Kerala High Court
The Principal vs State Of Kerala on 8 November, 2023
WP(C) No.34522/2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 8TH DAY OF NOVEMBER 2023/17TH KARTHIKA, 1945
WP(C) NO. 34522 OF 2023
PETITIONER:
THE PRINCIPAL
AGED 65 YEARS
K.M.C.T. COLLEGE OF NURSING,
MANASSERY.P.O. KOZHIKODE,
PIN - 673602
BY ADVS.
SRI P.M.SANEER
SRI KURIAN GEORGE KANNANTHANAM (SR.)
SRI TONY GEORGE KANNANTHANAM
RESPONDENTS:
1 STATE OF KERALA
REP. BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY
WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN
- 695001
2 THE DIRECTOR OF MEDICAL EDUCATION
MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM, PIN - 695011
3 INDIAN NURSING COUNCIL
8TH FLOOR, NBCC CENTRE, PLOT NO 2, COMMUNITY CENTRE,
OKHALA PHASE 1,NEWDELHI REPRESENTED BY ITS SECRETARY.,
PIN - 110020
4 KERALA UNIVERSITY OF HEALTH SCIENCES
MEDICAL COLLEGE PO, TRISSUR REPRESENTED BY ITS
REGISTRAR., PIN - 680596
BY ADVS.
SRI ABRAHAM P.MEACHINKARA
SRI P.SREEKUMAR (SC)
SRI PREMCHAND R.NAIR, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 02.11.2023, THE COURT ON 08.11.2023
DELIVERED THE FOLLOWING:
WP(C) No.34522/2023
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T.R. RAVI, J.
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W.P.(C)No.34522 of 2023
--------------------------------------------
Dated this the 8th day of November, 2023
JUDGMENT
The petitioner is the Principal of a Self-Financing Nursing
College. The college was started in the year 2008 with an initial
intake of 50 students for B.Sc.Nursing. Initially, the college was
affiliated to Calicut University. After the formation of the Kerala
University of Health Sciences in 2010 (KUHS), the affiliation was
transferred to KUHS. In the year 2021, the annual intake of
students was increased from 50 to 70. In the year 2023-24, the
petitioner sought for enhancement of the seats from 70 to 90. On
an application filed before the Government for a No Objection
Certificate (NOC), an inspection was conducted through the Director
of Medical Education and thereafter the Government granted the
NOC. The petitioner applied for approval by the Kerala Nurses and
Midwives Council (KNMC). After conducting an inspection, the KNMC
also granted approval. Thereafter, the petitioner applied before the
WP(C) No.34522/2023
KUHS for affiliation. The application was rejected on 11.10.2023 as
per Ext.P15. The reason stated in Ext.P15 is that as per UO
No.69/2022/Academic/KUHS dated 7.2.2022, if seat enhancement
was already permitted in an existing course and the application is
for further enhancement of seats, the batch in which the
enhancement was last sanctioned shall be treated as the first batch
for the purpose of considering the further enhancement of seats. It
is further stated that in the case of the petitioner, the batch to which
the seat enhancement was granted, i.e., 2021-22, has not passed
out from the Institution, and hence, affiliation for further
enhancement cannot be granted. It is also stated that as the validity
of the application will expire on 30.12.2023, a fresh online
application may be submitted in subsequent academic years after
the enhanced batch passes out from the Institution. Aggrieved by
Ext.P15, the petitioner has approached this Court.
2. A statement has been filed by the Standing Counsel for
the 4th respondent. In paragraph 3, it is stated that in terms of the
provisions contained in Ext.P17, which is the amended statute
regulating affiliation for enhancement of seats in a course, it is
necessary that the first batch in the said course in the applicant
institution, should have completed their course. It is further stated
WP(C) No.34522/2023
that the University, being the affiliating and examining body, has the
primary duty to ensure that the standards in the institution are
properly maintained and only qualified health professionals pass out
of the institution. It is stated that the evaluation of the standards is
a continuous process and the same could be assessed only through
the evaluation of the performance of the batches of students. In the
case of nursing courses, the student-patient ratio of 1:3 and the
teacher-student ratio of 1:10 are to be maintained. It is hence
submitted that the University would be justified in treating the batch
with an increased intake as a fresh batch to assess the performance
of the Institution with the increased intake. It is further stated that
a reading of Exts.P16 and P17 would show that they operate in a
different context and as permitted under Ext.P18 Statutes itself.
Reference is made to Statute 10 of the pre-amended First Statutes.
Statute 10 dealing with the grant of affiliation, states that the grant
of affiliation shall depend upon the fulfilment by the management of
all the conditions that are specified or that may be specified later for
the satisfactory establishment and maintenance of the proposed
institution/courses of studies. In the judgment in W.P.(C)No.15368
of 2016, this Court, while dealing with the contention that the
norms of affiliation could be fixed only through Statutes, held that
WP(C) No.34522/2023
the Statute itself permits fixation of norms through other means,
relying on the words "that may be specified later". In the amended
statutes, instead of saying "that may be specified later", it is stated
as "that may be specified additionally". It is hence submitted that
there is no substantial difference in the Statute as amended and the
interpretation placed in the judgment in W.P.(C)No.15368 of 2016
will apply. Annexure R4(a) produced along with the statement is a
true copy of the notification published in the Gazette Extraordinary
dated 15.12.2021. It is stated that the said notification gives legality
and clarity to the provisions contained in Ext.P16 and P18, regarding
additional intake. It is further stated that the very purpose of
incorporating the condition regarding passing out of the first batch
in the same stream is to ensure that the college can manage the
required minimum standards in the institution. It is stated that the
amendment led to a situation where the words "first batch" were
interpreted in a manner that defeated the very purpose of the
amendment and that the University will be failing in its duty to
monitor the standards in the case of an enhanced intake, if
additional seats are permitted before the college shows that they
are capable of maintaining the minimum standard requirements for
the already enhanced intake for the course period. It is also stated
WP(C) No.34522/2023
that pending amendment of the affiliation Statutes, Ext.P18 Statute
cannot be permitted to operate with lack of clarity regarding the
words "first batch of the stream" which required issuance of
Exts.P16 and P17 by the Vice Chancellor who is competent to act on
the emergent situation became necessary. It is stated that Ext.P16
is to be viewed as a clarification or a norm which is covered by the
words "that may be issued additionally". Another contention taken
is that 'affiliation' is distinct and different from "permission and
recognition" and that the University is the sole authority to prescribe
the norms for the grant of affiliation and to grant the same. It is
submitted that the number of intake to be permitted is regulated by
statutory provisions and the same does not give any primacy to
statutory councils or the Government. Reliance is placed on the
judgment of a Division Bench of this Court in W.A.No.1508 of 2020,
wherein a contention that the University is bound by the intake
permitted by the Statutory Council was rejected. It is submitted
that the said judgment is under challenge in SLP No.1689 of 2021
before the Hon'ble Supreme Court. It is stated that in terms of
Ext.P19, the admissions to the B.Sc. Nursing Course is to be closed
on 07.11.2023 and as far as the application submitted by the
petitioner is concerned, the same stands rejected and the University
WP(C) No.34522/2023
has not even conducted an inspection to assess the availability of
the facilities in the College. It is stated that an inspection is to be
followed by a scrutiny of the report, intimation of remediable
shortfalls, if any, consideration of the records of the sub-committee
of the Governing Council, etc., and that considerable time is
required to complete the above process and there is no possibility of
permitting admissions for the additional seats in the current
academic year.
3. Heard Sri Kurian George Kannanthanam, Senior
Advocate, instructed by Sri.Saneer P.M, on behalf of the petitioner,
Sri P.Sreekumar, Standing Counsel for the 4th respondent and
Sri Premchand R. Nair, Senior Government Pleader on behalf of
respondents 1 and 2.
4. As per Section 23(i) of the Kerala University of Health
Sciences Act, 2010 (the Act for short), subject to the provisions of
the Act, the Governing Council has the power to make Statutes,
subject to the approval of the Chancellor. As per Section 23(v), it is
for the Governing Council to grant affiliation to medical institutions
in accordance with the terms and conditions of affiliation provided
by the Act and the Statutes. When reading Section 25(xix) of the
Act, it would appear that there is some inconsistency since it says
WP(C) No.34522/2023
that it is for the Academic Council to grant affiliation to Colleges in
accordance with the Statutes, Ordinances, and Regulations. Section
40(2)(xi) empowers the Governing Council to make Statutes to
provide for the conditions and procedure for the grant or withdrawal
of affiliation of Colleges. Section 41 of the Act, which deals with the
procedure for making a Statute is extracted below.
"41. Procedure for making Statutes.-
(1) Notwithstanding anything contained in this Act, the
Government shall make the first Statute of the University
(2) The Governing Council may, from time to time, make
new or additional Statutes or may amend or repeal the
Statutes referred to in sub-section (1).
(3) The Statute may be made, amended or repealed by the
Governing Council in the manner hereinafter provided :-
(i) The Governing Council may take into
consideration the draft of a Statute either moved by
any member of the council or on a proposal by the
Vice-Chancellor;
(ii) The Governing Council, if it thinks necessary may
also obtain the opinion of any officer, authority or
body of the university in regard to any draft Statute
which is before it for consideration;
Provided that, there any such draft Statute pertains
to academic matters, the Governing Council shall
obtain the opinion of the Academic Council before
considering the same;
WP(C) No.34522/2023
(iii) The Governing Council shall not propose the
draft of a Statute or of an amendment to a Statute
affecting the status, powers or constitution of any
authority of the University until such authority has
been given an opportunity of expressing an opinion
upon the proposal and any opinion so expressed shall
be in writing and shall be considered by the
Governing Council.
(iv) No Statute providing for the conditions for, or
procedure relating to, the affiliation of private
colleges shall be passed by the Governing Council
without the previous approval of the Government.
(v) Every Statute passed by the Governing Council
shall be submitted to the Chancellor who may give or
withhold assent thereto, or send it back to the
Governing Council for reconsideration;
(vi) No Statute passed by the Governing Council
shall be valid or shall come into force until assented
to, by the Chancellor.
5. The Government of Kerala made the First Statutes in
2013. Chapter 21 of the First Statute deals with the affiliation of
colleges. Statute 10 deals with the grant of affiliation. Statute 10(2)
says that the grant of affiliation shall depend upon the fulfillment by
the management of all the conditions that are specified here or
that may be specified later for the satisfactory establishment and
maintenance of the proposed institutions/courses of studies and on
the reports of inspection by the commission or commissions which
WP(C) No.34522/2023
the university may appoint for the purpose. Statue 10(3) says that
unless all the conditions are fulfilled before the commencement of
the academic year, no new college/or additional courses/or
enhancement of seats shall be permitted to be started during that
year. By Exhibit P18 dated 24.2.2020, the Governing Council of the
University, with the approval from the Government of Kerala,
amended Chapter 21 regarding affiliation. The amendments were
assented to by the Chancellor on 02.12.2019, and they have to
come into force with effect from that date. Regarding the procedure
for affiliation, Statute 2(5)(ii)(v) of Ext.P18 says that in the case of
additional courses and/or for enhancement of seats, the colleges
shall satisfy the condition that first 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 the 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. The Statutes, as it
originally stood, did not deal with the enhancement of seats in an
already affiliated course.
WP(C) No.34522/2023
6. On 26.3.2021, an order was issued by the University
seeking to modify Clause 2(5)(ii)(v) of the amendment brought
about by Ext.P18. It says that the University is facing several issues
while processing applications for additional courses/enhancement of
seats as the intended objective of the amendment is not seen met.
It further says that while processing applications for provisional
affiliation for starting new courses/enhancement of seats, most of
the applications are being rejected as the "first batch" of all courses
in the institutions may not have passed out, making it practically
impossible to sanction additional courses or enhancement of seats in
the existing affiliated courses. After noticing the above problem, the
order says that Clause 2(5)(ii)(v) is modified by adding sub-clauses
"A" and "B" which read as follows:
"A. For additional course the average of pass percentage of
all regular examinations of the existing batches of all courses
under the same stream is not below the minimum prescribed
by the Governing Council in the Notification issued by the
University from time to time for the purpose of additional
course concerned. If the norm above is contrary to the norm
of apex council if any, then the norm of apex council shall
prevail.
B. For enhancement of seats the first batch of the same
course to which enhancement is requested by the college
shall be passed out and the average of pass percentage of all
WP(C) No.34522/2023
regular examinations of the existing batches of that
particular course is not below the minimum prescribed by
the Governing Council in the Notification issued by the
University from time to time for the purpose of enhancement
concerned. If the norm above is contrary to the norm of
apex council if any, then the norm of apex council shall
prevail."
The order is seen to have been issued by the Registrar.
7. On 7.2.2022, the University issued Ext.P16 order which
says that Clause 2(5)(ii)(v) of the amendment of the First Statute in
the matter of affiliation of colleges requires further modification
since the calculation of the average of pass percentage will have to
be made afresh when applications are processed in subsequent
years. It is stated that the Governing Council, in its 67 th meeting
dated 30.12.2021, considered the matter in detail and decided to
add sub-clauses "C" and "D" below sub-clauses "A" and "B" to clause
2(5)(ii)(v) which read thus:
"C. For the purpose of considering applications for
enhancement of seats/additional courses, the average of
pass percentage as noted in sub-clause "A" and "B" above
shall be minimum 50%(Fifty percentage). The relevant date
for considering the pass percentage shall be the last date
fixed for receipt of such applications as per notification
issued by the University from time to time. In case of
applications which have validity of 3 years, if the applications
WP(C) No.34522/2023
are to be considered in the subsequent years, the last date
fixed for receipt of the applications as per notification issued
by University in the current year shall be the relevant date
for considering the pass percentage. If no notifications are
invited by the University in a particular year, the date on
which the institution concerned is to achieve the average
pass percentage required shall be decided by the Governing
Council
D. If seat enhancement is already permitted in an existing
course and the application is for further enhancement of
seats, the batch in which enhancement was last sanctioned
shall be treated as first batch for the purpose of considering
further enhancement of seats."
8. Senior Counsel argues that if the Statute prescribes the
manner in which an amendment is to be carried out, then it should
be done in the said manner or not at all. The above proposition is
well settled. The question is whether what has been done by
Exts.P16 and P17 is an amendment. According to the Standing
Counsel for the University, Exts.P16 and P17 are not amendments of
the Statute. He submits that pending the amendment, which is a
time-consuming process, the Vice Chancellor has exercised his
powers under Section 12 of the Act to provide for exigencies by
introducing Exts.P16 and P17. It is submitted that such a process is
permitted by the Statute as amended by Ext.P18. Specific reference
is made to Statute 10(2), which says that the Management shall
WP(C) No.34522/2023
fulfill all the conditions that are specified in the Statute "or that may
be specified later", and to the provision in Ext.P18 whereby the word
"later" is replaced by the word "additionally". It is contended that
Ext.P16 and P17 are only conditions that are specified additionally.
It is submitted that for such a specification, the University need not
go through the rigour of the amendment process. The Standing
counsel further contends that the use of words "modified" used in
Exts.P16 and P17 are of no real consequence, since what is intended
is not an amendment as provided in the Act and the Statutes.
9. The Standing Counsel relied on the judgment of this
Court in The Secretary, Perpetual Succour Charitable Trust v.
The Kerala University of Health Sciences & Anr. [2016 (3)
KLT 608]. In the said judgment, this Court had considered the
effect of the words "that may be specified later" in Statute 10(2)
prior to the amendment by Ext.P18. The Court held that if the
intention of the Statute maker was that the conditions of affiliation
could be specified only by an amendment of the Statutes, then
there was no need to use the words "that may be specified later".
The Court held that the words used in a Statute would be rendered
redundant and it is with a specific purpose that the Statute is
framed in a particular manner. The Court was concerned by the
WP(C) No.34522/2023
insistence of the University that a 300 bedded hospital was required
for sanctioning a Nursing College. The contention was that as per
the guidelines of minimum requirements prescribed by the Indian
Nursing Council, a 100 bedded hospital alone is required. It is
hence submitted that the University could not have, without the
prescription in the Act, Statute, Ordinance or Regulations,
prescribed a condition that a 300-bed hospital should be provided
by the Management. The counsel also relied on the decision in KVM
Trust v. Kerala University of Health and Allied Sciences [2011
(4) KHC 948] to submit that the grant of affiliation is not an empty
formality. The judgment in W.A.No.1508 of 2020 is also to the same
effect. In Sree Anjaneya College of Nursing v. State of Kerala
& Ors. [2022 (1) KLT 26], a learned Single Judge considered the
provision regarding the enhancement of seats and the condition that
the first batch of the course in the Institute under the same stream
should have passed out. The interpretation sought to be placed by
the University that the first batch would mean the enhanced batch
and that for grant of enhanced intake even for the same B.Sc.
Nursing stream, the batch for which enhancement was granted shall
have to pass out, was not accepted by the Court.
WP(C) No.34522/2023
10. Even though the arguments advanced by the Standing
Counsel would appear to be unimpeachable at first blush, I am not
inclined to accept the arguments for the following reasons;
11. The specification of a condition that is to be satisfied by a
Management is different from the requirement that the first batch of
the course in the Institution should have passed out. The period
that has to be undergone for completing a course is pre-determined.
The Management cannot change it. If the course is for a period of
four years, necessarily the batch will complete it only after four
years. It was not a condition that the Management could satisfy,
but rather a requirement that is prescribed in the Statute. The word
"first batch" is not defined either in the Statutes or in the Act. The
word can have only the general meaning that can be attributed to it.
The judgment of this Court in Perpetual Succour Charitable
Trust (supra) was regarding a condition that had to be satisfied in
the sense that the Management should provide a 300-bed hospital.
Neither Exts.P16 nor Ext. P17 makes any reference to Section 12,
and they do not say that they have been issued by the Vice
Chancellor in the exercise of the power available to meet the
exigency of the situation. Ext.P16 proceeds as if the Statute is being
modified, and it specifically says that the addition of Clauses C and
WP(C) No.34522/2023
D is to bring about clarity in the matter. Ext.P17 also proceeds on
the basis that the Vice Chancellor had accorded sanction to modify
the clause in the First Statute till further amendment is made,
subject to ratification of the Academic Council and the Governing
Council. The wording of Exts.P16 and P17 cannot be improved at
the time of arguments by stating that they are not intended to be
amendments but are intended to be additional conditions laid down
in accordance with Statute 10 as amended. As already held, the
prescription regarding completion of the course by the First Batch
cannot be understood to be a condition that has to be satisfied by
the Management but can only be treated as a requirement for the
grant of affiliation. If such a requirement is to be modified, it
necessarily must be done in the manner prescribed under the
Statute and the Act. Even if Section 12 is to be invoked, it must be
in the manner prescribed in the Statute and in no other way. As
such, the reliance placed on Exts.P16 and P17 to reject the request
for affiliation submitted by the petitioner cannot be said to be legally
correct. The interpretation sought to be put to a provision
contained in the Statute by means of an order in the nature of
Exts.16 or P17, cannot be legally permitted, and it cannot be in any
manner treated as an additional condition as stipulated in Statute
WP(C) No.34522/2023
10(2). An additional condition can only be additional and cannot be
a tool to read into the Statutes, something which is not there.
In view of the above discussion, the writ petition is allowed. It
is declared that Exts.P16 and P17 are bad in law to the extent they
seek to define the words "First Batch" contained in the Statutes to
mean the first batch of students who have completed the course
after enhancement of seats. Since it is submitted that the
admissions are to be completed only by the end of this month, there
will be a direction to the 4 th respondent to consider the application
for affiliation of the enhanced intake of B.Sc. Nursing seats from 70
to 90 in this academic year itself and pass necessary orders on or
before 23.11.2023 after following the procedure prescribed.
Sd/-
T.R. RAVI
JUDGE
dsn
WP(C) No.34522/2023
APPENDIX OF WP(C) 34522/2023
PETITIONER EXHIBITS
Exhibit -P1 TRUE COPY OF GO(MS)NO. 438/2008/H&FWD DATED
26/7/2008 ISSUED TO THE TRUST
Exhibit-P2 COPY OF THE NOTIFICATION NO. 25494/ACI/GEN
A2/2020/KUHS DATED 27/8/2020
Exhibit -P3 A TRUE COPY OF THE COVERING LETTER AND
APPLICATION SUBMITTED BEFORE THE UNIVERSITY
FOR ENHANCEMENT OF SEATS WIDE REFERENCE
NUMBER KMCT/CO/CON/120/21 DATED 4/1/2021
Exhibit -P4 TRUE COPY OF THE ORDER ISSUED BY THE
GOVERNMENT GO(MS) NO.53/2021/H&FWD DATED
19/2/2021
Exhibit -P5 TRUE COPY OF THE SANCTION ORDER NO.
G.5806/05/NC DATED 21/6/2021
Exhibit -P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE
UNIVERSITY TO DIRECTOR LBS CENTRE NO.
2017/8818/AC II/NSG/A3/KUHS DATED NIL.
Exhibit-P7 TRUE COPY OF THE COMMUNICATION ISSUED BY THE
2ND RESPONDENT AS FILE NO 18-60/2679 DATED
26/11/2021
Exhibit -P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT NO.
KMCT/CO/CON/120/2022 DATED 27/7/2022
Exhibit -P9 TRUE COPY OF THE ORDER NO. G5806/05/NC DATED
20/6/2023 ISSUED BY THE KERALA NURSES AND
MIDWIVES COUNCIL
Exhibit -P10 TRUE COPY OF THE CONTINUATION AFFILIATION
ORDER NO UO.NO.1087/2023/ACADEMIC/KUHS DATED
19/7/2023 ISSUED BY THE UNIVERSITY
Exhibit -P11 TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.
GO(MS)243/2023/H&FWD DATED 7/9/2023 ISSUED BY
THE GOVERNMENT
Exhibit -P12 TRUE COPY OF THE LETTER NO. CON/92/23 DATED
8/9/2023 SUBMITTED BEFORE THE KNMC
Exhibit -P13 TRUE COPY OF ORDER NO. G.5806/05/NC DATED
29/9/2023
Exhibit -P14 TRUE COPY OF THE COVERING LETTER NO.
CON/97/23 DATED 6/10/2023 AND APPLICATION
WP(C) No.34522/2023
Exhibit 15 TRUE COPY OF THE COMMUNICATION ISSUED BY THE
UNIVERSITY NO. 28796/ACII/NSG/B1/2020/ KUHS
DTD 11/10/2023
Exhibit -P16 TRUE COPY OF THE ORDER DATED 7-2-2022
U.O.NO.69/2022/ACADEMIC/KUHS DATED 7-2-2022
Exhibit -P17 TRUE COPY OF THE SAID ORDER
U.O.NO.444/2021/ACADEMIC/KUHS DATED 26-3-2021
Exhibit -P18 TRUE COPY OF THE NOTIFICATION NO 2035/AC-
H/2015/KUHS DATED 24/2/2020
Exhibit 19 TRUE COPY OF THE NOTIFICATION DATED 22-9-2023
ISSUED BY THE INDIAN NURSING COUNCIL DATED
22-9-2023
RESPONDENT ANNEXURES
ANNEXURE R4(A) A TRUE COPY OF THE NOTIFICATION PUBLISHED IN
THE GAZETTE EXTRAORDINARY DATED 15.12.2021
