St. Joseph's Hospital, Manjumal v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** ## **WP(C).No.32820 OF 2019(B)** ## **PETITIONER:** **ST. JOSEPH'S HOSPITAL, MANJUMMAL, UDYOGAMANDAL P.O., ERNAKULAM- 683501, REPRESENTED BY ITS DIRECTOR.** **BY ADVS.** **SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH 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, THIRUVANANTHAPURAM695001.** - **2 DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM- 695011.** - **3 KERALA UNIVERSITY OF HEALTH SCIENCES, GOVERNMENT MEDICAL COLLEGE P.O., THRISSUR DISTRICT, KERALA- 680596, REPRESENTED BY ITS REGISTRAR.** - **4 KERALA PARA MEDICAL COUNCIL, HEALTH AND FAMILY WELFARE DEPARTMENT, SOUTH BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001, REPRESENTED BY ITS SECRETARY.** - **5 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.** WP(C).No.32820 OF 2019(B) 2 **R1 BY GOVERNMENT PLEADER** **R3 BY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES** **GP. SHRI. K.R. RANJITH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.32820 OF 2019(B) 3 ## JUDGMENT This writ petition is filed seeking the following prayers:- “(i) Call for the records leading to Exhibit P8. (ii) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P8. (iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to issue Essentiality Certificate/Letter of Intent/Letter of Consent/NOC to start Bachelor of Physiotherapy, Bachelor of Medical Imaging Technology and Degree in Cardio Vascular Technology in the petitioner Hospital, as required for by the petitioner in Exhibit P4. (iv) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3[rd] respondent University to grant affiliation to Bachelor of Physiotherapy, Bachelor of Medical Imaging Technology and Degree in Cardio Vascular Technology in the petitioner Hospital, as soon as Essentiality Certificate is issued by the 1[st] respondent with respect to the said Courses.” 2. Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned Standing Counsel appearing for the respondent University. WP(C).No.32820 OF 2019(B) 4 3. It is submitted by the learned counsel for the petitioner that the petitioner has submitted Ext.P4 application for starting of three courses in it's institution. The courses for which essentiality certificate was sought were Bachelor of Physiotherapy, Bachelor of Medical Imaging Technology and Degree in Cardio Vascular Technology. It is submitted that all necessary supporting documents had been submitted by the petitioner, but that by the impugned order, the request made by the petitioner had been rejected only on the ground that the socio-economic situation in the State does not permit to start any new courses in the self financing sector. 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 declined to grant Essentiality Certificate relying on general statements and on professed policies. It is submitted that absolutely no data is referred to in Ext.P3 and there is no finding that there is no educational need in the area for starting WP(C).No.32820 OF 2019(B) 5 of the courses sought for by the petitioner. 4. A counter affidavit has been placed on record by the first respondent. It is contended that this Court had directed the consideration of Ext.P4 application and that the application had been considered and a decision was taken, taking note of all relevant aspects. It is stated that Bachelor of Medical Imaging Technology is not an approved course under the 3[rd] respondent and that as such, there can be no consideration of the issue of grant of Essentiality Certificate in respect of the said course. With regard to the remaining two courses, it is contended that, at the time of verification of the application itself, if the Government/Paramedical Council finds that it is not in the larger interest of the State, the request can be rejected without further processing of the application. It is stated that the standard of Higher Education in the State, especially in the field of Professional Education is a matter of great concern and that the advent of Self Financing Institutions has resulted in the situation worsening and that education in general has been equated to a commercial activity. It is stated that there is WP(C).No.32820 OF 2019(B) 6 tremendous increase of debt due to the educational loans availed by the parents or students, who after completion of the course, are unable to obtain any employment and that the situation is to be seriously viewed. It is contended that it is not in the best interests of the State that the request for Essentiality Certificates be granted. 5. The 3[rd] respondent has also been placed a statement on record. It is stated in paragraph 2 of the statement as follows:- “This respondent university affiliates the courses and institutions imparting degree or above level training in the filed of health sciences. The petitioner intends to start bachelor courses in Physiotherapy, Cardio Vascular Technology and Medical Imaging Technology. Out of the above mentioned courses, Bachelor degree in Medical Imaging Technology is not an approved course of the university. The university has not so far taken any decision to start the course. The proposal received is presently under consideration and no decision has been taken to start the course. Before taking such a decision it is necessary to have the curricula finalized for the course. Apart from the consideration of the matter by the Board of Studies and a recommendation to formulate the scheme and syllabus no administrative decision has been taken to start the course. Hence the request made by the petitioner to start the WP(C).No.32820 OF 2019(B) 7 ## said course at this point of time could not be considered.” The 3[rd] respondent also supports the reason as contained in the impugned order. I have considered the contentions advanced. 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, the specific question as to the need for starting of the courses has not been considered by the respondents at all. It is submitted that this Court had repeatedly held that the rejection of Essentiality Certificate on ground of professed policy is not permissible and each application has to be considered on its merits. The finding in the impugned order that no educational institutions can be permitted to start paramedical courses due to the socioeconomic situation in the state is not a sustainable decision. When an application for starting of the courses preferred, the preliminary requirement is for the State to assess whether there is necessity for starting of the course in the institutions. The educational need of the area in question also requires WP(C).No.32820 OF 2019(B) **==> picture [8 x 9] intentionally omitted <==** consideration. I am of the opinion that the relevant aspects have not been considered by the respondents while rejecting the application for Essentiality Certificate. In the result, the impugned order is set aside. There will be a direction to the respondents to consider the application preferred by the petitioner in respect of the two approved courses i.e. Sl.No.1 and 3 in Ext.P4, taking note of the relevant aspects and after conduct of due enquiries. Orders shall be passed, after hearing the petitioner also, within two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. Sd/- ## ANU SIVARAMAN JUDGE Bng/17.02.2020 WP(C).No.32820 OF 2019(B) 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE REGISTRATION**| |---|---| ||**CERTIFICATE DATED 05.04.2019 ISSUED BY**| ||**ELOOR MUNICIPALITY TO THE PETITIONER.**| |**EXHIBIT P2**|**A TRUE COPY OF THE LICENSE DATED**| ||**05.04.2019 ISSUED BY ELOOR MUNICIPALITY**| ||**TO THE PETITIONER HOSPITAL.**| |**EXHIBIT P3**|**A TRUE COPY OF G.O.(RT)NO.1598/2008/H &**| ||**FWD DATED 30.04.2008, SHOWING THE TIME**| ||**SCHEDULE ETC. FOR GRANTING ESSENTIALITY**| ||**CERTIFICATE TO PARA MEDICAL COURSES**| ||**ISSUED BY THE 1ST RESPONDENT.**| |**EXHIBIT P4**|**A TRUE COPY OF THE LETTER DATED**| ||**13.05.2019 AND APPLICATION SUBMITTED BY**| ||**THE PETITIONER BEFORE THE 1ST RESPONDENT**| ||**FOR GRANTING ESSENTIALITY**| ||**CERTIFICATE/LETTER OF INTENT/LETTER OF**| ||**CONSENT/NOC TO START BACHELOR OF**| ||**PHYSIOTHERAPY, BACHELOR OF MEDICAL**| ||**IMAGING TECHNOLOGY AND DEGREE IN CARDIO**| ||**VASCULAR TECHNOLOGY.**| |**EXHIBIT P5**|**A TRUE COPY OF THE DD DATED 13.05.2019**| ||**DRAWN IN FAVOUR OF THE SECRETARY OF PARA**| ||**MEDICAL COUNCIL, GOVERNMENT OF KERALA.**| |**EXHIBIT P6**|**A TRUE COPY OF THE JUDGMENT DATED**| ||**18.06.2019 IN W.P.(C)15217/2019 OF THIS**| ||**HON'BLE COURT.**| |**EXHIBIT P7**|**A TRUE COPY OF THE REMINDER NOTICE DATED**| ||**30.08.2019 ISSUED BY THE COUNSEL FOR THE**| ||**PETITIONER TO THE 1ST RESPONDENT.**| |**EXHIBIT P8**|**A TRUE COPY OF G.O(RT)NO.2630/2019/H &**| ||**FWD DATED 05.11.2019 ISSUED BY THE 1ST**| ||**RESPONDENT WITHOUT FOLLOWING THE**| ||**PROCEDURE IN EXHIBIT P3 G.O AND ALSO**| ||**WITHOUT PROPERLY CONSIDERING AND**| ||**PROCESSING EXHIBIT P4 APPLICATION DULY**| ||**SUBMITTED BY THE PETITIONER.**|