POLAKULATH NARAYANAN RENAI MEDICITY v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **WP(C).No. 42475 of 2018** ## **PETITIONER:** **POLAKULATH NARAYANAN RENAI MEDICITY, P.O.BOX NO.2259, PALARIVATTOM P.O., KOCHI, KERALA - 682 025, REPRESENTED BY ITS AUTHORIZED SIGNATORY.** **BY ADVS. SRI.SANTHOSH MATHEW SRI.ANIL SEBASTIAN PULICKEL KARTHIKA SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.VEENA RAVEENDRAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE**| ||**GOVERNMENT, 6TH FLOOR, ANNEX II, SECRETARIAT,**| ||**THIRUVANANTHAPURAM, KERALA - 695 001.**| |**2**|**DIRECTOR OF MEDICAL EDUCATION**| ||**DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE**| ||**P.O., THIRUVANANTHAPURAM, KERALA - 695 011.**| |**3**|**DISTRICT MEDICAL OFFICER OF HEALTH**| ||**ERNAKULAM, GENERAL HOSPITAL COMPOUND, MARINE DRIVE,**| ||**ERNAKULAM, KERALA - 682 011.**| |**4**|**THE PRINCIPAL**| ||**GOVERNMENT MEDICAL COLLEGE, KOTTAYAM, GANDHINAGAR,**| ||**KOTTAYAM, KERALA - 686 008.**| **BY GOVERNMENT PLEADER SRI.P.G.PRAMOD** **ON (CIVIL) HAVING BEEN FINALLY HEARD ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 42475 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner, a partnership firm running a multi-speciality hospital in Ernakulam against Ext.P22 order passed by the State Government declining letter of permission to the petitioner to run six paramedical courses and for other related reliefs. 2. Brief material facts for the disposal of the writ petition are as follows; petitioner submitted applications on 29.4.2016 for starting six paramedical courses viz., Diploma in dialysis Technician Course (DDT), Diploma in Neuro Technician Course (DNT), Diploma in Cardio Vascular Technician Course (DCVT), Diploma in Operation Theatre and Anaesthesia Technician Course (DOTAT), Diploma in Medical Laboratory Technician Course (DMLT) and Diploma in Radiology Technician Course (DRT). Altogether petitioner has paid an amount of Rs.3,00,000/- i.e., Rs.50,000/- per course. 3. First respondent forwarded the applications to the 2[nd] and 3[rd] respondents to conduct inspection in WP(C).No. 42475 of 2018 3 order to identify whether petitioner satisfies the requirements for starting these courses. In order to enable the 4[th] respondent to conduct inspections, requisite inspection fees was also paid by the petitioner and the inspections were conducted on 9.6.2017 for the DDT and DCVT courses and thereafter on 28.10.2017, inspection was conducted for the DOTAT, DRT and DMLT courses and final inspection reports were submitted by the 4[th] respondent. Out of the six courses for which inspection reports were submitted, four were favourable to the petitioner and two were unfavourable, evident from Exts.P11 to P14 and Exts.P15 and P16 respectively. But in spite of favourable reports, 1[st] respondent rejected permission as per order dated 23.4.2018 assigning the reason that, the basic requirements are not met as per the report of the Director of Medical Education. Thereafter petitioner submitted a letter to the 1[st] respondent pointing out that, applications for the six courses have been rejected despite the fact that, there were favourable inspection reports in the case of four courses and requested for re-consideration of WP(C).No. 42475 of 2018 4 its applications for starting these four courses, however, no action was taken and thereafter, petitioner filed W.P.(C)No.26510/2018 before this court and secured Ext.P19 judgment holding that, the rejection of petitioner's application without assigning any reason was not justified and thereby directed the 1[st] respondent to take-up and consider petitioner's representation and pass a speaking order. It was thereafter that Ext.P22 order dated 30.11.2018 is passed declining permission to the petitioner to start the courses. According to the petitioner, the very same reason as is contained in Ext.P17 order dated 23.4.2018 is assigned and therefore Ext.P22 order is arbitrary and illegal, liable to be interfered with by this court. 4. First respondent has filed a counter affidavit with the following contentions that, No Objection Certificate from the Government is essential for conducting paramedical courses and such requirement cannot be dispensed with. Of relevance the seat vacancy position with respect to the paramedical diploma courses for the last three years is given to WP(C).No. 42475 of 2018 5 point out that, the percentage of vacancy is going-up year by year starting from 2015 - 2016 and therefore, in view of the vacancies which occurred in the previous years, sanctioning of courses without assessing the educational need in the State or particular area will create repercussions in the medical education sector, especially in paramedical education and sanctioning of new institutions will jeopardise the equilibrium in medical education sector. Moreover, depletion in the standard of higher education especially in the field of professional education is a matter of great concern as far as the State of Kerala is concerned, which ranks first in education in the country. However, after the advent of self financing institutions in the State, the situation had worsened and education in general has become a commercial commodity driven by profit motive rather than the concept of service to the society. In the light of said facts, the request for Non Objection Certificate to the courses sought for by the petitioner cannot be granted. 5. It is also submitted that, Government is WP(C).No. 42475 of 2018 6 always committed to protect the academic interests, job opportunities and future of student community and the seat vacancy position with respect to these course clearly shows that, there is no essentiality for such courses in the State and reckless sanctioning of new courses without assessing the educational need would lead to turbulence in medical education sector as is now happening in the Engineering sector. Therefore, it is submitted that, petitioner is not entitled to get any relief as is sought for in the writ petition. 6. A Government Order dated 30.4.2008 is additionally produced to show that, a time schedule is to be followed in order to consider the applications submitted for issuing letter of permission and without following time schedule scrupulously, nothing can be done in an abrupt manner. So also during the course of arguments Government Order bearing No.73/2002/H&FWD dated 21.3.2002 is produced before me with copy to the counsel for petitioner, from which it is evident that, in order to consider the applications for paramedical courses, a technical committee with several members right from the Additional Chief Secretary are WP(C).No. 42475 of 2018 7 constituted and fees and other aspects are also prescribed in the said notification. 7. I have heard learned counsel for petitioner, learned Government Pleader and perused the pleadings and documents on record. 8. Learned counsel for petitioner basically relied upon the judgment rendered by this court in **Dream Land Estate v. State of Kerala and another** [2016 SCC Online Ker 29835], which was affirmed by a Division Bench of this Court, wherein the Government Order with regard to non-issuance of NOC to Science Colleges and starting of new courses were considered and held that, in the matter of issuing NOC, the Government has no other say than to express its view since the subject matter is guided by the provisions of the University Act and its regulations. It is also pointed out that, while passing Ext.P22 order the State Government has not taken into account Exts.P11 to P14 favourable reports of the petitioner regarding the four courses specified above and the order is passed taking into account the unfavourable report alone. It also submitted that, receiving education WP(C).No. 42475 of 2018 8 and imparting education are fundamental rights guaranteed under Articles 19 & 21 of the Constitution of India. Therefore in the guise, there is depletion in the standard of higher education like paramedical courses cannot be taken into account to decline the permission. That apart it is submitted that, if facilities are properly provided, there are students to take-up paramedical courses and they are able to secure employments either within the country or abroad. 9. _Per contra_ learned Government Pleader relied upon the contentions raised in the counter affidavit and submitted that, the Government has made in depth study with respect to the probability of securing employment and could gather only negative impact in the matter and therefore, reckless sanctioning of new courses without assessing the educational need would only lead to anarchy and adverse consequences. Learned Government Pleader also submitted that, many of the courses are pursued by the students availing bank loans, and after the studies, if they are unable to secure employment, it will lead to further complexity WP(C).No. 42475 of 2018 9 in the matter and the Government become responsible for taking over the loan in many of the cases. 10. I have evaluated the submissions made by respective counsel and the question to be considered is whether any manner of interference is warranted to Ext.P22 order. To put it short as pointed out by the learned counsel for petitioner and the reasons assigned in Ext.P22 order for declining permission to the courses, is relying upon the adverse reports submitted by the Reporting Authority in Exts.P15 and P16 reports to the following effect: _“At present the existing facilities are available only for the functioning of diagnostic laboratory for Pathology Biochemistry and Microbiology. No infrastructure, chemicals, equipments for teaching purpose are available and adequate number of qualified teaching staff is not available.”_ 11. In my considered view, the State Government ought to have taken into account the favourable reports submitted by the Reporting Authority, evident from Exts.P11 to P14 in respect of four courses. That was never relied upon or appreciated by the State Government in order to arrive at the conclusion in WP(C).No. 42475 of 2018 10 Ext.P22. I also find force in the contention advanced by the learned counsel for petitioner that, starting of educational institutions and providing education to the needy is a fundamental right guaranteed under Article 19(1)(g) of Constitution of India. Education is the requirement of the day and only through education the society and the nation can grow up, and sufficiently qualified persons can be attained which is also a requirement for serving the poor and humble lot in the country. It is true, Government may be at liberty to make due enquiries with respect to the infrastructure held by any applicant in order to assess the feasibility and capacity for providing good eduction to the students. Even though in the study conducted by the State Government, it was found that, the requirement of students opting for such paramedical courses were depleting during the period earmarked in the counter affidavit, it cannot be said that the same situation will continue to be so in future. Anyhow it is an admitted fact that due to the vast population of this country, the need and requirement of the people depending on hospitals and WP(C).No. 42475 of 2018 11 other paramedical institutions, are vital and increasing day by day and therefore, such aspects cannot be ignored by the State Government while considering the applications. Moreover, every citizen has a right to choose the nature of education he has to undertake bearing in mind his futuristic activities and that cannot be stopped by the State Government by stating that there is likelihood of non-securing of employment in future. In the said venture he may succeed or fail but that is not a relevant factor to decline education of his choice. Right to life and liberty protected under Article 21 of the Constitution of India enables a citizen to have his own choice of education. To quote a few, John Stuart Mill, a great scholar defines education as “All that we ourselves do and all that others do for us to the end of bringing us closer to the perfection of our nature.” Utilitarian Scholars propound that the objective of education would be to make the individual an instrument of happiness for himself and for his fellows. For functionalist scholars like Durkhein “Education is the influence exercised by the adult WP(C).No. 42475 of 2018 12 generation on those who are not yet ready for social life. Its object is to arouse and to develop in the child certain number of physical, intellectual and moral status which are demanded of him both by the political society as a whole and the special milieu for which he is specially destined.” 12. These are the matters considered by the Apex Court in its various judments including in **T.M.A.Pai Foundation v. State of Karnataka** [(2002)8 SCC 481]. However, I find that, the subject issue of consideration before this court in **Dream Land Estate** ( _supra_ ) was in respect of the University Act and its regulations vis-a-vis the extent of power of the Government in the matter of NOCs. That is not the exact question available in this writ petition for consideration. But, the principles of law enumerated in the said judgment substantially applies to the facts and circumstances of the case on hand also, especially since, the said judgment was rendered taking into account various judgments of the Apex Court in order to arrive at the conclusions. Bearing in mind all these aspects, I am of the considered WP(C).No. 42475 of 2018 13 opinion that, Ext.P22 order passed by the State Government suffers from the vice of arbitrariness and illegality, liable to be interfered by this court exercising the power of judicial review under Article 226 of the Constitution of India. Accordingly, I quash Ext.P22 and there will be a direction to the 1[st] respondent to re-consider the matter taking into account Exts.P11 to P14 reports submitted by the Reporting Agency at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment. **Sd/-** ## **SHAJI P.CHALY** Smv 30.3.2019 **JUDGE** WP(C).No. 42475 of 2018 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER DATED 29/04/2016 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE APPLICATIONS FOR THE DDT, DNT, DCVT, DOTAT, DMLT AND DRT COURSES SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT AND THE SECRETARY OF THE PARAMEDICAL COUNCIL, GOVT. OF KERALA ALONG WITH LEGIBLE COPY. EXHIBIT P3 TRUE COPY OF THE LETTER DATED 21/05/2016 SENT BY THE 1ST RESPONDENT TO THE 2ND AND 3RD RESPONDENTS. EXHIBIT P4 TRUE COPY OF LETTER DATED 02/03/2017 SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 04/08/2017 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE LETTER DATED 28/03/2017 SENT BY THE PETITIONER TO THE 4TH RESPONDENT FORWARDING DEMAND DRAFT FOR RS.37,500/- TOWARDS INSPECTION FREE FOR THE DDT, DNT AND DCVT COURSES. EXHIBIT P7 TRUE COPY OF THE LETTER DATED 28/03/2017 SENT BY THE PETITIONER TO THE 4TH RESPONDENT FORWARDING DEMAND DRAFT OF RS.27,500/- TOWARDS INSPECTION FREE FOR THE DDT, DNT AND DCVT COURSES. EXHIBIT P8 TRUE COPY OF THE LETTER DATED 03/10/2017 SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT FOR SUBMITTING FINAL INSPECTION REPORTS PERTAINING TO THE DDT AND DCVT COURSES. EXHIBIT P9 TRUE COPY OF THE LETTER DATED 11/10/2017 SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT SUBMITTING FINAL INSPECTION REPORT PERTAINING TO THE DNT COURSE.** WP(C).No. 42475 of 2018 15 **SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT SUBMITTING FINAL INSPECTION REPORTS PERTAINING TO THE DMLT,DOTAT AND DRT COURSES.** **EXHIBIT P11 TRUE COPY OF THE INSPECTION REPORT FOR THE DCVT COURSE.** **EXHIBIT P12 TRUE COPY OF THE INSPECTION REPORT FOR THE DDT COURSE.** **EXHIBIT P13 TRUE COPY OF THE INSPECTION REPORT FOR THE DNT COURSE.** **EXHIBIT P14 TRUE COPY OF THE INSPECTION REPORT FOR THE DOTAT COURSE.** **EXHIBIT P15 TRUE COPY OF THE INSPECTION REPORT FOR THE DMLT COURSE.** **EXHIBIT P16 TRUE COPY OF THE INSPECTION REPORT FOR THE DRT COURSE.** - **EXHIBIT P17 TRUE COPY OF THE LETTER DATED 23/04/2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P18 TRUE COPY OF THE LETTER DATED 17/05/2018 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 06/08/2018 OF THIS HONOURABLE COURT IN W.P.(C) NO.26510 OF 2018.** - **EXHIBIT P20 TRUE COPY OF THE LETTER DATED 10/10/2018 SENT BY THE 1ST RESPONDENT TO THE PETITIONER.** **EXHIBIT P21 TRUE COPY OF THE LETTER DATED 15/10/2018 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** **EXHIBIT P22** **TRUE COPY OF THE G.O.(RT) NO.35472-18/H& FWD DATED 30/11/2018 ISSUED BY THE 1ST RESPONDENT.**