W.P.(C). Nos. 23154/2021, 27429/2021 and 28312/2021 – Sree Anjaneya College of Nursing, Malabar Medical College Campus, Kozhikode; Nehru College of Educational & Charitable Trust (Nehru College of Nursing) v State of Kerala & Others

W.P.(C).Nos.23154, 27429 & 28312 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA,** ## **1943** ## **WP(C) NO. 23154 OF 2021** ## **PETITIONER:** SREE ANJANEYA COLLEGE OF NURSING MALABAR MEDICAL COLLEGE CAMPUS, MODAKKALLUR, ATHOLI, KOZHIKODE-673 315 REPRESENTED BY ITS CHAIRMAN-V.ANIL KUMAR. BY ADVS. S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 KERALA UNIVERSITY OF HEALTH SCIENCES THRISSUR-680 596 REPRESENTED BY ITS REGISTRAR. 3 KERALA STATE NURSES AND MIDWIVES COUNCIL RED CROSS ROAD, JAI VIHAR, KUNNUKUZHY, THIRUVANANTHAPURAM-695 035 REPRESENTED BY ITS REGISTRAR. 4 INDIAN NURSING COUNCIL 8TH FLOOR, NBCC CENTRE, PLOT NO.2, OKHLA PHASE-I, NEW DELHI-110 20. REPRESENTED BY ITS SECRETARY. BY ADVS. SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES N.RAGHURAJ, SC W.P.(C).Nos.23154, 27429 & 28312 of 2021 2 DR ABRAHAM P MEACHINKARA, SC SRI RAMANAND KB SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2021 ALONG WITH W.P.(C)NO.27429 OF 2021 AND W.P.(C) NO.28312 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).Nos.23154, 27429 & 28312 of 2021 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA,** **1943** ## **WP(C) NO. 27429 OF 2021** ## **PETITIONER:** THE CHAIRMAN & MANAGING TRUSTEE NEHRU COLLEGE OF EDUCATIONAL & CHARITABLE TRUST, NILA GARDENS, PAMPADI, THIRUVILWAMALA, THRISSUR DISTRICT BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE J.VISHNU ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. 2 KERALA UNIVERSITY OF HEALTH SCIENCES, MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O.,THRISSUR DISTRICT-680 596. REPRESENTED BY THE REGISTRAR 3 LBS CENTRE FOR SCIENCE AND TECHNOLOGY, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS DIRECTOR BY ADV SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES SMT SHAMEENA SALAHUDHEEN, SC SRI KB RAMANAND SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2021 ALONG WITH W.P.(C)NO.23154 OF 2021 AND W.P.(C) NO.28312 OF 2021,, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).Nos.23154, 27429 & 28312 of 2021 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA,** ## **1943** ## **WP(C) NO. 28312 OF 2021** ## **PETITIONER:** SREE ANJANEYA COLLEGE OF NURSING MALABAR MEDICAL COLLEGE CAMPUS, MODAKKALLUR, ATHOLI, KOZHIKODE-673315 REPRESENTED BY ITS CHAIRMAN - V. ANILKUMAR, BY ADVS. S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 KERALA UNIVERSITY OF HEALTH SCIENCES THRISSUR-680596 REPRESENTED BY ITS REGISTRAR, 3 KERALA STATE NURSES AND MIDWIVES COUNCIL RED CROSS ROAD, JAI VIHAR, KUNNUKUZHY, THIRUVANANTHAPURAM-695035 REPRESENTED BY ITS REGISTRAR 4 INDIAN NURSING COUNCIL 8TH FLOOR, NBCC CENTRE, PLOT NO.2, OKHLA PHASE-I, NEW DELHI-11020. REPRESENTED BY ITS SECRETARY W.P.(C).Nos.23154, 27429 & 28312 of 2021 5 BY SRI N.RAGHURAJ, SC SRI P SREEKUMAR, SC SRI KB RAMANAND SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2021 ALONG WITH W.P.(C) NO.23154 OF 2021 AND W.P.(C)NO.27429 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).Nos.23154, 27429 & 28312 of 2021 6 ## **“CR”** ## **JUDGMENT** The Chairman and Managing Trustee of the Nehru College of Educational and Charitable Trust have preferred W.P.(C) No.27429 of 2021 challenging Ext.P9 and P12 orders issued by the Kerala University of Health Sciences (“KUHS” for short). By the orders impugned, the request submitted by the petitioner for enhancement of seats from 60 seats to 90 seats for the B.Sc Nursing course in the Nehru College of Nursing established and administered by them was declined by the University. 2. The Sree Anjaneya College of Nursing has preferred W.P.(C) No.23154 of 2021 seeking issuance of directions to the 1st respondent to consider the application submitted by them for issuance of Essentiality Certificate/NOC for enhancement of seats and for a direction to the KUHS to issue consent of affiliation. During the pendency of W.P.(C) No.23154 of 2021, the Essentiality Certificate (“EC” for short) was issued by the Government. Their request for enhancement of seats from 50 seats to 90 seats however was rejected by the University by Ext.P3 order. The said order is challenged by the institution by preferring W.P.(C) No.28312 of 2021. 3. As the rejection order passed in these cases revolves around the interpretation of the relevant provisions of the First Statute of the W.P.(C).Nos.23154, 27429 & 28312 of 2021 7 KUHS which was amended as per notification dated 24.02.2020, these writ petitions are taken up and are disposed of by a common judgment. 4. Brief facts of the case as is discernible from the pleadings are as under:- W.P.(C) No.27429 of 2021 is preferred by the Nehru College of Educational and Charitable Trust which runs the Nehru College of Nursing at Palakkad. The College commenced its functioning in the academic year 2012-2013 and conducts B.Sc Nursing Course for the students who secure admission there. It was after obtaining NOC from the State Government, approval from the Indian Nursing Council Act (“INC” for short) and the Kerala Nurses and Midwives Council (“KNMC” for short) that the institute had commenced its functioning. The Nursing College is attached to the P.K. Das Institute of Medical Sciences, a fully-fledged 650 bed super speciality hospital, with all infrastructural facilities and amenities. Their request for enhancement of intake was finally granted by the respondents and the institution was permitted to enhance their intake to 60 seats from the academic year 2018–2019. 5. After a couple of years, the petitioner felt that they are in a position to accommodate more students. They submitted applications before the respondents and sought for enhancing the intake of seats from 60 seats to 100 for the academic year 2021-2022. The petitioner states that the State Government obtained a report from the Director of Medical W.P.(C).Nos.23154, 27429 & 28312 of 2021 8 Education, and by Ext.P7 order dated 03.02.2021 granted permission to enhance the seats from 60 to 100 for the academic year 2021-2022. Immediately thereafter, the petitioner forwarded Ext.P7 order to the KUHS. The petitioner was informed that the enhanced batch of the academic year 2018-2019 would be considered as a fresh batch and their application for further enhancement of seats would be considered only after the said batch passes out in the academic year 2022-2023. It is contended that the refusal by the KUHS is illegal and arbitrary as there is no stipulation in the Act or the Statute to support the stand taken by the University. 6. The petitioner contends that based on the application filed by the petitioner, the KNMC has issued Ext.P13 order granting permission to enhance the seats from 60 to 90 for the academic year 2021-2022. According to the petitioner, in view of the EC granted by the Government and the permission granted by the KNMC, there was no justification on the part of the 2nd respondent to refuse their request. 7. Armed with Ext.P13, the petitioner again approached the KUHS and filed Ext.P14 representation requesting that their application be considered in the light of Exts.P7 and P13. However, by Ext.P17 order their request for enhancement of seats was rejected on the ground that the 1st batch for which the last seat enhancement was granted had not yet passed out. The aforesaid order is under challenge. W.P.(C).Nos.23154, 27429 & 28312 of 2021 9 8. W.P.(C) Nos.28312 and 23154 of 2021 are preferred by Sree Anjaneya College of Nursing. It is contended that their School of Nursing is administered by Sree Anjaneya Medical Trust, Kozhikode and they have been offering four-year B.Sc Nursing course from the academic year 2011-2012 with an intake of 40 seats. The course is affiliated with the KUHS and is recognized by the Government, the INC and KNMC. During the academic year 2018-19, based on the application filed by the petitioner, the number of seats were enhanced to 60 seats. The petitioner contends that the institution has the infrastructural facility and amenities to have an intake of 100 seats and in the said circumstances they submitted Ext.P1 application for grant of essentiality certificate/NOC from the Government. Simultaneously, they approached the KUHS and submitted Ext.P2 application seeking to enhance the intake to 100 seats. The petitioner contends that pursuant to interim directions issued by this Court in W.P.(C) No.23154 of 2021, the 1st respondent issued essentially certificate to the petitioner and granted enhancement of seats from 60 to 80 by order dated 25.11.2021. However, their request was not considered favourably by the KUHS. It is contended that when the matter was taken up by this Court on 26.11.2021, it was submitted before this Court by the Standing Counsel appearing for the KUHS that the application for enhancement submitted by the petitioner had been rejected on 14.05.2021. Ext.P3 is the copy of the said order. The petitioner asserts that Exhibit P3 was brought to their notice only on 26.11.2021. What is stated in Ext.P1 is that the request for enhancement of seats cannot be W.P.(C).Nos.23154, 27429 & 28312 of 2021 10 considered for the academic year 2021-22 as the 1st batch after enhancement of seats from 40 to 60 during the academic year 2018-19 has not passed out and their request would be considered for the academic year 2022-23 when the batch of 2018-19 passes out. Ext.P3 is under challenge in the said writ petition. 9. Separate statements have been filed by the learned Standing Counsel appearing for the 2nd respondent in both the writ petitions. An additional statement has been filed in W.P.(C) No.27429 of 2021. While countering the contentions, it is stated that the KUHS First Statutes provides for the procedure to be adopted in granting affiliation. The relevant provisions in Chapter XXI of the Statute provide that in the case of additional courses and/or for enhancement of seats, the colleges will have to satisfy the condition that 1st batch of the courses in the institution under the same stream has passed out. The details of the average pass percentage of previous regular examination of all existing batches of the same course at the time of submitting the application are to be furnished. The institution will have to file a declaration stating that the percentage is not below the minimum prescribed by the governing council in the notification issued by the University for the purpose of the addition/enhancement concerned. Relying on the said provision it is contended that a batch with an additional intake is deemed as a new batch and as the 2018-19 batch with enhanced intake will pass out only in the W.P.(C).Nos.23154, 27429 & 28312 of 2021 11 academic year 2022-23, the application could be taken up only thereafter. It is stated that the University being the affiliating and examining body has the primary duty to ensure that the standards in the institution are properly maintained and only qualified health professionals pass out of the institution. It is further stated that the evaluation of the standards is a continuous process and the same could be assessed only through the evaluation of the performance of the batches of the students. In the case of nursing courses, the student patient ratio of 1:3 and the teacherstudent ratio of 1:10 is to be maintained. In such circumstances, the University would be justified in treating the batch with an increased intake as a fresh batch to assess the performance of the institution with the increased intake. It is further stated that the claim of the petitioner that the University has to permit the enhanced intake in the light of the orders issued by the Central and State Council cannot be legally sustained. According to the 2nd respondent, affiliation is distinct and different from permission and recognition and the University is the sole authority to prescribe the norms for the grant of affiliation and to grant the same. 10. Sri George Poonthottam, the learned senior counsel as instructed by Sri.Arun Chandran, the learned counsel advanced arguments for and on behalf of the petitioner in W.P.(C) No.27429 of 2021. It is contended by the learned senior counsel that the Government, as well as the Central and State councils, have passed orders allowing enhancement W.P.(C).Nos.23154, 27429 & 28312 of 2021 12 of seats. The KUHS has not raised a contention that the facilities or the amenities in the college are deficient in any respect. The only reason given to reject the application is that the University is bound to ascertain as per the express provisions of the statute, the pass percentage of the 2018-19 batch, treating it as a fresh batch. According to the learned senior counsel, the institution had commenced functioning in the academic year 2012-2013 and has been functioning in an exemplary manner with a much higher pass percentage than the threshold fixed by the governing council. The learned counsel would refer to Ext.P18 notification dated 24.02.2020 as per which Chapter XXI of the KUHS First Statute 2013 was amended and it is contended that it is based on the amendments so carried out that Exts.P9, P12 and P17 orders have been issued. According to the learned senior counsel, Section 46 of the KUHS Act states that amendment to all Statutes, Ordinances and Regulations made under the KUHS Act, 2010 shall be published by the University in the gazette. It is urged that though an amendment is stated to have been made, the same having not been notified in the gazette, the same will have no force of law and is void and unenforceable. To substantiate the said contention reliance is placed by the learned senior counsel on the law laid down in **Rajendra Agricultural University v Ashok Kumar Prasad and others** [(2010) 1 SCC 730]. It is contended by the learned senior counsel that even if the amendment brought to the provisions of the First Statute is assumed to be W.P.(C).Nos.23154, 27429 & 28312 of 2021 13 valid, the interpretation made by the University to the statutory provision is perverse. All that is contemplated is the passing out of the 1st batch of the course under the same stream and also that the average pass percentage of all the existing batches satisfy the requirement fixed by the governing council. It is contended that the stream mentioned in the Statute can only be the B.Sc nursing stream and the 1st batch would be the batch for which affiliation was initially granted by the KUHS. According to the learned counsel, by thoroughly misinterpreting the provisions of the Statute, which has not even come into force, the rights of the petitioner to impart education has been curtailed by the 2nd respondent. 11. Sri. Vinod Bhat, the learned counsel appearing for the petitioner in W.P.(C) No.23154 of 2021 and 28312 of 2021 adopted the arguments of the learned senior counsel. According to the learned counsel, the 2nd respondent has no legal authority under the parent Statute or its First Statute to deny the right of the petitioner to have an enhanced intake of students and according to the learned counsel, the impugned order is clearly illegal and arbitrary. 12. Sri.P.Sreekumar, the learned standing counsel appearing for the 2nd respondent sought to justify the impugned orders. According to the learned counsel, Section 41 of the KUHS Act provides for the procedure for framing Statutes and the said provision states that no statute shall be valid or will come into effect until assent is given by the W.P.(C).Nos.23154, 27429 & 28312 of 2021 14 Chancellor. According to the learned counsel, as the assent has been given by the Chancellor on 02.12.2019 as is evident from Ext.P18, the Statute would be operative from that date. The learned counsel would refer to Ext.R2(A) and it is pointed out that the Government has approved the amendments. The University had prepared the notification for publication of the amended Statute in the official gazette and the same was forwarded to the government press as is evident from Annexure R2(C). However, the notification has not been published in the Official Gazette, for which the University cannot be blamed. It is also stated that with the intent to give proper notice to the students and institutions, the University has published the amended Statutes on its website and this would be sufficient notice to the institutions and Students. Relying on the provisions of the amended Statute, it is urged that the University would be treating the batch in respect of which enhancement of intake was granted, as a fresh batch and only after the said batch passes out that the application for further enhancement can be considered. Finally, it is submitted that the University is vested with the duty to ensure that minimum standards are maintained in every affiliated institution and it is only after the enhanced batch passes out will the University be able to assess the performance of the institution as well as the students. 13. I have anxiously considered the submissions advanced and have gone through the entire records. On the basis of the contentions W.P.(C).Nos.23154, 27429 & 28312 of 2021 15 urged, the issues which arise for consideration are as follows: a) In the absence of publication of the amended provisions of the Kerala University of Health Sciences First Statutes, 2013 in the Official Gazette as required by Section 41 and Section 46 of Act 4 of 2011, whether a Statute made under Sections 40/41 and assented by the Chancellor under Section 41(vi) can be said to have come into effect and operative. b) Even if the amended provisions of Chapter XXI are taken to be valid and enforceable, was the University justified in interpreting the amended provision to mean that for sanctioning of enhanced intake, it would be necessary for the batch in respect of which enhancement of intake was granted during the academic year 2018-2019 need to pass out. 14. The Kerala University of Health Sciences Act, 2010 (Act 4 of 2011) was enacted to establish and incorporate the University of Health Sciences in the State of Kerala and to provide for matters connected therewith or incidental thereto. Section 2(y) of the Act defines “Statutes”, “Ordinances” and “Regulations”. The same reads as follows: 2 (y) "Statutes", "Ordinances" and "Regulations" mean respectively the Statutes, Ordinances and Regulations of the University; 15. Section 40 of the Act confers powers on the governing council W.P.(C).Nos.23154, 27429 & 28312 of 2021 16 to make statutes to provide for the administration and management of the affairs of the University. Section 40(2)(xi) provides that the Statute may provide for the conditions and procedure for the affiliation of colleges or for withdrawing the affiliation of colleges. 16. Section 41 of the Act provides for the procedure for making ## Statutes. Section 41 reads thus: ## 41. Procedure for making Statutes (1) Notwithstanding anything contained in this Act, the Government shall make the first Statute of the University. (2) The Governing Council may, from time to time, make new or additional Statutes or may amend or repeal the Statutes referred to in sub-section (1). (3) The Statute may be made, amended or repealed by the Governing Council in the manner hereinafter provided:-- (i) The Governing Council may take into consideration the draft of a Statute either moved by any member of the Council or on a proposal by the Vice-Chancellor; (ii) The Governing Council, if it thinks necessary may also obtain the opinion of any officer, authority or body, of the University in regard to any draft Statute which is before it for consideration: Provided that, where any such draft Statute pertains to academic matters, the Governing Council shall obtain the opinion of the Academic Council before considering the same; (iii) The Governing Council shall not propose the draft of a Statute or of an amendment to a Statute affecting the status, powers or constitution of any authority of the University until such authority has been given an opportunity of expressing an opinion upon the proposal and any opinion so expressed shall be in writing and shall be considered by the Governing Council. (iv) No Statute providing for the conditions for, or procedure relating to, the affiliation of private colleges shall be passed by the Governing Council without the previous approval of the Government. (v) Every Statute passed by the Governing Council shall be submitted to the Chancellor who may give or withhold his assent thereto, or send it back to the Governing Council for W.P.(C).Nos.23154, 27429 & 28312 of 2021 17 reconsideration; (vi) No Statute passed by the Governing Council shall be valid or shall come into force until assented to, by the Chancellor. 17. It is in the exercise of powers conferred by subsection (1) of Section 41 of Act 4 of 2011 that the Government of Kerala had framed the Kerala University of Health Sciences First Statutes, 2013 and the same was published in the gazette on 29.04.2013. Section 41 (v) says that every statute passed by the Governing Council shall be submitted to the Chancellor who may give or withhold his assent thereto or may send it back to the Governing Council for reconsideration. Unless assented to by the Chancellor no statute passed by the Governing Council shall be valid or shall be deemed to have come into force. 18. Section 46 of Act 4 of 2011 provides for publication in the Gazette. The provision read thus: ## Section 46. All Statutes, Ordinances and Regulations made under this Act shall be published by the University in the Gazette. The requirement under Section 46 is that all the Statutes, Ordinances and Regulations made under the Act shall be published by the University in the Gazette. 19. In the case on hand, the request made by the petitioners for enhancement of intake was rejected by the KUHS based on the amendment carried out to Chapter XXI of the KUHS First Statutes, 2013. W.P.(C).Nos.23154, 27429 & 28312 of 2021 18 The notification as per which amendment was brought about has been produced as Ext.P18 in W.P.(C) No.27429/2021. The notification is seen issued on 24.02.2020. In the statement filed by the Standing Counsel, it is stated that in terms of the provisions of Section 41 of Act 4 of 2011 the Chancellor has granted assent on 02.12.2019. Thereafter, the University prepared the notification and forwarded the same for publication in the Official Gazette in order to comply with the provisions of Section 46 of the Act. There is no dispute with regard to the fact that the notification has not been published in the Official Gazette. 20. In **Rajendra Agricultural University** (supra), relied on by the learned senior counsel appearing for the petitioner, the question was whether a Statute made under Section 36 of the Bihar Agricultural Universities Act, 1987 providing for the benefit to the teaching staff for which assent has been given by the Governor can be enforced in the absence of publication in the Official Gazette. The Apex Court took note of the fact that under Section 36 of the Bihar Agricultural Universities Act, 1987, a new Statute or a Statute amending or repealing an existing Statute will have no validity unless it has been assented to by the Chancellor. The provisions of the Act also mandated that all Statutes made under the Act shall be published in the Official Gazette. While repelling the argument of the University that the requirement was only directory and not mandatory and that there was no requirement to notify such W.P.(C).Nos.23154, 27429 & 28312 of 2021 19 subordinate legislation by publishing in the Gazette, the Apex Court had occasion to lay down the principles in para 12 as under: **12.** Section 36 of the Act lays down three steps for making or amending a statute. They are: (a) The statute should be made by the Board of Management in the manner specified in sub-section (1); (b) The statute should be approved and assented by the Chancellor; (c) The statute so made and assented, shall be published in the Official Gazette. When the Act lays down the manner in which a Statute under the Act should be made, it shall have to be made in that manner and no other. The requirement that the statute should be published in the Official Gazette is an integral part of the process of “Statute making” under Section 36 of the Act. It is mandatory and not directory. Until publication in the Official Gazette, the Statute will be considered as still being in the process of being made, even if it had received the assent of the Chancellor. A “Statute in the making” or a “Statute-in-process” is incomplete and is neither valid nor effective as a Statute. So long as the Statute is not completely made, but is still in the process of being made, it can be cancelled or withdrawn or modified, without the need for “publication” of such cancellation, withdrawal or modification. The Chancellor kept the “Statute-in-process” W.P.(C).Nos.23154, 27429 & 28312 of 2021 20 pending and later reconsidered it and held that the Statute proposing the time-bound promotion scheme was stillborn and non est. 21. After reiterating the principles it was held in paragraph 19 of the judgment that several reasons might have contributed to making of a statutory provision providing for publication of all Statutes in the Official Gazette. All those reasons may not apply or exist in regard to the making of an individual statute. But once the law lays down that publication of a Statute in the Official Gazette is a part of the process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and on the other hand, fulfilment of the requirement to make public the Statute by publication in the Official Gazette becomes mandatory and binding. 22. In view of the succinct enunciation of the law by the Hon’ble Supreme Court, the contention of the 2nd respondent that the failure of the respondents to publish the amended Statutes in the Gazette will not affect the validity and purport of the amendment cannot be sustained. In view of Rule 46 of Act 4 of 2011, the Statute, Ordinance or Regulation to have the force of law will have to be published in the Official Gazette. The publication of the Statute is mandatory and not directory. Until its publication in the Official Gazette, even if assent has been obtained by the Chancellor, the Statute will not have the force of law and cannot be W.P.(C).Nos.23154, 27429 & 28312 of 2021 21 effective as a Statute. In view of the above, the 2nd respondent was not justified in relying on the provisions of the amended Statute to decline enhancement of intake to the petitioners. 23. The counsel appearing for the petitioners have raised a contention that the amended provisions of the Statute, has been grossly misinterpreted by the 2nd respondent to refuse sanction for enhanced intake. In other words, their contention is that even if it is considered that the Statute is valid and has the force of law, the interpretation given to it by the 2nd respondent cannot be sustained. In view of the arguments advanced, it would only be proper to consider the said submission as well. 24. The controversial clause in Chapter XXI of the Statute reads as follows: v) In the case of additional courses and/or for enhancement of seats, the colleges shall satisfy the condition that 1st batch of the courses in the institution under the same stream shall be passed out and the details of the average of pass percentage of previous regular examinations of all existing batches of the same course at the time of submitting the application and a declaration that the percentage is not below the minimum prescribed by the Governing Council in the Notification issued by the University for the purpose of the addition/enhancement concerned. 25. Admittedly, both the institutions are conducting B.Sc Nursing W.P.(C).Nos.23154, 27429 & 28312 of 2021 22 Course after obtaining affiliation from the University and requisite permissions from the Government, the INC and the KNMC. As per the Oxford Advanced Learner’s Dictionary (7th Edition), the word ‘stream’ is defined to mean “ a group in which students of the same age and level of ability are placed in some schools”. In other words, through this process, the students of similar skills are put under a similar category or group. Stream in educational parlance would also mean a specific course or a certain academic field chosen by a student. A student may take a particular stream to pursue a specialization in that field. The only requirement as per the amended Statute is that for enhancement of seats, the colleges shall satisfy the condition that the 1st batch of the courses in the institution under the same stream has passed out. In the case on hand, stream made mention of in the Statute, can only mean the B.Sc.Nursing Stream. The institutions had commenced functioning during the academic year 2012-2013 and 2011-12 and this fact is undisputed. If that be the case, the first batch of the courses in the institution under the same stream can only be the batch of 2012-2013 and 2011-12 for the respective colleges. On an intelligible reading of the relevant provision, all that it means is that the 1st batch, meaning the batch which started in 2012-2013 or 2011-2012, as the case may be, and pursuing the B.Sc. Nursing Stream has passed out, and that the average pass of previous regular examinations of all existing batches is not below the minimum W.P.(C).Nos.23154, 27429 & 28312 of 2021 23 prescribed by the Governing Council. The 2nd respondent has no case that the pass percentage is less or that the education is imparted for a different stream. The interpretation of the 2nd respondent that the first batch would mean the enhanced batch and that for grant of enhanced intake even for the same B.Sc. Nursing stream, the batch for which enhancement was granted shall have to pass out cannot be accepted. In that view of the matter, the rejection of the request made by the petitioners cannot be sustained under law. 26. In view of the discussion above, I am of the considered opinion that the petitioners have made out a case for interference. The orders impugned in these writ petitions refusing the request for enhancement of intake will stand quashed. The following directions are issued. a) W.P.(C)No.27429 of 2021 will stand allowed. Exts.P9 and P12 will stand quashed. There will be a direction to the 2nd respondent to reconsider the application submitted by the petitioner adverting to Exts.P7 and P13 orders issued by the Government and KNMC respectively and take a decision after conducting inspection if any, within a period of two weeks from the date of receipt of a copy of this judgment. b) W.P.(C) No.23154 of 2021 is closed as infructuous. W.P(C) W.P.(C).Nos.23154, 27429 & 28312 of 2021 24 No.28312/2021 will stand allowed and Ext.P3 will stand quashed. There will be a direction to the 2nd respondent to reconsider the application submitted by the petitioner adverting to the Essentiality Certificate issued by the Government and such other documents made available by the petitioner and take a decision after conducting inspection if any, within a period of two weeks from the date of receipt of a copy of this judgment. c) The 2nd respondent shall expedite the process as the admission is slated to end on 31.12.2021 and the classes are scheduled to commence on 01.01.2022. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** IAP W.P.(C).Nos.23154, 27429 & 28312 of 2021 25 ## **APPENDIX OF WP(C) 23154/2021** PETITIONER'S EXHIBITS: - Exhibit P1 COPY OF APPLICATION NO.SACON/HFWDENHANCEMENT/05/2021 DATED 24.5.2021 PREFERRED BY PETITIONER. - Exhibit P2 COPY OF LETTER NO.SACN/BSc. NURSING/NOC/07/2021 DATED 15.7.2021 OF THE PETITIONER (WITH ENCLOSURES). - Exhibit P3 COPY OF LETTER NO.E/213/2021/CNC DATED 15.9.2021 OF GOVERNMENT COLLEGE OF NURSING, THIRUVANANTHAPURAM. - Exhibit P4 COPY OF LETTER NO.SACON/09/2021 DATED 16.9.2021 SENT BY PETITIONER TO THE PRINCIPAL, GOVT. COLLEGE OF NURSING, THIRUVANANTHAPURAM. - Exhibit P5 COPY OF DEMAND DRAFT NO.486629 DATED 16.9.2021 FOR RS.28,750/-. - Exhibit P6 COPY OF LETTER NO.SACN/H&FWD/NOC/BSc NURSING/010/2021 DATED 6.10.2021 SENT BY THE PETITIONER TO IST RESPONDENT. - Exhibit P7 COPY OF LETTER NO.SACN/DME/NOC/BSc NURSING/010/2021 DATED 8.10.2021 SENT BY THE PETITIONER TO DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. - Exhibit P8 COPY OF LETTER/NOTIFICATION F NO.I6(LT)-2021-INC DATED 7.10.2021 OF 4TH RESPONDENT. - Exhibit P9 COPY OF APPLICATION NO.PAS/2020/252 DATED 31.12.2020 MADE BY THE PETITIONER. - Exhibit P10 COPY OF APPLICATION NO.SACON/KNMC/012/2021 DATED 1/12/2021 SUBMITTED BY PETITIONER W.P.(C).Nos.23154, 27429 & 28312 of 2021 26 ## **APPENDIX OF WP(C) 27429/2021** PETITIONER'S EXHIBITS: - Exhibit P1 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.26100/2018 DATED 29.8.2018 - Exhibit P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ALONG WITH RECEIPT AND DEMAND DRAFT BEFORE THE GOVERNMENT DATED 17.8.2020 - Exhibit P3 TRUE COPY OF THE NOTIFICATION NO. 25494/ACI/GEN A2/2020/KUHS, DATED 27.8.2020 ISSUED BY THE RESPONDENT UNIVERSITY - Exhibit P4 TRUE COPY OF THE CIRCULAR NO. 25494/AC/1/GEN/A2/2019/KUHS DATED 29.12.2020 ISSUED BY THE RESPONDENT UNIVERSITY - Exhibit P5 TRUE COPY OF THE APPLICATION FOR ENHANCEMENT OF SEATS SUBMITTED BEFORE THE UNIVERSITY DATED 30.12.2020 ALONG WITH RECEIPT FOR FEE - Exhibit P6 TRUE COPY OF THE HARD COPY OF THE APPLICATION FOR ENHANCEMENT OF SEATS SUBMITTED BEFORE THE UNIVERSITY, DATED 4.1.2021 WITHOUT ENCLOSURES - Exhibit P7 TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(MS) NO.20/2021/H&FWD DATED 3.2.2021 - Exhibit P8 TRUE COPY OF THE LETTER SENT BY THE PETITIONER ENCLOSING WITH IT THE ORDER OF THE GOVERNMENT PERMITTING ENCHANCEMENT OF SEATS DATED 5.2.2021 - Exhibit P9 TRUE COPY OF THE ORDER NO. 2020/28606/AC11/NSG/A4/KUHS DATED 27.2.2021 ISSUED BY THE RESPONDENT UNIVERSITY W.P.(C).Nos.23154, 27429 & 28312 of 2021 27 - Exhibit P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE UNIVERSITY DATED 17.3.2021 - Exhibit P11 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE INDIAN NURSING COUNCIL DATED 10.6.2021 - Exhibit P12 TRUE COPY OF THE COMMUNICATION NO. 2020/28606/AC11/NSG/A4/KUHS ISSUED BY THE RESPONDENT UNIVERSITY DATED 16.6.2021 - Exhibit P13 TRUE COPY OF THE ORDER NO.G.4785/12/NC DATED 30.10.2021 ISSUED BY THE KERALA NURSES & MIDWIVES COUNCIL - Exhibit P14 TRUE COPY OF THE REPRESENTATION NO. NCET/NCN/04/2021 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT UNIVERSITY DATED 2.11.2021 - Exhibit P15 TRUE COPY OF THE ORDER U.O NO. 885/2021/ACADEMIC/KUHS DATED 2.11.2021 ISSUED BY THE RESPONDENT UNIVERSITY - Exhibit P16 TRUE COPY OF THE RELEVANT PAGES OF THE INDIAN NURSING COUNCIL (REVISED REGULATIONS AND CURRICULUM FOR BSC NURSING PROGRAM) REGULATIONS, 2020 DATED 5TH JULY 2021 - Exhibit P17 TRUE COPY OF THE ORDER BEARING U.O. NO.1009/2021/ACADEMIC/KUHS DATED 8.12.2021 ISSUED BY THE 2ND RESPONDENT UNIVERSITY - Exhibit P18 TRUE COPY OF THE RELEVANT PORTION OF KUHS NOTIFICATION NO.2035/ACH/2015/KUHS, DATED 24.2.2020 - RESPONDENTS' EXHIBITS: ANNEXURE R2A A TRUE COPY OF THE COMMUNICATION DATED 18.7.2019 ISSUED BY THE GOVERNMENT INITMATING THE APPROVAL OF THE AMENDMENTS W.P.(C).Nos.23154, 27429 & 28312 of 2021 28 |ANNEXURE R2B|A TRUE COPY OF THE COMMUNICATION DATED| |---|---| ||6.12.2019 ISSUED FROM RAJ BHAVAN| ||INTIMATING THE ASSENT GIVEN TO THE| ||AMENDED STATUTE| |ANNEXURE R2C|A TRUE COPY OF THE NOTIFICATION DATED| ||24.2.2020 FORWARDED TO THE GOVERNMENT| ||PRESS| |ANNEXURE R2D|A TRUE COPY OF THE SCREEN SHOT SHOWING| ||THE WEBSITE OF THE UNIVERSITY SHOWING| ||THE NOTIFICATION OF THE AMENDED STATUTE| W.P.(C).Nos.23154, 27429 & 28312 of 2021 29 ## **APPENDIX OF WP(C) 28312/2021** PETITIONER'S EXHIBITS: Exhibit P1 A TRUE COPY OF APPLICATION DATED 24-052021, ALONG WITH PROOF OF PAYMENT OF FEE Exhibit P2 THE TRUE COPY OF THE APPLICATION DATED 31-12-2020 SEEKING COA FROM THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF ORDER DATED 14-05-2021 Exhibit P4 THE TRUE COPY OF THE LETTER SENT BY THE SENATE MEMBER, OF THE 2ND RESPONDENT TO THE HON'BLE CHIEF MINISTER OF KERALA RESPONDENTS' EXHIBITS: NIL