Akhil James and Abhijith H v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** ## **WP(C) NO. 21963 OF 2020** ## **PETITIONER/S:** 1 AKHIL JAMES AGED 22 YEARS S/O JAMES.A.C,EDATHINATTU HOUSE,KARUKACHAL,CHAMPAKARA.P.O, KOTTAYAM DISTRICT,PIN-686540. 2 ABHIJITH.H, AGED 19 YEARS S/O.K.B.HARIDAS,ANAND HOUSE, VARTHANAGAR,KANJIKUZHY.P.O, KOTTAYAM DISTRICT,PIN-686004. BY ADVS. THOMAS M.JACOB SRI.T.R.JERRY SEBASTIAN ## **RESPONDENT/S:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY SECRETARY TO GOVERNMENT,| ||HEALTH AND FAMILY WELFARE DEPARTMENT,| ||GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM,| ||PIN-695001.| |2|DIRECTOR OF MEDICAL EDUCATION,| ||DIRECTORATE OF MEDICAL EDUCATION,| ||MEDICAL COLLEGE.P.O,THIRUVANANTHAPURAM,| ||PIN-695011.| |3|LBS CENTRE FOR SCIENCE AND TECHNOLOGY.,| ||A GOVERNMENT OF KERALA UNDERTAKING,| ||EXTRA POLICE ROAD,NANDAVANAM,TRIVANDRUM,| ||PIN-695033,REPRESENTED BY ITS DIRECTOR.| |4|KERALA UNIVERSITY OF HEALTH SCIENCES,| ||MEDICAL COLLEGE.P.O,THRISSUR,PIN-680596,| ||REPRESENTED BY ITS REGITRAR.| ||BY ADVS.| ||GOVERNMENT PLEADER| ||SMT.SHAMEENA SALAHUDHEEN| ||SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF| ||HEALTH SCIENCES| W.P.(C) Nos.21963 of 2020 & 18419 of 2021 **==> picture [16 x 8] intentionally omitted <==** ## **OTHER PRESENT:** GP AMMINIKUTTY K **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2022, THE COURT ON 05.01.2023 ALONG WITH WP(C) No.18419/2021, DELIVERED THE FOLLOWING:** W.P.(C) Nos.21963 of 2020 & 18419 of 2021 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944 WP(C) NO. 18419 OF 2021** ## **PETITIONER/S:** 1 AKHIL JAMES, AGED 22 YEARS S/O. JAMES A.C., EDATHINATTU HOUSE, KARUKACHAL, CHAMPAKARA P.O. KOTTAYAM DISTRICT 686 540. 2 ABHIJITH H., AGED 19 YEARS S/O.K.B. HARIDAS, ANAND HOUSE, VARTHANAGAR, KANJIKUZHY P.O. KOTTAYAM DISTRICT. BY ADVS. KURIAN GEORGE KANNANTHANAM (SR.) THOMAS M.JACOB T.R.JERRY SEBASTIAN SHAMEENA SALAHUDHEEN ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM 695 01. 3 LBS CENTRE FOR SCIENCE AND TECHNOLOGY, A GOVERNMENT OF KERALA UNDERTAKING EXTRA POLICE ROAD, NANDAVANAM, TRIVANDRUM, 695 033, REPRESENTED BY ITS DIRECTOR. 4 KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE, P.O. THRISSUR, 680 596, REPRESENTED BY ITS REGISTRAR. BY ADVS. W.P.(C) Nos.21963 of 2020 & 18419 of 2021 **==> picture [16 x 8] intentionally omitted <==** ADVOCATE GENERAL OFFICE KERALA SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2022, THE COURT ON 05.01.2023, ALONG WITH WPC No.21963/2020 DELIVERED THE FOLLOWING:** W.P.(C) Nos.21963 of 2020 & 18419 of 2021 -5- ## **JUDGMENT** Dated this the 5[th] day of January, 2023 The petitioners are/were students of B.Sc Medical Bio-Chemistry and B.Sc Medical Microbiology. They are aggrieved by the removal of their courses from the prospectus for the academic year 2018-19 published by the Director of Medical Education with the approval of the Government. The short facts are as under; B.SC Medical Microbiology and B.Sc Bio- Chemistry courses were being included in the prospectus for admission to professional degree courses and para-medical streams brought out by the Government of Kerala from the year 2015-2016 onwards. Initially the process of selection and allotment for para-medical courses was conducted through the Lal Bahadur Sastri Centre for Science and Technology. In 2017-2018 onwards, this W.P.(C) Nos.21963 of 2020 & 18419 of 2021 **==> picture [16 x 9] intentionally omitted <==** process was made over to the Commissioner for Entrance Examination, Kerala. While so, by G.O. (MS) No.75/2018/H&FWD dated 18.05.2018, Government approved the prospectus for admission to the professional degree courses in Nursing and Para-Medical Streams for the academic year 201819 submitted by the Director of Medical Education. Surprisingly, B.Sc Medical BioChemistry and B.Sc Medical Microbiology were not included in the prospectus. 2. On the Government seeking clarification for not including the above courses in the common Entrance Examination, the Director of Medical Education stated the following four reasons; _“a) These courses are not being conducted in Government Medical Colleges._ _b) There are no job opportunities/posts for these courses in the Medical Education Department._ _c) The Centre for Health Science, University of Calicut is not seen affiliated to Kerala University of Health Sciences._ W.P.(C) Nos.21963 of 2020 & 18419 of 2021 **==> picture [16 x 8] intentionally omitted <==** _d) School of Medical Education a subsidiary of M.G. University, Co-operative Institute of Thalassery, School of Medical Microbiology were giving admission for the said courses.”_ 3. Learned Senior Counsel for the petitioners, contended that the reasons for excluding B.Sc Medical Bio-Chemistry and B.Sc Medical Microbiology are factually incorrect and untenable. The first reason that the two courses are not conducted in Government Medical Colleges cannot be accepted, since many of the courses included in the prospectus are not conducted in Government Medical Colleges. Even otherwise, whether the course is conducted in Government Medical College or not is irrelevant as far as inclusion or exclusion of a course from the Government prospectus is concerned. The second reason that there is no post in Medical Education Department for the two courses is also incorrect, since the post of Scientific Officer, Scientific ## W.P.(C) Nos.21963 of 2020 & 18419 of 2021 -8- Assistant and Bio-Chemist in the Medical Education Department are held by Graduates in the above courses. Moreover, as per the Medical Council of India Regulations, the teaching posts in Medical Colleges are also available for Post Graduates in Microbiology and Bio-Chemistry. The third reason that the Centre for Health Science, University of Kerala is not affiliated to Kerala University of Health Science is unsustainable, since Section 50 of the Kerala University of Health Sciences Act, 2010 stipulates that the courses conducted by Universities will not come within the purview of affiliation to KUHS. The fourth reason is to be eschewed for the reason that there is no institutes by name, School of Medical Education, Kottayam or the School of Medical Microbiology under the Co-operative Institute of Health Sciences, Thalassery are conducting these courses. 4. The learned Government Pleader W.P.(C) Nos.21963 of 2020 & 18419 of 2021 -9- contended that the decision to exclude B.Sc Medical Bio-Chemistry and B.Sc Medical Microbiology being a policy decision of the Government, there cannot be any interference at the instance students who have already joined or have completed the course. It is submitted that the above courses are not conducted in any of the Government institutions in Kerala and there are no employment opportunities for the courses in the Government sector. For example, Laboratory Technicians have to be qualified in Medical Laboratory Technology or B.Sc. in laboratory Services. The Government of Kerala is conducting B.Sc.MLT (Medical Laboratory Technology) and M.Sc.MLT courses in addition to the DMLT courses in various Medical Colleges in Kerala, with a view to provide quality Laboratory Technology service to the poor and needy. Since these courses are conducted in the Government Medical Colleges in Kerala, the curriculum and syllabus ## W.P.(C) Nos.21963 of 2020 & 18419 of 2021 **==> picture [23 x 9] intentionally omitted <==** are to be designed, taking into consideration the latest technology available for catering to the needs of the poor and needy patients, who approach Government Medical Colleges as their last resort. 5. Having carefully considered the objection against exclusion of the courses and the explanation offered by the Government, I refrain from interfering with the decision at the instance of the petitioners for two reasons; (i) after joining for the courses, the petitioners cannot challenge the prospectus for admission. (ii) the decision to exclude B.Sc Medical BioChemistry and B.Sc Medical Microbiology being a policy decision, the scope for judicial review is extremely limited. In this regard, it may be apposite to refer the decision in _**State of Orissa**_ _**and others v. Gopinath Dash and others**_ **[(2005) 13 SCC 495],** the relevant portion of which is -11- ## W.P.(C) Nos.21963 of 2020 & 18419 of 2021 ## extracted hereunder; _“6. The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation._ _7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government._ _8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theater Co. v. City of Chicago [57 L Ed 730 : 228 US 61 (1912)] :_ _“The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any_ W.P.(C) Nos.21963 of 2020 & 18419 of 2021 -12- _choice may be disputed or condemned. Mere errors of government are not subject to our judicial review.”_ For the aforementioned reasons, the writ petitions are dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) Nos.21963 of 2020 & 18419 of 2021 -13- ## **APPENDIX OF WP(C) 21963/2020** PETITIONER EXHIBITS |EXHIBIT P1|TRUE TYPEWRITTEN COPY| |---|---| ||GO(RT)NO.3447/2015/H&FWD DATED| ||19.10.2015.| |EXHIBIT P2|TRUE COPY OF GO(MS)NO.L875/2018/H&FWD| ||DATED 18.5.2018.| |EXHIBIT P3|TRUE COPY OF CLARIFICATION LETTER| ||NO.B1/14206/2018/DME DATED 14.6.2018.| |EXHIBIT P4|TRUE COPY OF RELEVANT PAGES OF THE| ||MINIMUM QUALIFICATION FOR TEACHERS IN| ||MEDICAL INSTITUTIONS REGULATIONS,1998.| |EXHIBIT P5|TRUE COPY OF D.O.NO.F1-10/2004PT (CPP-| ||II)DATED 11.11.2009 FROM THE JOINT| ||SECRETARY OF UGC FORWARDING LIST OF 38| ||NEW DEGREES SPECIFIED UNDER SECTION 22| ||OF THE UGC ACT,1956 ALONG WITH| ||RELEVANT PORTION OF THE LIST.| |EXHIBIT P6|TRUE COPY OF NOTIFICATION DATED| ||14.2.2020 OF THE MINISTRY OF HEALTH| ||AND FAMILY WELFARE.| |EXHIBIT P7|TRUE COPY OF REPRESENTATION DATED| ||7.7.2018 SUBMITTED BY ASSOCIATION OF| ||CLINICAL MICROBIOLOGIST AND| ||BIOCHEMIST.| |EXHIBIT P8|TRUE COPY OF GOVERNMENT ORDER GO-| ||(RT)NO.1729/2019/H&FWD DATED| ||15.7.2019.| |EXHIBIT P9|TRUE COPY OF REPRESENTATION SUBMITTED| ||BY THE ASSOCIATION OF CLINICAL| ||MICROBIOLOGISTS AND BIOCHEMISTS| ||(ACMB)DATED 6.12.2019.| |EXHIBIT P10|TRUE COPY OF G.O.(MS)NO.105/2020/H&FWD| ||DATED 22.07.2020 PUBLISHING PROSPECTUS| ||FOR 2020-2021.| W.P.(C) Nos.21963 of 2020 & 18419 of 2021 -14- ## **APPENDIX OF WP(C) 18419/2021** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF GO (RT) NO.| |---|---| ||3447/2015/H&FED DATED 19.10.2015 WITH| ||TRUE TYPEWRITTEN COPY.| |Exhibit P2|TRUE COPY OF GO (MS) NO. 75/2018/H&FWD| ||DATED 18.5.2018.| |Exhibit P3|TRUE COPY OF CLARIFICATION LETTER NO.| ||BI/14206/2018/DME DATED 14.6.2018.| |Exhibit P4|TRUE COPY OF RELEVANT PAGES OF THE| ||MINIMUM QUALIFICATION FOR TEACHERS IN| ||MEDICAL INSTITUTIONS REGULATIONS,| ||1998.| |Exhibit P5|TRUE COPY OF F.O. NO. F1-10/2004PT| ||(CPP-II) DATED 11.11.2009 FROM THE| ||JOINT SECRETARY OF UGC FORWARDING LIST| ||OF 38 NEW DEGREE SPECIFIED UNDER| ||SECTION 22 OF THE UGC ACT, 1956 ALONG| ||WITH RELEVANT PORTION OF THE LIST.| |Exhibit P6|TRUE COPY OF NOTIFICATION DATED| ||14.2.2020 OF THE MINISTRY OF HEALTH| ||AND FAMILY WELFARE.| |Exhibit P7|TRUE COPY OF REPRESENTATION DATED| ||7.7.2018 SUBMITTED BY ASSOCIATION OF| ||CLINICAL MICROBIOLOGIST AND| ||BIOCHEMIST.| |Exhibit P8|TRUE COPY OF GOVERNMENT ORDER GO-(RT)| ||NO. 1729/2019/H & FWD DATED 15.7.2019.| |Exhibit P9|TRUE COPY OF REPRESENTATION SUBMITTED| ||BY THE ASSOCIATION OF CLINICAL| ||MICROBIOLOGISTS AND BIOCHEMISTS (ACMB)| ||DATED 6.12.2019.| |Exhibit P10|TRUE COPY OF G.O.(MS), NO.| ||105/2020/H&FWD DATED 22.07.2020| ||PUBLISHING PROSPECTUS FOR 2020-2021.| |Exhibit P11|TRUE COPY OF THE STATEMENT FILED BY| ||THE GOVERNMENT IN WPC NO. 21963/2020.| |Exhibit P12|TRUE COPY OF THE REPLY AFFIDAVIT FILED| ||BY THE PETITIONERS IN WPC NO.| ||21963/2020.| W.P.(C) Nos.21963 of 2020 & 18419 of 2021 -15- Exhibit P13 TRUE COPY OF GO (MS) NO. 148/2021/H& FWD DATED 9.08.21 P[PUBLISHING PROSPECTUS FOR 2021-2022. Exhibit P14 TRUE COPY OF THE IST PAGE OF THE PROSPECTUS FOR ADMISSION TO PROFESSIONAL DEGREE COURSE IN NURSING AND PARA MEDICAL STREAMS 2021-2022.