Kerala Co-operative Hospital Federation Ltd. v Kannur University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** **WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930** **WP(C).No. 10056 of 2007(V)** **--------------------------------------** **PETITIONER(S):** **----------------------** **KERALA CO-OPERATIVE HOSPITAL FEDERATION LTD., HAVING ITS REGIONAL OFFICE AT NETTUR (P.O), TELLICHERRY, PIN-670 105, REPRESENTED BY ITS SECRETARY, MR.ABDURAHIMAN.** **BY ADV. SRI.C.P.MOHAMMED NIAS** **RESPONDENT(S):** **------------------------** **KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR - 670 567, REPRESENTED BY ITS REGISTRAR.** **BY ADV. SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO. 10056/2007-V** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXT.P1: COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 02/09/2005 EXECUTED BETWEEN THE PETITIONER AND RESPONDENT.** **EXT.P2: COPY OF THE ORDER DATED 18/10/2006 ISSUED BY THE INDIAN NURSING COUNCIL, NEW DELHI.** ## **EXT.P3: COPY OF THE ORDER G.O.(MS)NO.195/2006/H&FWD DATED 02/09/2006 ISSUED BY THE GOVERNMENT OF KERALA GRANTING NO OBJECTION CERTIFICATE TO THE PETITIONER.** **EXT.P4: COPY OF THE APPLICATION DATED 30/12/2005 SUBMITTED BY THE PETITIONER TO THE RESPONDENT SEEKING AFFILIATION FOR THE B.SC NURSING COURSE.** **EXT.P5: COPY OF THE APPLICATION DATED 30/12/2005 SUBMITTED BY THE PETITIONER TO THE RESPONDENT SEEKING AFFILIATION FOR THE BACHELOR OF PHYSIOTHERAPY COURSE.** **EXT.P6: COPY OF THE LETTER DATED 27/08/2006 SENT BY THE PETITIONER TO THE RESPONDENT.** **EXT.P7: COPY OF THE LETTER DATED 01/12/2006 SENT BY THE PTITIONER TO THE RESPONDENT.** **EXT.P8: COPY OF THE LETTER NO.ACAD/A1/NC&C/2006 DATED 20/12/2006 ISSUED BY THE RESPONDENT TO THE PETITIONER.** ## **EXT.P9: COPY OF THE LETTER NO.ACAD/A1/NC&C/2006 DATED 20/12/25006 ISSUED BY THE RESPONDENT TO THE PETITIONER.** **EXT.P10: COPY OF THE LETTER NO.ACAD/A1/NC&C/2007-08 DATED 17/02/2007 ISSUED BY THE RESPONDENT TO THE PETITIONER.** **EXT.P11: COPY OF THE LETTER NO.ACAD/A1/NC&C/2007-08 DATED 17/02/2007 ISSUED BY THE RESPONDENT TO THE PETITIONER.** **EXT.P12: COPY OF THE ORDER DATED 30/07/2007 PASSED BY THE RESPONDENT UNIVERSITY.** ## **EXT.P13: COPY OF THE ORDER DATED 02/09/2006 PASSED BY THE GOVERNMENT.** ## **EXT.P14: COPY OF THE ORDER DATED 08/10/2007 ISSUED BY THE RESPONDENT TO THE PETITIONER.** **EXT.P15: COPY OF THE LETTER NO.1-5/GB-CIR/2007-INC DATED 08/05/2007 WITH ENCLOSURES, ISSUED BY THE INDIAN NURSING COUNCIL.** ## **W.P.(C). NO. 10056/2007-V** **EXT.P16: COPY OF THE GOVT. ORDER G.O.(MS)NO.497/2007/H&FWD DATED 03/12/2007.** **EXT.P17: COPY OF THE LETTER NO.02/MAY/2008-INC DATED 30/05/2008 ISSUED BY THE INDIAN NURSING COUNCIL.** **EXT.P18: COPY OF THE LETTER NO.ACAD.AI/CNT/311/2003 DATED 12/05/2008 ISSUED BY THE RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1(a): COPY OF THE POSSESSION CERTIFICATE SUBMITTED BY THE PETITIONER. EXT.R1(b): COPY OF THE POSSESSION CERTIFICATE SUBMITTED BY THE PETITIONER.** **EXT.R1(c): COPY OF THE LETTER NO.15136/J2/07/H.EDN. DATED 30/08/2007 ISSUED BY HIGHER EDUCATION DEPARTMENT TO THE UNIVERSITY.** **//TRUE COPY//** **P.S. TO JUDGE** **Rs/** ## **V.GIRI, J.** **-------------------------** W.P.(C).No.10056 of 2007 **-------------------------** Dated this the 5[th ] day of November, 2008. ## **JUDGMENT** The petitioner is an association of Co-operative Hospitals in the State. It is running a Co-operative Hospital at Thalassery. Till 2001, the College of Nursing being conducted in the said Co-operative Hospital was affiliated to the Calicut University. It seems that the Calicut University felt that it cannot continue to let an institution being run within the limits of another University viz., Kannur University, being affiliated to the Calicut University. Therefore, the affiliation by the Calicut University was stopped. 2. The petitioner entered into an understanding as evidenced by Ext.P1 Memorandum of Understanding, whereby it agreed to conduct B.Sc. Nursing and Bachelor Physiotherapy Course with a strength of 60 students each in collaboration with the first party. The terms and conditions in relation to such collaboration are contained in Ext.P1 Memorandum of Understanding. The College of W.P.(C).NO.10056/07 **:: 2 ::** Nursing is, therefore, being conducted at Nettoor in Thalassery and the said institution was being run in terms of Ext.P1. The Indian Nursing Council, a competent body under the Indian Council Act, 1947 has, by Ext.P2 dated 18.10.2006, certified that the course conducted by the institution is an approved course of study for admission to an approved examination for the said course. By Ext.P3 order, the Government issued an No Objection Certificate to the petitioner, Kerala Co-operative Hospital Federation to conduct B.Sc. Nursing College at Thalassery with an intake of 50 students with the recognition of the Kannur University. Exts.P4 and P5 applications were made by the petitioners for affiliation in relation to B.Sc. Nursing Course and the Bachelor of Physiotherapy course on 30.12.2005. The extent of the land available with the institution for which affiliation was sought for, as shown in Ext.P5 is 151.5 cents. It now turns out, that the property covered by Exts.R1(a) and R1(b) is situated in Thalassery. It seems that during the currency of the said applications, the petitioner acquired an additional extent of 296.93 cents, as W.P.(C).NO.10056/07 **:: 3 ::** part of the same is in Mannayad, Thalassery and part in Andaloor in Dharmadom. The details fo the same are given in Ext.P6. Ext.P7 reminder was sent by the petitioner. But by Exts.P8 and P9, the petitioner was informed that the applications for starting new colleges for the academic year 2006-07 were recommended by the Syndicate as there was no sufficient extent of land in the possession of the petitioner. Permission was, therefore, granted to submit fresh applications during the academic year 2007-08 with all documents on or before 31.12.2006. I note that Exts.P8 and P9 were issued on 20.12.2006. 3. Exts.P8 and P9 were challenged in the writ petition as it was originally instituted. Thereafter, Exts.P10 and P11 were issued by the University granting permission to submit applications after paying a fresh registration fee of Rs.20,000/- and a late fee of Rs.5,000/-. Exts.P8, P9, P10 and P11 are challenged in the writ petition. 4. This court passed an interim order on 3.4.2007 to the following effect: W.P.(C).NO.10056/07 **:: 4 ::** **"There would be an interim direction to consider the application of the petitioner for affiliation of courses applied without insisting on payment of fee of Rs.25,000/- each again, since he had already paid earlier the fees."** 5. Another interim order was passed on 17.08.2007. **“In view of Ext.P13 being available, there is apparently no reason to refer the case of the petitioner to the Government for its view as has been done by the University, as evidenced by Ext.P2. Hence, it is directed that the Syndicate of the University will take up Exts.P4 and P5 applications and consider the same on the basis that the Government has stated its no objection in Ext.P13 Government Order. Let a final decision be taken as aforesaid within an outer limit of three weeks from now and place before this court.”** 6. Thereupon, the University considered the application for affiliation on merits and passed Ext.P14 order declining to grant affiliation, for the following reasons: - **"1. The land requirement as per the University rules is not met by the educational agency.** **2. The courses now being conducted are that of the University as per Memorandum of Undertaking and this does not constitute the affiliation of college/course."** W.P.(C).NO.10056/07 **:: 5 ::** Ext.P14 has been challenged in the amended writ petition. 7. A counter affidavit has been filed by the University supporting Ext.P14. The petitioner has filed a reply affidavit. 8. I heard learned counsel for the petitioner Sri.Mohammed Nias and the learned standing counsel for the Kannur University. 9. Learned counsel for the petitioner submits that the reasons given in Ext.P14 are not tenable. The first reason given in Ext.P14 is that the extent of the land in the possession of the petitioner is not sufficient to start the Nursing College. It is contended that it is not open to the University to cite the alleged inadequacy of the extent of the land as the reason for declining affiliation. Reference is made, in this regard, to the Regulations issued by the Indian Council of Nursing, which governs the action taken by the competent body of the Indian Council in dealing with the application for approval of a course being conducted by any institution and comprehended by the Indian Nursing Council Act. It is contended that the extent W.P.(C).NO.10056/07 **:: 6 ::** of land is one of the aspects taken note of by the Central Government and if therefore, the Indian Nursing Council, as is evident by Ext.P2, granted the requisite approval, then those parameters which fell for consideration by the Indian Nursing Council cannot again be considered by the University while dealing with an application for affiliation. Reference in this regard is made to the law laid down by the Full Bench in **Vikram Sarabhai Educational Trust and B.Ed College v. University of Calicut and another {2008(2)KHC 647}** . 10. It is further pointed out that, at any rate, the suitable land required for the conduct of an institution offering B.Sc Nursing course is only 3 acres and since the petitioner had acquied an additional 2.96 acres, over and above the 3 acres, even the requirement insofar as the extent of land is concerned, was satisfied by the petitioner. The fact that the land subsequently acquired is not adjacent to the existing land is not a matter of concern, contends the learned counsel for the petitioner. There is no such requirement spelt out either by the Indian Nursing W.P.(C).NO.10056/07 Council Act or for that matter, the University Act or the University First Statute. 11. Insofar as the second aspect mentioned in Ext.P14 is concerned, it is pointed out that the facilities available with the petitioner including the facilities available for the hospital have been found to be adequate and satisfactory by the Kannur University, when it entered into the Memorandum of Undertaking referred to in Ext.P5. If that be so, it is open to the petitioner to seek an affiliation on its own. Ext.P1 Memorandum of Undertaking will not derogate from the right of the owner of the land where a hospital has been established and the institution which runs a hospital as such, where the courses are being offered, it is contended. 12. I find force in the submission made by the learned counsel for the petitioner. The major objection taken to deny affiliation, as is discernible from Ext.P14, and the extremely unsatisfactory counter affidavit filed by the University is that the extent of the land is not sufficient. I take note of the fact that firstly the Nursing Council did not W.P.(C).NO.10056/07 **:: 8 ::** consider whether the extent of land available with the petitioner is either inadequate or insufficient to run the institution. If the Nursing Council, the competent authority under the Central Indian Nursing Council Act, considers the extent of the land available with the petitioner as adequate, to enable it to run the course B.Sc Nursing, then the self-same matters cannot be taken note of by the Kannur University to deny affiliation, unless it is a case where the order of approval granted by the Central Body is found to be vitiated by fraud or having been obtained by fraudulent means or it is a case where the particulars noted by the Central Body is palpably erroneous as to make the order vitiated by a fraudulent exercise of power. It is not open to the University, which is called upon to grant affiliation, to deny affiliation for a reason, which otherwise must be deemed to have been taken note of and found to be satisfactory by the Central Body. This is the law that has been laid down by the Supreme Court and this court, on several occasions and the law has been reiterated by the Full Bench of this court in **Vikram Sarabhai** W.P.(C).NO.10056/07 **:: 9 ::** ## **Educational Trust and B.Ed College v. University of Calicut and another {2008(2)KHC 647}** . It is not a case where Ext.P3 order of approval issued by the Indian Nursing Council is vitiated by fraud or that it has been obtained by fraudulent means. I also take note of Ext.P3 No Objection Certificate issued by the Government and I find that there is no reason to disbelieve that the Government must have looked into all these aspects before it issued Ext.P3 No Objection Certificate. 13. Insofar as the second aspect is concerned, apart from the cryptic reasons stated in Ext.P14, I do not find any specific reference to this aspect in the counter affidavit. I consider it appropriate to hold any such objection has been given up by the University or not seriously pursued. At any rate, the fact that the facilities available with the petitioner were considered to be sufficient by the Calicut University in the first instance for running the B.Sc Nursing course and thereafter by the respondent University from the year 2005 is noteworthy. W.P.(C).NO.10056/07 **:: 10 ::** For all these reasons, I am of the view that Ext.P14 is unsustainable. The writ petition is allowed. Ext.P14 is set aside. It is declared that the petitioner is entitled to get affiliation from Kannur University, to enable it to offer courses in B.Sc Nursing and Bachelor of Physiotherapy. Consequential orders shall be passed by the Kannur University within six weeks from the date of receipt of a copy of this judgment. Sd/- **(V.GIRI) JUDGE** sk/ **//true copy//**