WA Nos. 2041 & 2042 of 2019: The President, Kasaragod Muslim Welfare Association v. State of Kerala and LBS Centre for Science and Technology

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM &** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 28TH DAY OF APRIL 2020 / 8TH VAISAKHA, 1942** **WA.No.2041 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 21689/2019(I) OF THIS COURT** ## **APPELLANT/PETITIONER:** **THE PRESIDENT, KASARAGOD MUSLIM WELFARE ASSOCIATION, THALANGARA.P.O., KASARAGOD-671122, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, A.P.KRISHNA MOHAN, CORRESPONDENT, KASARAGOD MUSLIM WELFARE ASSOCIATION, THALANGARA.P.O, KASARAGOD -671122** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695001.** **2 LBS CENTRE FOR SCIENCE AND TECHNOLOGY NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS DIRECTOR.** **R2 BY SMT.SHAMEENA SALAHUDHEEN, SC, LBS CENTRE FOR SCIENCE AND TECHNOLOGY. OTHER PRESENT:** **SPL GP SRI.M.A.ASIF** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27-092019, ALONG WITH WA.2042/2019, THE COURT ON 28-04-2020 DELIVERED THE FOLLOWING:** W.A. Nos.2041 & 2042/2019 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM &** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 28TH DAY OF APRIL 2020 / 8TH VAISAKHA, 1942** ## **WA.No.2042 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 21403/2019(A) OF THIS COURT** ## **APPELLANT/PETITIONER:** **ALMAS INSTITUTE OF ALLIED HEALTH SCIENCES, KOTTAKKAL, MALAPPURAM DISTRICT, KERALA, REPRESENTED BY THE ADMINISTRATIVE OFFICER. BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS/RESPONDENTS:** |**1**|**THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO**| |---|---| ||**GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE DIRECTOR OF MEDICAL EDUCATION,**| ||**MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKKUZHI,**| ||**THIRUVANANTHAPURAM-695 011.**| |**3**|**LBS CENTRE FOR SCIENCE AND TECHNOLOGY,**| ||**NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM - 695033,**| ||**REPRESENTED BY THE DIRECTOR.**| |**4**|**THE DISTRICT SCHEDULED CASTE/SCHEDULED TRIBE**| ||**DEVELOPMENT OFFICER,**| ||**UP HILL, MALAPPURAM DISTRICT - 676 505.**| ||**R3 BY ADV. SMT.SHAMEENA SALAHUDHEEN**| **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27-09-2019, ALONG WITH WA.2041/2019, THE COURT ON 28-04-2020 DELIVERED THE FOLLOWING:** W.A. Nos.2041 & 2042/2019 -:3:- **C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ----------------------------------------------------Writ Appeal Nos. 2041 & 2042 OF 2019 -------------------------------------------------------** _Dated this the 28[th] day of April, 2020_ ## **J U D G M E N T** ## _**Abdul Rehim, J.**_ The appellants in both the writ appeals are the petitioners in the respective writ petitions, challenging common judgment of the Single Judge, dated 3[rd] September, 2019. The respondents herein are the respondents in the writ petitions. 2. Brief facts involved are as follows. W.P.(C) 21689/2019, corresponding to W.A. No.2041/2019, was filed by an Association running a multi-speciality hospital at Kasaragod. With the intention of starting a paramedical course, 'Diploma in Medical Laboratory Technology(D.MLT)', they submitted applications before the Government seeking permission for W.A. Nos.2041 & 2042/2019 ## -:4:- starting the course, in the year 2014. The Government deputed an Assistant Professor in Microbiology working at the Medical College Hospital, Kozhikode in order to conduct inspection. The writ petitioner was permitted to make payment of the inspection fee of `25,000/-. On inspection certain deficiencies were pointed out, which the petitioner had rectified. A further inspection was conducted through the District Medical Officer, Kasaragod, to evaluate the rectifications made. Through the report submitted by the District Medical Officer dated 04.05.2015, it was pointed out that all the deficiencies stand rectified. The State Government, through an intimation dated 06.07.2015, informed that 'No Objection Certificate (NOC)' can be issued for starting D.MLT course for 30 students, subject to consent of the writ petitioner with respect to the number of students. The petitioner expressed their willingness through a letter sent on 08.03.2016. But no action was taken thereafter W.A. Nos.2041 & 2042/2019 -:5:- by the Government to issue the NOC. This prompted the writ petitioner to approach this court in W.P.(C) No.37991/2016. Through judgment dated 29.11.2016, the said writ petition was disposed of with a direction to the Government to take a decision in accordance with law on the request for issuance of NOC. But the Government through a cryptic letter dated 16.03.2017 intimated the writ petitioner that “ _the State Government has more institutions than it needs and is capable of managing”_ . Therefore the request for granting the NOC was rejected. The said decision was challenged before this court in W.P.(C) No.19124/2017. In that writ petition, through an interim order passed on 26.09.2017, this court directed the Government to issue orders allowing the writ petitioner to commence the course for the year 2017-2018. Further, through another interim order passed on 31.10.2017, this court directed that the petitioner's institution shall be included in the website of W.A. Nos.2041 & 2042/2019 -:6:- the 'LBS Centre for Science and Technology', the agency which is making the admissions. It was also directed, if any option is received from intending students, allotment shall be made with respect to 50% of the seats in the Government quota. W.P.(C) No.19124/2017 is pending disposal before this court. Thereafter, when notification was issued by the Government with respect to the admission for the year 2018-2019, name of the institution of the writ petitioner was not included in the website. Therefore the petitioner again filed W.P.(C) No.33037/2018. Through a common order passed by this court in the said case along with W.P.(C) No.30540/2018, dated 13.11.2018, the Government was directed to include the petitioner's college also in the common admission process and to allot necessary students, in accordance with law. In compliance of the said interim order, name of the petitioner's institution was included, but it was specifically noticed in the list W.A. Nos.2041 & 2042/2019 -:7:- that no allotment will be made. Therefore the petitioner again filed another interim application in W.P.(C) No.33037/2018, on the basis of which students were allocated to the petitioner's institution. When admission for the academic year 2019-2020 was notified, again the respondents have not included name of the petitioner's institution in the website. Therefore, the present writ petition was filed seeking direction to the respondents to grant NOC and the permission required to start the D.MLT course in the institution of the writ petitioner, by including the name of the petitioner/Society in the website for admissions to the paramedical courses. 3. Facts involved in W.P.(C) No.21403/2019 corresponding to W.A. No.2042/2019, are almost identical. The courses intended to be started in that case are, Diploma in Dialysis Technology(DDT) and Diploma in Operation Theater and Anesthesia Technology(DOTAT). The first application for W.A. Nos.2041 & 2042/2019 -:8:- approval was submitted in the year 2011 by making payment of the required fee. Initially the Government deputed the Principal of the Government Medical College, Kozhikode for conducting inspection, who in turn submitted a favourable report on 18.05.2016. The Government issued 'No Objection Certificate(NOC)' for starting the courses, with an in take of 4 and 15 seats, respectively, from the academic year 2016 onwards, subject to the condition stipulated. Accordingly, the petitioner executed agreement with the Government for allotment of 50% seats in the Government quota. But thereafter the Government again directed the Director of Medical Education to conduct a further inquiry. The petitioner replied that the further inspection will be a redundant exercise in view of the earlier inspection conducted and the report submitted. But the Government thereafter issued a similar letter as in the case of the first case, rejecting the request for permission to ## W.A. Nos.2041 & 2042/2019 -:9:- start the courses, by stating the reason that “ _the State Government has more institutions than it needs and is capable of managing”._ The petitioner challenged the above said order before this court in W.P.(C) No.5721/2017. This court, by following the judgment of a Division Bench in W.A. No.1176/2017, allowed the writ petition to the extent of quashing the Government order. The respondents were directed to issue the 'Letter of Permission' as sought for by the petitioner within two months. With respect to the academic year 2018-2019, the same “drama” continued, which compelled the petitioner to approach this court again in W.P.(C) No.30540/2018. It was through a common order passed in this case along with the earlier case, that on 13.11.2018 this court directed the writ petitioner to make an application before the forum concerned and the respondents were directed to issue permission if it is found that the institution has sufficient W.A. Nos.2041 & 2042/2019 -:10:- infrastructure. In compliance with the interim order, the institution of the petitioner was included in the list published. But it was noticed that no allotment will be made. When a subsequent interim application was filed, the allotment of students were made to the petitioner's institution also. With respect to the academic year 2019-2020, again the respondents refused to include the petitioner's institution in the website published. That prompted the writ petitioner to file the present writ petition seeking necessary direction for inclusion of the petitioner's institution for allotment of candidates for the academic year 2019-2020. 4. The above said writ petitions were considered by the Single Judge along with few other writ petitions of similar nature. This court considered the question whether the State is duty bound to issue NOC for starting the Diploma courses, as sought for by the petitioners. Whether the reason mentioned by W.A. Nos.2041 & 2042/2019 -:11:- the State Government for declining the grant of NOC, that, “ _the State Government has more institutions than it needs and is capable of managing”_ , which was taken as a matter of policy, is sustainable or not, was examined by the learned Single Judge. It was observed that, education is a matter of right of an eligible person to pursue and the State Government cannot restrict the nature of education to the needy and qualified persons. It was observed that the petitioners have submitted applications for permission much earlier and various developments have taken place in between. In some of the cases, the writ petitioners had even executed agreement with the Government for sharing of the seats. Hence the petitioners were under the impression that there is every likelihood of the Government granting permission for NOC for starting the courses. It was also noticed that, in the cases at hand this court issued directions with respect to the previous academic years, which was not complied with. The W.A. Nos.2041 & 2042/2019 -:12:- facilities were provided by the respective institutions with the legitimate expectation of getting permission for starting the courses. There is no case for the Government that necessary infrastructure facilities are not provided by the petitioners to start the courses. There is also no case for the State Government that the petitioners have withdrawn any of the facilities, after providing the same. The learned Single Judge noticed that, education is a fundamental right enjoyed by persons who are entitled to secure admission to any course in accordance with law. Therefore it is found that the orders impugned are passed by the Government without assimilating the correct factual situation and the point of law involved in the issue. Consequently, the orders passed by the Government, which were impugned in the writ petitions, were quashed. However, the learned Single Judge directed the State Government to reconsider the issue, after providing sufficient W.A. Nos.2041 & 2042/2019 -:13:- opportunity of personal hearing to the petitioners and to finalize the matter afresh, which was directed to be done within a month from the date of receipt of a copy of the judgment. 5. The appellants are aggrieved by the non issuance of specific direction to issue the NOC to the courses applied for, despite the finding arrived that the reason for rejection of the NOC mentioned by the Government is not sustainable on facts as well as in law. 6. We heard Sri.George Poonthottam, learned Senior Counsel appearing for the appellants, Sri. M.A. Asif, learned Senor Government Pleader appearing for the State Government and its officials, as well as Advocate Shameena Salahudheen appearing for the LBS Centre for Science and Technology. 7. In both the cases it is evident that the petitioners were pursuing the matter before the Government since the year W.A. Nos.2041 & 2042/2019 -:14:- 2014-2016 onwards. In both the cases the Government have accorded sanction for starting the courses, much earlier. Further, it is to be noted that, this court had issued repeated directions, through interim orders as well as through judgments, for granting of NOC. Evidently those directions were not seen complied with. The Government was repeating the same course of action in not including the petitioner's institutions, whenever new admissions are notified through the website. As found by the learned Single Judge, there is no inadequacy of any facilities nor it is pointed out that there occurred any laches on the part of the writ petitioner in complying with the stipulations made by the Government. Since the Single Judge has categorically found that the reasoning mentioned for rejection of the NOC was not sustainable and since it was found that the petitioner's have got a fundamental right to pursue the courses, it was not just, proper and expedient for the learned W.A. Nos.2041 & 2042/2019 -:15:- Single Judge to have relegated the matter again for consideration by the Government. We take note of the decision rendered by a Division Bench of this court in **State of Kerala v. MGM College of Arts and Science, TVM(2017 (3) KLT 779),** wherein it is held that, since the right of education is a fundamental right, the Government cannot take a policy decision that no affiliation need to be granted to the colleges. 8. Through an interim order passed by this court on 27.09.2019, the respondents were directed to include the name of the appellants/writ petitioners institutions in the website and to make allotment of students for the respective paramedical courses notified in the current year. The LBS Centre for Science and Technology was directed to allot students with respect to 50% of the seats in both the institutions, for the academic year 2019-2020. 9. Under the above mentioned circumstances we are of W.A. Nos.2041 & 2042/2019 -:16:- the considered opinion that the Government can be directed to issue permission for starting of the respective courses applied for by the appellants/writ petitioners and to issue 'No Objection Certificate' for the said purpose. Hence, the above writ appeals are hereby allowed. The impugned judgments of the Single Judge in W.P.(C) 21689/2019 and W.P.(C) 21403/2019 are modified to the above said extent. The permission for starting the course as well as the issuance of NOC to the institutions for running the courses concerned, shall be issued at the earliest, at any rate, within a period of one month from the date of receipt of a copy of this judgment. **Sd/- C.K. ABDUL REHIM, JUDGE.** **Sd/- R. NARAYANA PISHARADI, JUDGE** . ul/- W.A. Nos.2041 & 2042/2019 -:17:- ## **APPENDIX OF WA 2041/2019** **PETITIONER'S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE NOTIFICATION NO.B3/4406/2019/DME ISSUED BY THE 1ST RESPONDENT DATED SEPTEMBER 20,2019** W.A. Nos.2041 & 2042/2019 -:18:- ## **APPENDIX OF WA 2042/2019** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE NOTIFICATION NO.B3/4406/2019/DME ISSUED BY THE 2ND RESPONDENT DATED SEPTEMBER 20,2019.**