St. Joseph's Hospital, Dharmagiri, Kothamangalam v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** ## **WP(C).No.23959 OF 2019(T)** ## **PETITIONER:** **ST.JOSEPH'S HOSPITAL,** **DHARMAGIRI, KOTHAMANGALAM P. O., ERNAKULAM - 686 691, REPRESENTED BY ITS ADMINISTRATOR SR. ABHAYA.** **BY ADVS.** **SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.ANJALY N.S. SMT.KADIJA JASMINE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, 6TH FLOOR, ANNEX II, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011.** - **3 THE SECRETARY PARA MEDICAL COUNCIL, HEALTH AND FAMILY WELFARE DEPARTMENT, SOUTH BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **4 THE DISTRICT INSPECTION TEAM CONSTITUTED BY THE STATE WITH RESPECT TO PARA MEDICAL INSTITUTIONS, REPRESENTED BY THE DISTRICT MEDICAL OFFICER (HEALTH), PARK AVENUE, MARINE DRIVE, ERNAKULAM, KERALA - 682011.** ## **R1 BY GOVERNMENT PLEADER** ## **GP. SHRI. RENJITH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.23959 OF 2019(T) 2 ## JUDGMENT ## This writ petition is filed seeking the following prayers:- “(i) call for the records leading to Exhibit P5 and issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P5. (ii) issue a writ of certiorari or any other appropriate writ, order or direction commanding the respondents to issue Essentiality Certificate/Letter of Intent/Letter of Consent/NOC to start B.Sc MLT Course in the petitioner Institution/Hospital, as applied for by the petitioner in Exhibit P3. (iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 3 and 4 to consider and process Exhibit P3 Application submitted by the petitioner including the conduct of inspection as per the schedule and the time limit provided in Exhibit P2 G.O and forward the report to the 1[st] respondent for issuing Letter of Intent/NOC/Essentiality Certificate by considering the said report in the light of the decision of this Hon'ble Court reported in 2019(3) KHC 59. (iv)direct the 1[st] respondent to issue Letter of Intent/NOC/Essentiality Certificate to the petitioner Institution to start B.Sc MLT Course, as early as possible so as to enable the petitioner to commence the Course in the present academic year itself.” 2. Heard the learned counsel for the petitioner and the WP(C).No.23959 OF 2019(T) 3 learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner had submitted an application for Essentiality Certificate for starting B.Sc Medical Laboratory Technician Course. It is submitted that the petitioner is the largest Medical Institution in the eastern part of the District and had been established in the year 1953. It runs 300 bedded Charitable Hospital and the institution has all the necessary infrastructure and capacity to start the B.Sc MLT Course. The application preferred by the petitioner has been rejected by Ext.P5 order on absolutely untenable grounds only due to the policy decision by the Government not to permit any new self financing colleges to start Paramedical courses, it is submitted. Relying on a decision of the Division Bench of this Court in State of Kerala v. M.G.M. College of Arts and Science (2017 (3) KLT 779) and of the learned Single Judge in Polakulath Narayanan Renai Medicity v. State of Kerala and others (2019(3) KHC 56) , the learned counsel for the petitioner submits that respondents cannot decline to grant Essentiality Certificate relying on general statements and on professed policies without WP(C).No.23959 OF 2019(T) 4 considering the need for starting of the course. It is submitted that the data relied on in Ext.P5 order itself, would show that the vacancy percentage in respect of the course in question had declined and that a statewide vacancy position of 3.5% cannot be a reason to decline the application of the petitioner. It is further submitted that the petitioner's institution is proposed in a hilly area of the District and that though there are 12 Higher Secondary Schools in the area, there is no institution providing Paramedical Courses. The petitioner, therefore, contended that the rejection of the application by Ext.P5 is completely unsustainable and is bad for want of proper application of mind. 4. A counter affidavit has been placed on record by the 1[st] respondent. It is contended therein that there are 29 Paramedical Institutions conducting B.Sc MLT Course and that there is depletion in the standard of Higher Education especially in the field of Professional Education in the State of Kerala. The contention raised in Ext.P5 order with regard to the financial implications of grant of Educational loans and the resultant financial liability on the State Government are reiterated in the WP(C).No.23959 OF 2019(T) 5 statement. It is asserted that indiscriminate sanction of courses without assessing educational need in the State is not in the interest of the State and sanctioning of new institutions in the self financing sector is against the larger public interest. 5. I have considered the contentions advanced on either side. It is the specific case of the learned counsel for the petitioner that apart from reiterating the general statements with regard to the educational scenario in the State at present and the financial implications of grant of educational loans, the specific need for the starting of the course as sought for by the petitioner in the locality in question has been completely ignored and that as such Ext.P5 is bad for want of application of mind. An application for an Essentiality Certificate is to be considered after assessing whether there is a need for starting the course in question in the area. The educational need of the area and the necessity for starting of course as applied for are the matters which have to be considered by the competent authority while considering such an application. Apart from stating the generalities of the educational situation in the State from the perspective of the Government, it appears from Ext.P5 WP(C).No.23959 OF 2019(T) 6 that there is absolutely no consideration of the educational need of the area and the necessity for starting of the course as sought for by the petitioner. This Court has time and time again expressed the view that an application for starting of a new institution or a course cannot be turned down only on the professed policy of the Government that no educational institutions can be started due to the prevalent socio-economic situation. When an application for starting of a course is preferred, the preliminary requirement is for the State to assess whether there is a necessity for starting of the course in the said institution. For that matter, what is to be assessed is whether there is any educational need. Ext.P5 reveals no such consideration. In the above view of the matter, I am of the opinion that Ext.P5 only expresses the policy of the Government not to permit new courses in the Paramedical sector. This is not what is contemplated while considering an application for Essentiality Certificate. In the above view of the matter, Ext.P5 which does not consider the necessary question of essentiality for starting of a new course is bad in law. The same is set aside. WP(C).No.23959 OF 2019(T) 7 There will be a direction to the respondents to reconsider the application submitted by the petitioner for Essentiality Certificate, taking note of the relevant aspects after conducting due enquries. Orders as directed above shall be passed within a period of two months from the date of receipt of a copy of this judgment. The procedure as prescribed in Ext.P2 shall be followed in the case of consideration of Ext.P3 application. This writ petition is ordered accordingly. Sd/- ANU SIVARAMAN JUDGE Bng/10.01.2020 WP(C).No.23959 OF 2019(T) 8 ## **APPENDIX OF WP(C) 23959/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF APPLICATION DATED 22.01.2019, SUBMITTED BY THE PETITIONER HOSPITAL BEFORE THE 1ST RESPONDENT ALONG WITH ITS POSTAL RECEIPT EXHIBIT P2 A TRUE COPY OF G.O.(RT) NO.1598/2008/H AND FWD DATED 30.04.2008 EXHIBIT P3 A TRUE COPY OF THE FORWARDING LETTER DATED 02.05.2019 ALONG WITH THE RELEVANT PORTION OF THE APPLICATION DATED 02.05.2019 SUBMITTED BY THE PETITIONER, DIRECT TO THE 3RD RESPONDENT FOR GRANTING ESSENTIALITY CERTIFICATE/ LETTER OF INTENT/LETTER OF CONSENT/NOC TO START B.SC. MLT COURSE IN THE PETITIONER INSTITUTION EXHIBIT P4 A TRUE COPY OF THE DD DATED 29.04.2019 IN FAVOUR OF THE 3RD RESPONDENT, WHICH WAS PRODUCED ALONG WITH EXHIBIT P3 EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 21.08.2019 OF THE 1ST RESPONDENT REJECTING EXHIBIT P1 APPLICATION WITHOUT FOLLOWING THE PROCEDURE IN EXHIBIT P2 G.O. AND ALSO WITHOUT CONSIDERING THE PROCESSING EXHIBIT P3 APPLICATION DULY SUBMITTED BY THE PETITIONER**