquiry."

W.P.(C) No.40005 of 2022

The fact that Clause-17 of the Statutes provides for a

proceeding for withdrawal or suspension of affiliation

on a complaint, does not in any manner prohibit the

University from considering the inspection report based

on such complaint and the report obtained thereon, while

considering an application for continuation of

affiliation under Clause-19 of the statues. The

underlying object behind Clauses-17 and 19, is, as noted

above, ensuring the compliance with the requirements

regarding faculty and infrastructure by the institution.

The fact that on a complaint there could be proceeding

for withdrawal of suspension of affiliation, does not

prevent the University from taking into consideration

the inspection report obtained on such complaint while

considering the question of continuation of affiliation

under Clause-19 of the statutes.

13. Now coming to the contention that the

inspection and the report are vitiated by bias, Ext.P8 W.P.(C) No.40005 of 2022

order of rejection of affiliation indicates that, the

University received a complaint from a senate member

pointing out various deficiencies at the petitioner's

institution. The University does not dispute the

contention that the said complainant was also part of

the inspection team. Under normal circumstances, it

could be possible to contend that such inspection report

is vitiated by bias. However, on the peculiar facts

obtaining in the present case, it could only be found

that there is no scope for such a contention. This is

for the reason that, a reading of the compliance report

would indicate that the petitioner does not dispute the

existence of the deficiencies enlisted in the inspection

report.

14. After the filing of the writ petition, the

University conducted a further inspection. Therein it

was stated that, in spite of the undertaking by the

College that M.Pharm course will not be conducted for W.P.(C) No.40005 of 2022

the academic year 2022-23, the undertaking was violated

and six M.Pharm students were admitted. The learned

Senior Counsel for the petitioner points out that, the

said report is obviously incorrect for the reason that,

admissions for M.Pharm for the current year has not even

commenced. The learned Senior Counsel is justified in

his contention. The learned counsel for the University

submits that, it could only be a mistake on the part of

the inspection committee. He would further contend that

this by itself does not vitiate the entire inspection

report, the correctness of which is not otherwise

disputed by the petitioner.

15. A perusal of Exts.P6, P7, P9 compliance reports

submitted by the petitioner reveals that, the

deficiencies pointed out by the University is rather

admitted by the petitioner. In the compliance reports,

the petitioner has stated that steps have been taken

for curing the defects/deficiencies. Under such W.P.(C) No.40005 of 2022

circumstances, there is no reason to reject the

inspection report and to interfere with the

consequential action on the alleged ground of, bias.

16. Relying upon the judgment of this Court in

Director, Jubilee Mission Medical College & Research Institute v.

University of Calicut and Ors. (cited supra), the learned Senior

Counsel for the petitioner would argue that, the

inspection report and the consequential orders being

illegal, it is to be deemed that the University has

failed to pass any orders on the application for

continuation of provisional affiliation, and in terms of

the judgment referred to, it has to be taken that there

is deemed affiliation for the year 2022-23 for B.Pharm

course. I am unable to agree with the said argument for

the reason that, the application submitted by the

petitioner was duly considered by the University and

orders passed. There has been no failure on the part of

the University to act upon the application. W.P.(C) No.40005 of 2022

17. Finally, the leaned Senior Counsel would argue

that, the explanations/compliance reports submitted by

the petitioner were not duly considered by the

University. Though it was specifically mentioned that

they did not seek for renewal of provisional affiliation

for the M.Pharm courses, the consequent reduction in the

required faculty and infrastructure etc. have not been

taken into consideration by the University. He would

further argue that, the Pharmacy Council of India has

not yet fixed the last date for completion of admission

and hence the University is well within its authority to

grant affiliation even at his point of time.

Sri.Sreekumar, the learned counsel for the University

would submit that, if deficiencies pointed out by the

University are complied with, the University would not

have any objection in considering their application for

renewal afresh.

W.P.(C) No.40005 of 2022

18. Since the petitioner has expressed that they

are not seeking for renewal of provisional affiliation

for the year 2022 for the M.Pharm course, there could

possibly be some changes in the faculty and the

infrastructural requirements. Since the year 2006, the

College was having affiliation for conducting the

course. As noticed, as per Ext.P2, the affiliation was

renewed even the last year. The infrastructural

facilities were found sufficient for all these years

including the last year. It is not known how there could

occur a deficiency now.

19. Be that as it may, in the circumstances as

noted above, for rectifying of the insufficiency if

any, with regard to the infrastructure relating to

buildings, halls etc., the petitioner could be granted

time till its next application for renewal of

provisional affiliation is considered. While considering

the issue regarding infrastructure, the university will W.P.(C) No.40005 of 2022

take due note of the fact that such facilities were

found sufficient in the previous years and inspections.

As regards the other deficiencies pointed out, including

faculty, the petitioner may take steps to cure the

deficiencies and intimate the same to the University

within ten days from today. On receipt of such

intimation, accompanied with the compliance report, if

the admissions are not closed by the Pharmacy Council of

India, the same shall be considered by the University

and appropriate orders passed without delay to enable

the petitioner to conduct the course this year, if

eligible.

Writ petition is disposed of accordingly.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge APPENDIX OF WP(C) 40005/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER DATED 1-11-2020 ISSUED BY THE 1ST RESPONDENT.

Exhibit P2 TRUE COPY OF THE ORDER DATED 12-10-2021 ISSUED BY THE FIRST RESPONDENT.

Exhibit P3 TRUE COPY OF THE DECISION LETTER DATED NIL SHOWING THE ADMISSIONS UP TO 2022-23.

Exhibit P4 TRUE COPY OF THE LETTER DATED 26-4-2022 ISSUED BY THE 1ST RESPONDENT.

Exhibit P5 TRUE COPY OF THE COVERING LETTER DATED 17-5-2022 TO THE 1ST RESPONDENT.

Exhibit P6 TRUE COPY OF THE SUBMISSION OF COMPLIANCE REPORT TO THE KERALA UNIVERSITY OF HEALTH SCIENCES.

Exhibit P7 TRUE COPY OF THE COVERING LETTER DATED 29-9-2022 BY THE PETITIONER TO THE 1ST RESPONDENT.

Exhibit P8 TRUE COPY OF THE ORDER DATED 20-10-2022 ISSUED BY THE FIRST RESPONDENT.

Exhibit P9 TRUE COPY OF REPRESENTATION DATED 28-10-2022 TO THE 1ST RESPONDENT.

Exhibit P10 TRUE COPY OF THE NOTICE DATED 8-11-2022 ISSUED BY THE 1ST RESPONDENT.

Exhibit P11 TRUE COPY OF THE NOTIFICATION DATED 18-11-2022 ISSUED BY THE 3ND RESPONDENT.

Exhibit P12 TRUE COPY OF THE ACCESSION REGISTER OF RAJIV GANDHI INSTITUTE OF PHARMACY.

Exhibit P13 TRUE COPY OF THE NOTIFICATION NO.2035/AC-

H/2015/KUHS DATED 242-2020 OF THE 1ST RESPONDENT.

APPENDIX-WP(C) 40005/2022

Exhibit P14 THE CONSOLIDATED REPORT ON STUDENTS REGISTRATION FOR M PHARM

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