Dr. Mathew George, Trustee, Kadambatt Charitable Trust vs. Additional Chief Secretary to Government Health and Family Welfare Department, Govt. Secretariat, Thiruvananthapuram; Director of Medical Education; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940** ## **WP(C).No. 35169 of 2018** ## **PETITIONER/S:** **DR. MATHEW GEORGE AGED 47 YEARS** **TRUSTEE, KADAMBATT CHARITABLE TRUST, GEROSE BUILDING, NEAR OVERBRIDGE, M.G.ROAD, THRISSUR.** **BY ADV. SRI.A.DINESH RAO** ## **RESPONDENT/S:** - **1 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF MEDICAL EDUCATION GOVERNMENT MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695 001.** - **3 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT BUILDING, THIRUVANANTHAPURAM - 695 001.** **BY GOVERNMENT PLEADER SRI.P.G.PRAMOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 _**WP(C).35169/18**_ ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 35169 of 2018 ----------------------------------------------Dated this the 11[th] day of January, 2019** ## **JUDGMENT** The petitioner has approached this Court seeking the following reliefs: - _“i. issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibit P14 order passed by the 1[st] respondent._ - _ii. declare that the petitioner is entitled to a period of atleast two years to fulfill all the mandatory conditions of the Pharmacy Council of India and the University concerned as required in Exhibit P7;_ - _iii. issue a writ of mandamus or any other writ, order or direction directing the 1[st] respondent to extend the period fixed in Exhibit P7 by a further period of two years.”_ 2. Heard learned counsel for the petitioner and the learned ## Government Pleader. 3. It is submitted by learned counsel for the petitioner that the petitioner had submitted applications for no objection certificate for starting a Pharmacy College. The application was initially rejected by Exhibit P5 order dated 4.2.2017 stating that no more Pharmacy Colleges are needed in the private sector in the State. By Exhibit P6 judgment, this Court quashed the order and directed a consideration of the application in the light of the judgment of a Division Bench of this 3 _**WP(C).35169/18**_ Court in _**State of Kerala v. M.G.M.College of Arts and Science, Tvm**_ [2017(3) KHC 965 (DB)]. Thereafter, the issue was considered and Exhibit P7 order dated 25.10.2017 was issued. No objection certificate was granted to the petitioner's institution on the specific condition that the institution would fulfill all mandatory conditions of the Pharmacy Council of India and the University concerned within six months from the date of the order. Learned counsel for the petitioner submits that the said condition was impossible for compliance, since the permission for construction of buildings itself had not been issued by the respondents at the time when Exhibit P9 was passed. The petitioner therefore had approached the respondents seeking extension of the time for completing all the infrastructural requirements by two years from 25.10.2017. It is stated that the said request was not acceded to and the petitioner was constrained to file a further writ petition. The said writ petition was disposed of by Exhibit P13 judgment directing as follows: _“6. In the above view of the matter, I am of the opinion that the time as stipulated in Ext.P5 for complying with all the procedural requirements and for arranging the infrastructure can be extended. The appropriate period of time which can be granted for the petitioner to arrange infrastructure is to be considered by the first respondent.”_ 4. It is stated that thereafter, orders have again been passed rejecting the request of the petitioner for extension of time specified in 4 _**WP(C).35169/18**_ the NOC for a further period of two years. The reasons stated for rejecting the request are at paragraph 5 in Exhibit P14 which read as under: _“5) At present 42 institutions are conducting B.Pharm course and 34 institutions are conducting D.Pharm course in the State. No more institutions are necessary in Self Financing/Private Sector. In-proportionate sanctioning of courses without assessing educational need in the State or particular area would lead to turbulence in the medical education sector, especially pharmacy education. In public interest, no institution can be permitted to start a course of study, especially when it pertains to the life and well being of patients.”_ 5. Learned counsel for the petitioner contends that the question of need of Colleges had already been considered in Exhibit P7 order and had been found in favour of the petitioner. It is therefore contended that the further consideration of the question of 'need' and the rejection of the request for extension of time on that ground was completely vitiated. It is also contended that Exhibit P13 judgment directed to grant time and the respondents could not have issued an order in the nature of Exhibit P14 falling back on the question of need which had been found against by this Court repeatedly. 6. A statement has been filed on behalf of the 3[rd] respondent. After stating the factual aspects of the matter, it is stated that there are several vacancies in B.Pharm and D.Pharm Courses in the existing Pharmacy Colleges in the private sector and that there is resultant 5 _**WP(C).35169/18**_ deterioration in the standard of higher education especially in the field of professional education in Kerala. It is further stated that due to the high fee being charged by the managements in Self Financing Institutions, the students are being forced to raise the required funds and there is no proper employment prospects for the students who come out of such institutions. 7. I have considered the contentions advanced on either side. The question of need for a private institution imparting courses in Pharmacy had already been considered by the Government pursuant to Exhibit P6 judgment and Exhibit P7 order had been issued granting NOC to the petitioner. The only issue which remains for consideration was with regard to the time required for providing the infrastructural facilities needed for getting approval from the Pharmacy Council as well as the Universities. This Court, in Exhibit P13 judgment had directed the grant of adequate time to meet the infrastructural requirements. The impugned order discloses that the settled question of need has again been reiterated by the respondents as a reason for rejecting the request of the petitioner for time to meet the infrastructural requirements. I am of the opinion that the said issue of 'need' was not one which could not have been taken note of by the respondents, since the said issue stood concluded by Exhibit P7 while NOC had been issued to the petitioner. It appears that in spite of 6 _**WP(C).35169/18**_ repeated directions, the respondents do not intend to take a decision as directed by this Court. It is submitted by learned counsel for the petitioner that in the absence of orders extending the time, the petitioner is disabled from taking any steps for arraying the required infrastructure and buildings. In the above view of the matter, I am of the opinion that the petitioner is entitled to grant of appropriate time for meeting all the infrastructural requirements as has been stipulated in Exhibit P7. Learned counsel for the petitioner would submit that appropriate steps shall be taken to see that the entire infrastructural requirements are ready before 31.3.2020. Taking note of the facts and circumstances of the case and in view of the failure of the respondents to take an appropriate decision, I am of the opinion that further time is liable to be granted. The time granted in Exhibit P7 shall therefore stand extended till 31.3.2020. It is made clear that the petitioner shall satisfy all the infrastructural requirements necessary for getting approval from the Pharmacy Council of India and the University on or before 31.3.2020. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** _vgs11/1_ 7 _**WP(C).35169/18**_ ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF TRUST DEED EXECUTED ON 15.03.2016 AT THE SUB REGISTRAR'S OFFICE, THRISSUR.** - **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 08-06-2016 ISSUED BY THE IST RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 02.112016 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE INSPECTION REPORT SUBMITTED BY THE PRINCIPAL, MEDICAL COLLEGE, CALICUT.** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 04.02.2017 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 13644/2017 DATED 31ST JULY, 2017.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 25.10.2017 PASSED BY THE IST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE PUBLIC NOTICE ISSUED BY THE PHARMACY COUNCIL OF INDIA.** **EXHIBIT P9 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT AND DATED 31.03.2018. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 23.04.2018. EXHIBIT P11 TRUE COPY OF THE COMMUNICATION SUBMITTED BY THE PETITIONER AND ADDRESSED TO THE 1ST RESPONDENT. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 18.05.2018. EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 26591/2018 DATED 30TH AUGUST, 2018.** _**WP(C).35169/18**_ 8 **EXHIBIT P14 TRUE COPY OF THE ORDER DATED 23.10.2018 PASSED BY THE 1ST RESPONDENT. EXHIBIT P15 TRUE COPY OF THE LETTER DATED 24.10.2016 ISSUED BY THE 2ND RESPONDENT.**